Seizures
A seizure can mean an individual's freedom has been deprived, such as in an arrest situation, or that his belongings are no longer under his control. Persons are "seized" when the conduct of law enforcement officials results in the person believing he cannot leave the area or terminate the encounter. Usually, the conduct is manifested in physical restraint or force of some kind, but intimidation can also result in a seizure.
Where property or belongings are at issue, as in searches, an "expectation of privacy" must exist for the item that is seized. If an item is abandoned, for example, it can be legally seized, since it no longer has an owner who expects privacy.
Can I be lawfully detained or seized by law enforcement without an actual arrest being made?
Yes. You can be detained for a reasonable length of time if a police officer believes criminal activity has occurred, or may occur, with your involvement. An investigative detention or "Terry stop," according to the U.S. Supreme Court, is considered to be justified when an officer has a mere "reasonable suspicion" of criminal activity. An arrest requires the higher standard of "probable cause," i.e., the belief that, in all likelihood, you committed a crime.
If I am physically seized or detained by police officers, have I been arrested?
No. A seizure does not always result in an arrest. Officers are entitled to stop you if they reasonably suspect you are involved in criminal activity.
SIDEBAR: Additionally, if during a stop the officers have a reasonable suspicion that you are armed, they have the right to pat you down for weapons. This is a "stop and frisk," and the courts have held that these limited weapons searches are not unreasonable under the Constitution.
Are vehicle stops at highway or road checkpoints considered to be seizures?
Yes. However, checkpoints are considered to be "reasonable" seizures that do not violate the Constitution if they are conducted according to established procedures and for a specific purpose. For example, a sobriety checkpoint screening all cars specifically for drunk drivers has been held constitutionally permissible.
TIP: You have the legal right to avoid a checkpoint if you can do so without violating a traffic law. If a U-turn is legal, you can make one; otherwise, you may be ticketed for a moving violation.
Are lengthy waits in line at customs checkpoints seizures?
No. The government is not unreasonably detaining a person when at entry points into the United States must wait to go through a routine customs process. Courts have found that a citizen's right against government intrusion in these situations is outweighed by the government's interest in protecting our borders.
Routine interrogation at borders and other entry points into the country does not violate Fourth Amendment protections. In fact, courts have held that it does not apply at all because border searches are, by their very nature, reasonable. Furthermore, it is a long-standing rule of law that expectations of privacy are minimal when you present yourself for entry into the United States.
TIP: Because the government's interest in examining persons and property crossing the border is reasonable, your car, luggage, bags and your person can be searched. You and everyone with whom you are traveling may be questioned, including children. Answer truthfully and courteously. Have your bags, luggage and other items accessible to officials should they wish to search. Generally, your initial cooperation with border officials will quickly end any interrogation.
Are the police violating my right to privacy if they stop me and attempt to ask me questions?
No. As long you feel that you are free to terminate your encounter with the police, you have not been illegally "seized." Law enforcement officers are free to approach you in a public place, without a basis for suspecting you of criminal activity, and ask you questions or talk to you.
How long can I be held in custody without an arrest?
Only as long as is reasonable for the officer to investigate her suspicion that you are involved in criminal activity. The investigation must proceed with due diligence and take no longer than necessary.
If you are stopped and the officer wants to frisk you for weapons, your detention should be short. For example, if you have been accused of shoplifting, you could be detained for the length of time it takes to search your bags, determine if you purchased the items and talk to the store clerks. Once the officer becomes aware that his suspicion of criminal activity has been extinguished, you must be released.
While riding the subway, the transit authority began questioning me and asked to search my bags. I consented because I felt intimidated, and drugs were found. Was this search illegal?
No. Law enforcement, which would include transit officers, can always ask to search your bags and, unless you have been coerced into giving your consent, you were not "seized" and the subsequent search is legal.
SIDEBAR: The courts have held that confining public spaces, which you cannot leave, such as a moving subway or bus, are no different from a city street in considering whether your consent was freely given. You may feel more intimidated in such a situation but, as the officer is not controlling the movement of the subway or bus, she has not "seized" you.
My business records have been seized. How do I get them back?
You file a petition asking the court to return your property, or ask for copies if the records are evidence in a case. If the court no longer needs the records, you should get them back once you show you are the rightful owner.
The police seized my vehicle and it is now up for auction. Do they have to give it back to me?
Not necessarily. Asset forfeiture laws allow law enforcement, in some cases, to auction off certain property (such as a vehicle, computer and even house) that was part of a criminal enterprise. You can go to court and petition for the return of your vehicle, but you must be able to show good cause.
SIDEBAR: "Contraband" is never returned because it cannot be legally possessed in the first place. Contraband includes drugs, counterfeit money, certain obscene materials, and a variety of other items deemed illicit.