From the Incident through the System Legally: Knowledge Base of Legal Concepts

California State University, Dominguez Hills
University of Wisconsin, Parkside
Latest update: January 16, 1999
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Protection against illegal searches and seizures derives from the Fourth Amendment of the United States Constitution and article 1, section 13 of the California constitution.

A search is any intrusion upon the privacy of another. Thus even observations with 200x power binoculars into a person's home is considered a search, for it intrudes on his expectation of privacy.

Seizure has several meanings. (1) A person has been seized when his freedom to move freely, that is, stay or go as he chooses, has ben curtailed. Thus, a detention is a seizure, as is an arrest. (2) A seizure is also the taking of any property from the individual or from his dominion and control. (3) Even a person's conversation is considered his property. So wire tapping constitutes a seizure.

What precisely constitutes a search and seizure is governed by a totality of the circumstances standard. That is, courts will decide on the basis of all the facts of the case.

Secondary authority: J.W. Peltason, Understanding the Constitution, Holt, Rinehart and Winston, New York, 1982 edition.

"The application of the Fourth Amendment is technical, each case often turning on refinements in the facts, and it is an area in which the Supreme Court has had difficulty developing generalizable doctrines. As Justice Powell has written, 'Searches and seizures are an opaque areas of the law.' [Footnote omitted.] ...

"The Constitution does not forbid all searches and seizures, only 'unreasonable' ones. 'Seizures' or what we now call police detentions or arrests are in fact given less constitutional protection than are searches. But in this area of 'seizures,' as well as that of searches, the Court is not often of one mind and each of the cases turns so much on the peculiar facts that generalization is difficult." at 143.