Introduction

Searches, Seizures, and Standing

Introduction

The Fourth Amendment protects the people in their persons, houses, papers, and effects against "unreasonable searches and seizures."¹ Each of the four enumerated objects marks something the government may not enter or take without justification, and the two operative words are search and seizure. The founding-era concern behind them was the general warrant. Under the writs of assistance, customs officials could search wherever they pleased, and James Otis denounced the writs because they gave every petty officer power over every person's liberty. Much of the older English history involved warrants used to seize the papers of people thought to be connected with disfavored publications, and the Amendment's demand that a warrant particularly describe the place to be searched and the things to be seized answers that experience.² The same protections bind the states through the Fourteenth Amendment, so the analysis below applies to a local police officer as it does to a federal agent.³

The Amendment does its work only when government conduct amounts to a search or seizure of one of those protected objects. Conduct that is neither needs no warrant, no probable cause, and no other justification, because the Amendment never comes into play. The definitions of search and seizure therefore form the first gate, and any fact pattern should be run through it before anything else. The second gate concerns the person who complains. A violation ordinarily produces its consequence through the exclusionary rule, which keeps unconstitutionally obtained evidence out of the prosecution's case at trial, and the defendant invokes it by moving to suppress.⁴ The Amendment protects the security of people in their own persons, houses, papers, and effects, so a defendant who moves to suppress must show that the interest invaded was his own.⁵ A defendant who is hurt by the evidence but whose own protected interest was untouched has no claim, however plainly the police overreached against someone else. This second question is called standing, and it asks whether this defendant is the person whose own right was infringed.

Whether a search or seizure was reasonable, whether a warrant was required, and which exceptions excuse a missing warrant are separate questions taught in other readings, and those questions come only after both gates are passed. This chapter takes the two gates in order. It first defines a search, starting with the privacy-based test and then the property-based route that survives beside it, and it applies both to what a person exposes to the public, what a trained dog detects, and what a phone company records. It then defines a seizure, of persons and of their belongings, and finishes with the rules that decide which defendants may challenge what the police did. The modern definition of a search begins with the case that moved the law away from physical trespass, Katz v. United States, and the next section starts there.