§ 7.01 CONSTITUTIONAL SIGNIFICANCE OF THE TERM "SEIZURE"

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§ 7.01. Constitutional Significance of the Term "Seizure"

This chapter defines the term "seizure." Unlike the word "search," which has a single constitutional definition, the word "seizure" requires multiple definitions, one relating to property, and a different definition for seizure of persons. As is the case with searches, the issue of whether police conduct constitutes a seizure is a matter of threshold significance: Unless the police action is a "seizure" (or a "search"), the various restrictions of the Fourth Amendment do not apply.

If police conduct does constitute a seizure, the remaining constitutional issue is whether the seizure was reasonable. With property, this means that the police must often have a search warrant, based on probable cause, or a justification for not securing the warrant.1 In the case of seizure of persons, the police must have adequate cause to seize the individual. In the case of an arrest, the police must have probable cause to make the arrest;2 and if the arrest occurs in the home, an arrest warrant is usually required.3 With personal seizures less intrusive than arrests, a lesser standard—reasonable suspicion— is satisfactory;4 and in relatively few circumstances, the police may briefly seize a person without any suspicion at all.5


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Notes:

[1] See especially Chapter 10, infra.

[2] "Probable cause" is explained in Chapter 8, infra.

[3] See § 9.05, infra.

[4] See § 17.03, infra.

[5] See, e.g., 18.04[B][1], infra.

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