Chapter 3: Investigative
Constitutional
Law
Property Seizures and Non-Serches
Chapter 3: Property Seizures
and Non-Searches

The Four Categories of Seizable Things

Not everything a criminal investigator encounters can
necessarily be seized. The court has listed four categories of
property that are potentially seizable.
1. Contraband

Examples of contraband could include narcotics
and paraphernalia, machine guns, sawed-off
shotguns, armor-piercing ammunition, grenades,
explosives, counterfeit printing plates, pirated
DVDs and CDs, forged credit cards and identity
documents, and child pornography.
Investigative Constitutional Law
Chapter 3: Property Seizures
and Non-Searches

The Four Categories of Seizable Things
2. Evidence

For example, blood, hair follicles, skin, semen,
clothing, bedding, condoms and weapons might be
evidence of rape; computers, books, magazines,
DVDs and videotapes could be evidence of
possession of child pornography; weapons and
masks might be evidence of robbery.
3. Fruits of the Crime

This would typically be stolen goods, money,
anything acquired with stolen or forged credit…
Investigative Constitutional Law
Chapter 3: Property Seizures
and Non-Searches

The Four Categories of Seizable Things
…cards, or any assets purchased with the proceeds
of illegal drug trafficking or other criminal
enterprise.
4. Instrumentalities of the Crime

For example, particular devices or implements
could include many kinds of objects, such as a
robbery note, a murder weapon, a computer and
printer for forgeries, drug packaging materials,
lock-picking devices, photography equipment and
storage discs, for example.

Investigative Constitutional Law
Chapter 3: Property Seizures
and Non-Searches

The Four Categories of Seizable Things


In review, the four categories of seizable property are
contraband, evidence and the fruits and instrumentalities of a
crime.
Related Case Law: Cooper v. California, Cardwell v. Lewis,
and California v. Carney
Investigative Constitutional Law
Chapter 3: Property Seizures
and Non-Searches

The General Rule



The term “evidence” may be used generically to include the
other three categories of objects, as well as items having an
evidentiary value but not necessarily fitting the description of
contraband or the fruits or instrumentalities of the crime.
In Warden v. Hayden, the Supreme Court stated the general
rule that the four categories of seizable materials are “evidence
[and] fruits, instrumentalities, or contraband.”
For example, contraband drugs would be evidence of the
commission of a narcotics offense; equipment used for forging
credit cards would be evidence of the forgery; and stolen
property would be evidence of a burglary.
Investigative Constitutional Law
Chapter 3: Property Seizures
and Non-Searches

The Three Requirements for Seizures
1. Lawful Access

If access to seizable objects is acquired via an
earlier unreasonable search, detention or arrest, the
objects could be the suppressible fruits of the
earlier illegality.

For any seizure to be lawful, the seizing officer
must have a lawful right of access to discover and
seize the evidence.

Related Case Law: Horton v. California
Investigative Constitutional Law
Chapter 3: Property Seizures
and Non-Searches

The Three Requirements for Seizures
2. Immediately-recognizable Character

If the object must first be touched or inspected in
some manner in order to determine its contraband
or evidentiary character, the seizure is only lawful
if the officer had an acceptable basis for the
inspection.

The nature of the item must be immediately
apparent.

Related Case Law: Bond v. US, and Arizona v.
Hicks
Investigative Constitutional Law
Chapter 3: Property Seizures
and Non-Searches

The Three Requirements for Seizures
3. Probable Cause to Associate the Item with Criminal
Activity

An officers must have probable cause to believe the
item is evidence, contraband or the fruits or
instrumentalities of crime.

Every seizure must be based on probable cause to
connect the item with some criminal act.

Related Case Law: Payton v. New York, and
Ornelas v. US
Investigative Constitutional Law
Chapter 3: Property Seizures
and Non-Searches

Abandoned Property



The police can retrieve, examine and retain as evidence
any property that reasonably appears to have been
abandoned by the suspect.
Abandoned property supports no reasonable expectation of
privacy or possessory rights, and it can be collected and
examined without a warrant or any justification.
Related Case Law: Hester v. US, Abel v. US, and California
v. Greenwood
Investigative Constitutional Law
Chapter 3: Property Seizures
and Non-Searches

Open Fields




There are some crimes that are committed partially or
entirely in open fields such as marijuana cultivation,
livestock theft, theft of crops, land fraud, trespass, illegal
dumping, and, sometimes, rape and murder.
Generally, forest lands, deserts, farmland, parks and even
extended yards may fall into the open field category.
There is no reasonable expectation of privacy in open
fields, outside the curtilage of the home.
Related Case Law: Oliver v. US, Hester v. US, and Dunn v.
US
Investigative Constitutional Law
Chapter 3: Property Seizures
and Non-Searches

The Four Requirements

The Supreme Court recognized that a “fine-tuned formula”
for determining the extent of the curtilage was not possible,
the court nevertheless gave a list of factors to be considered:
1. The proximity of the area claimed to be curtilage to the
home.
2. Whether the area is included within an enclosure
surrounding the home.
3. The nature of the uses to which the area is put.
4. The steps taken by the resident to protect the area
from observation by people passing by.
Investigative Constitutional Law
Chapter 3: Property Seizures
and Non-Searches

“Curtilage” Definition and Rules
The curtilage is a protected area immediately surrounding
a residence, that enjoys the same Fourth Amendment
protection as the home itself, requiring either a warrant or
some recognized exception for entry, search and seizure.
 The curtilage will typically include the garage, storage
shed, patios and adjacent yard of a home, especially if they
are enclosed by a common fence or wall around the house.
 There is no Fourth Amendment protection for activities or
objects within the curtilage that are exposed to lawful view.

Investigative Constitutional Law
Chapter 3: Property Seizures
and Non-Searches

Third-Party Delivery



When a criminal entrusts incriminating property to a third
party, he or she assumes a risk that the third party will
reveal this to officials.
Police may lawfully take possession of contraband or
evidence, fruits or instrumentalities turned over by a third
party.
Related Case Law: US v. Jacobsen, and US v. Miller
Investigative Constitutional Law
Chapter 3: Property Seizures
and Non-Searches

Controlled Delivery



When criminal investigators conduct a “sting” operation to
supply drugs, stolen property, or other illicit material to
those who traffic in such items, or when officers lawfully
intercept such materials in transit, they can arrange for
completion of delivery under controlled circumstances.
Reopening a closed container once its contents have been
lawfully determined does not require a warrant or exception,
provided the suspect has not had an opportunity to remove
the contents.
Related Case Law: Illinois v. Andreas
Investigative Constitutional Law
Chapter 3: Property Seizures
and Non-Searches

Use of the Senses

Police can seize objects that have been exposed to detection
through use of the senses, those items can be seized from
places where law enforcement officers have lawful access.
1. Plain View

Seizable objects in plain view of an officer who has
lawful access and probable cause to connect the
objects with criminal conduct can be seized without
a warrant.
2. Plain Feel

The “plain feel” exception allows warrantless…
Investigative Constitutional Law
Chapter 3: Property Seizures
and Non-Searches

Use of the Senses
…seizure of lawfully felt items that are
immediately apparent as seizable property.
3. Plain Shape

If an officer can articulate reasons to believe that
the appearance of a particular container betrays its
contents as something that can be seized, the
seizure may be justified under the “plain shape”
doctrine.
4. Plain Smell

A discovery made through plain smell does not…

Investigative Constitutional Law
Chapter 3: Property Seizures
and Non-Searches

Use of the Senses
…constitute a search and can provide probable
cause for a seizure of evidence where police have
lawful access.
5. Plain Hearing

Incriminating utterances overheard through “plain
hearing” by an officer or informant while in a place
he or she has a right to be are not made
inadmissible under the Fourth Amendment
exclusionary rule.

Investigative Constitutional Law
Chapter 3: Property Seizures
and Non-Searches

Use of Enhancement Devices
1. Illumination and Magnification

Surveillance and routine observations of objects
and activities exposed to plain view can lawfully be
aided by the use of binoculars, telescopes,
flashlights and spotlights.

Related Case Law: US v. Lee, and Texas v. Brown
2. Thermal Imaging

When thermal imaging devices are used to measure
the heat emitting from a private residence, their use
must be authorized by warrant.
Investigative Constitutional Law
Chapter 3: Property Seizures
and Non-Searches

Use of Enhancement Devices
3. Tape Recording

The general constitutional rule for recordings is that
police officers may lawfully record what they can
lawfully see and hear.

Related Case Law: Lopez v. US
4. Wiretaps and Bugs

Installation of a wiretap or bugging device must
usually be authorized by court order or search
warrant.

Related Case Law: Katz v. US and Silverman v. US
Investigative Constitutional Law
Chapter 3: Property Seizures
and Non-Searches

Use of Enhancement Devices
5. Pen Registers and Trap-and-Trace Devices

The installation of a “pen register” by the telephone
company allows a record to be made of the
telephone numbers of outgoing calls.

A “trap-and-trace” set-up allows the phone
company to trap incoming calls and trace them
back to the telephone from which they originated.

The use of pen registers and trap-and-trace devices
must be authorized by court order.
Investigative Constitutional Law
Chapter 3: Property Seizures
and Non-Searches

Use of Enhancement Devices
6. Electronic Surveillance

Tracking beepers can be attached to a vehicle or
object to which police have lawful access and can
be tracked on public streets without a warrant, but
monitoring within private premises requires prior
court approval.

Judicial authorization for installation and tracking
of the beeper will eliminate the potential for
problems.

Related Case Law: US v. Knotts and US v. Karo
Investigative Constitutional Law
Chapter 3: Property Seizures
and Non-Searches

Detentions of Property



Potentially-seizable property may be briefly detained based
on reasonable suspicion of criminality.
Related Case Law: US v. Van Leeuwen and US v. Place
First Amendment Materials

First Amendment materials (such as photographs,
recordings, films and digital storage) receive heightened
protection against search and seizure and require special
precautions not generally applicable to most evidentiary
seizures.
Investigative Constitutional Law
Chapter 3: Property Seizures
and Non-Searches

Civil Liability for Unlawful Seizures


An unreasonable seizure of property violates the Fourth
amendment and so creates the potential for civil liability.
In the case of Soldal v. Cook County, Illinois, the court
held that the Fourth Amendment was not limited in its
application to criminal cases, but protected people’s
possessory interests in property from unreasonable
seizures in both the civil and criminal context.
Investigative Constitutional Law