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1.1: What are the elements of a lawful arrest, detainment, search, or seizure?




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This article is from the Lawful Arrest/Search/Seizure FAQ, by Ahimsa Dhamapada ahimsa@mu.clarityconnect.net with numerous contributions by others.

1.1: What are the elements of a lawful arrest, detainment, search, or seizure?


For your reference: here is the Fourth Amendment of the
United States Constitution:

"The right of the people to be secure in their
persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation,
and particularly describing the place to be
searched, and the persons or things to be seized."

Perhaps you should memorize it!

So, according the Fourth Amendment of the United States
Constitution, the elements are as follows:

1: Oath or Affirmation made
2: Probable Cause determined
3: Specific Warrant issued
4: The actual arrest/search/seizure/detainment

(NOTE: the ordering is important! 1 and 2 should happen
before 3, and 3 before 4.) This means, in common language:

1: A civilian makes a complaint
2: Evidence is found linking the accused with
the victim's injury, and that the injury was probably
caused by "criminal intent"; that is, it was not
an accident.
3: A document issued describing what is to be searched,
or who/what is to be seized/arrested, and why.
4: The actual arrest/search/seizure/detainment

Yet today, here is what usually happens:

1: There is no complaint from a civilian.
2: There is no injury, thus there can be no Probable Cause.
3: There is no Warrant issued.
4: The Police Officer executes a standing order to
detain/search/arrest someone for a victimless
"pretended offence".

This is explained further below.

(Note: other Amendments discuss what is supposed to follow
after the arrest: presentment before and accusation by the
people: the Grand Jury indictment, and trial by the people:
the petit or trial jury. READ THE CONSTITUTION!)

 

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