Thinking Outside of the Detained Box: A Guide to Temporary Seizures of Property Under the Fourth Amendment
JUDGE ADVOCATE GENERAL (ARMY) FORT SILL OK ADMINISTRATIVE AND CIVIL LAW DIV
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The framework for temporary seizures under the Fourth Amendment represents a balance between two competing interests. On one side is the Governments desire to use temporary seizures as a tool to maintain the status quo while moving forward with the investigation. On the other side is the owners interest in avoiding government interference with the possession of his property. Meanwhile, the principle of reasonableness weighs against both of these interests to create the proper balance. The Government demonstrates the reasonableness of a particular temporary seizure by diligently developing probable cause and seeking a search authorization during the seizure period. By initiating a temporary seizure, government agents bear the responsibility to proactively gather vital pieces of information in order to understand whether reasonable suspicion or probable cause exists with regard to the property and how the seizure affects the property owners interests. This information consequently triggers the level of diligence required in developing probable cause and seeking a search authorization with regard to the property. The duration of a particular seizure in itself does not make a temporary seizure unreasonable. However, armed with the proper analytical tools, a government agent should prepare for and execute a temporary seizure in a conscientious manner, as if a clock were ticking. The appendix to this primer presents such a tool. For a temporary seizure based upon probable cause, the agent must progress methodically. For a temporary seizure based upon a reasonable suspicion that implicates a possessory interest and more, the agent must move efficiently and swiftly.
- Government and Political Science