Last Updated 25 Nov 2022

The Constitutional Rights and the Search and Seizure of a Property

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Due process of law alludes to procedural fairness that includes activities such as creating an impartial tribunal, defining an offense, creating an accusation in an acceptable format, providing an opportunity and notice to defend, discharge or conviction, and trial according to laid out procedures. Basically, the constitution of the United States of America guarantees that all law related proceedings will be fair and that an individual will be noticed and accorded an opportunity to express his/her views before the government can intervene to take one's property, liberty, or life. The aforementioned rights are guaranteed by amendments such as fifth, sixth, and fourteenth ("Guide to Law Online").

The constitution assures that the course of action taken against an individual shall not be capricious, arbitrary, or unreasonable. The constitutional assurance of due process of law detailed in the Fifth and Fourteenth Amendments to the United States Constitution forbids all arms of the government from unfairly or arbitrarily depriving people of their primary lights to liberty, property, and life ("Guide to Law Online").

The Fifth Amendment clause of due process was ratified in 1791 and stresses that for people to be deprived of their rights, various procedures must be adopted. For instance, the amendment ensures that the power of the federal government is limited in scope. On the other hand, the Fourteenth Amendment that was ratified in 1868 restricts the powers of the state. The clause related to the due process in the Fourteenth Amendment was interpreted by the United States of America Supremes' court to include the protection of the Bill of rights ("Guide to Law Online").

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The objective of the interpretation was to ensure that the protection of people's rights was applied by the federal government as well as the states. In this regard, the due process clause acts as a platform whereby the requirement of the Bills of Rights binds the federal and state governments. The constitutional application of the due process is conventionally divided into two sets namely Substantive Due Process and Procedural due process. The former creates, defines, and regulates rights, whereas the latter seeks redress for violation of rights and enforces them. The procedural due process applies to all activities related to arresting and trying an individual accused of executing a crime. In the United States of America, the procedural due process is geared towards safeguarding the rights to an attorney, rights to be present during testimony, rights to adequate notice of a lawsuit, whereas substantive due process is concerned with the protection of freedom of speech and privacy ("Guide to Law Online").

The current notion of substantive notion emerged as a consequence of the decisions of the United States of America Supremes' Court in the nineteenth century. The court realized that the procedures guaranteed by the due process clause of the Fourteenth Amendment that was used to foresee engagement of law contracts were unfair. For instance, it struck down a New York Law that banned employees from allowing the workforce in bakeries to work for more than ten hours per day. The decision was supported by the fact that the provision of the contract was against the exercise of the state's policy power and thus, the binding terms between the parties could be regarded as being arbitrary ("Guide to Law Online").

Search and seizure is applied in a myriad of common and civil laws systems as a procedure through which police and relevant authorities execute search activities on a person's property and file evidence to the crime under investigation. The Fourth Amendment of the constitution of the United States of America protects two categories of expectations, one involving "seizures", the other "searches". A search occurs when an exclusion of privacy considered reasonable is infringed, whereas a seizure of property happens when a significant interference an individual interest to own a given product ("Guide to Law Online"). In regard to criminal justice, there is a myriad of laws used to safeguard the citizens of the United States against unreasonable searches and seizures. For instance, the general rule detailed in the constitution require the police and other relevant bodies to have a valid warrant in order to conduct a search.

There are various exceptions to the procedure based on the requirements of the fourth amendment in regard to securing people against unjustified seizures and searches ("Guide to Law Online"). In this perspective, the individual under the possession of the property in question may voluntary consent to the search and in some instances, the court may consider the totality of the circumstances in evaluating the nature of the contest. In absence of a reasonable exception of privacy that a community is willing to consider in a given case of property, any interventions by the government in regard to the material possession is not considered a search for Fourth Amendment purposes. Under the aforementioned circumstances, a search warrant is never needed since, the exception of privacy in information has already been transferred to a third party.

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