D.Utah: No differing standard of justification for a seizure v. a search

There is no differing standard of justification for a seizure v. a search. The officers’ entry here was without exigent circumstances, and their findings made it into the search warrant affidavit, so the search was suppressed. United States v. Estrada, 2012 U.S. Dist. LEXIS 86592 (D. Utah June 21, 2012):

2. Seizure vs. search

The government argues that, as the officer’s intent was merely to secure the hotel room, remove any occupants, and obtain a search warrant, “their activity in entering the room should be considered a more limited intrusion than would be a warrantless search, and therefore subject to a different degree of scrutiny.” In support of this contention, the government cites to the plurality opinion in United States v. Segura, which states:

[A] seizure affects only possessory interests, not privacy interests. Therefore, the heightened protection we accord privacy interests is simply not implicated where a seizure of premises, not a search, is at issue. We hold, therefore, that securing a dwelling, on the basis of probable cause, to prevent the destruction or removal of evidence while a search warrant is being sought is not itself an unreasonable seizure of either the dwelling or its contents.

However, this language comes from a section of the Segura opinion that was joined by only two justices. Furthermore, even if the language cited by the government garnered majority support, the same section of the opinion states that the justices did not believe that the holding would increase the possibility of illegal entries by police officers because: 1) “an entry in the absence of exigent circumstances is illegal;” 2) “officers who have probable cause and who are in the process of obtaining a warrant have no reason to enter the premises before the warrant issues, absent exigent circumstances which, of course, would justify the entry;” and 3) “officers who enter illegally will recognize that whatever evidence they discover as a direct result of the entry may be suppressed.”

In the case at hand, the officers did not enter the premises “while a search warrant [was] being sought;” instead, they entered the premises before seeking the warrant, and included substantial evidence found in the apartment in the subsequently-prepared warrant affidavit.

Under the Segura plurality, an entry in the absence of exigent circumstances is illegal and evidence discovered from such a search may be suppressed. Therefore, the question before the Court remains the same: whether exigent circumstances existed to justify the officers’ warrantless entry.

Under the Fourth Amendment, why would there be because both are provided for by its plain language.