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Constitutional and Other Rights Affected by Investigation

All persons are granted certain rights by the constitution and by other statues.    For example, constitutions of most countries provide the public the right to be free from unreasonable search and seizures.  This right is based on the principle that everyone is entitled to a reasonable right to privacy.  This page deals with the constitutional rights available in a search and seizure as well as the statutory rights available during an administrative agency investigation.

The Fourth Amendment to the U.S. Constitution guards against unlawful searches and seizures.  The amendment specifies that searches and arrest warrants must be judicially sanctioned.  The general constitutional rule is that there should be valid warrant for a valid search.  However the right can be affected for various reasons like:

  • emergencies,
  • pervasively regulated activities,
  • consent searches,
  • searches of areas in open fields,
  • searches accompanying administrative investigations, and
  • searches of office of government employees.

Certain tests like urine and blood tests, and breathalyzer tests are also presumed to fall within the meaning of “search” by various judicial pronouncements.  However, privacy of the person is to be maintained in such searches also.

Searches and arrest warrants must be limited to the specific information supplied by a person.  Further searches and arrest warrants must be supported by probable cause.  Probable cause in administrative searches refers to reasonable cause to search a person.

The amendment prohibits unreasonable seizure of any person, his/her home or personal property without a warrant.   If the government questions a person in a public place, it will not amount to seizure.  Also if a person’s freedom of movement is not restricted, then the person cannot be considered to be seized.

The government cannot detain a person even for a moment without reasonable, objective grounds.

The fourth amendment to the constitution protects a person not only from unlawful searches and seizures, but also from having to disclose documents and other information. In the course of investigation, subpoenas are issued demanding production of documents.  The main requirement of administrative subpoenas is that they must be limited in scope, relevant, and specific in order.  This is to avoid unreasonable burden upon the persons to whom the subpoena is issued.  The Fifth Amendment protection of self-incrimination is also available for a person against whom subpoena is issued.  However, a witness cannot refuse to comply with the administrative agency’s order on the basis of the privilege of self-incrimination.  However, the testimony or information so obtained cannot be used against the witness in any criminal cases.

The Fifth Amendment to the Constitution provides that no person should be deprived of life, liberty or property without due process of law.  Generally, in investigations conducted by administrative agencies, due process rights are not considered since administrative agencies do not adjudicate legal rights.  However, if an investigation directly affects or adjudicates the rights of a person, then due process rights should also be considered.

Though the U.S. Constitution does not confer right to counsel during administrative proceedings, the right to counsel is a statutory right according to the Federal Administrative Procedures Act.

Witnesses also enjoy certain privileges in an administrative investigation.  One such privilege is the attorney-client privilege.  Accordingly, confidential disclosures by a client to his attorney made to obtain legal opinion are privileged.

The constitutional rights of a person during an administrative investigation depend on:

  • whether the person invoking its protection by his conduct “has ‘exhibited an actual (subjective) expectation of privacy, and
  • whether the person’s expectation, viewed objectively, is “reasonable” or “justifiable.

Inside Constitutional and Other Rights Affected by Investigation