The Fourth Amendment which is contained in the United States Constitution has put in place restrictions on the scope duties of Law Enforcement Officers regarding arrests of suspects, confiscation of illegal items such as illegal weapons and drugs and searches of both people and their property. This research focuses on circumstances under which a Law Enforcement Officer can search a person, their place of business or home and confiscation of their property. The reason why I have chosen to write about this topic is to help people be aware of their rights, and the measures that they can take when they find themselves or their property being searched by Law Enforcement Officers. Law Enforcement Officers are violating the Fourth Amendment rights of a lot of people, and this research will help people know what steps to take when anyone working in Law Enforcement contacts them.
Individuals without knowledge make themselves be subjected to unnecessary or unlawful searches and at the end get arrested by an ardent Officer of the Law. The Constitution of the United States that: people have the right to feel secure by themselves, papers, houses, personal effects, against irrelevant search and seizures, shall not face violation of their rights. It also states that warrants should be issued only with probable cause and supported by affirmation or Oath, especially offering the description of a place to be searched, and the individuals or things that will be seized ("Fourth Amendment - U.S. Constitution - FindLaw", 2018).
Many citizens, however, are unaware or are not knowledgeable in regards to their Fourth Amendment rights making a lot of law enforcement officers take advantage of them due to their lack of knowledge. I have seen situations whereby a lot of people giving up their Fourth Amendment Rights not knowing. Some time ago I saw a black man walking on a street minding his own business at around two in the morning. A police officer stopped him and started asking him where he was headed. After speaking briefly, the police officer decided to search him, and in his front pocket, he found a small bag containing marijuana. The police officer arrested the black male for being in possession of marijuana, and he was taken to jail. Eventually, the case was dismissed because the police officer had carried out an unreasonable search.
The Fifth Amendment was created on 2nd March 1963. It is when Ernesto Miranda, a male faced arrest because of rape. He was automatically assumed to be guilty due to a prior conviction of being a peeping Tom. At the time, the victim could not properly identify him as the person who had raped her. The police disregarded this fact and arrested and took him in for questioning whereby he confessed, and they charged him. Ernesto Miranda had a change of mind when he realized he did not have to speak to the police in the first place and he recanted his confession.
Using the same concept as search and seizure, a police officer will use the lack of knowledge of a citizen to their advantage. When he spoke to the law enforcement officers, Miranda permitted the police officers to search him, and he unknowingly gave them access to information which would have allowed them to search his house and any other property that he might be linked to. Speaking to law enforcement officers can be a bad move if one does not know the law and how it works. People sometimes put themselves in situations which can make them be put under searches or be jailed. One should first ask the police officer why they are being arrested before agreeing to go to the police station. Most crimes remain unsolved because police officers simply make arrests without carrying out thorough investigations. Even though the Fourth Amendment protects people from searches and seizures which are without reasonable cause, there are avenues created by the court which have given police officers ways of gaining evidence that is why “NOT ALL SEARCHES NEED A SEARCH WARRANT TO BE CARRIED OUT.” There are many situations which police officers do not need a search warrant to search people or property. Listed below are some of these instances:
1. Exigent circumstances
These are situations whereby the police officers have the belief that if they go through the process of applying for a warrant, it will delay the search leading to frustration in searching (Schmerber). Cops have the right to enter an area or a building if they are made aware of a crime in progress. These are in circumstances whereby waiting for a search warrant may result in great harm or death of the person being assaulted.
2. Hot pursuit
If cops are chasing a culprit into building or sites, they may search beyond the necessary places to locate the suspect (Hayden). Hot pursuit is defined as the pursuing of a suspect by an officer of the law (who may or may not have a warrant). It aims to prevent the suspect from escaping or to try to apprehend any individual who is under suspicion of trying to commit or having committed a felony, or misdemeanor. Hot pursuit should be carried out with no delay but the pursuit does not need to be immediate.
Hot pursuit may also refer to the chasing of a suspect or a felon who has escaped into a neighboring jurisdiction in cases of emergency where one does not have the time to alert the law enforcement in the area.
3. Pat down / Frisking
It is done in situations whereby the police have the suspicion (reasonable) that a suspect may be armed or engaged in crime. The Law Enforcement Officers are allowed by the law to pat down a suspect’s outer clothing in search of weapons. While conducting a frisk search, police have the permission of the law to turn out pockets or reach into clothing layers ONLY when patting down the suspect they encountered something that could be considered as a weapon. If the possible weapon is found to be other criminal evidence (for example drugs), it is considered as admissible. If the object, however, is a box that may hold criminal evidence the police most likely would not have the power to open it.
4. Plain view
If a police officer in his line of duty was, for example, placing a parking ticket on a driver’s windshield and saw a bomb inside the car, he has a right to search the car and confiscate any evidence inside the car. Another example is if police were happening to be driving by a house and heard a crime taking place, they had permission to enter the property and conduct a search. If, however, they noticed a crime taking place because they were trespassing, the evidence gathered would be thrown out by a court of law unless they had due reason to be there (such as if they had a warrant).
5. Consent
An officer can ask a suspect for permission to search him/her, and if they do grant it and they find any contraband, they can make an arrest.
While conducting this research, I found:
Search and seizure issues contained in the Fourth Amendment. The topics I would like to cover relate to the Constitution and Search and Seizure:
a. The role that search and seizure play in criminal investigations.
b. Foundations of Search and Seizure that are in the English common law and the United States Constitution (Fourth Amendment).
c. Parts of search and seizure termed as problematic.
The Bill of Rights contained in the Fourth Amendment states that “people have the right to feel secure in their homes, papers, alone, effects and be protected from unreasonable searches and seizure, violation, issue of unnecessary warrants without reasonable cause.” Lawrence Tribe points out that this Amendment is the most fundamental and source of the protected rights that a person has. The courts state that police officers have severe restrictions to protect people from searches and seizures that are unreasonable.
Search, and seizures can be divided into two categories: searches that require a warrant and those that do not require a warrant. The United States Supreme Court prefers that all searches are conducted with a warrant. The courts, however, do logically allow under “exigent circumstances” police officers to carry out warrantless searches. Reid states that these circumstances are “few, tailored for specific circumstances and also well delineated.” Searches that are made with or without warrants must have “probable cause.” A magistrate or judge determines in the former case while a cop does in the latter. If the matter proceeds to court, a judge is asked to rule if probable cause was in play. The courts have in most cases are biased in regards to the review of warrants which are issued by a magistrate and the behavior of the police while in the field. Magistrates and judges are considered to be more impartial than the police. It is why that when the police act on their own without having a warrant that they are considered to have acted without probable cause.
The “exclusionary rule” is used when a search is considered to be illegal. It means that a specific part of the evidence that was gotten through, for instance, an improper search is considered to be tainted hence the prosecution cannot use it. In search and seizures, it has become the most controversial part. That is why most defendants walk away scot-free because of “a technicality.” Its scope does have limitations because it only applies to pieces of evidence that are tainted. Very few cases which are brought in front of the prosecution are dependent on only one piece of evidence. Freidrich notes that it is only in rare circumstances whereby a criminal who is obviously guilty can go scot free due to the exclusionary rule being applied.
Moreover, a lot of people have argued that although the exclusionary principle has its flaws, it is by far the best way of accomplishing an important agenda which is putting a leash on police misconduct. Very few people agree that the police do not need any oversight. The reason for the existence of probable cause, search and seizure, and the exclusionary rule is that they all prevent the police from acting in improper ways. It is here that some people have reasoned they encounter instances whereby the statutory law has become inadequate. It is because the statutory law has become more political according to how it is created than how it operates as a law. Steiler states that “history has shown us over and over the political process will not put in place structures that can prevent police misconduct thus the exclusionary rules have helped bring in the courts to enforce the law.”
It is wise to note that search and seizure, in theory, might not be prominent in the whole of the American court system. Most criminal prosecutions occur in state and not federal courts. Before 1961, the state officers did not have to abide by the exclusionary rule if they had not met the standards. However, in the case of Mapp v. Ohio, the United States Supreme Court in June 1961 decided by a vote of 5-3-1 to uphold the Fourth Amendment protections which would be used in all criminal prosecutions. The Mapp v. Ohio was a landmark case since the extension broadened the areas where search and seizure could be used.
It should be stated as a by the way that there are classes of searches which are not at all categorized under the sphere of criminal searches. Administrative searches for example conducting airline searches, and health and safety inspections of buildings do not involve solving crimes. Warrants are however required because an invasion of privacy does happen while searches are being carried out. What is termed as probable cause for warrants of this type is relatively whole areas and not specific buildings that can be stated in the warrant.
Returning to the prevention of improper searches and seizures, the prohibitions and application of the exclusionary rule have highly impacted the conduct of the police force in a directly and indirectly. One can make a distinction between police searches and forms of searches which occur because of “exigent circumstances” that “may make accessing a warrant useless.” It is in cases such as search of automobiles before they are allowed to leave or taken away from a scene. Other cases are when warrantless searches are carried out on people to effect the self-preservation of police officers and prevent a crime from taking place.
An “investigation” can be categorized as a process which is more formal compared to an ad hoc search conducted on a person in the field. It will most likely need a warrant and certainly needs inhibitions on the conduct of the police. Any police officer would list search and seizure, a possibility of an appeal of the exclusionary rule, and probable cause all have a huge and direct implication on how police investigations are to be carried out. The same would apply to a warrantless search under carried out in emergency circumstances but it is not as in the same category as a restriction placed on police investigations that are much more formal. It is because much of the criminal evidence is gotten through formal investigations and inhibitions effected on investigations will affect more cases than restrictions that are enforced on warrantless searches.
Investigations are also affected indirectly. Schwartz quotes the Chief Justice Warren Burger as speaking of “the huge price we incur for the exclusionary rule that we have imprisoned ourselves in.” Tucker has argued that a part of this “monstrous price” is not that but also sometimes the guilty walk away free. However, according to the interpretations of both the “Fourth and Fifth Amendments which are now in effect, a situation has come in place whereby the police are restricted in their work. The Fourth Amendment forbids issuing of warrants while having no probable cause. Tucker further argues that the police cannot make a negative interpretation (which they must often make if they need to “have” a probable cause) when a suspect does not want to answer questions that are contained in the Fifth Amendment. If the police officers cannot make such an interpretation, then “If a suspect refuses to explain the circumstances, there may be no grounds needed for opening of an investigation.” If Tucker’s deductions are correct, a decrease in police efficiency has occurred because of the juxtapositions contained in the Fourth and Fifth Amendments.
Eskridge has made a note of the retreat of the post-Warren Supreme Court from its position on the Warren Court. He has also noted that in the Post-Mapp environment there has been an emphasis on dealing with the issues of police misconduct by managerial rulemaking. The problem with this approach is that it does not have the character of strength of having a judge or magistrate rule probable cause. If, as mentioned in the above case, statutory law is very fundamentally political to fully deal with police misconduct when it arises then instances whereby the police force is expected to tackle such situations by itself would not be effective. The advantage of the situation currently is that it is an impartial person who is responsible for determining what falls under adequate grounds to make valid a search.
Akhil Amar who is a professor of law at Yale has proposed another solution that makes his argument the most interesting so far. He makes the note that search and seizure was not fully Madison’s idea, but instead, it came from the English case law. Amar has stated that Madison might have been influenced by Wilkes v. Wood which occurred in 1763. The case involved general warrants that were used to get into the house of a member of parliament and go through his papers just because he dared to disapprove of George III and his administration. Wilkes went to court to argue how the general warrants were used in his case and he triumphed. One should note that the general warrants used in Wilkes case were controversial and involved the use of prior restraint. It is a procedure that had a common law against it and could be and was in fact aimed against specific acts of political action in England.
The interesting fact about the Wilkes case is that Wilkes emerged victoriously. He won against the official who had authorized the general warrant, he was awarded compensation because of the search and seizure, and punitive damages were imposed to discourage misconduct of that sort in the nearby future. Amar holds the belief that the Fourth Amendment was designed to deter police misconduct and at the time of its writing, it was a function of the civil courts. Amar argues that Madison was not the pioneer of the exclusionary rule and that it should be done away with and alternatively replaced with statutes which would put in place a system whereby civil compensation against the police would be a way of discouraging improper searches. He believes the current Supreme Court would uphold the provision by a vote of 5-4.
As I earlier stated, this would be a good idea. Whether this would be politically possible is a question that cannot be answered. It should, however, be noted that there is huge dissatisfaction with the current interpretation of the Fourth Amendment. What is interesting in regards to Amar’s argument is that the framers had an agenda that was very different when compared to the exclusionary rule. They felt their status quo in regards to recovery of damages which included punitive damages through civil court action was enough to discourage police misconduct. It has not been effected in the modern times, and perhaps it should be.
Coming to an end, in the essay above I have to elaborate on some of the roles that search and seizure play in the conducting of criminal investigations. I have also discussed its origins from the Fourth Amendment and how it is currently applied in the collection of evidence. Lastly, I have discussed the dissatisfactions it has brought up and stated many suggestions that have arisen as to how things may be done in a different and better way.
Research
Understanding Search-and-Seizure Law. (2018). www.nolo.com. Retrieved 5 April 2018, from https://www.nolo.com/legal-encyclopedia/search-seizure-criminal-law-30183.html
Fourth Amendment - U.S. Constitution - FindLaw. (2018). Findlaw. Retrieved 5 April 2018, from http://constitution.findlaw.com/amendment4.html
Hot Pursuit Law and Legal Definition | USLegal, Inc.. (2018). Definitions.uslegal.com. Retrieved 5 April 2018, from https://definitions.uslegal.com/h/hot-pursuit/
McKenzie, B. (2018). 13 Legal Warrantless Searches in the United States. Superhero Nation: how to write superhero novels, comic books and superhero books. Retrieved 5 April 2018, from http://www.superheronation.com/2011/05/03/12-legal-warrantless-searches/
The Miranda rights are established - Jun 13, 1966 - HISTORY.com. (2018). HISTORY.com. Retrieved 5 April 2018, from https://www.history.com/this-day-in-history/the-miranda-rights-are-established
