search and seizure essay

Search, Seizure, arrest, and reasonableness Essay

Introduction, search and seizures.

Search, seizure, arrest, and reasonableness have been controversial topics in the criminal justice system for a number of years. Interferences with individuals’ privacy expectations have been cited as the major undoing of the criminal justice system. This essay provides an in-depth analysis of the United State searches, seizures, arrests, and reasonableness.

A search is a meaningful interference or intrusion into individual privacy (Waksman & Goodman, 2010). It is premised on collection of evidence in pursuance of criminal activity. Searches can be with or without warrants. Under the federal law, an enforcement officer must obtain a search warrant issued to intrude person’s privacy.

However, searches can be without a warrant on the probable causal basis. This is because a federal law enforcing officer may believe that there is no enough time to obtain a warrant to conduct searches for evidence without it (Waksman & Goodman, 2010).

Seizures are divided into two namely; the seizures of property and seizures of individuals. A property seizure is the meaningful interference of a person’s possessory interest in his or her property (Zalman, 2011). The government can make an individual reasonably believe that he or she cannot go about his or her business, with the view of ongoing incident circumstances (Zalman, 2011). The seizure of an individual may include a full arrest, detentions on investigation, checkpoint inquiries, or detentions against the will (Zalman, 2011).

Search or seizure warrants are issued by a judge or a magistrate if there is a fair probability that the search and seizure will produce beneficial evidence for the wrongdoing (Zalman, 2011). The Fourth Amendment provides warrant-less searches in cases where the warrant clause takes precedence over reasonableness provision.

A reasonableness clause protects a person’s right to privacy. A reasonable search and seizure warrants must specifically describe the place to be searched, and the property to be seized. Furthermore, a warrant may also be issued for the property designed and intended for use or used in committing a wrongdoing.

According to Waksman and Goodman (2010), a search or a seizure warrant can be issued to officers to allow them arrest individuals found guilty. Reasonable warrants must be supported by probable cause for a search or seizure of a property, or a person. This is to protect citizens against arbitrary violation of their rights, by the government. Reasonableness also plays an important role in restraining the federal government’s action against the aliens.

The action that the government takes and the individuals’ expectations determine the action against the aliens. This implies that if the court determines that the government intrusion is unreasonably relative to the person’s protected privacy, then the violation has occurred. Once a reasonable interference with a person’s privacy expectation is established, the law enforcing officer is allowed to obtain a warrant that allows a federal law officer to intrude upon a person’s privacy (Waksman & Goodman, 2010).

Warrants are also executed through arrests. In the criminal justice system, arrests take place when a person is taken into custody by a police officer (Zalman, 2011). The criminal justice system starts with the arrests of criminals by the federal officers. The most common arrest is where police arrest individuals after finding them committing a crime.

Secondly, it can be a probable cause arrest if there is evidence to prove that one got involved, or is about to get involved in criminal activities. The federal law enforcing officer can also obtain an arrest warrant from a judge or migrate to affect the arrest. Finally, a search or seizure warrant can also prompt an arrest.

Stop and frisk, the most controversial criminal procedures instructed by police officers, is a form of search that is based on unreasoned suspicion that focuses on averting a crime (Waksman & Goodman, 2010). It may be carried out in search of weapons from an individual.

On the other hand, an automobile search is carried out when an officer relies on probable cause, to believe that evidence can be obtained from a person’s vehicle. Policemen do not require obtaining a court warrant to search or seizure the vehicle (Waksman & Goodman, 2010).

Border and regulatory searches are exempted from the Fourth Amendment warrant and probable cause requirements (Vina, 2006). Routine stops and searches at the U.S borders do not necessarily require warrants or probable cause. This is justified by the need of the government, to protect itself, its property, and citizens.

This is done through inspection of property and individuals, entering and leaving the country. However, reasonableness applies to the border and regulation searches. Border searches can be categorized into two groups. These include reasonable routine searches and non-routine searches that require reasonable suspicion (Vina, 2006).

The Fourth Amendment provides searches and seizures that aim at achieving effective administration of criminal justice in the United States. Moreover, it includes reasonableness in the criminal justice system, to safeguard the privacy rights of individuals. Searches and seizures need to be reasonable, in order to establish an expectation of privacy and meaningful interference. Regardless of areas, searches and seizures must be reasonable.

Vina, S., R. (2006). Protecting our Perimeter:” Border Searches” Under the Fourth Amendment , Report for Congress. Congressional Research Service . Web.

Waksman, D. M., & Goodman, D., J. (2010). The search and seizure handbook . Upper Saddle River, N.J: Prentice Hall.

Zalman, M. (2011). Criminal procedure: Constitution and society . Upper Saddle River, N.J: Pearson/Prentice Hall.

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Balancing Liberty: the Intricacies of Search and Seizure

This essay about the intricate dynamics of search and seizure within the legal framework. It into the delicate balance between law enforcement powers and individual rights, as enshrined in the Fourth Amendment of the U.S. Constitution. The concept of probable cause, exigent circumstances, and voluntary consent are explored as crucial components shaping the application of search and seizure laws. The narrative navigates through the complexities of modern challenges, including digital privacy concerns and evolving technology. Ultimately, it emphasizes the importance of upholding constitutional principles to preserve the delicate balance between security and liberty in society.

How it works

In the intricate tapestry of justice and individual rights, few threads are as finely woven as the concept of search and seizure. Like the ebb and flow of tides, it represents the delicate balance between the powers of law enforcement and the sanctity of personal privacy. Within this dynamic interplay lies a narrative as old as the legal traditions themselves, tracing its roots back through the annals of history to the foundations of common law.

Embedded within the fabric of modern legal systems, the principles of search and seizure find their lodestar in the Fourth Amendment to the United States Constitution—a document revered as a beacon of liberty and a shield against tyranny.

Crafted with precision and foresight, the Fourth Amendment stands as a testament to the wisdom of the Founding Fathers, enshrining the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.

At its heart lies the notion of probable cause—an elusive standard that serves as the threshold for invoking the awesome power of the state. Like a compass guiding the course of justice, probable cause demands more than mere suspicion or conjecture; it requires a reasonable basis for believing that a crime has been committed or that evidence of wrongdoing may be found. This standard acts as a bulwark against arbitrary intrusion, ensuring that the liberties of individuals are not trampled upon at the whims of authority.

Yet, the journey through the labyrinth of search and seizure is fraught with complexities and nuances, where the path to justice is often obscured by the fog of ambiguity. In the pursuit of truth, law enforcement is sometimes compelled to navigate treacherous waters, where the exigencies of the moment demand swift action and decisive measures. It is in these crucibles of uncertainty that the doctrines of exigent circumstances and voluntary consent come into play, providing navigational aids for the ship of justice amidst turbulent seas.

Exigent circumstances, like a clarion call in the night, allow law enforcement to bypass the usual safeguards of a warrant when faced with imminent peril or the specter of evidence destruction. In the heat of the moment, when every second counts, the law recognizes the need for flexibility and pragmatism, granting authorities the latitude to act decisively in the interests of public safety and order.

Similarly, the doctrine of voluntary consent serves as a beacon of cooperation in an often adversarial landscape. When individuals knowingly and willingly relinquish their rights, the barriers to search and seizure melt away, paving the way for collaboration between citizens and law enforcement in the pursuit of justice. Yet, like a delicate dance between partners, consent must be freely given and fully informed, lest it devolve into coercion or manipulation.

In the digital age, where the boundaries of privacy are constantly being redrawn, the principles of search and seizure face new challenges and complexities. As the tendrils of technology weave their way into every aspect of our lives, questions abound regarding the scope of government surveillance and the protection of digital privacy. From encrypted communications to biometric identifiers, the terrain of search and seizure is evolving at a dizzying pace, demanding a nimble response from lawmakers and jurists alike.

In this ever-shifting landscape, the principles of search and seizure remain a lodestar for the guardians of justice, guiding their actions and shaping the contours of our legal system. Through a judicious application of constitutional principles, judicial oversight, and legislative reforms, the delicate balance between security and liberty can be preserved, ensuring that the torch of freedom continues to burn brightly for generations to come.

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Search and Seizure

Updated 18 August 2023

Downloads 28

Category Crime ,  Law

Topic Police

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).

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.

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

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Georgetown Center for the Constitution

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...., related citations, jeffrey bellin, fourth amendment textualism, 118 mich. l. rev. 233 (2019)..

Concluding based on framing-era dictionaries that a search entails closely and consciously examining an object or space, as opposed to abstract things like “truth,” to uncover information that is not otherwise apparent. Contending further that “effects” in the founding era was understood as including all property a person possessed, except real property, that was not captured by “persons,” “houses,” or “papers.”

Laura K. Donohue, The Original Fourth Amendment, 83 U. Chi. L. Rev. 1181 (2016).

Concluding, based on English history and case law, ratification-era debates and writings, and other founding-era evidence, that the Fourth Amendment was intended to protect citizens against governmental intrusion pursuant to a general warrant or a warrant lacking sufficient particularity.

Maureen E. Brady, The Lost “Effects” of the Fourth Amendment: Giving Personal Property Due Protection, 125 Yale L.J. 946 (2016).

Finding that the inclusion of “effects” in the Fourth Amendment evinces the Framers’ intention to protect the privacy of personal property in the same way as “peronse,” “houses,” and “papers.” Arguing that the protection against government intrusion upon “effects” was also motivated by protection against property rights generally, given the property values often at stake. Documenting based on founding-era dictionaries that “effects” was chosen instead of “property” because the former is limited to possessions other than real property, and the Framers did not want the Fourth Amendment to sweep more broadly.

Luke M. Milligan, The Forgotten Right To Be Secure, 65 Hastings L.J. 713 (2014).

Suggesting that waiting for regulation on surveillance methods’ interaction with the Fourth Amendment is inadvisable. Locating rights to be “protected” and “free from fear” in the “to be secure” part of the Fourth Amendment. Looking to founding-era discourse/writings and the structure of the Amendment.

William Baude & James Y. Stern, The Positive Law Model of the Fourth Amendment, 129 Harv. L. Rev. 1821 (2014).

Arguing that the touchstone of the search-and-seizure analysis should be whether something was prohibited under positive law.

William Cuddihy, Warrantless House-to-House Searches and Fourth Amendment Originalism: A Reply to Professor Davies, 44 Tex. Tech. L. Rev. 997 (2012).

Replying to Recovering the Fourth Amendment by Thomas Davies and arguing that Davies was mistaken in his conclusion that the Founders confined their understanding of unreasonable searches to general warrants.

Tracey Maclin & Julia Mirabella, Framing the Fourth, 109 Mich. L. Rev. 1049 (2011).

Contending that the Framers followed state constitutions in prohibiting general warrants in response to decades of increasing hostility to writs of assistance and general warrants. Arguing further that the prohibition on unreasonable searches and seizures contained in the Fourth Amendment was partially intended to curb practices such as nocturnal searches and forcible, no-knock entries.

Thomas K. Clancy, The Framers’ Intent: John Adams, His Era, and the Fourth Amendment, 86 Ind. L.J. 979 (2011).

Purporting to offer a new examination of the historical record regarding the framing of the Fourth Amendment. Paying special attention to the work of John Adams, whose views on search and seizure informed the Amendment’s drafting. Providing a detailed historical account of search and seizure practices during the founding.

Thomas Y. Davies, Can You Handle the Truth? The Framers Preserved Common-Law Criminal Arrest Search Rules in “Due Process of Law” – “Fourth Amendment Reasonableness” Is Only a Modern, Destructive, Judicial Myth, 43 Tex. Tech. L. Rev. 51 (2010).

Arguing that the Framers intended to ban general warrants primarily out of concern that government officials would force customs and excise tax collections, i.e. revenue searches, in citizens’ homes.

David E. Steinberg, The Original Understanding of Unreasonable Searches and Seizures, 56 Fla. L. Rev. 1051 (2004).

Arguing based on English and colonial history and case law, as well as founding-era legal commentary, that only warrantless searches of homes or physical searches of homes pursuant to general warrants are barred by the Fourth Amendment.

Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547 (1999).

Concluding based on ratification evidence that the Framers understood this Clause as banning general warrants and setting out a standard for search and arrest warrants so as to curb discretionary authority for search and seizure. Arguing further that the Framers did not intend to create a broad reasonableness standard for warrantless searches and arrests.

Akhil Reed Amar, Terry and Fourth Amendment First Principles, St. John’s L. Rev. 1097 (1998).

Arguing that there is a “good” and “bad” Terry stop so that a Terry stop may be preceded by neither a warrant nor probable cause and still be reasonable under the Fourth Amendment.

Akhil Reed Amar, The Fourth Amendment, Boston, and the Writs of Assistance, 30 Suffolk U. L. Rev. 53 (1996).

Discussing the connection between the city of Boston and the Fourth Amendment and whether the Amendment considers the warrant as the standard of reasonableness.

Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757 (1994).

Contending based on Founding-era state constitutions, treatises, statutes, and debates that there is no evidence that the Fourth Amendment was understood to contain a warrant requirement, and that it, instead, only contained a reasonableness requirement. Arguing further that civil trespass actions were the remedy envisioned by the Framers for Fourth Amendment violations rather than the exclusionary rule, which has no textual or historical basis.

Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131 (1991).

Arguing that warrantless searches are not per se illegitimate under the Fourth Amendment, and that, instead, they are subject to jury assessment as opposed to searches with warrants which were subject to assessment by a judge.

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Search and Seizure, Research Paper Example

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Searches and seizures are legal requirements in the criminal and civil law procedures whereby the law enforcing authorities and agents upon suspicion that a crime has been committed carry out a search on one’s properties and thus confiscate any information relevant to the crime under investigation. According to the United States Constitution the law is intended to protect the individuals from unreasonable search and seizure (Toobin, 2008). The Constitution entitles all citizens with reasonable right to privacy and this must be adhered to by all law enforcers in the state. Before carrying out any search and seizure for any suspected, evidence by the law enforcement agents to obtain a search warrant before carrying out any search and seizure on any person’s property is required. Any search and seizure intended to be carried out shall not be subject to violation and warrants shall not be issued unreasonably unless with probable cause with the support of an oath or affirmation describing clearly the place required to be searched, time of search, people to searched or things to be seized.

In this case of William Ellis, it is quit evident that the police relied on the mere allegations given out by Mrs. Stevens the wife to the deceased to make an opinion of searching William’s bedroom. The scene of crime investigators did not at any point obtain a search warrant before entering the room belonging to William Ellis when he was not present or even contact his mother Mary Ellis before conducting the search. Therefore the evidence claimed to have been extracted from William’s room cannot at any legal level be regarded as admissible and it extremely violated the privacy right of the accused. Such mere allegation of Mrs. Stevens against William Ellis unannounced entering into Steven’s townhouse in several occasion and attempt to rape her then would have been supported by the previous records over such claims. Not after when another offence has been committed is when she comes out to say the William Ellis had attempted to get her on her bedroom.

The court should take into consideration that also the warrant of arrest was not valid and the evidence presented against William does amount to connect him to crime committed. Again William Ellis did not give consent voluntarily to the scene of crime investigators before carrying out the search and seizure in his bedroom. Legally before the search could have been conducted the scene of crime investigators may have first obtained an affirmation and consent of the accused. The search would have also been carried out with the presence of the accused or the defendant. The search is then regarded to be obtained illegally and therefore it should be excluded and cannot be required to be used against the defendant at trial. The police officers did not enter to William’s house with the plain view but with the unsubstantiable matters raised by Stevens’ wife. The previous movement of Steven before he could be murdered was not taken into consideration if anyone may have obtained the knife normally used by William without his knowledge when committing the crime. It was not reasonable beyond the level of doubt that the police officers had enough grounds to search the house without the owner’s consent and getting the valid search warrant at the first place. There reason was not probable and nothing necessitated to go very first to get fingerprint from the light switch.

The law enforcement officers violated William’s constitutional right to privacy and therefore any evidence derived from the search and seizure carried out in his house when he was absent and without his own consent should be kept out from the criminal case against him. For instance, where a court case it is found that a police search violated the Fourth Amendment rights of the constitution because of unsupported probable cause on the home of the owner, any evidence extracted may not be use for as evidence against the case and the arrest made is considered to be unlawful. If the police in this case believed that there was a probable reason to find evidence in William’s house in relation to the crime committed then they would have also followed the law before carrying out the search.

A good example in relation to this case is the criminal case where Officer Wiley arrested one suspect Lowe who was allegedly found to have been selling false telephone cards. The court judge ruled that the officer illegally traced and entered Lowe’s house and illegally seized a map that traced him to where Lowe had hidden the phone cards. Even though Officer Wiley found the phone cards in the led location, the map was found to be obtained illegally and hence the search was declared to be illegal. The finding of the phony phone cards which is considered to an offence are regarded to be as a result of that unlawful search and therefore the evidence presented was found to be inadmissible before the court (Diane, 2007).

There are instances where the rule of obtaining the search warrant may optional before conducting the search and seizure. For example, when the owner of the house is present and voluntarily consents to the police officer upon request, the search and seizure may be regarded as legal. In some cases for instances restaurant management, the third party mandated to be in charge of the property intended to be search may also give the consent. But the after the consent has been given, the owner of the property or the third party in charge must be present and observing as the search is conducted. For the case of William Ellis who was not present at the time of doing the search, his mother who he share the house with was present and before the search was to be conducted she would have been ask to consent first. Nobody was present from the defendant party when the scenes of crime investigators were seizing the house. Therefore, the case gives out clear evidence that there was a great violation of the constitutional rights of the defendants.

For the case of William Ellis, the search was not justifiable and the seized evidence may not connect the defendant to the crime that was committed. The court is not expected to allow the prosecution to continue using the search and seize evidence gathered from William Ellis’ house that was illegally searched. Mrs Ellis was the first to know about the death of Steven and immediately called the police. And since they were neighbors she had every reason to get worried the reason why she was quite distraught. Her evidence to the prosecution should be of great importance being the first person to arrive at the scene of crime. She would have first confirmed whether the knife used for investigations was the one she first saw on the man (Diane, 2007).

The exclusionary rule

In the criminal prosecution if the court finds out that an unreasonable search was conducted and any evidence was seized resulting from the search could not be used as admissible evidence against the accused person. However, being established in 1961 by the U.S. Supreme Court the rule has been embraced to the present as the “exclusionary rule” (Retrived from criminal-law-30183.html.).

A lot of criticism has been forwarded that exclusionary rule is unfair because it sets the criminals free just because of the search and seizure are considered to be illegal. This will limit police officers from conducting searches and seize evidence if the evidence found could not be used to achieve a conviction of the defendant (Greenburg, 2007).

The fruit of the poisonous tree

Under the legal rule that has come to be known as the “fruit of the poisonous” evidence used against the defendant, the evidence that was resulted from the illegal search and seizure may not under any reasonable used to reveal other evidences. This is like arresting a person to lead to the arrest to the other person believed to have committed the offence. The first arrest leading to the other is very much illegal and unconstitutional to one’s rights. The “tree” is considered to be that evidence which the police officers obtained from the illegal search and seizure at the first point and the “fruit” is the emerging product from the illegal seized evidence.

Diane, S. S., (2007). “Of a Judiciary Nature”: Observations on Chief Justice Roberts’s First Opinions, 34 Pepp. L. Rev. 1027.

Greenburg, C., (2007). Supreme Conflict: The Inside Story of Struggle for Control of US Supreme Court. N Y: Penguin Press

Toobin, J., (2008). The Nine: Inside the Secret World of Supreme Court . N Y: Doubleday.

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Search And Seizure, Arrest And Interrogation: Free Sample Essay To Follow

Type of paper: Essay

Topic: Crime , Law , Police , Criminal Justice , Seizure , Search AND Seizure , Social Issues , Arrest

Words: 2000

Published: 03/08/2023

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Introduction

Criminal law and even general law enforcement have several rules and regulations that are implemented in order to procure a more stable and relatively just and safe environment for the people of a country. The Constitution allows several statutes which determine how criminals and deviants are supposed to be treated. This is important so that their treatment and procedure of treatment serve as a deterrent for the rest of the people, and they are able to understand how truthfully justice has been served. There are several domains of this procedure as described in criminal law and comes under search and seizure, arrest and interrogation.

Search and seizure

Search and seizure are the common procedure adopted by the criminal law and civil law and legal systems where the police and law enforcement agencies perform a search of a suspect’s belongings and property to get hold of or confiscate any evidence that can be related to a crime that the person committed. Several countries have certain provisions provided by their Constitution that allow reservations in the search and seizure by police so that the rights of the searched party are preserved. These reservations are made in order to prevent any kind of unreasonable searching that might violate a person’s privacy. There is a general premise reserved by the law that every person has a certain restraint of privacy which cannot be breached by any law enforcement agency or personnel. Usually, before search and seizure are organized against a certain party, the police have to gain a search warrant which guarantees safe and lawful search against a person or people. Without the possession of a warrant, the police have no right to invade a person’s home or workplace and check for evidence and clues.

Search and seizure and the 4th Amendment

In the United States, the Search and Seizure law comes under the 4th Amendment to the Constitution. The 4th Amendment to the U.S Constitution enforces certain limits when it comes to the authority of the police in the case of making arrests, searching people, their properties and then finding and seizing evidence and illegal utilities such as drugs, arms, and other possessions. Placing these limitations is the basis of the search and seizure law in the constitution (N.a 494). When the search and seizure law was provided in the 4th Amendment of the Constitution, it revolved around the concept of providing privacy to the people (N.a 496). Since people are guaranteed a limit of freedom, they are not authorized to be searched without a proof and a warrant. All kind of unreasonable searching and seizing of possessions is prohibited by the 4th Amendment by any state or federal law enforcement agency in the country (N.a 498).

Requirements of the 4th Amendment in Search and seizure

On the other hand, the police are authorized to conduct search and seize wanted evidence if they have to, as per the requirements and provisions of the 4th Amendment, provided these are based on a reasonable cause (N.a 499). A practical overview of this is that the police are allowed to look at the privacy and freedom of a person and exercise their power by searching the home, cottage, car, yacht, boat, office, workplace as well as their private documents, bank accounts, legal records, private messages and phone record history, their trash and literally anything they want to scrape out in order to find what they are searching for (N.a 499). The power that enables the police to override and redefine anyone’s privacy is provided by certain causes. The first is that the police are sure or somewhat certain that a particular person is involved in a particular case, and they will be able to find evidence against that person (Woody 4). If they are able to convince the judge about their concerns, then the judge will issue a warrant, and the police are able to carry out a search and seizure (Scheb and Scheb 482). On the other hand, the police are liable to search even without a warrant if the circumstances allow them. For instance, they catch a thief or burglar run into his own house; then they can follow and search the man and his house there and then because the circumstances allow it. There are also conditions in which the person in question might allow their search to the authorities (Woody 7).

Police deterrence by 4th Amendment

However it is not always the people that are liable to penalization and punishment by the authorities, but it is also the police and law enforcement agencies that are punishable by law if they break the rules in search and seizure (Scheb and Scheb 486). This applies the exclusionary rule upon the police. If the court finds out that a search has occurred that violates the laws of the 4th Amendment and that any kind of evidence was seized from a person or their property through an unreasonable search, then that evidence is rendered useless and futile against the defendant during a criminal prosecution. The exclusionary rule deters the police officers and general law enforcement agencies from misusing their rights and disobeying the laws of the 4th Amendment (N.a 500). Any evidence they bring forward by unreliable means of search and seizure in a court of law are objected and dismissed by law, and they cannot use them for prosecution. There are certain objections to the exclusionary rule that many criminals are let off easily because of the rule only because a policeman made a mistake but the evidence was real. However those in support of this rule, claim that if the police are allowed to search for illegal possessions illegally, then they are prone to carrying out investigations illegally, and thus illegal search and seizure will become rampant.

The next is the arrest and interrogation carried out by the law enforcement agencies. The arrest is carried out with a warrant as well but not when a person is arrested out of their property or home. The only circumstance where the police find it correct to make an arrest is when they have sufficient reason for acknowledging that a person has committed a crime (Greene 1013). If a person is being caught by the police outside such as in a case of theft or robbery, then they are arrested there and then however if an arrest needs to be carried out from a person’s home, then the police are required to have a warrant (Greene 1013). This is especially true if the offense is non-serious in nature and does not require any serious criminal charges in the future. Moreover, this is done when the police are sure of the claim that the person involved will not be dissolving or hiding the evidence in the privacy of their home or in public (Greene 1014). The arrest warrant that has been issues needs to procure the complete information of the crime committed, the name of the person against whom the warrant has been issued, and the warrant needs to be in compliance with the rules and terms and conditions of the court (Greene 1015).

Method of arrest- The Reid Technique

The method of arresting is by actually seizing the body or touching a person’s body with a motive of detaining them for committing a crime (Hall 479). Capturing them will not be required except for the case of a serious or harmful criminal. If the person involved in the arrest admits the crime and gives in to the police, then they simply go along with the arresting officer, but the words of arrest are still pronounced to ascertain that a criminal has been arrested. The person who has been arrested is informed of the charges they might have to face if their crime is proven and this is only done so that the person realizes their crime and gives in an explanation as early as they can. This, however, does not apply to a case where the person has been caught red handed and would know they have no means to save themselves with a fake explanation or hiding of events (Greene 1017).

Interrogation

Interrogation is the part where the police are bound to get confessions out of criminals or alleged criminals and suspects to tell the truth and confess to a crime they are accused or guilty of. Some people have hired a lawyer who tells them how to talk to the police or directly takes the case to trial in court. There are however certain techniques that are applied by the police when they interrogate people. These include methods such as the Reid technique (Greene 1013). It was an interrogation technique invented by the police when they had to interrogate people, first implied in the 1940s (Greene 1016). Typically it is seen as the ‘good cop-bad cop’ technique where one officer is nicer while the other has the ability to bring down the person to tears. The room is dingy and small, and there are coffees and cigarettes that usually make the confession end in the person breaking down and confessing their crime while the attorney has to come in and close the interview (Hall 180).

Police strategies for interrogation

The police employ three important strategies in this method. The first is isolation. Isolation means that the individual is separated from their family and friends, and they are supposed to feel alone and helpless so they can confess more easily (Hall 182). Isolation does help in pulling out confessions; therefore, police are more inclined to interrogate people in windowless, cramped rooms to make them more miserable (Hall 182). The next is the method of maximization where the police begin by telling the person that they are guilty, and they hammer them, ask repeatedly why they committed a crime (Hall 183). The interrogation can involve a story, telling how the crime was carried out and at times the crime is completely fabricated. The bad cop comes into play here as he knows the suspect is lying and he needs to get the truth out of him (Hall 183). After maximization, the police move to minimization, if the suspect does not admit to the crime. The good cop is dominant here as he tells the suspect he knows that he is lying and if he tells the truth, people will understand him, and he also explains the extent of his punishment and charges that will be applied to him. These techniques usually lead to a confession, and if the suspect does not admit, then the case goes on to trial (Hall 184).

The procedures of search and seizure, arrest and interrogation are mainly carried out by the police and law enforcement agencies involved. However the police need to follow a strict set of rules in order to implement their power, and those rules are provided by the 4th Amendment of the Constitution. It defines privacy and breach of privacy and explains the repercussions of the police if they imply unreasonable methods of search and seizure. The arrest is also carried out with or without a warrant, depending on the circumstances. Arrest from home needs a warrant if it is for a non-serious crime. Interrogation is meant to procure a confession from a suspect. Police use the good cop-bad cop improvisation and use methods of isolation, maximization and minimization in order to yield a confession through the interrogation.

Greene, R. Jack. The encyclopedia of police science. Routledge. 1013-1018. 2007. Print. Hall, E. Daniel. Criminal Law and Procedure. Cengage Learning. 479-490. 2008. Print. N.a. Fourth Amendment--Search and Seizure. Journal of Criminal Law and Criminology. 493- 504. 1977. Web. 7 Apr 2016. Scheb, M. John and Scheb, M. John II. Criminal Law and Procedure. Wadsworht, Cengage. 481-492. 2011. Print. Woody, Henley, Robert. Search and Seizure: The Fourth Amendment for Law Enforcement Officers. Charles C. Thomas Publisher. 3-8. 2006. Print.

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