Research Paper on "Search and Seizure"

Research Paper 8 pages (2602 words) Sources: 8

[EXCERPT] . . . .

Fourth Amendment: Protecting Your Privacy

The relationship between the Fourth Amendment and Technology

When the Fourth Amendment Doesn't Protect You

Did the person actually expect some degree of privacy?

Private Security Personnel

What Happens When a Search Violates the Fourth Amendment?

Rationale and justifications

Core Value of Integrity

Student Position

Search and Seizure

Constitution's Fourth Amendment gives citizens as well as criminals' protection from unreasonable searches on their persons and property and prohibits unlawful arrests by police officers. While it may appear straightforward and self-explanatory, the laws derived from the rights aren't necessarily straightforward. This paper discusses searches and seizures, what is required from the police by the law, what makes up "probable cause" and other related topics.

The Fourth Amendment and Warrants

The Fourth Amendment grants the people the right to be secure against searches and seizures that would be deemed "unreasonable" under the scope of the amendment. It also provides that warrants shall not be issued where probable cause is lacking and that the warrants ought to detail the person and place to be searched and the things that are to be seized. It therefore means that no officer can search or seize an individual or their belonging without a search or arrest warrant that is valid or belief deemed to be "probable cause" that the person has committed an offence. The absence of all three conditions in evidence obtained makes the evidence inadmissible in a court of law.

Probable Cause

Probable cause is the standard to conduct a warrantless search and also forms the standard upon which a warrant is issued. For an arrest, there is probable cause when circumstances and facts an officer knows can lead to a reasonable person believing that the suspect in question has committed, is in the process of committing or is planning on committing a crime. Suspicion, feeling and hunch are not grounds for probable cause. Only specific circumstances and facts count. To seize a property, there is probable cause where circumstances and facts the officer knows would lead a reasonable individual into believing that the item in question is stolen, a contraband or is evidence of a committed crime.

Search and Seizure

There are circumstances where an officer can carry out a search, arrest a person and seize property without implicating probable cause or the Fourth Amendment. Where the officer's safety or the safety of the public is threatened, such an arrest or seizure can be done. If an object is in open view like when placed on a car seat and the object is contraband, there isn't any need for probable cause of the Fourth Amendment. The contrabands can be seized and admitted in a court of law as evidence. Police officers can also do searches in times of emergency, for instance, an armed fugitive. The police can search people and the surrounding location. Also, where consent is explicitly given, there is no need for probable cause to carry out a search. A person who is in charge of a particular space, for instance a spouse or roommate, can give an officer consent to search the space. Further, an impounded or towed car can also be searched. When looking for weapons, an officer is allowed to put an individual down. Generally, many of circumstances can warrant an officer doing a search or seize property without probable cause. Where an individual is subjected to a search without a warrant, it is important that they remember clearly the details of the circumstances and events leading to the search and discuss them with their attorney to evaluate if there was a violation of rights (Thomson Reuters, 2016).

The Fourth Amendment: Protecting Your Privacy

The U.S. Constitution's Fourth Amendments states the following:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The Fourth Amendment's provisions on search and seizure concern themselves mainly with privacy. In honoring the freedom to privacy, it protects individuals from searches and seizures that are "unreasonable" conducted by both state and federal officers. on the other hand, though, "reasonable" searches are allowed. This implies that officers can override an individual's privacy and carry out a search of their property, bank records, trash can, etc. if the officers have probable cause to believe there is a possibility to find evidence of a crime. This can be when a warrant has issued a warrant or when the prevailing circumstances and facts justify a search.

The relationship between the Fourth Amendment and Technology

The amendment does not allow government officers from carrying out "unreasonable" searches or seizures. The amendment is enforced by an exclusionary rule not allowing local, state and federal judges from allowing into admission to the case-in-chief of the government evidence that was obtained by violating the Fourth Amendment (Lafave, 2004). If one is injured during such an unlawful search, they can bring suit against officers. The courts have noted that the best solution to the problems brought about by the Fourth Amendment is not promotion of incantation of the statement "constitutionally protected area" but by appreciating that the mischief of the amendment was protecting individual privacy against some kinds of intrusions from the government and that the protections the amendment provides sometimes are sometimes not in any way connected with privacy (Larkin, 2013).

When the Fourth Amendment Doesn't Protect You

There are certain search or seizure situations where the Fourth Amendment does not apply. It applies where an individual, in the location where the search is to be done, has a "legitimate expectation of privacy." A two-part evaluation and test has been used by courts to determine the legitimacy of expectation of privacy. The test was designed by the Supreme Court and it covers the following:

Did the person actually expect some degree of privacy?

This standard evaluates the reasonability of the expectation to privacy held by the person. A reasonable expectation is one that can be willingly recognized by other members of society.

For instance, it is expected that someone using a public restroom is not to be spied on and members of the society -- judges included -- would consider it an objectively reasonable expectation. Installing a spy camera in a public restroom is a "search" and must be held to the standards of the Fourth Amendment. Conversely, when an officer halts a motorist and when talking to him notices an illegal weapon, there was no search under the Fourth Amendment. The reason is that while the motorist might consider the car seat a private place, society is not willing to apply privacy protections to the particular car seat. This is to say that there is not an objectively reasonable privacy expectation to the weapon as it was displayed in the view of the officer. An accounting of the application of this rule was illustrated by a case in the Supreme Court where it was held that a passenger in a bus had an objective expectation of privacy in a bag which was opaque and was sitting in the luggage rack located above his head. It was held that a physical inspection of the bag or evidence that the passenger was carrying contrabands constituted a search under the limitations of the Fourth Amendment (Nolo, 2016).

Private Security Personnel

Police officers, have at times, been outnumbered by private security personnel in the United State by a ratio of 3:1. Because of these statistics, the average person while going through a normal day is likely to encounter more private security personnel than police officers. Searches done by private security officers, like those of other non-government employees, are not subject to the Fourth amendment. Assume, for instance, that a teenager is walking into a mall. The mall's security guard, acting on a hunch, decides to search the backpack of the teenager. Inside the backpack is roll of marijuana. The guard has the option of detaining the teenager, calling the police or giving police officers the drug. In this case, the drug is indeed admissible as evidence since the search was done by a private officer not acting on behalf of the government.

What Happens When a Search Violates the Fourth Amendment?

When a court of law, upon doing a review, finds that the search was "unreasonable," all evidence arising from the search are not admissible as direct evidence in criminally prosecuting the defendant. The principle was established in 1961 by the U.S. Supreme Court and is referred to as the exclusionary rule. The rule has been widely criticized by several commentators who argue that the rule makes it possible for otherwise "guilty" criminals walk away just because an officer committed a mistake. The rule is however supported by several other parties. Their argument is that the rule helps deter police officers from randomly… READ MORE

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