Term Paper on "Law of Arrest and Search and Seizure"

Term Paper 5 pages (1764 words) Sources: 0

[EXCERPT] . . . .

Constitutional Law- Search and Seizure

Constitutional Law: Search and Seizure

While Officer Hardbutt's behavior towards Harry Hiphop clearly evolved into something unconstitutional, in all likelihood Officer Hardbutt had the authority to stop Harry for speeding. The facts clearly state that Harry was speeding, and police officers have an absolute right to stop people while they are committing a crime. Even if Hardbutt was not using a properly calibrated radar gun, that would impact Harry's chances of a conviction, not undermine the fact that Hardbutt had probably cause to perform the traffic stop. However, if Hardbutt stopped Harry, but ignored other cars traveling at the same or greater rates, and did so because of a discriminatory reason, then Harry might have a legitimate complaint that he was unfairly targeted because he fit into a particular, targeted demographic. For example, if Harry's vehicle was "pimped out," and Hardbutt only stopped such vehicles, then Harry might have a complaint that he was a victim of profiling. However, there are two things that hamper the success of a profiling claim. First, style of dress is not a protected class or immutable characteristic, which makes a profiling claim difficult. Second, the fact remains that Harry was actively engaged in illegal behavior at the time that Hardbutt stopped him, making it extremely unlikely that Harry could successfully challenge the stop.

Once he stopped Harry, Hardbutt had substantial authority to control Harry during the course of the routine traffic stop. This right included ordering Harry out of the car and conducting a "plain view" search of Harry's vehicle. Generally, police officers do have the right to engage in a limited frisk and search of a stopped vehicle. Moreover, a police officer always has the right to order a driver out of a car for safety considerations, even if the officer does not suspect any criminal wrongdoing beyond the traffic violation. This is because police officers have the right to secure the area in a stop, and this right only increases if they have a reasonable suspicion that someone is armed and dangerous. Police officers can also frisk someone if they have probable cause to believe that the person is involved in illegal activity. However, there is nothing in the factual scenario to suggest that Hardbutt had the reasonable expectation that Harry was either armed or dangerous, making it unlikely that Hardbutt had the right to frisk him. A disreputable-looking appearance is not sufficient to establish a reasonable suspicion that someone is armed and dangerous; that would require something like a visible weapon or a suspicion that the stopped vehicle and person were involved in a crime. However, Hardbutt was entitled to shine the flashlight around Harry's car. Officers involved in any type of stops are permitted to search the immediate surroundings to make sure that there are no weapons present and insure the safety of the officer. Moreover, the Fourth Amendment only applies to areas where a person has a reasonable expectation of privacy; the front seat of a car is not one of those areas. In fact, any area of a car that is visible to someone looking in to the car, even on floorboards, is considered "plain view," and one does not have a reasonable expectation of privacy in those areas.

At first glance, it appears that Hardbutt exceeded his authority by conducting a full search of Harry's car. As explained above, Harry had no reasonable expectation of privacy in the areas of his car that would be visible to a person casually peeking in the window. Therefore, Hardbutt was authorized to shine his flashlight on the seats and on the floorboards. However, there are areas in a car where one has a reasonable expectation of privacy. While these areas vary with the type of vehicle, they include, but are not necessarily limited to glove boxes, trunks, and cargo storage areas. These areas can only be searched pursuant to a warrant or if an officer has probable cause to search them. Because cars are portable, the standards for probable cause are not as onerous as the standards for warrantless searches in other scenarios. Therefore, if officers have a reasonable basis to believe that the drivers or passengers in a vehicle have been involved in criminal activity, they can perform a search of an entire car, including hidden areas. There is a possibility under the factual scenario presented that Hardbutt may have had the authority to conduct such a full search. For example, if the car smelled like marijuana smoke when the officer pulled Harry over, that would have provided a reasonable basis that Harry was involved in illegal activity. However, Fourth Amendment restrictions do not apply to a consensual search; a person can always waive his Fourth Amendment rights and consent to the search of any personal private property. Therefore, to determine if the search of the vehicle was legal, one also has to determine whether Harry consented to the search of the car.

The facts do not support a consensual search; a waiver of Fourth Amendment rights must be voluntary and affirmative. One does not waive one's Fourth Amendment right by simply failing to object to a violation of those rights.

The judge at the preliminary hearing on the drug-possession charge is unlikely to allow the case to proceed. His reasoning is likely to be that the search of the vehicle was impermissible because there was no probable cause to believe that Harry was engaged in criminal activity and Harry did not consent to the search. Furthermore, there was nothing in plain view in the car that would have led Hardbutt to believe that Harry was engaged in illegal activity and justified the search of the rest of the car. The state will argue that Harry consented to the search of his car. As a defense attorney, I would counter that argument with the fact that failure to object is not the same as consent; therefore, Harry gave no consent to search his car. The state may try to argue that, by giving Hardbutt the location of the marijuana field, Harry was consenting to a search of the field. Not knowing the appearance of the marijuana field, it might even have been possible for Hardbutt to identify the plants on it as marijuana prior to entering the field, which would have given him permission to enter the field. However, when Hardbutt found the marijuana cigarettes (if not prior to that time), he intended to arrest Harry and Harry was officially in custody. At that time, Harry's Fifth Amendment rights, as defined by Miranda v. Arizona, required Hardbutt to read Harry his Miranda rights. Hardbutt failed to do so. The exclusionary rule requires the exclusion of any evidence obtained as the result of a violation of a defendant's constitutional rights. More importantly, the exclusionary rules also excludes "the fruit of the poisonous tree:" evidence that would not have been obtained absent the constitutional violation. Harry's confession regarding the location of his marijuana field was the result of an illegal interrogation; and, but for that confession, the field would not have been found. Therefore, the fact that there was a marijuana field, the location of that field, and anything found on that field are all not admissible. However, there is an inevitable discovery exception to the exclusionary rule; if Harry's marijuana field was so situated that its discovery by law enforcement was inevitable, then the fact that it was discovered because of a constitutional rights violation does not mean it has to be excluded. Finally, the fact that Hardbutt made an implied threat to Harry is not determinative of any issue. Hardbutt violated Harry's Fifth Amendment rights be questioning without Mirandizing him; the questioning would have been just as unconstitutional had Hardbutt conducted it in a polite and civilized manner.

Even if Harry had been wearing a baseball cap with a marijuana leaf on it at the time of the stop, Hardbutt would not have been justified in conducting a full search of Harry's car. To justify a search of a vehicle, an officer must have a reasonable suspicion that a person is engaged in current criminal activity. It is not sufficient for an officer to suspect that a person may have engaged in criminal activity in the past or might engage in criminal activity at some unspecified point in the future. A baseball cap with a marijuana leaf on it is not contraband; it is not illegal to buy, possess, or wear such a cap. Therefore, the fact that Harry was wearing such a cap would not have justified a search. Even if the police officer had spotted a copy of High Times magazine on the front seat of the car, he would not have been justified in conducting a full search. Like a marijuana-leaf baseball cap, High Times magazine is not contraband. It is perfectly legal for Harry to own, read, and drive around with a copy of the magazine. Though such a magazine… READ MORE

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