Term Paper on "Search and Seizure"

Term Paper 5 pages (2164 words) Sources: 1+

[EXCERPT] . . . .

Search and Seizure

The question of the evidence not being admissible hinges on one main question - whether the search was legal? If the search is illegal, then any material found in the search will also be inadmissible under the "exclusionary rule" which was established by the Supreme Court in 1961. This does not permit evidence that is uncovered during an illegal search to be used as evidence in courts. The question of "fruit of the poisonous tree" does not arise here as the search only uncovered direct evidence that proves William was connected to the injury of Clyde Stevens, though it does not prove that William murdered Clyde. There were certain procedures to prove that the bloodstain concerned was of William and those procedures have to be interpreted in legal terms. If that makes the evidence itself a result of not the search, but subsequent proceedings, then the question of "fruit of the poisonous tree" becomes applicable. However if any other evidence was uncovered during that search, then that discovery would be the "fruit of the poisonous tree" as that would have been uncovered during an illegal search. At the same time, just because an issue of illegal search has been raised, and even if the search is held to be illegal, the case against William does not have to be dismissed. (Understanding Search and Seizure Law)

The entire question of legality of searches and concerned seizures come from the Fourth Amendment to the U.S. Constitution. This places limits on the power of the police to make arrests, search people and their property holdings, and seize items and contraband. The contraband may be illegal drugs or weapons. The entire consideration here is about privacy, and the Fourth Amendment protects the privacy of citizens, and protects them against unreasonable searches and seizures from both the state and federal authorities. Since it is clearly mentioned that police have done this search and found the evidence, it may be subject to this law. If the search was done by a private agency, then the question of privacy could not have been raised against them. (Understanding Search and Seizure Law)

At the same time, the Fourth Amendment permits search and seizures that are considered to be reasonable. That means the police may enter homes, barns, cars, boats, offices, collect personal or business documents, bank account records, or even trash barrel, etc. If the police have a reason to believe that they can find evidence about your committing a crime, and there is a search warrant issued by a judge, or there are circumstances for a search being carried out without a warrant. (Understanding Search and Seizure Law) Here the difficulties of the police come from the first point is that they did not have an approval from Mary Ellis to search her apartment, it may be presumed since she was still undergoing treatment. The permission from Sheila Stevens is invalid as the house of Mary Ellis was a different apartment, though it was in the same building. It may be argued that Mary Ellis had a right to her privacy, but then that is a statement that would have to come from Mary Ellis. The statements of William are also material if he can prove that he was staying there - the status of his paying or not paying the rent is immaterial. The police could have avoided all trouble if they had got a valid warrant from the magistrate, but that does not seem to have been done. This is a great flaw in the investigation and the police could have avoided all trouble if they had collected a warrant. That is an action that would have been taken by a proper investigation agency.

The question comes as to what is a search warrant. This is an order signed by a judge which gives the authority to police officers to search for particular objects or items at specified locations at specified times. To obtain the warrants, the police officers have to convince the judge or magistrate that they have enough reason to believe that some items related to a crime is available there or some criminal activity is taking place there. There are different methods of providing this information to the magistrates by police, but the usual form that this is supplied in is written statements under oath, and those statements are called affidavits. This report contains either the observations of the police directly or through any private citizens and then reported to the police. The citizens may also be undercover informants. Then the police are authorized to search the place and if they are able to recover any items that the police require as proof of crime, then they can seize the items. If they also come across items that are not listed in the affidavit or warrant, then the police can also seize the same. The warrants are a legal requirement for police searches. (Search Warrants: What They Are and When They're Necessary)

The argument can be only from the angle as to whether William expected some amount of privacy in the place searched. (Understanding Search and Seizure Law) If there is no expectation of privacy, then the privacy issue cannot be raised, but here the place searched was the bedroom. The method of finding out whether there was some expectation of privacy comes in the courts through a two part judgment. Of these the first is whether the person expected some privacy and the second is the judgment is whether the expectation can be felt to be reasonable and that is judged through the view of the society being ready to accept such an expectation from the supposed criminal. Thus a proper investigating authority would have taken a required warrant from the judge looking after the case. They could have told the judge that they had a suspicion against William in view of the statements of Sheila Stevens which already told them that William had gained unauthorized entry in their house, and she could have told to name William as a possible criminal, though that in itself is not a proof. An effort should have been made, and then it was a decision to be taken by the judge. Then the evidence would have certainly come into the trial. Now the police will probably have to find out some other linkages. (Search and Seizure Law without a Search Warrant and Suppression Motions)

The seizure of any evidence, not only from houses, but even from cars being stopped on the roads requires that the prosecuting authority, meaning the state provide proof that there was no violation of Fourth Amendment in the entire proceedings. This can be seen in the case State v. Brown, 132 N.J. Super. (App. Div.1975). The onus is on the state to prove that there was no violation of Fourth Amendment by providing enough evidence to say so. Here also it is up to the police to prove that there was no violation of Fourth Amendment and that would be rather difficult considering the circumstances. There are many such cases where such actions have been required like State v. Whittington, 142 N.J. Super 45(App Div 1976). On the face of it, the searches are presumed to be invalid and it is left to the state to prove that the search was legal. This was seen in the cases State v Valencia 93 NJ 126, 133 (1983), State v. Brown, supra; State v. Welsh, 84 N.J. 348 (1980).

In certain cases, it has been accepted that there are no requirements for a search warrant, then in those cases, if a search is conducted without a warrant, then the action taken by the police is viewed to be unreasonable on the face of it. This was also seen in the case Schnekloth v. Bustamonte, 412 U.S. 218,219, 93 S. Ct. 2041, 36 L. Ed 2d 854, 858 (1973). The rights given under the Fourth Amendment has been created by the Federal authorities as also the rights under "fruits of the poisonous tree" by the Supreme Court. These make the results of unconstitutional searches inadmissible in the proceedings of criminal courts. This was seen in Weeks v United States 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed 652 (1914). The same rules could also be applicable in cases where the states are concerned and this is seen in Mapp v Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed 2d 1081 (1961). All judges, whether they are from the federal authority or the state authority have to protect the constitutional rights of Americans. Fourth Amendment is a clear law which provides that a warrant must be collected before a search is undertaken as the warrant is the view of an impartial judicial officer based on probable causes. (Search and Seizure Law without a Search Warrant and Suppression Motions)

The question now remains as to the procedures that can be used by the prosecuting authorities to use… READ MORE

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