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Fourth Amendment

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Autor:  anton  07 December 2010
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Fourth Amendment 1

The Interpretation of the Fourth Amendment on Search and Seizure and its Effect on

Law Enforcement

Garret Hogue

Troy University

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The Constitution of the United States stated that people must be secured in their homes and in their persons against unreasonable search and seizure. Since the establishment of this right the courts, being local, state, and federal have interpreted it in many different ways. The interpretation of this amendment has effected how police officers conduct investigations. There have been many decisions by the courts since the Bill of Rights was ratified. These decisions have shaped how police search persons and property.

The Colonials were concerned about the government entering their homes. In order to enforce the revenue laws, English authorities made use of writs of assistance, which were general warrants authorizing the bearer to enter any house or other place to search for and seize ''prohibited and uncustomed'' goods, and commanding all subjects to assist in these endeavors. (http://www.caselaw.lp.findlaw.com/data/constitution/amendment04.) This was the early necessity to protect themselves from unreasonable search and seizures. With this practice in mind the framers of the Constitution wanted this protection. Over the coarse of several years this Constitutional Amendment has been argued over and tested in the judicial system. The results of this have caused certain procedures and rules by which law enforcement has to follow.

For the Fourth Amendment to apply there must by a search and or seizure of property or persons. With persons an arrest or "seizure" of that person can occur with or

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without a warrant. As with an arrest or search warrant, probable cause has to exist in order to obtain both. Probable cause is not defined by the Constitution or law. The

courts have shaped it. A definition of probable cause is facts or circumstances that would lead a reasonable person to believe that a crime has been or will be committed. Before any search or seizure probable cause has to exist. The probable cause is used to get a judge, usually a Magistrate Judge, to issue the arrest or search warrant. The warrant authorizes the officer to seize particularly described items and to bring them before the court that issued the warrant. The warrant must particularly describe the person to be arrested, the place to be searched, and must specifically list the items that can be seized, (Knoll 2001). In my experience most searches are conducted without a warrant. So the question that usually comes up in court and shapes the various decisions by the courts over the years is if the search was unreasonable. The exceptions to a search without a warrant are various. They alone have set precedents on searching and seizing property.

One of the numerous exceptions is search incident to arrest. There is a need for officer safety and the preservation of evidence. The courts have long upheld the need to officers to search persons after their arrest. The main consideration is if the arrest was valid. The arrest of a person could be made with a warrant or warrentless if probable cause existed. The search of the area immediately in their control is permissible and does not violate their fourth amendment rights. The arrest of a person inside a house brings about a justifiable " protective sweep" of the immediately adjoining spaces of the area of the house where the defendant is arrested, if the police have a reasonable belief

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based upon specific and articulable facts, that the area to be swept harbors person posing a danger to those at the arrest scene. (Knoll 2001).

There is also an arrest of persons inside a vehicle, which the courts have said officers can search the passenger compartment of that vehicle as long as his, arrest was valid. These issues have come up time and time again. The courts have established its acceptable practice so long as it does not go beyond the control of the suspect and is conducted for other than a valid reason,( Schalleger, pg 281).

The search of a vehicle brings about a whole new sets of standards established by the courts. A vehicle can be searched without a warrant if an officer has probable cause to believe that contraband is in the vehicle. A large reason this is acceptable is due to mobility of the vehicle. The evidence in the vehicle is mobile and therefore could be lost. The courts have established that vehicles have a less expectation of privacy.

There is an inventory search of a vehicle that is also permitted without a search warrant. When police come in possession of property they have the right to search the items in order to inventory the contents. This is used to protect the police from false claims of theft. The vehicle needs to be impounded and the purpose of the search is conducting an inventory not searching for fruits of the crime. The inventory should follow procedures established by the law enforcement agencies. As with my department there is a policy concerning inventory of vehicles. We have established an inventory sheet where all items in the vehicle are listed. This keeps people from making unsubstantiated claims against the officer.

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An officer at any time can ask for consent to search a person. The key component of the consent and what the courts will decide is if the consent was voluntary. There can be no coercion whether implied or express by the officer. The person who gave consent

can revoke it at any time. An interesting decision has come out of a consent search by the Georgia Supreme Court. It was common practice to ask a third party for consent to search as long as they joint access to the property. In Randolph v. State of Georgia the courts found the defendant's wife could not give consent to officer after he refused consent. Even though she had equal access to the area that was searched, the court upheld the motion to suppress. (www.gasupreme.us/pdf/s04g0674.pdf). This basically places a hold on consent to search by a third party, when the other party who has the same access does not give consent. There is an expectation of privacy in places that people rent. A landlord cannot give consent for the tenant. That tenant is afforded the same Fourth Amendment protection as a homeowner.

Another exception to seizing items without a search warrant is the plain view doctrine. Officers can search and seize any item in plain view as long as there is probable cause the item is part of a crime. The plain view doctrine is simply something in " plain view". Obviously there is expectation of privacy if something is in plain view. The officer only has to have a legal right to be place where the items are found.

A Terry Stop is the one of the most commonly used exceptions to a search warrant requirement. In Terry v Ohio, a Cleveland detective was patrolling a downtown beat. He had patrolled this beat for many years. He saw two strangers on a street corner. He saw them walk back and forth along an identical route, pausing to stare in the same

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store window about 24 times. After each route was taken by the strangers, they would have a conference on a nearby corner with a third person. The detective from his

experience felt the two men were casing the business for a robbery. He approached the three men and " patted down" the outside of their clothing discovering guns. (www.laws.findlaw.com/us/392/1.htm) So with a Terry frisk, The officer only needs reasonable suspicion, meaning facts known to him through his observations that the person is committing, has committed, or is about to commit a crime. The officer may search the person for weapons for his safety or the safety of others. This is a very valuable tool for protecting the officers from injury. The seizure of the weapons is paramount in protecting society from violent crime.

A plain feel doctrine was established when an officer most likely during a Terry Frisk felt an object that they immediately knew to be contraband. The courts will take into consideration the officer's experience, training, education, and credibility. I have used this in my career. My experience and training came into play during the court proceeding.

An exclusionary rule has been established as a result of violating a persons Fourth Amendment rights. The exclusionary rule came to be after a US Supreme Court ruling. In Weeks vs. US (1914) federal agents seized evidence from Mr. Weeks residence. They entered without a search warrant. This ruling was the bases for the exclusionary rule. The exclusionary rule holds that evidence illegally seized by the police cannot be used in a trial. (Schmalleger, pg 277). Any evidence seized after a violation for a person's rights

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is considered fruits of the poison tree. The items cannot be used in the criminal case. This is very important for officers to remember. If the property seized is warrantless and

not discovered from the numerous other established exceptions to having a search warrant, then the evidence cannot be used. This could greatly jeopardize criminal cases.

The easiest way to avoid problems with evidence seizure is to obtain a valid search warrant. A search warrant is an order from a judge to search a specific place. The warrant should contain what items are to be searched for. The warrant will have a description of the place or person to be searched. In order to obtain a search warrant the officer needs to establish probable cause for the issuance of the search warrant. The officer obtains information through his own investigation or through the use of confidential informants. Any information obtained has to be independently verified by the officer. If informants are used then the courts need the officer to establish their reliability. The officer then swears before the judicial officer the information is true and accurate. The officer can request a no knock provision be added to the search warrant. The request has to be substantiated by the articulable concern for the potential of violence Once a judge signs the warrant, the officer has ten days to execute the warrant. Without the no knock provision, an officer must knock and announce before entering the place to be search. This is only true if he is refused admittance. An officer may use reasonable force to enter the residence and arrest persons inside. Every person present during the execution of the search warrant is subject to being detained and searched. This is done to protect the officers and to prevent the possible destruction of evidence. Any items not

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listed in the scope of the search warrant that is found while looking for evidence as listed in the search warrant can be seized and used against the defendants. A copy of the search warrant is left on the premises where the warrant was executed. It is to be left in a

visible place or with a person who is in control of the property. A property list is made of all items taken during the coarse of the search warrant. A copy of the property taken from the residence is left with the search warrant. The original search warrant and list of property taken are to be returned to the court. The officer will have to swear to the judicial officer the warrant was executed and the list of property was actually taken.

During the coarse of a police officer's career he is met with several challenges. The officer is constantly using the above-mentioned exceptions to the search warrant. It is beneficial to all if officers are familiar with these procedures. It should be noted that officers who are simply trying to do their jobs within the parameters of previous court rulings, establish most case law. It is usually when new circumstances arise, where case law has not been established, that officers in good faith try to do their jobs without violating a persons Fourth Amendment rights. These rules have been established to help ensure persons constitutional rights are not infringed upon.

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References

Georgia Supreme Court, The State v. Randolph, 278 Ga. 614 ( 2004) , Justice Benham, Retrieved February 10, 2006 from http://www.gasupreme.us/pdf/s04g0674.pdf

Knoll, John ( 2001) Legal Aspects of Search and Seizure, Presented to the Topeka Police Department Recruit Academy. Retrieved February 08, 2006 from http://www.kscoplaw/outlines/ssoutline.htm

Quincy's Massachusetts Reports, 1761-1772, App.I, pp395-540, Retrieved February 10, 2006 from http://caselaw.lp.findlaw.com/data/constitution/amendment04

Schmalleger, Frank (2005) Criminal Justice Today; An Introductory Text of the 21st Century. 8th Edition (pg 277). New Jersey: Pearson Education

U.S. Supreme Court, Terry v. Ohio, 392 U.S. 1 (1968) Retrieved February 9, 2006 from http://www.laws.findlaw.com/us/392/1.htm



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