Search and Seizure Essay
Search and Seizure
The Fourth Amendment was set in place to protect society from unlawful police work. When it comes to apprehending criminals and ensuring their conviction, evidence needs to be gathered before hand. To do so, there is a lengthy process to be followed; the search and seizure method, the arrest, reasonableness, and right of privacy methods. However, there are laws that can protect officers in the line of duty or make accommodations to police work while in the line of duty. One law that helps protect police officers during the line of duty is the “stop and frisk.” However, for an arrest to take place there must be probable cause in that it must be more than likely than not that a violation of the law has been committed and the individual arrested committed the violation (Emanuel, 2009).
Reasonableness to Privacy and Search and Seizure
Although the Bill of Rights explains, and defines an abundance of legal rights an American citizen is entitled to, it lacks a definition of the right to privacy. Essentially, our right to privacy is a judicially created right just like the exclusionary rule. That means that this right can be altered when needed, basically at any time. The fourth amendment stands to protect our rights in one aspect, it states, “”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.” (Fourth Amendment, U.S. Constitution) However, in no way does it even mention our right to guaranteed privacy; it was created to ensure that every American citizen is given privacy as long as there is no reason for law enforcement to break that.
The Fourth Amendment is our closest right listed in the constitution that relates to privacy. It also contains to clauses; the reasonableness clause and the warrant clause. The reasonableness clause forbids unreasonable search and seizures which ties into the warrant clause which states that warrants will only be issued as long as probable cause is present. Warrants are to specific the place to be searched, and specific items that can be seized if located within that place. It has been argued that these two clauses should be read separately and that the reasonableness of a search should not depend solely on whether a warrant was granted or there was good reason as to why the warrant was issued in the first place.
Although the Bill of Rights does not specifically define any rights to a person’s privacy, it gives American’s reassurance that as long as no laws have been broken and probable cause is not present, you should not have any worry as to why your right to privacy would be broken. However, depending on circumstances and location laws can quickly change, especially when it comes to an automobile search, or a stop and frisk by local law enforcement.
Stop and Frisk
Stop and frisk provides an alternative when a police officer stops a person. According to Younger (1967), “In the absence of stop and frisk, an officer would need to make an arrest or let the suspect go if the suspect was not cooperating.” For example, a black male in a 1964 Mustang fit the description from a liquor store robbery. The officer on patrol saw a black male driving an older Mustang several miles away from the liquor store. When the officer pulls over the man in the Mustang, he tells the driver that he and the car fits a description from a liquor store robbery that just happened. The registration of the car checked out but the officer needed time to confirm if the suspect is the liquor store robber. Because a black man driving a 1964 Mustang is not suspicious, the officer has no probable cause to search the car.
The man in the Mustang becomes aggravated because he is held up by the police and tells the officer, “Arrest me, or let me go. Without the stop and frisk procedure, the officer would have to take the chance and arrest an innocent person, or take the chance of letting the liquor store robber go. The purpose of stop and frisk is that an officer can make a better decision about a suspect before they are arrested or let go. Stop and frisk procedures allow more time for an officer to establish probable cause if there is any. If the officer does not find evidence during the stop and frisk, the suspect will be released. “Stop and frisk protect law-abiding citizens from wrongful arrests and helps officers protect communities against criminal violence” (Younger, 1967).
Automobile Search Rule
“The U.S. Supreme Court has also established the certain situations justified by warrantless search of an automobile on a public street or highway” (Siegel, 2010, p. 331). If an individual is arrested lawfully while in a vehicle, and if there is probable cause that the car contains evidence, the court has concluded that a warrantless search of the automobile is valid (Siegel, 2010). If an individual is stopped, it does not automatically give consent to search the vehicle. There has to be reasonable suspicion that the individuals in the vehicle are involved in criminal activity. The individual could have been stopped for other reasons such as a taillight out and registration or inspection overdue. This does not give police authorization to search a vehicle. An individual’s vehicle cannot be searched just based on of reasonable suspicion (Del Carmen, 2010). In order for an individual’s automobile to be searched, there has to be probable cause.
Requirements regarding border and regulatory searches
The Fourth Amendment is listed in the Constitution’s Bill of Rights as a requirement that search and seizure performed by any government official be supported by probable cause. However, there are exceptions to this law when it comes to border searches. The Supreme Court has recognized situations that allow this law to render exceptions to the Fourth Amendment. One exception that relates specifically to the those crossing a border is the “Border Search” exception. This exception states that government officials can stop and examine and person and their property that is crossing into the country. This search allows all government officials to inspect incoming persons and their belongings and direct specific contraband without having to information a judge before the search. There are two different categories for border searches: routine and non-routine searches. Routine searches are those that any person crossing a border would particularly forgo in.
These searches are when someone crosses the border and border patrol does their normal, legal duty to search and make sure no illegal contraband is coming over. Non-routines searches on the other hand, are searches there reasonable suspicion may lie. Although the majority of those crossing the border to the United States of America are not U.S. citizens, those residing in the United States may still pose certain rights, regardless their immigration status. That being said, the Federal Government is still required to have probable cause to search and seize property, unless it is a routine search at a border were they are legally entitled to search based on laws created by The United States Government and listed under the “Border Search” exception.
In summing up the colloquial statements of the paragraphs written in the past, this entire process of gathering evidence against criminals (ensuring their conviction) is strongly dependent upon each and every method previously described functioning correctly and smoothly in order to achieve the most optimum results. Those methods are as follows; search and seizure, which is a hunt for evidence. Arrest, which is the power of the law enforcement to detain a citizen believed to be a criminal, by way of probable cause. The reasonableness factor, which by far is one of the more important parts of the evidence gathering process, is the state of true common sense, and is desperately needed. And the right to privacy method, which is the right of people to be private in their own affairs, is instrumental in the evidence process. The previous paragraphs also explain how these methods tied in to the stop and frisk, automobile search, and the regulatory and border search requirements.
Del Carmen, R. V (2010). Criminal Procedure: Law and Practice (8th ed.). Belmont, CA: Wadsworth. Emanuel, S. L. (2009). Criminal Procedure. New York, NY: Aspen Publishing. Kim, Y. (2009). Protecting the U.S. Perimeter: Border Searches Under the Fourth Amendment. Retrieved from http://fas.org/sgp/crs/homesec/RL31826.pdf Siegel, L. J. (2010). Introduction to Criminal Justice (12th ed.). Belmont, CA: Wadsworth Us Courts. (N.D.) Fourth Amendment. Retrieved from http://www.uscourts.gov/educational-resources/get-involved/constitution-activities/fourth-amendment.aspx Worrall, John. (2012). Criminal Procedure: Fourth Edition. Pearson Publication. Younger, Evelle. (1967). Stop and Frisk: Say
It Like It Is (Vol.58) J. Crim. L. Criminology & Police Sci. 293