Right against Illegal Searches and Seizure

Length: 3516 words

The State, sovereign as such, has the power to exercise such rights as it may deem fitting and compatible with its being sovereign. Corollary to the exercise of sovereignty is its inherent obligation to protect its people within its territory. It is to be noted that the State acts though the government. The government therefore has the privilege of exercising such rights pertaining to the state and performing such obligations particularly in protecting the State’s inhabitants. So vast is the power of the sovereign state that it might come to abuse the same without due regard to its corollary obligation at one hand. Hence, the constitution.

The constitution limits the State’s power. It defines the rights of the inhabitants and puts a limit to the state’s capacity to exercise its sovereignty. One of these limitations, which is actually equivalent to a right of individuals, is set forth in the Fourth Amendment to the United States Constitution: 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 foregoing is commonly known as the right against illegal searches and seizure. Searches and Seizure in General The right of an individual against illegal searches and seizure is primarily taken from the Fourth Amendment to the Constitution. This particularly answers the demand for protection of privacy and property of every individual (McWhirter, 1994) although the Court in the case of Kyllo v United States says that the primary concern of the Fourth Amendment is more on the protection of individual privacy and not on his property.

Worth noting also is the maxim popular in England, “Every man’s house is his castle” (cited in Amendment 4-Search and Seizure) which entitles every man to be secure in his individual dwelling no matter how rich or poor he may be from unreasonable and illegal invasion of unscrupulous law enforcement officers . Based on the constitutional provision, a person can only be searched pursuant to a search warrant which must be based on a probable cause, supported by oath or affirmation or upon showing that a probable exists that a crime has been committed or is about to be committed.

A person is deemed searched when police authorities encroach upon the “reasonable expectation” of a person’s privacy . For instance, a person whose bag is forced open by a police authority can be considered as being searched. This is not true in case of a trash or garbage outside ones dwelling looked into by police officers. With respect to the former, an individual expects his privacy to be respected, that is, his bag will not be opened by anybody else without authority.

A bag can be a repository of personal effects limited only to the owner or the bearer of the same. It may contain secret items, provided the items are not prohibited by law which an individual may rightfully keep as his own. Thus, any invasion or intrusion into such privacy may be precluded by reasonable force. Meanwhile, in the latter case, an individual expects less or no privacy at all with respect to the garbage, that is, it may be searched, opened or taken by anybody else with or without his consent.

If done, there can be no search as contemplated and protected by the constitution, there is no invasion on the individual’s privacy, therefore, may be made in the absence of the search warrant. A search warrant is a judicial order issued by a judge authorizing a law enforcement officer for the search of a person, object and location as evidence of a crime committed and for the seizure of the same . More importantly, a search warrant, to be valid, the same should be one founded on probable cause.

To establish probable cause, it is important to determine “whether the affiant had reasonable grounds at the time of his affidavit . . . for the belief that the law was being violated on the premises to be searched; and if the apparent facts set out in the affidavit are such that a reasonably discreet and prudent man would be led to believe that there was a commission of the offense charged” . This gives the view that probable cause is a question of fact depending on the facts and circumstances of each case. Being factual in nature, it requires therefore particularity in the objects to be searched as well as the premises .

This further requires basis on the part of the informant of his knowledge of facts and circumstances that the object as evidence is present or that the crime has been committed warranting a search to follow . This goes to show therefore that there can never be a search warrant issued based on speculations and independent discretion of the law enforcement officer conducting the search. From the foregoing, it stands to conclude that a search warrant is of great importance that can not, as a rule, be done away with in the conduct of search and seizure operations. This rule however, does not elude certain exceptions.

Jurisprudence provides for certain exceptions, that is, warrantless searches may be had. This include: “search incident to a lawful arrest” , “search in plain view” , “vehicular searches” , “stop and frisk” , “vessel searches” , “consent searches” , “border searches” , “open fields” and others which the court may subsequently rule upon to be valid. Pertinent to this discussion however are only search incident to a lawful arrest, search in plain view and vehicular searches. Lawful arrest, search in plain view and vehicular searches have basic requirements in common, namely: “lawful arrest, custodian arrest and contemporaneous search.

The arrest of the accused is considered lawful if there is probable cause at the time of the arrest that a crime is committed or about to be committed by him. Lawful arrest can be by virtue of a warrant of arrest or a probable cause that a crime is committed or is about to be committed by the accused. Custodial arrest is one where the arrest of the accused for an offense or crime where the arresting officers are “required to transport him” or when a statute permits the arresting officers to either transport the accused or not and the arresting officers opted to transport the accused subsequent to the arrest.

Further requirement is that the search must have been contemporaneous to the arrest. This means that there must have been a reasonable connection between the arrest and the search, that is, the search must have been done within a “reasonable time” from the conduct of the arrest and that the search is made while the arrestee is still in the scene where the arrest is made or “very shortly after he was transported”. The law does not require that the search be made simultaneous to the arrest.

What the law requires is that it should be “roughly or substantially contemporaneous” with the arrest. Time, therefore is immaterial and consideration should be taken on the individual facts of the case. Search incident to a Lawful Arrest While the law and the Court emphasize the importance of the procurement of a search warrant prior any person, effects or premises may be searched, jurisprudence and experience both tell us that there is already a greater number of cases of warratless searches.

This signifies that lawful arrest, by virtue of a warrant or upon probable cause that a crime has been committed or about to be committed may permit search of items or objects necessarily involved in the commission of the crime and hence may be admitted as evidence against the accused therein in the course of the trial. People who are taken into custody or are about to be taken into custody are more likely to act irrationally, thus, have the tendency to carry out a violent response toward the arresting officer.

There is an inherent threat in the conduct of arrest and even the arrest itself which triggers these violent reactions from arrestees thus paving the way to certain exceptions to the rule on unreasonable searches and seizure. A person arrested may be searched and from him may be seized “contraband, fruits of the crime, instrumentalities, and other evidence. ” This is usually allowed as a safeguard against violence committed upon the person of the arresting officer, avoid attempts to and/or escape and as preventive measure to preclude the destruction or loss of evidence already at hand.

Thus, arresting officers may properly search without having to violate the constitutional right of the accused on items, objects, effects, personal property found in his possession at the time of the arrest. Wallets, bags, pockets, or any container may likewise be searched or picklocks, false keys, blades, knives, prohibited drugs or other contrabands may be confiscated. Consequently, these objects may be opened and inspected in the course of the arrest and may be used as evidence of the crime.

Search incident to a lawful arrest authorizes the arresting officers to conduct a “full search” upon the accused and his possessions, but does not however authorize the conduct of “extreme, patently abusive or unnecessarily intrusive” searches. This is in consonance with the right of the accused who is under investigation or custody likewise guaranteed by the Constitution. Consequently, search incident to a lawful arrest is not lawful if the same is made to harass the accused as to touching his private parts of the body or inflicting any pain or physical injury upon him.

Also contemplated in searches incident to a lawful arrest is the search of items “dropped, discarded, tried to be hidden” by the accused prior to the actual arrest. We have to remember that human as he is, an accused would also not want to subject himself to arrest and to subsequent detention and therefore would naturally hide anything in his possession prohibited by law. Relevant to this rule is the case of US vs Thornton (541 US 615, May 24, 2004). In this case, the car driven by Marcus Thornton was called to a stop after the police officer noticed that the license plate of the car belonged to a Chevy two-door car.

Thornton was asked to be searched. Found in his possession was two bags of drugs. A search on the car was only made. A gun was found inside. Thus, Thornton was convicted of drug and firearms offenses. On appeal, he alleged that the evidence could not be admitted against him as they were procured in violation of the Fourth Amendment. The Supreme Court ruled that the contention of Thornton does not hold water. Contrabands found inside a car may still be reached by an individual who just exited therefrom and may be destroyed or used against police authorities.

Once an officer determines there is probable cause to make an arrest, it is reasonable to allow officers to ensure their safety and to preserve evidence by searching the entire passenger compartment. ” Search in Plain View There are instances also that at the time the arrest is made, the accused is not in possession of anything at all. This does not mean the end of the investigation permitting the accused to run away. Another exception to pin down the accused is the conduct of search in plain view. An arresting officer who has a right to be in a position to have that view may properly include items therein in the absence of a warrant.

This permits arresting officers to look into items, objects, containers in plain view or that which is “immediately apparent, inadvertently discovered” from where the arrest is made. The law limits this only to items which are obvious contraband and does not in any way include the authority to determine whether an item is a contraband or not. Once an object is in plain view, it ceases to be an object of privacy which the accused may lawfully refuse to be searched, thereby justifying the seizure of the same even without a warrant.

With respect to searches in a residence, if the initial search is made within a room, a further search on another room constitutes a violation of the Fourth Amendment, but the same does not hold true if the accused is standing at the door of such other room when he was arrested or that there are “exigent circumstances” as to warrant probable cause for the search therein. It is noteworthy to remember that search in plain view is justified when the arresting officer is in a position where is authorized to be and that there is probable cause to warrant the search and seizure of the item in plain view.

The case of Washington vs Chrisman (455 U. S. 1, January 13, 1982) falls squarely to this rule. A Washington police officer observed a student from Washington State University carrying a half-bottle gallon of gin. When asked for an identification, the student was not able to produce one. The police officer went together with the student to the latter’s dormitory. After the student entered his room, the police officer saw that the student’s roommate, Chrisman, had marijuana seeds and a pipe. When charged, Chrisman alleged that he can not be convicted for possession of marijuana.

According to the Supreme Court, when a police officer is in a position where he has a right to be, he can rightfully seize incriminating evidence therein. The police officer, when in the room of the student had a right to be there, hence could validly seize the contraband. Search of Vehicles Vehicular searches may properly be conducted when the arresting officer has probable cause to believe that the same contains or transports contraband. According to the law, this is justified because of the nature of vehicles, their mobility.

Vehicles travel in public thoroughfares which can be said to be in plain view. Vehicles can easily move out from the jurisdiction should time be allowed to lapse. Vehicles may also be used to transport prohibited objects or contraband more quickly. This means they can be possibly be the means of losing evidence otherwise at hand. Moreover, either a driver or a passenger of a vehicle can not expect to have any privacy inside a vehicle, thus, search as contemplated under the Fourth Amendment can not be considered as unlawfully made.

The same rule applies with respect to compartments, luggages found inside the vehicle because there can not be any expectation of any degree of privacy therein. It can be said to be a repository of personal items which entitles an individual to refuse the search made therein. Thus, luggages or other closed containers may be searched whether the same may be open or close or whether the may belong to the driver or passenger. There was a prior issue on the legality of searches of vehicles. In most cases, searches are conducted when the accused is outside of the car, and therefore, has no access to the same.

This was settled when the Court issued the decision in the case of New York vs. Belton cited in Searches Incident to Arrest that such vehicular searches may legally be made “as a matter of routine”, thus, search may be had in a vehicle’s compartment as well as containers therein whether close or open. Previously, the rule on vehicular searches were made applicable only to automobiles come to a stop after being asked to do so or reasonably contemporaneous to moving and not on parked automobiles.

This has been resolved in the case of California v Carney cited in Amendment 4-Searches and Seizure which maintained the doctrine that there is a reduced degree of privacy in vehicles allowing searches therein. In fact, as the court in the same case ruled, search may be had on mobile home parked in a parking lot as the same is still readily mobile. The fact that it is immobilized temporarily does not remove it from being in the nature of an automobile. The rule remains however that for vehicular search to be valid, the same must be pursuant to a probable cause.

There can be probable cause when a vehicle is seen violating traffic rules, laws on highway safety or other criminal liability. Thus, law enforcement officers can not at any time conduct random searches on any vehicles in the absence of probable cause. It is well to not also that once a vehicle is come to a stop for further searches, it does not allow the law enforcement officer to search the passenger or the driver therein unless there is probable cause that they are committing violations of the law warranting a search upon them.

The case of Florida vs White (526 U. S. 559 , May 17, 1999) is the case in point. Tyvessel Tyvorus White was arrested in his workplace after having been observed for two months by police officers having used his car in delivering cocaine. But the arrest was for unrelated charges. The car was arrested in the absence of a warrant believing that it was used in violation of Florida Contraband and Forfeiture Act. The car was searched and found were items of cocaine. Thus, White was charged for having violated the Florida Law.

In the course of the case, White moved to suppress the evidence for the reason that they were a product of an unlawful search and seizure, there having been no search warrant. The Supreme Court denied this claim, instead ruled that “Although the police here lacked probable cause to believe that [White’s] car contained contraband, they had probable cause to believe that the vehicle itself was contraband under Florida law. … [T]he need to seize readily movable contraband before it is spirited away… is equally weighty when the automobile, as opposed to its contents, is the contraband that the police seek to secure.

Conclusion It is well to note that the Constitution has especially provided sufficient protection to the rights of individuals. Definite rules and guidelines are strictly to be observed in the State’s exercise of its powers for an individual, an accused or otherwise, always enjoys the presumption of innocence until proven guilty beyond reasonable doubt. Doubtless to say therefore that strict compliance is enjoined for law enforcement officers to observe. It is equally important to give emphasis to the principle that searches and seizure should at all times be made pursuant to a probable cause as defined above.

Probable cause can be by virtue of a search warrant issued by the proper authorities or by virtue of the exigent circumstances in each case. It should never be subjected to the arbitrary suspicions of law enforcement officers. The presence of probable cause though does not give the State an unlimited authority to conduct search and seizure. It is still bound by the rights of an individually equally important and protected by the Constitution. We have to remember that an individual is not just entitled to one right under the Constitution.

An individual, vis a vis the State, has likewise various rights that need to be respected. The State, while exercising jurisdiction over its people exceeds its authority for acts done in violation of the constitutional right of the individual. It bears stressing that the State has its obligation also to protect its people, the same as it protects its own territory, its sovereignty from illegal invasion. More importantly, it is here emphasized that the right of an individual against unreasonable searches and seizure is a proscription upon the State, and not on private citizens.

This right therefore can not be raised as a defense when done by private citizens so as to warrant prosecution against the latter. This does not however authorize undue violation of one person on another’s privacy, for then the former may be prosecuted under the law. Lastly, so precious is the right of an individual against unreasonable searches and seizure that the State forbids any evidence in violation thereof admissible against the individual whose constitutional rights is violated. This is covered under the exclusionary rule set forth by jurisprudence.

In the case of Mapp vs. Ohio cited in Amendment 4-Searches and Seizure , the Supreme Court has the opportunity to express that the exclusionary rule is an “essential part of the right of privacy” as set forth in the Fourth Amendment to the Constitution. Related to the exclusionary rule is the doctrine of the “fruit of the poisonous tree” whereby the government can not in any manner present as evidence any object or item in violation of the Fourth Amendment being a result of an illegal search.

By imposing the exclusionary rule, police authorities deter themselves from further searching and seizing items not otherwise in violation of the law, the same would useless anyway. All said, it is worth emphasizing that both the State and the individual have respective rights which deserve and ought to be respected. Neither should be used to suppress another but must be uphold with due regard to the existence of both.

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