Searches and Seizures

Length: 2152 words

When a law enforcement officer hands out a search warrant or stops and frisks a person in the street, certain indispensable constitutional rights are drawn in. In carrying out arrests, in searching individuals and their property, as well as in seizing contrabands and other prohibited articles, the Fourth Amendment of the United States Constitution sets restrictions on the authority of the law enforcement. These limits are the foundation of law on search and seizure. The limitations are entrenched from the inexcusable government exploitations resulting from ???writs of assistance??? and ???general warrants??? during the British colonial history in America.

Consequently, with the aim of avoiding unlawful searching or seizing of property or persons, law enforcement officers are required to get hold of warrants. The law enforcement must as well establish probable cause, supported by affirmation or oath, and particularly describing the articles they will seize and the place they will search. However, since the enactment of the Bill of Rights a number of exceptions to the warrant requirement have taken place, therefore, balancing it with the state???s concern in safeguarding the public.

The Fourth Amendment

The search and seizure provisions of the Fourth Amendment to the United States Constitution are all about privacy. To respect

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this freedom, the Fourth Amendment guards against unreasonable searches and seizures by federal or state law enforcement authorities. In addition, the Fourth Amendment also considers staff, faculty members and other employees of public educational institutions as government agents, although in a less controlling standard (Legal Information Center). Ultimately, the Fourth Amendment interprets along the proceeding lines:

“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” (Nolo, 2009, p.1).

Nevertheless, the Fourth Amendment does authorize searches and seizures that are regarded as reasonable. In practice, this suggests that the law enforcement may take priority over any person???s privacy concerns and carry out a search of his or her office, boat, car, barn, home, business or personal documents, trash barrel, bank account records, etc., if:

1. The law enforcement officers have probable cause to believe they can uncover evidence that will linked a person to a crime, and a judge issues a search warrant (Nolo, 2009, p.1), or

2. The particular situations give good reason for the search devoid of a warrant first being served (Nolo, 2009, p.1).

Moreover, the Fourth Amendment is only appropriate to a search if a person has a justifiable belief of privacy in the thing or place searched (Nolo, 2009, p.2). Otherwise, the Fourth Amendment provides no protection given that there are no privacy issues. The United States Supreme Court bring into play a two-fold test in finding out whether, at the moment of the search, an accused person had a justifiable belief of privacy in the things or place searched:

1. Did the accused person in fact is expecting some extent of privacy?

2. Is the accused person???s expectation fairly reasonable or one that the public is prepared to acknowledge?

An excellent case of how the preceding elements were applied comes from a United States Supreme Court landmark case of Bond v. United States, No. 98-9349 (April 17, 2000) wherein the Court held that a bus passenger had a justifiable belief of privacy in an opaque bag located in a baggage ledge on top of the his head, and that the physical snooping by the police of the bag’s outer appearance for evidence of contraband amounts to a search subject to the limitations of the Fourth Amendment.

Searches and Seizures

As characterized under the Fourth Amendment a search could include a search of a person, a car or a home, as well as frisks for contraband. However, it becomes unlawful when a government employee or agent infringes a reasonable belief of privacy. Conversely, under the Fourth Amendment, seizure could consist of getting hold of contraband items, from a house, or an investigatory stop of a person in the street, or impounding an automobile subsequent to the arrest of a person driving it. Also, a person is seized when law enforcement officers employ physical force to bring the person under control, provided that a reasonable person in an analogous situation would not as well feel liberated to leave.

I. Rule on Search

The law provides that in order for searches to be lawful, it must be accompanied by a valid warrant. Therefore, a law enforcement officer can only search a vehicle, home, person, etc. when he or she has a warrant issued by a judge. Furthermore, if a person is not initially apprehended, the law enforcement officers are normally not authorized to search the person. There are several significant defenses though to this tenet, as certain justifiable exceptions to the warrant requirement in searching a vehicle, home, person, etc. have been lawfully adjudged by the Court.

The police, for instance, are allowed to search a person without a warrant if they have lawfully arrested the latter. This exception extends to circumstances wherein the police seize prohibited articles during the search, although arresting, in good faith, the wrong suspect. Moreover, the police are authorized to search the area under the immediate control of the arrested person (Find Law, 2004). The law enforcement officer can also search the person for deadly weapons if the officer reasonably believes he or she is in danger.

Law enforcement officers may rely on other exceptions to the warrant clause when searching devoid of a warrant. If officers have probable cause and they realize that exigent situations exist, then they are authorized to make searches and seizure without the aid of a warrant. An exigent situation is present when an officer has an undeniable need to take formal action but lacks the time needed to obtain a warrant. For instance, if a law enforcement officer reasonably believes that a crime is being carried out within the house, due to screams detectable from outside, the officer may go in without a warrant and search the house for permission. Similarly, an officer in assisting an emergency entered a building or residence devoid of a warrant did not contravene the Fourth Amendment. In addition, routine searches made at or in the vicinity of United States borders are exempt from the requirements of warrant.

Finally, the police may search a suspected person if the latter consented, although doing so confines the suspect???s range of defense in subsequent proceedings. Many people believe they should consent in an attempt to demonstrate to the inquiring police that they have nothing to conceal. Unfortunately, what many people believe to be of no consequence, such as an innocent looking document with a cell phone number, may probably incriminate them if the phone number links to a crime.

II. Rule on Seizures

The same as searches, seizures must as well be accomplished by means of a valid warrant. By no means that there has been any reservation on the fact that warrants could be issued for the seizure of prohibited articles as well as the instrumentalities and fruits of crime (Find Law, 2009). Nevertheless, exceptions take in investigatory stops, also recognized as Terry Stops, wherein law enforcement officers can momentarily keep in custody a person suspected of illicit activity to establish whether their suspicions are accurate (24-7 press release, 2009). Law enforcement may also seize prohibited articles that are in plain view. Moreover, if a law enforcement officer apprehends a suspect driving an automobile, the former may impound the automobile, in which case it will be searched to record the personal effects. If prohibited article is discovered during the documentation, the prohibited article may also be seized without warrant.

III. The Exclusionary Rule

If, upon evaluation, a court determines that an unreasonable search took place, any evidence seized as a consequence of the search cannot be utilized as direct evidence against the accused in any federal or state criminal prosecution. This 1961rule, recognized by the United States Supreme Court, has been acknowledged as the exclusionary rule (Nolo, 2009, p.4). This rule pertains to both the accusatory and investigatory stages of a criminal prosecution. According to this rule, prohibiting unlawfully seized evidence is indispensable to prevent police from carrying out illegal searches. As a consequence, the law enforcement officers would be prevented to carry out inappropriate searches if the ensuing evidence cannot be utilized in condemning the accused. In any case, if an officer relies in good faith on a flawed warrant, then a search conducted by the officer does not generate the exclusionary rule.

IV. Fruit of the Poisonous Tree Doctrine

If evidence that falls within the scope of the exclusionary rule directed law enforcement to additional evidence, the latter evidence is considered as a fruit of the poisonous tree. Under a legal rule imaginatively acknowledged as the fruit of the poisonous tree doctrine, evidence ensuing from an unlawful search may not be utilized to establish other evidence. Subject to a number of exceptions, the doctrine is an expansion of the exclusionary rule, which prevent evidence acquired in contravention of the Fourth Amendment from being recognized in any trial. The “tree” is the evidence that the law enforcement unlawfully seize, while the “fruit” is the second-generation outcome of the unlawfully seized evidence. The reason of the doctrine is that if the source of the evidence is unclean, then whatever thing gained from it is also unclean. The fruit of the poisonous tree doctrine, similar to exclusionary rule, is designed to discourage law enforcement from employing illicit techniques in getting hold of evidence.

V. General Warrants

Unless extraordinary circumstances place the public in danger, the Fourth Amendment prohibits generalized searches. As such, law enforcement may carry out a search only if individualized suspicion sets off the search. General searches as well as seizure of one thing under a warrant but describing another are unlawful because of the indispensable condition that warrants shall particularly describe the place to be searched and things to be seized. Accordingly, the condition limits the scope of the search of law enforcement, in as much that the implementing officers are restricted to looking in places where the described article could likely be discovered.

A general warrant entitles law enforcement officials to go inside houses for the intention of making an arbitrary search in the expectation of discovering incriminating evidence. The Lord Camden in Entick case, which was later expanded by the United States Supreme Court in the landmark Boyd case, implicated government agents who entered the house of an English citizen, broke into the citizen???s boxes and desks, and examining and searching his papers under the authority of a general warrant. The English court declared that papers are the chattels and goods of the owner and they are the owner???s most treasured possessions, which should not be arbitrarily searched and seized. As such, the court strike down the employment of general warrants and ruling on the side of the citizen, saying that it is too much for courts devoid of such authority to declare a practice lawful which would be subversive of every comforts of society.

Overview of the U.S. Patriot Act

Following the September 11 attack, the United States president together with the Congress approved the USA PATRIOT Act to reinforce the intelligence-gathering community???s proficiency to fight domestic terrorism. The Act expanded the practice of employing administrative subpoenas that necessitate certain companies, groups, or people to supply documents concerning certain individuals. It authorizes law enforcement to search telephone and e-mail communications in addition to library, financial and medical records. Under the provisions of the Act, law enforcement officers may exploit these subpoenas when looking into American citizens, even when the officers do not believe that the examined individual has perpetrated a crime. Unfortunately, an intelligence-gathering agency need not obtain a warrant prior to the searching of records.


The prohibitions provided in the Fourth Amendment limits the law enforcement officers??? actions during searches and seizures. The laws emphasis upon the requirement of warrants rests between privacy of citizens and the law enforcement officers??? claims; sanctions invasion of that privacy only upon demonstrating the circumstances amounts to probable cause; and confines that invasion by specification of the evidence to be sought, the place to be searched, and person to be seized. The essence of the protection is not the encroachment of somebody???s property and person, as well as the taking hold of the latter; instead, it is the assault of the person???s indefeasible right of private property, personal liberty and personal security. Undeniably, the limitations in the searches and seizures procedures as guaranteed by the Fourth Amendment of the United States Constitution stands as a verification to the reality that the supporters of freedom can outweigh the supporters of oppression.


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