When May Police Search without a Warrant - Research Paper Example

? When May Police Search Without a Warrant? It is common knowledge to most Americans that police must have a warrant before searching someone’s property. After all, the Fourth Amendment to the Constitution states that “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”. Besides, every time the cops suspect someone on Law and Order and every other television program, they have to stand outside the bad guy’s house or car, waiting and hoping he doesn’t run, until they can get some judge signs a search warrant. Either that or all the evidence seized is thrown out and cannot be used in court when they take the person to trial. Well, this is true to some extent and it all boils down to whether the judge thinks the police have probable cause. Those two little words, as written above have been the cornerstone of the American legal system for over two centuries and comes from a time when police and soldiers could and did enter private property without cause and certainly without a piece of paper saying they could. The Founding Fathers were fed up with these instances and were determined that American police would not be allowed to search and seize people’s possessions. The modern police feel that they have been hamstrung by the implementation of the Amendment but it is a good law. It might let a few criminals walk the streets when they should be in jail but an innocent person can feel reasonably secure. Discussion Prior to 1961 the Fourth did not necessarily apply to the individual states. Sure, they were supposed to have a search warrant before entering someone’s property but anything found and/or seized was not necessarily excluded at trial. For almost fifty years, since Weeks v. United States, 232 U.S. 383 in 1914, the Federal courts had been required to exclude any evidence illegally obtained, including that discovered without a proper search warrant. That decision was based upon the so-called “exclusionary rule” which had legal basis back to before the founding of the country. But that ruling did not filter down to the states. In 1957 a lady named Dollree Mapp of Cleveland was suspected of harboring a fugitive. When the police entered her residence, waving a paper they claimed to be a warrant, they did not find their suspect. Instead police found a stash of obscene material and Ms Mapp was convicted of possession of pornography. Her attorneys eventually appealed her conviction all the way to the United States Supreme Court. In June 1961 the Court issued its ruling in Mapp v. Ohio, 367 U.S. 643. That ruling not only sided with Ms Mapp in that evidence was illegally seized and overturned her individual case but some justices chided the Ohio courts and the police officers for their “Running roughshod over appellant”. (Cornell) But the biggest ramification of Mapp v. Ohio was that all of the states were likewise now required to apply the exclusionary rule. Thus, a benchmark was born, and ever since all courts throughout the country have been wary of allowing evidence obtained without a legally obtained search warrant. Indeed they have exercised such caution that police and prosecutors alike have felt frustration for almost half a century, knowing that some evidence, although somewhat shadily obtained, might withstand the appellate court system. Six years later in Katz v. United States, 389 U.S. 347 (1967) the Supreme Court broadened the scope of the Fourth Amendment. In that, Charles Katz was convicted of bookie operations based mainly on wiretaps the FBI had placed on a public phone booth Katz was known to frequent. The US Attorney argued since it was a public booth Katz did not have any reasonable expectation of privacy and this thought was upheld by the lower courts. Yet the Court sided with the defendant’s attorneys in that when he closed the booth’s door, he expected to carry on an intimate conversation without interference, regardless of the illegal aspects of that phone call. The ruling thereby expanded the exclusionary rule to public places where two or more people would expect to carry on a personal discussion. It was also important in that was the first time electronic surveillance was discussed by the Court and thereafter such devices were also required to be allowed by a warrant. But with every rule there is an exception. There are four very specific times when evidence obtained without a warrant is probably admissible in court, even though every judge is different. For the most part any information or material goods acquired during these instances will result in conviction and any appeals will normally prove to be fruitless, especially since it is most courts’ intentions to do away with the so-called frivolous appeals. The first is consent. A good example of that is seen a lot on Cops, where a policeman stops an individual for a traffic offense. While speaking to the person, the officer becomes suspicious that illegal drugs are being carried and asks if he can search the vehicle. Nervous and scared, the driver says yes. Under the floor mat in the spare tire area, the cop finds several bags of cocaine and places the offender under arrest. The coke has been legally attained because the driver gave his consent and the defendant will be ultimately convicted based mainly upon the consent search. Yet there are exceptions to the consent rule. The police don’t have to tell you that you can refuse the search but neither can they coerce or intimidate a person into their consent. Minors aren’t normally allowed to give consent without parental approval. A roommate can sanction a search of the common areas of the house or apartment, such as the kitchen or bathroom but they cannot agree to a search of their roommate’s private places, such as the bedroom. Likewise a spouse can’t always give consent to all areas of a residence, if it can later be proven the other spouse was usually the only one who accessed that particular location. This is particularly relevant when it comes to such modern items as cell phones and computers. Another time evidence obtained without a warrant is legal is the In Plain Sight rule. Our hapless individual is stopped for speeding. When he rolls down the window, the state trooper smells the strong odor of marijuana. Laying on the console is a sandwich bag of grass and two joints already rolled. Because the drugs were within the trooper’s view, the speeder can then be arrested and convicted for possession of illegal drugs. Based upon the smell of the marijuana smoke, the cop can also order a blood test for driving under the influence. Staying with marijuana, a police helicopter flying on a routine drug search spots a field of marijuana growing and ground police move in. The possessors of the property (not necessarily the owner if he can prove it was leased or otherwise in somebody else’s possession) would be arrested for possession and distribution, in that a field of drugs can reasonably be assumed to have been grown for personal profit. One other instance is Search Incident to Arrest. When a person is placed under arrest the police can search his car and or house for weapons to keep themselves from being harmed. They can also search for evidence to keep it from being destroyed, such as attempting to flush drugs down the toilet. These actions are known in police jargon as a “Protective Sweep”. In 1981, the Supreme Court confirmed this right with New York v. Belton, 453 U.S. 454. Roger Belton was one of four men in a car stopped by a New York state policeman for speeding in 1978. After noticing marijuana in the car and noting the car belonged to none of them, he ordered them out of the car and placed them in separate areas to keep them from talking to one another. This was not challenged, as the grass passed the In Plain Sight rule. He then proceeded to search the car’s passenger’s compartment. Laying on the back seat where Belton was sitting was a leather jacket. In one of the jacket pockets, the trooper found a bag of cocaine. Although he eventually pleaded guilty to a lesser charge, the defendant appealed the search and seizure of the coke. The New York Court of Appeals agreed with Belton and the State appealed to the Supreme Court. In writing for the majority opinion, Justice Potter Stewart noted there was no question from anybody as to Belton’s arrest for the marijuana and that the jacket was "within the arrestee's immediate control". The Justice further alluded to the fact that since the trooper was alone with four men, he would reasonably be concerned for his personal safety and a search of the vehicle’s passenger compartment was warranted. (FindLaw) Thus Belton served as the cornerstone for Search Incident to Arrest for the next twenty-eight years. Nonetheless, the Supreme Court eventually seriously curtailed these searches. In Arizona v. Gant, 556 U.S. 332 (2009), the Court sided with Gant in that once the individual is handcuffed and placed elsewhere, as in a patrol car, the danger has passed and any further searches should be via warrant. But the speeder referenced on the Cops show and the Belton case both represent a different scenario. Because the trooper found a small baggie of marijuana in his vehicle, it can reasonably be assumed that other drugs and paraphernalia are in the car. So, even after he is cuffed and placed into the trooper’s car, the policeman can conduct a search of the entire car in expectation of finding more evidence. Even so, the policeman needs to rely upon his judgment in those cases. Has the danger passed and are the suspects secured in the patrol vehicle? If so, the officer would probably best be served by requesting a warrant. That way the prosecutor can build a strong case and every t can be crossed, so that judicial appeals can be avoided. The fourth example of legal warrant-less searches is what is known as Exigent Circumstances. By legal definition, instances are exigent when life and limb are at risk. If there are complaints of shots fired at a residence, and all is quiet and nobody answers the officer’s knock, it is safe for him to assume that there could be seriously injured people inside the house. Therefore, forcing his way inside the house would be legal. Likewise, firefighters can search a burning structure without fear of reprisal, knowing their actions could result in life and death. A good example of exigent circumstances is brought up by the Vermont Animal Cruelty Task Force. On an extremely hot day, the animal control officer observes a dog inside a locked car with windows up. The dog is panting and in obvious distress. The officer can therefore enter the car by whatever means necessary, including breaking a window, in order to rescue the animal. The dog’s owner would then be arrested for animal cruelty and the pet would be removed from his care. In that, it is essentially the owner’s fault and the breaking of the window would be of his own negligence and no fault of the arresting officer (Vermont). Another excellent instance of exigent circumstances is a civil suit brought in the US District Court for the Eastern District of Pennsylvania (NO. 96-0070). In it a Ms Byrd claimed the police illegally entered her home during a search for a kidnap victim. Yet they were furnished the address by the local telephone company, which did a reverse search based on a phone call the kidnappers made. The address given to the police by the phone company was erroneous but the officers did not know that. Further nobody answered the officers’ knock, cementing their belief that criminal action was being conducted inside the residence. (UNITED STATES) In dismissing Ms Byrd’s suit, the court commented that a young man’s life was in mortal danger and that the police were justified in entering the house based upon the information they received. Not only that but they had no reason at all to suspect that the security officers at the phone company would not furnish them with the proper information. The company freely admitted its mistakes and the victim was subsequently found elsewhere, after another reverse search. The idea of jacketed Nazi-like storm troopers entering your house and ransacking it in front of your children is discomfiting for anybody. People like Ms Byrd are no doubt terrified and humiliated when their sacred home is torn apart by swarms of heavily armed officers. But fortunately the Fourth and Fourteenth Amendments to our Constitution make those cases the exception rather than the rule. The safeguards are in place so that the average honest police officer knows that there are very few circumstances that allow searching and seizing someone’s private property without a properly executed warrant. Of course there are going to be rogues; every profession has its bad apples that are willing to go as far as possible and push that envelope to whatever extreme they need. Yet even the most legal search warrants, where supervisors have ensured all technicalities are addressed, can go horribly wrong. Take the case of Kathryn Johnson, a ninety-two year old lady in Atlanta, who was shot to death in 2006 by police when she opened fire on them as they tried to conduct a drug raid. She no doubt thought they were intruders, as it was a “no knock” warrant. There are conflicting reports as to the legality of the raid and several officers involved went to jail. The city paid her family five million dollars but that is no doubt little consolation for the life of someone who lived most of the twentieth century and well into this one. (CNN) But for all those wronged by baseless searches, there are countless lives saved by a quick thinking policeman who acted on the hunches all cops have. The state trooper in Arkansas who kept kilos of heroin from reaching the cities of the East Coast is a prime example; no one individual but they do it every day. So in conclusion, yes the Constitution is necessary for without restraining laws history has shown us too many times what a ruthless dictator and his followers can accomplish. Yes it should always be innocent until proven guilty. But the courts should also be recognizant of the fact that they are just guilty without that warrant than they would have been had the police waited on that piece of paper. References Cornell University Law School (2011), Mapp v. Ohio (No. 236), Retrieved from http://www.law.cornell.edu/supct/html/historics/USSC_CR_0367_0643_ZS.html FindLaw for Legal Professionals (1999) U.S. Supreme Court NEW YORK v. BELTON, 453 U.S. 454 (1981), Retrieved from http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=453&invol=454 THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA, (1998) CIVIL ACTION NO. 96-0070, Retrieved from http://www.paed.uscourts.gov/documents/opinions/98d1244p.pdf Vermont Animal Cruelty Task Force (2011) Key Concepts: Exigent Circumstances and Plain View Doctrine, Retrieved from http://www.vactf.com/manual/chap1/section5.php Cable News Network (2010) Family of woman killed in botched drug raid to receive $4.9 million, Retrieved from http://articles.cnn.com/2010-08-16/justice/georgia.botched.raid_1_arthur-tesler-kathryn-johnston-drug-raid?_s=PM:CRIME Read More