Situations in Which a Search Without Obtaining a Warrant - Coursework Example

_____________ d: Aug-01-2008 Situations in which a law-enforcement officer may conduct a search without obtaining a warrant A common perception in American society is that police officers require a warrant if they want to search for information which they believe is related to criminal activity. Exclusionary rule suggests that any evidence gained in an illegal search cannot be used to convict someone of a crime. On the contrary, there are circumstances and cases in which the police may conduct a search without having a warrant, for the purpose of utilising that evidence gained from a search, to be used legally by the court. The need for warrant usually arises when law enforcement officials confront situations in which they need to respond to a myriad of ‘crisis’ under which police encounter might involve serious criminality (Decker, 1999). There are two types of warrants, arrest warrants and search warrants, although arrest warrants are rarely used or required. Although search warrants are often used, especially in cases where there is an extensive investigation, the Court has broadened the circumstances under which the police may conduct warrantless searches. This consideration is reflected in the Federal Rules of Criminal Procedure 41(c), which states, “It shall command the officer to search, within a specified period of time not to exceed 10 days” (Bloom, 2003, p. 91). In order to allow search warrants, judges or magistrates base their probable cause determination on sworn affidavits signed by police officers. This provides a written record if it is necessary to review the probable cause determination. A reviewing court will only review that information that was presented to the magistrate at the time the warrant was issued. Some jurisdictions, including the federal system, permit the issuance of a warrant on sworn oral communications, even if communicated by a telephone. In this situation, the judge will place the person applying for the warrant under oath and record the conversation when possible and if it is not possible to record the conversation then the judge will create a longhand verbatim record. According to the Federal Rules of Criminal Procedure 41(c) the recording or the longhand record must be filed with the court (Bloom, 2003, p. 91). Since the government has to respond to the burden in hearings on warrantless searches, the police officers testimony serves as the beginning point for a trial courts consideration of the constitutionality of the police action (Larry, 1999). Although traditional search warrants are supported by probable cause, lower courts have supported the issuance of anticipatory warrants. At the time of issuance, these warrants are not supported by traditional probable cause that a particular item is at a particular place instead, they are issued on a showing that a particular item will be at a particular place. This situation usually exists when illegal imports is in transit and is about to be delivered to a particular place. The Court, however, has not dealt specifically with anticipatory warrants. In the following situations, a law enforcement officer does not require a search warrant to conduct a search: Situation One: A law enforcement officer when spot something in context with the plain view doctrine where he has a legal right to seize, does not require a search warrant to seize the object, evidence or contraband. However there are some criteria to be followed that includes 1) The place where an officer is conducting a search, must be legal and visible for him 2) In order to apply according to the plain view, the officer must not be using any advance technology and 3) Plain view search requires any discovery without a warrant is to be taken by chance. The plain view doctrine supports ‘open fields doctrine’ that states that any open pastures and areas related to it are eligible to be searched legally by an officer even without obtaining any search warrant. In the context of search warrant, the Fourth Amendment plays a significant role to protect search and seizure law as well as search practices (Taslitz, 2003). Over time, the Supreme Court has come to see the protection of property and privacy as the main purpose of the Fourth Amendment. However, the Court believes that the amendment does not protect all property interests or apply to all situations where people might wish to protect their privacy. Apart from the plain view, critics believe that police officials try unnecessarily to defend their rights to acquire a search warrant (Dripps 1996). Exclusionary Rule was created with an aim of not violating the Fourth Amendment, as Government officials had no right to search a man’s home without a search warrant, that ruling was not based on the law of trespass. This is one of the fundamental misunderstandings many people have about the scope of the Fourth Amendment they assume that the amendment was intended to protect people from government trespass on private property. The Supreme Court has never tied the Fourth Amendment to the law of trespass (McWhirter, 1994, p. 15). This is illustrated by the Court’s unanimous decision in the 1924 case of Hester v. United States, with an opinion by Justice Holmes. Two federal revenue agents waited in the bushes 100 yards from Charlie Hester’s home to see whether he was selling moonshine whiskey. When the agents saw a jug being exchanged for money, they jumped out of the bushes, chased both Hester and his customer, and caught them. Charlie Hester’s attorney argued that since the two agents had been hiding on private property they had violated Hester’s right to be free from police trespass protected by the Fourth Amendment. If the Fourth Amendment was simply a rule against trespass by government agents on private real estate, that argument would have ended the case, but a unanimous Court ruled that such was not the function of the Fourth Amendment. Trespass law was aimed to protect property, not privacy (Colb, 2002). Despite protecting the people, houses and effects, Fourth Amendment failed to protect open fields thereby providing an opportunity to the exclusionary rule for allowing some space for conducting search without warrant and Since the Fourth Amendment had not been violated in this case, the evidence did not need to be excluded and Charlie Hester’s conviction was affirmed (Moran, 2000). The Fourth Amendment only is capable of protecting people who have an expectation of privacy in situations and places where it is ‘reasonable’ for them to have such an expectation. The amendment does not protect open fields, because it would not be reasonable for people to expect to be unobserved in an open field. Telephone conversations are protected, because people may reasonably expect that what they say over the telephone will not be overheard by anyone other than the parties to the conversation. Search warrant in this way behaves as a critic to people who are reasonable to expect privacy in their homes, therefore they are not reasonable to expect privacy when they walk out on the public street or throw open their windows for everyone to hear or see what is going on inside. Situation Two: A law enforcement officer is capable to search without warrant the defendant and the area that comes within the defendant’s immediate control if a suspect has been legally arrested. Law enforcement officials compile the list of defendants from the experience of the agency. Theoretically, when investigators or enforcement officers see an individual matching some profile characteristics, in addition to engaging in other suspicious behaviours, officers have reasonable suspicion to approach the individual and briefly interrogate him or her without search warrant. Critics believe that Fourth Amendment cases must not ignore dealing with the freedom of movement and privacy issues but there are certain limitations to it when it comes to maintain privacy (Heffernan, 2001). Situation Three: Third situation focuses those arrests after which the police may make a protective search on believing that a dangerous accomplice may be hiding in an area near where the defendant was arrested. In order to perform such action, though the police officers are allowed to conduct a search without a warrant, but there is a requirement to it, the officer has to complete a ‘cursory visual inspection’ and in such condition if evidence of or related to a criminal activity is in plain view during the search, the evidence may be legally seized. Law enforcement officer or inspection team has the right to inspect all of the territory delineated on the site in context with the arms control regime but can be denied access to sensitive points and containers with any dimension of less than two meters, unless the inspected party declares some warrant to be present. While fulfilling their duties, the inspection team has complete authority to request checking for armoured personnel transport and armoured fighting vehicles so as to conduct a visual inspection of the interior in order to confirm that the vehicle is not capable of transporting combat infantry squads (Rueckert, 1998, p. 95). Situation Four: A law enforcement officer is allowed to stop any vehicle to conduct a search provided a probable cause exists; officers are allowed to search for objects related to the reason for the stop without obtaining a warrant. The conventional wisdom has been that a pursuit for a traffic offense does not warrant the degree of risk that may be acceptable in a chase involving a felony suspect (Alpert & Dunham, 1990, p. 19). This was decided in 1991 when Justice Blackmun had convinced a majority of the other justices that confusion could only be eliminated if the Court handed down a simple, straightforward rule concerning automobiles and the things police find inside automobiles. Justice Blackmun wrote the opinion for the majority in California v. Acevedo. The case was complex as it dealt with possible causes to stop and search Charles Acevedo’s automobile for the reason police officers believed that a paper bag inside the car contained marijuana. However the question remained for the Court was whether the police needed a search warrant before they could search a closed paper bag they found inside the trunk (California v. Acevedo, 2008a). Warrants are being supported by the Fourth Amendment clause that provides that if there is to be a search and seizure, it must be a reasonable one. The only absolute standard that is set is as to the essentials of a warrant when such is necessary, as it is in most cases. The purpose of the Amendment of course is to safeguard against the general warrant and it does this in two ways: first, by prescribing the requirement of probable cause, necessarily peculiar to each case; and second, by making requisite the description of the particular place to be searched, the persons to be apprehended, and the objects to be seized. These requirements limit the scope of each warrant; they take the decision as to what may and what may not be done out of the hands of the officer who is to execute the warrant, and place it with the more trustworthy and sober judgment of a judicial officer. It is to pass upon the merits of the allegations and, on the basis of evidence having behind it the responsibility of an oath, to decide whether there is reasonable justification for this exceptional proceeding in invasion of the individual’s privacy, and thus to determine what particular actions are justified on the basis of this showing. There is no temptation for the law enforcement officer to exceed the authority which the magistrate decides to give him, for he not only thereby subjects himself to civil and criminal liability but gains no advantage over the accused and merely wastes his effort (Lasson, 1937, p. 120). Warrants may be issued only for the search of property used as a means of committing a felony, for stolen goods, or property or papers used to violate the espionage laws. Prior to issue a warrant, it is necessary for the judge or commissioner to examine the complainant and any other witnesses under oath, require their affidavits, and have their depositions taken down in writing and signed by them. If he is then satisfied that the grounds of the application exist or that there is probable cause to believe their existence, he must issue the warrant and sign it in his official capacity, stating the particular grounds or probable cause for the warrant and the names of those persons whose affidavits have been taken in support of it (Lasson, 1937, p. 121). The statute repeats in almost so many words the constitutional requirement that the warrant must specify the places to be searched and the persons or property to be seized. The warrant may be executed, in addition, only by the officer to whom it is directed and such others as he may call to assist him in the execution of his duty. Moreover, it is only if he is refused admittance after he has given notice of his authority over the matter that he may break into the place specified in the warrant. And the warrant must be limited by the time of search unless the affidavits are positive that the property is in the place to be searched. There are principal provisions of the federal statutory law with regard to the issuance of warrants but since a warrant is not necessary in every case of search and seizure, the question arises as to when a warrant is necessary to validate the acts of the officer and when not. Primarily, the answer to this question is dependent upon two major considerations. The first is concerned with the degree in which the acts of the officer will invade the privacy of people, the second with the practicability of being able to get a warrant in time to accomplish its purpose. Now, with regard to the dwelling house, the traditions of time immemorial still control in holding its privacy to be most inviolable. At the same time, there is always the opportunity to seek the authority of a warrant without fear that the place of search will remove itself. The only circumstance which allows entry and search of a dwelling without a warrant is that in which the officer witnesses the commission of an offense inside the house and therefore has the right to enter for the purpose of making the arrest. On the ground of the old common law rule which permits search when it is incidental to a lawful arrest, an officer may search the persons of those apprehended and the immediate premises for such things connected with the crime, or the means by which it was committed, or weapons and other things with which to effect an escape from custody. Searches of dwellings without a valid warrant are allowed in situations we have discussed above and follow genuine probable cause. Justice Blackmun ruled that they did not and once the police had probable cause to either arrest Charles Acevedo or search his car or its contents, they did not need to get a warrant before searching the container they found inside the trunk. The case was exceptional to the warrant requirement and it would include the trunk and any closed containers found either in the cab of the car or in the trunk. With the case the issue arise that if police have probable cause to search a container that is located inside a car would they do so without first obtaining a search warrant? To this question it was Justice Blackmun who pointed out that since the police already have probable cause to seize the container inside the car forcing them to obtain a warrant did not really protect anyone (Caselaw, 2008b). From that point onwards it was decided that there would be a simple rule concerning both automobiles and containers inside of automobiles, police with probable cause may search them in the field or back at the station. Police may search containers inside a car if they have a genuine reason to arrest the driver or if they have probable cause to believe there is something illegal inside the containers that are inside the car. According to Justice Scalia the new rule is not confusing and allows a police officer to conduct search and do not need a warrant to search or seize an automobile, including everything inside that automobile. They do not need a warrant to search or seize a person along with anything that person might be carrying, such as a footlocker or backpack, which may then be inventory searched at the police station, with one possible exception. If the police have seized the person because they believe the luggage he or she is carrying contains contraband or illegal drugs or evidence of a crime, they may have to take the person and the luggage to a judge and obtain a search warrant before opening it. With the above law it is obvious that contraband goods whether they are transported in an automobile or any other vehicle can be stopped for a search without a warrant. The concern under what circumstances such search may be made can be addressed by the notion that any vehicle driver or intruder would not tolerate if a prohibition agent were authorized to stop every automobile on the chance of finding liquor and thus subject all persons lawfully using the highways to the inconvenience and indignity of such a search. This also causes difficulties for the travellers who are already on their way to cross an international boundary and passes through a thorough checking of entering the country. Such travellers are not entitled to receive benefits but those who are legal citizens within the country are not entitled to any objection as long as using free public highways is concerned or unless a law enforcement official is officially authorized to search (Vila & Morris, 1999, p. 116). On the contrary if somehow the officer founds guilty of seizing an automobile or the liquor in it without a warrant and the facts as subsequently developed do not justify a judgment of condemnation and forfeiture, the officer may escape costs or a suit for damages by showing that he had reasonable or probable cause for the seizure. The only legal action against such a seizure is that the seizing officer must possess some kind of reasonable answer to the cause for believing that the carrier which he stopped and seized has contraband liquor therein which was on the way to illegal transportation. As with other areas of constitutional law, the Court used a combination of balancing and line drawing to spell out the dictates of the Fourth Amendment. The Court balanced the property and privacy rights of the people against the legitimate needs of law enforcement and divided the world into three areas, those that could only be searched with a warrant (except in emergencies), those that could be searched or seized with probable cause (with some exceptions) and those that could be searched without either probable cause or a warrant. However the question of when police need a warrant to search was very difficult for the Court, therefore the Court began with the proposition that the police would usually need a warrant, and then over the years created so many exceptions that they seemed to swallow the rule. Today police generally only need a warrant if they wish to enter a private building, which means a home, including a hotel room, or the private area of a business. Areas open to the public, such as an open field or the showroom of a business, are not protected by the amendment. The Court decided that seizing and searching people walking around in public places did not require a warrant, but in most cases police could only do so if they had probable cause. The extent to which police could seize and search automobiles caused much confusion as the Court struggled to come up with a rule that provided the right balance between the rights of individuals and the needs of modern law enforcement. Ultimately, the Court decided that a warrant would not be required before searching or seizing automobiles, or the containers found in automobiles. Work Cited Alpert P. Geoffrey & Dunham G. Roger, (1990) Police Pursuit Driving: Controlling Responses to Emergency Situations: Greenwood Press: New York. Bloom M. Robert, (2003) Searches, Seizures, and Warrants: A Reference Guide to the United States Constitution: Praeger: Westport, CT Colb F. Sherry, (2002) “What Is a Search? Two Conceptual Flaws in Fourth Amendment Doctrine and Some Hints of a Remedy” In: Stanford Law Review. Volume: 55. Issue: 1. Decker F. John, (1999) “Emergency Circumstances, Police Responses and Fourth Amendment Restrictions” In: Journal of Criminal Law and Criminology. Volume: 89. Issue: 2. Dripps A. Donald, (1996) “Police, Plus Perjury Equals Polygraphy” In: Journal of Criminal Law and Criminology. Volume: 86. Issue: 3. Heffernan C. William, (2001) “Fourth Amendment Privacy Interests” In: Journal of Criminal Law and Criminology. Larry Cunningham, (1999) “Taking on Testilying: The Prosecutors Response to In-Court Police Deception” In: Criminal Justice Ethics. Volume: 18. Issue: 1 Lasson B. Nelson, (1937) The History and Development of the Fourth Amendment to the United States Constitution: Johns Hopkins Press: Baltimore, MD. McWhirter A. Darien, (1994) Search, Seizure and Privacy: Oryx Press: Phoenix. Moran A. David, (2000) “Traffic Stops, Littering Tickets, and Police Warnings: The Case for a Fourth Amendment Non-Custodial Arrest Doctrine” In: American Criminal Law Review. Volume: 37. Issue: 3. Rueckert L. George, (1998) On-Site Inspection in Theory and Practice: A Primer on Modern Arms Control Regimes: Praeger: Westport, CT. Taslitz E. Andrew, (2003) “Respect and the Fourth Amendment” In: Journal of Criminal Law and Criminology. Volume: 94. Issue: 1. Vila Bryan & Morris Cynthia, (1999) The Role of Police in American Society: A Documentary History: Greenwood Press: Westport, CT California v. Acevedo, 2008a accessed from CaseLaw, 2008b accessed from < http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=500&invol=565> Read More