Illegal Search Procedures by Local, State and Federal Agencies - Literature review Example

Illegal Searches and Seizures and Literature Review Laws and rules governing the extent of governmental authority on citizens are vast and rampantly growing. There are many issues and questions that arise with the application of these laws, and it is necessary that clarity be established concerning this laws. Search and seizure issues have led to a lot of heated debates and discussions, with everyday breeding new questions and issues about the legality or lack of it of these searches and seizures. A lot of research and work has been done to ensure that the concept is clear to the citizens and to try explaining the procedural illegal searches and seizures carried out by the local, state or federal agencies. Many a time as Crocker notes, people have complained about being searched by police, or NSA accessing their data without their knowledge. FBI and CIA have also been involved in this search and seizures (rocker, 2013). Carlis (2009) defines illegal search and seizures as to when a search or seizure falls and goes beyond the law limits and boundaries. Most researchers however appreciate the fact that the searches and seizures, in 8 out of 10 cases are always intended at reducing criminal activities, as Britz records (Britz, 2012). The fourth amendment of the American Constitution The fourth amendment aims at controlling the extent of intrusion of privacy on people by the authoritative agencies. It is this amendment that shows the paramount need for law enforcing officers, including the FBI to have search warrants before searching a person, or their property and seizing him. There are many ideas and opinions regarding the components of the fourth amendment, which protects both the law enforcement officers and the citizens in a number of ways. The exclusionary rule The exclusionary rule which was born through Weeks V. United States 232 U.S.383, 34 ct.341 58 L. Ed 652 (1914), is used to determine how admissible evidence is. Simmons (2013) explains that this rule states that any evidence that has been obtained as a result of an illegal search is not admissible, and is hence excluded. To reinforce this, Crocker, (2013) gives the illustration that, if a law enforcing officer illegally searched a person’s car and from this search managed to get marijuana, when arraigned in court, this evidence, according to the exclusionary rule is not admissible. In Weeks case, he was charged with gambling, but upon appeal and proof that the search was illegal, he was released. This rule according to both Crocker and Britz is important since it helps keep police and other law enforcement officers responsible, and helps respect the privacy rights of the citizens (Crocker, 2013, Britz, 2012). However, there are arguments by some scholars such as Simmons that such evidence should not be dismissed since they help combat crime (Simmons, 2013). Good Faith The power of the exclusionary rule is limited by the good faith action, which was born from United States V. Leo, U.S. 897,104 S. ct 3405,82,L. Ed. 2d 677 (1984) case. This action states that if a law enforcement officer carries out a search warrantless, but in good faith, especially when relying on hints and information that turns out to be false, the evidence that is gathered from such a case is admissible. Gallavin (2004) argues that the Supreme Court added this to dissuade police irresponsibility and misconduct. This has been quoted as a big boost to the police to help in reducing the number of criminal activities. Other scholars like Carlis feel that this is not right as it gives law officers more chances for conducting illegal searches and seizures (Carlis, 2009). Fruit of the Forbidden Tree Doctrine Fruit of The Forbidden Tree Doctrine was born from the Nardone V. United States, 308.U.S.338, 60S. Ct. 266, 84 L. 307 (1939) case. This can best be explained through an example as given by Farahany. If a law enforcement officer carries out an illegal search and recovers a bag of marijuana, the exclusionary rule demands that this evidence be excluded. However, the officers might conduct more evidence based on the marijuana earlier found (Farahany, 2012). According to this doctrine, this evidence will not be admissible since it is as a result of evidence gathered from an unlawful and illegal search. This makes the level of crime even higher, and sometimes makes people undermine the authority of the law enforcement agencies (Simmons, 2013). It has been argued that this doctrine has helped to protect citizens against arbitrary and illegal search by law officers. Circumstances for a warrantless search It has also been noted that there are several circumstances under which an officer may carry out a warrantless search. These circumstances have been approved by the constitution. An example is in consented searches as noted by Dennis, where a person grants his consent to be searched or his property to be searched. This consent however must not be as a result of coercion or undue duress, it must be voluntary. This means that there must be no probable cause for the search to be carried out (Dennis, 2013). Another example where probable cause or a warrant is not required is in the case of hot pursuit. When a law enforcement officer is pursuing a suspect and the person enters into a shop or a private resident, the officer has a right to search the premises so as to ensure that no evidence is damaged or lost, and that the suspect does not escape . Inventory is also another example where search on the suspects person or their documents is carried out without a warrant. This is done to ensure that the arrestee does not have any weapon or does not have any other concealed evidence on them, or in their documents. Colb (2004) states that the stop and frisk, commonly known as the terry stop is one of the most quoted examples of a warrantless search. The search is carried to ensure the safety of the officer during the interrogation and questioning. These stops were born and legalized as a result of the Terry v. Ohio case. However, it has been noted that in terry stops, the officer should only question a person only when they think that the person is a threat, has committed a crime or is planning to commit a crime. At such, Birtz records that only about 1 in 100 cases have proved positive, confirming the officer’s suspicion that led to the arrest (Britz 2012). This being the case, some scholars argue that the stops and warrantless searches are not usually effective. In most of the past work, there is a consensus on what a warrant should contain, most approving that it should have specific reasons for the search, sworn oaths stating the search causes and a specific inclusion of the area, group, place or individual to be searched. The debates and discussions raised leave a lot of desire to find and strike a balance between law enforcement and respect for people’s privacy. References Britz, K. (2012). Dirty Hands or Deterrence: An Experimental Examination of the Exclusionary rule. Journal of Empirical Legal Studies, 9(1), 149-171 Carlis, A. (2009). The Illegality of Vertical Patrols. Columbia Law Review, 109 (8), 2002-2043. Colbs, S. (2004).A World without Privacy; Why Property does not define the Limits of the Right against Unreasonable Searches and Seizures. Michigan Law Review’ 102 (5), 889-903. Crocker, T. (2013). Order, Technology, and the Constitutional Meanings of Criminal Procedures. Journal of Criminal Law and Criminology, 103(3), 685-743. Davies, T. (2010). The Supreme Court Giveth and the Supreme Court Taketh Away: The Century of Fourth Amendment “Search and Seizure” Doctrine. Journal of Criminal Law and Criminology, 100(3), 933-1044. Dennis, J. (2013) Border Searches at Florida’s International Airports. Florida Bar Journal, 87(9), 9-15. Farahany, N. (2012). Searching Secrets. University of Pennsylvania Law Review, 160(4),1239-1308. Gallavin, C. (2012). Search and Surveillance and the Exclusion of evidence in New Zealand: Clarity or Confusion. International Journal of Evidence and Proof, 16(2), 199-211. Simmons, R. (2013). Ending the Zero Sum Game: How to Increase the Productivity of the Forth Amendment. Harvard Journal of Law and Public Policy, 36(2), 549-604. Read More