Exceptions to the Search Warrant Requirement - Essay Example

Exceptions to the Search Warrant Requirement Search warrant, in law, is a written order by an official of a court izing an officer to search in a specified place for specified objects and to seize them if found. The objects sought may be stolen goods or physical evidences of the commission of crime like narcotics, etc. A Search Warrant may be defined as an order, issued by a justice, under statutory powers, authorizing a named person, to enter a specified place, to search for and seize specified property, which will afford evidence of the actual or intended commission of a crime. A search warrant is not an administrative function, it is a judicial act. In the United States, the issue of Search warrants is determined under Title 18 of the US Code. The law has been restated and extended under Rule 41 of the Federal Rules of Criminal Procedure. Each state can frame its own laws governing the issuance of search warrants. Requirements of a search warrant: According to Part XXVIII of the US Criminal Code, in order to be valid and enforceable, the search warrant should contain the following :- It must relate to a statute offence. There must be reasonable grounds to believe that an offence has been committed. The search warrant should clearly specify the items to be searched so as to trace them when found. A warrant to search must contain name and address any private individuals, other than peace officers, to be included in the search. It should contain a description of all locations, places to be searched, including outbuildings and automobiles. It should contain date of issue of search warrant. It should contain the name of city or town where the issuing Justice presides. It should contain the signature of the issuing justice / judicial authority A search warrant must be executed during day time - that means between 6 a.m. and 9 p.m., unless authorized and signed by a justice for extended hours. A search warrant must be in possession of the searcher who must be able to produce it, or a copy of it, for inspection on demand. Force can't be used without demand for entry. Once executed, a search warrant becomes a public document, available to the public for inspection. Fourth Amendment: Fourth Amendment to the United States Constitution is one of the provisions included in the Bill of Rights. The Amendment guards against unreasonable searches and seizures, and was originally designed as a response to the controversial writs of assistance, which were a significant factor behind the American Revolution. It is observed that , in US , of the of the 19.3 million traffic stops documented in the study, about 1.3 million motorists said they or their vehicle had been searched. In almost 90 percent of these searches, police found no evidence of a crime .As such, Fourth Amendment was made to protect the interest and rights of citizens and to prevent harassment to their personal life and property. It protects citizens against unreasonable searches and seizures, provides that a search warrant may be issued only on oath or affirmation that a crime was probably committed. The amendment applies only to governmental actors. It does not guarantee to people the right to be free from unreasonable searches and seizures conducted by private citizens or organizations. More specifically, the Bill of Rights only restricts the power of the federal government, but the Supreme Court of the United States has ruled that the Fourth Amendment is applicable to state governments by operation of the Fourteenth Amendment. Moreover, all state constitutions contain an analogous provision. For eg. Article 1, and 7 of the Tennessee Constitution. Under the Fourth Amendment , searches must be "reasonable" and " specific". This means that a search warrant must be specific as to the specified object to be searched for and the place to be searched. Fourth Amendment protects citizens from physical entry to the home by search officials. It applies equally whether the police enter a home to conduct a search or seizure or for some other purpose. It requires that searches of the home be reasonable. This reasonableness requirement generally requires that police obtain a warrant based upon a judicial determination of probable cause prior to entering a home. To obtain a search warrant, an officer must first prove that probable cause exists before a magistrate or judge, based upon direct information (i.e. obtained by the officer's personal observation) or hearsay information. Probable cause exists when the information on which the warrant is based is such that a reasonable person would believe that what is being sought will be found in the location to be searched. Probable cause must attach to each place to be searched. Both property and persons can be seized under a search warrant. Right to Privacy: Fourth Amendment aims at protecting the privacy of people to a reasonable extent. The matter was discussed in Katz v. U.S. (1967). However, It does not protect against all invasions of privacy, it only forbids unreasonable invasions of privacy. The intentions of Fourth Amendment were highlighted by the Supreme Court as follows: "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 Warrant 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." Exceptions to the Search Warrant Requirement: Under the fourth amendment, law enforcement must receive written permission from a court of law, or otherwise qualified magistrate, in order to lawfully search for and seize evidence while investigating criminal activity. A court grants permission by issuing a writ known as a warrant. A search or seizure is generally unreasonable, i.e., unconstitutional, if conducted without a valid warrant and the police must obtain a warrant whenever practicable. Searches and seizures without warrants are automatically considered to be unreasonable, unless one of the specifically established and well-delineated exceptions to the warrant requirement is applicable. The following are exceptions to search warrant requirement. 1. Exigent Circumstances: Exigent circumstances are situations where real immediate and serious consequences will certainly occur if a police officer postpones action to obtain a warrant. The following situations may give rise to exigent circumstances: a) Hot pursuit of a fleeing felon; b) Fear of imminent destruction of evidence; c) The need to prevent a suspect's escape d) Risk of danger to the police or others. The Fourth Amendment also does not stop police officers from making warrantless entries and searches when they reasonably believe that a person inside is in need of immediate aid. The "risk of danger exigency" most frequently justifies warrantless entries in cases where law enforcement is acting in something other than a traditional law enforcement capacity. The "risk of danger" exigency, however, only applies in situations involving the need to protect or preserve life or avoid serious injury either of police officers themselves or of others. 2. Automobile Exception: With regards to automobile searches, under the automobile exception, police do not need a search warrant to search , if they have probable cause to believe that it contains contraband or evidence of a crime. During that time, police may search the passenger compartment and any open containers inside the vehicle. Vessel Searches : Not only is the warrant requirement inapplicable to brief stops of vessels, but also none of the safeguards applicable to stops of automobiles on less than probable cause are necessary predicates to stops of vessels. In United States v. Villamonte-Marquez, the Court upheld a random stop and boarding of a vessel by customs agents, lacking any suspicion of wrongdoing, for purpose of inspecting documentation. 3. Investigatory detentions, "Terry Stop and frisk": Not all seizures of the person must be justified by the probable cause standard required for arrests. Certain seizures are justifiable under the Fourth Amendment if there is reasonable suspicion, supported by specific and particular facts, that a person has committed or is about to commit a crime. However, 'terry stops ' are different from non-seizure police questioning persons. In these situations, the person stopped is not free to leave. A "Terry Stop" must be temporary and questioning must be limited to the purpose of the stop i.e., if the policeman stops a driver of a car, because he had reasonable suspicion to believe that he was driving a stolen car, after confirming that it is not stolen, he cannot force the driver to answer questions about anything else, such as the possession of contraband. In justifying the particular intrusion the police officer must be able to point to specific and particular facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion. However, in this context, the search is limited to perform a limited search of a suspect's outer clothing for weapons, if police have a reasonable suspicion to justify the intrusion. 4. Consent: Search warrant is not required, wherever; consent is given by a person in control of the thing to be searched. However, the consent should not have been influenced by coercion. 5. Plain View: When evidence is in ' plain view ,'- if the officer is legitimately on the premises, his observation is from a legitimate vantage point, and it is immediately apparent that the evidence is contraband, the officer is within his right to seize the object in question. When police arrest an individual, they are also permitted to conduct a full search of the suspect's person, any area within that person's immediate reach, and any vehicle which they recently occupied, for weapons or other contraband. If the subject is arrested in a home, police may search the room in which they were arrested, and perform a 'protective sweep' of the premises where there is reasonable fear that other individuals may be hiding. 6. Public Interest and safety: Searches are allowed in emergency situations where there is danger to the life and property of the public. 7. Rented Property: With rented property, a landlord may not authorize law enforcement to search a tenant's premises without a search warrant, and a warrant must be obtained under the same guidelines as if it were the tenant's own home. But in some jurisdictions, a hotel room may be searched by consent of the hotel's management without the guest's approval or a warrant. 8. "Good Faith" Rule : In United States v. Leon, 468 U.S. 897 (1984), the Supreme Court applied the "good faith" rule and held that evidence seized by officers objectively and in good faith relying on a warrant later found to be defective was still admissible. The evidence would still be excluded if an officer dishonestly or recklessly prepares an affidavit forming the basis at the warrant, if the issuing magistrate abandons his neutrality, or if the warrant lacks sufficient particularity. The Leon case applies only to search warrants. It remains unclear whether the "good faith" exception applies to warrantless seizures in other contexts. On January 8, 1974, the Supreme Court ruled that grand juries may use allegedly illegally obtained evidence in questioning witnesses because, to hold otherwise, would interfere with grand jury independence and the place to contest the illegal search is after the accused is charged. (United States v. Calandra, 414 U.S. 338) However, the " good faith rule " does not apply in the following circumstances : a) Probation or parole revocation hearings b) Tax hearings; c) Deportation hearings; d) When government officials illegally seize evidence outside the United States; e) When a "private individual" (i.e., not a governmental employee) illegally seized the evidence; When the illegally seized evidence is used to impeach the defendant's testimony. 9. Open Fields Doctrine: "Open fields" - pastures, open water, woods and other such areas may be searched without a warrant, on the basis that the individuals conducting activities therein had no reasonable expectations of privacy. Contrary to its apparent meaning, the "open fields" doctrine has been expanded to include almost any open space other than the land immediately surrounding a domicile. For instance, in Oliver v. United States 466 U.S. 170 (1984), the police ignored a "no trespassing" sign, trespassed onto the suspect's land without a warrant, followed a path several hundred yards, and discovered a field of marijuana. The Supreme Court held that a privacy expectation regarding an open field is unreasonable. "Open fields do not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance. There is no societal interest in protecting the privacy of those activities". such as the cultivation of crops, that occur in open fields. The open fields doctrine was first articulated by the U.S. Supreme Court in Hester v. United States, which stated that "the special protection accorded by the Fourth Amendment to the people in their 'persons, houses, papers, and effects,' is not extended to the open fields." This opinion appears to be decided on the basis that "open fields are not a 'constitutionally protected area' because they cannot be construed as "persons, houses, papers, [or] effects." This method of reasoning gave way with the arrival of the landmark case, which established a two-part test for what constitutes a search within the meaning of the Fourth Amendment. The relevant criteria are "first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as reasonable." Under this "new" analysis of the Fourth Amendment, privacy expectations deemed unreasonable by society cannot be validated by any steps taken by the defendant to shield the area from view. Courts have continuously held that entry into an open field--whether trespass or not--is not a search within the meaning of the Fourth Amendment. No matter what steps a person takes, he or she cannot create a reasonable privacy expectation in an open field, because it is an area incapable of supporting an expectation of privacy as a matter of constitutional law. 10. Searches incidents to lawful arrest: Permitting searches incident to an arrest without warrant is permissible in US Law. The justification for such a search is that the arrested individual must be prevented from destroying evidence or using a weapon against the arresting officer. In Trupiano v. United States, 334 U.S. 699 (1948), the Supreme Court held that "a search or seizure without a warrant as an incident to a lawful arrest has always been considered to be a strictly limited right. It grows out of the inherent necessities of the situation at the time of the arrest. But there must be something more in the way of necessity than merely a lawful arrest." In United States v. Rabinowitz, 339 U.S. 56 (1950), the Court reversed its previous ruling, holding that the officers' opportunity to obtain a warrant was not germane to the reasonableness of a search incident to an arrest. The decision suggested that any area within the "immediate control" of the arrestee could be searched, but it did not define the term. In Chimel v. California, 395 U.S. 752 (1969), the Supreme Court elucidated its previous decisions. It held that when an arrest is made, it is reasonable for the officer to search the arrestee for weapons and evidence. 11. Miscellaneous exceptions: i. Searches in Public Schools : If the searching officer has reasonable grounds to believe that , the search in public schools will result in the finding of evidence of illegal activity he does not require search warrant .( New Jersey v. T. L. O., 468 U.S. 325 (1985) ii. Search in Government Offices - Administrative searches iii. Search in Prison Cells iv. Search conducted at the border : (Cases : United States v. Ramsey, 431 U.S. 606 (1977); United States v. Montoya de Hernandez, 473 U.S. 531 (1985); United States v. Flores-Montano, 541 U.S.,2004) v. Searches undertaken as a condition of parole (Samson v. California, 546 U.S. (2006). The Internet, Computers and Privacy: The legal opinion with respect to the protection of rights guaranteed under Fourth Amendment varies, depending upon each and every circumstance. Different courts have different opinions in determining whether law enforcement officials can search and have access to a person's Computer and invade his / her privacy. ====0==== References: Read More