Conducting a Search without a Warrant - Essay Example

Conducting a Search without a Warrant A search warrant is an order issued by a judge in a court of law izing the police to search a person or search for evidence required in connection with a crime committed. This implies that a search can not be conducted without a warrant. However there are exceptions to this rule in order to address certain situations requiring no warrant. This research paper is directed to enquire into those situations and discuss exhaustively whether such exceptions are necessary since it would result in intrusion of one’s privacy. Generally, unless absolutely necessary, the law will not allow a search without a warrant considering the sanctity and importance attached to one’s privacy. Dwelling house of man has been expressed as his castle even before the advent of English jurisprudence. The natural desire for privacy led to formation of homes as a place for hospitality, shelter and protection even in ancient times. The Biblical times also had respect for home as a dwelling place to which officials were not being allowed to visit arbitrarily. Bible has it that Joshua desisted from sending his men to Achan’s tent for searching and seizing the prohibited article, even though it had been known that he had been in possession. Under Hebrew Law also the question of search does not arise since enquiry of cases depended on the testimony of witnesses. The point here to be noted is that the right not to be disturbed at home had been there even in ancient times. In olden times no body could enter a house without the occupant’s permission. In Bible, a creditor could not enter a debtor’s house but must wait outside to collect his security for the pledge. A bailiff from court also was barred from entering the house of a debtor. The respect for home in those times is evident from the fact that thieves found guilty of house breaking at nights were punished with death penalty. (Lasson 1937 p 14) In Roman literature, a home was considered not only as an asylum but also was protected by the household Gods who were believed to have dwelt and were worshipped there. If a thief was found inside a house’s fire place, it was assumed that he needed protection. (Lasson p 15) Hence the entering a house for search by a police officer or conducting a search on person or a vehicle should be viewed with above background of high regard given to privacy of an individual. Bill of Rights containing first ten amendments included the Fourth Amendment which came into force in 1791 on ratification by three fourth majority of the States. . Fourth amendment guarantees the right of the people in their persons, houses, papers, and effects, against searches and seizures without reason and no warrants shall be issued without a probable cause supported by an oath or affirmation specifically mentioning the place to be searched, and the persons or things to be subjected to search. (U.S.News 2002) In Boyd v United States (1886), it was held that a person can not be compelled to be a witness against himself which is repugnant to the Fourth and Fifth amendments to the constitution. This was against the rule which stated that the defendant or claimant must produce his books, invoices and other relevant papers before a court failing which allegations against him would be considered as confessed. It was ruled that even though direction did not result in compulsory search inside the premises, it amounted to the spirit and meaning of the Fourth Amendment. Exclusionary Rule: In 1914, the U.S. Supreme Court made a ruling known as “exclusionary” in the decision of Weeks v United States.(1914) giving shape to the message contained in Boyd’s case since there had been number of searches without warrant disregarding the sanctity of privacy enunciated by the Fourth Amendment despite the ruling in Boyd’s case. The Boyd’s case had mainly prohibited self-incrimination of the suspects through warrantless searches. The exclusionary rule is applicable to all the people in the U.S. whther citizens or immigrants both legal and illegal. In the Week’s case, police searched Fremont Week’s house on suspicion that he had been using a mail system to distribute lottery which was a banned activity. On entry into his house, they searched his room and seized all papers from him. They again came to his house with a U.S. Marshall and seized letters and envelopes from his desk in a bid to collect more evidence. On both occasions, they had not obtained warrant. All the seized materials were used against him in the trial leading to his conviction by the Missouri court. Common law permitted use of the evidence however collected in order to punish the guilty. The U.S. Supreme Court had been adopting this in earlier cases and approved the use of evidence collected illegally by Federal and State courts. But attitude towards illegal searches or rather warrantless searches began to change since protagonists argued that it was not in consonance with the purpose for which Fourth Amendment was made rendering protection envisaged against unlawful searches to become futile. The Week’s case was a turning point and also it was a unanimous decision. Week’s questioned the whether Fourth Amendment gave any specific protection and whther the illegally obtained evidence could be relied upon by the court. His contention was that in order for the language of the Fourth Amendment to meaningful, people of the country should be protected from unlawful searches and seizures and any such illegal activity violated the guarantee given by the Fourth Amendment to the constitution. As against this, the State Agency argued that the mounting evidence found in the hose of Weeks showed that he violated a Federal Law and therefore he should be punished. The U.S Supreme Court however came to the conclusion that illegal searches conducted at a private residence violated the Fourth Amendment and declared the Exclusionary Rule by which it prohibited admissibility of evidence illegally collected evidence in Federal Courts. The rule is justified on deontological grounds in that manner in which an evidence is obtained is more important that what it really proves. Such an illegally obtained evidence is known as “fruit of the poisonous tree’ and not worthy of a trial. It will be a mistrial not worthy of a jury. However in a trial if the defendant testifies, the illegally obtained evidence could be used by the prosecution to impeach his credibility. This is known as “inevitable discovery doctrine” as held in Nix v Williams (1984) It is based on the premise that such an illegally obtained evidence could also have been discovered through a normal police investigation. The U.S.Supreme court reasoned that the exclusionary rule was only to prevent State misconduct and that the same evidence that could have been obtained otherwise would not prevent the inevitable discovery. However in People v Stith, the Court held that the said doctrine could be used to admit only secondary evidence and not primary evidence, i.e the secondary evidence as a result of first evidence. To make it clearer, in People v. Turriago, (1997), the case involved search of the van the defendant was driving, with his consent pursuant to routine traffic stop. The search revealed there was a dead body kept in a trunk inside the van and therefore the defendant was prosecuted for murder. The defendant argued that the search was made without his consent. People contended that even if there was really no consent (though it was really with the consent), it could be still admissible by virtue of “inevitable discovery doctrine.” The trial court indicted the defendant on the ground that consent was voluntary. On appeal, the court held even if there was consent, since the evidence was discovered secondarily pursuant to the van search, it could not come within the ambit of the “inevitable discovery” doctrine. Moreover the consent though voluntary it was invalid since the traffic police primarily did not suspect him of criminal activity when the search was requested. (Law. Cornell). Exclusionary rule: Until 1914, the there was no recognition for the opposition against conducting searches without warrant in spite of the Fourth amendment, though in 1886 itself, the U.S. Supreme Court had laid foundation for it in Boyd v United States (1886). The exceptions to this rule are considered necessary in order to prevent a crime or destroying of evidence or solve a crime without allowing the perpetrators of the crime to take advantage of the restrictions placed by the fourth amendment. The exceptions are discussed here below after looking at the historical developments relating to warrants and importance of privacy. Fourth Amendment to the constitution was made with the experience in mind of the abusive searches indulged in by the British Government during the colonial period. General warrants were used without specific names of the persons or papers. These were being used both in England. In England, a parliament member John Wilkes made an anonymous publication criticizing Government policies and he and others were arrested after issue of warrant for search. The King’s Bench ruled in the relative case Wilkes v Wood (1763) that warrant was illegal. Similarly in Colonial America, general warrants were used to search out smugglers. The general warrants known as writ of assistance mandated all subjects of the Crown to assist the officers to search out the smugglers. One extraordinary feature of these warrants was that it was valid until six months from the date of death of the ruling sovereign at the time. After the independence, the States enacted prohibitions against general warrants. The fourth amendment was mainly proposed to prohibit the general warrants but after a lot of deliberations a clause was included for protection against unreasonable search. Supreme Court went further and interpreted that unreasonable search clause would apply even to searches made with a warrant. (Josephson 1996) Although the rule is that no search can be made without a warrant, there are exceptions. Consent: Any person can voluntarily agree to allow the police to search without a warrant. Investigatory stop: Police can stop a person or vehicle if he reasonably suspects that a crime is taking place or about to take place and search the person or the vehicle without a warrant. Search incident to arrest: If a person has been arrested, there need not be a warrant for search on him. Exigent circumstances: When ever a quick action is required, the police need not wait for warrant to be obtained for search. For instance, if an officer believes that evidence is being destroyed, or someone has been badly injured, or in need of urgent assistance, search warrant need not be obtained. Besides, there are specific exceptions enunciated by the U.S. Supreme Court in the course of delivering justice. An officer applying for a warrant should justify before the judge the probable cause that exists for the search based upon any specific information received in that connection. Hearsay information obtained over phone or otherwise can also be relied upon by him for the issue of warrant. Warrant is some times necessary in order to convict the offender to prevent him from escaping from conviction on the ground of warrantless search. Title 18 of the United States Code relates to Federal warrants and has been extended to rule 41 of the Federal Rules of Criminal Procedure. Individual States also can have their own laws for issue of warrants. Plain view rule: if the officer is able to view the evidence from a vantage point and if that evidence which may be an object is required for the proof of the crime, then he is entitled to seize the object without a warrant. The rule was established in Arizona v Hicks (1987) For the plain view doctrine three conditions must be present. 1) that the officer is present where he is legally entitled to be present, 2) that the plain view is not got out of any advanced technology and 3) that it must be a chance discovery. Besides the officer must have the probable cause to suspect the item or place to be searched. In the cited case, the officer acted unlawfully in that he used a stereo equipment to record the serial numbers while investigating a shooting incident. Thus the plain view doctrine should be reinforced by plain feel, plain smell, and plain hearing. When a person is arrested, the police can search without a warrant, the home in which he is arrested, or the vehicle he has used or any other place from where he is arrested. In Mapp v Ohio (1961), the U.S. Supreme Court, made the exclusionary rule applicable to state courts thus superseding the precedent of Wolf v Colorado (1949) that it would also apply to State Courts declaring that exclusionary rules was an integral part of Fourth Amendment which recognized guarantee of privacy to the people of the U.S. and also holding that it was also the requirement of “Due Process” clause of the fourteenth amendment. The court in Mapp decision held that exclusionary rule served three purposes of constitutional privilege, judicial integrity, and the deterrence. Constitution al privilege, because fourth amendment prohibited illegally obtained evidence in court proceedings against the defendants, judicial integrity because court would otherwise be allowing illegally extracted evidence i.e fourth amendment violations into the court room thus eroding the public faith in the integrity of the judiciary and deterrence because it was mainly to prevent police misconduct or highhandedness. The U.S. Supreme Court has over time announced certain exceptions to the exclusionary rule. The exceptions are impeachment exception, independent source exception, inevitable discovery exception, good faith exception, harmless error exception, and rule of attenuation. (Jackson A, 1996) The Impeachment Exception: In Walder v United Sates(1954), the U.S.Supreme Court allowed exemption to the prohibition of warrantless search in order to impeach the evidence of the defendant who denied in her testimony possession, purchase and sale of narcotic drugs. The court held though she had the constitutional right testify in her defense, she could not commit perjury and upheld the production of illegally seized evidence by the Government during her cross examination. This amounted to exception to impeach credibility of her witness. However in James v Illinois (1990), it was held that the impeachment could be only restricted to the defendant’s own testimony and not to the other witnesses of the defendant even on committing of perjury by the defendant. Independent source Exception: This was declared in the case of Wrong Sun v United States (1963) stating that if the evidence was obtained directly through violation of the fourth amendment but through an independence source, it can be used for the evidence. This is but a check on the Government from benefiting from misconduct but saves it from the worse situation of misconduct. In a typical case of United Sates v Segura(1984), the police after applying for warrant but without taking it, entered the defendant’s home and collected the evidence. In view of the potential warrant, the court allowed the evidence so collected as if from an independent source. Inevitable discovery exception: as already discussed elsewhere, it was established in 1984 in the decision of Nix v Williams (1984). Court justified that social interests outweighed the potential deterrent effects. Good faith exemption: In United Sates v Leon (1984), police officer relied on a warrant and made a search in good faith. The evidence so collected in good faith could be an exception to the rule since the warrant erroneously issued by a judge should not undo the evidence collected by the police believing in at the warrant. Judge opined that exclusionary rule was to only deter illegal acts of the police and judge’s mistake should not be to the undue advantage of the defendant. Harmless Error Exception: In Chapman v California (1967), the focus was mainly on the facts determining the guilt and not on extraneous issues which may be peripheral or immaterial. This doctrine allows admission of evidence obtained in violation of the fourth amendment if it is harmless beyond a reasonable doubt. In this case, defendants did not choose to testify which was commented by the prosecutor. Though California court held it to be a harmless one, the U.S.Supreme Court stated that it could not held to be harmless to the petitioners.(defendants originally) and would influenced the judge. The U.S. Supreme court held that though California Supreme court had jurisdiction to create a ‘harmless error rule’, it should be beyond a reasonable doubt and opined that defendants petitioners prevailed by pointing out that the prosecutor’s comments led to their convictions. Rule of Attenuation: In Nardone v United States (1937), it was held that if the violation of fourth amendment was sufficiently far from the discovery of the evidence so as to attenuate the taint, illegally obtained evidence was permissible. Some intervening event could save the mistake of the fourth amendment violation from the warrantless search. The above exceptions appear to be in effect undoing the fourth amendment protections. Heather (1996) says that Arizona v Evans (1995) legalized an illegal seizure under the pretext of non-existent warrant due to a computer error and hence it was not a correct decision by the Supreme Court. The U.S. Supreme Court should have broadly interpreted the fourth amendment without narrowly considering by exceptions to the rule. The U.S.Supreme court ignored the fact the fourth amendment was not just merely to prevent police misconduct but also for restraining Government, for giving the protection of individual privacy and for ensuring judicial integrity. Works Cited Arizona v. Evans, 514 U.S. 1 (1995). Arizona v. Hicks 480 U.S. 321 (1987) Boyd v. United States, 116 US 616 (1886) retrieved 24 July 2008 < http://supreme.justia.com/us/116/616/> Chapman v. California, 386 U. S. 18 (1967)... Jackson A. Heather, 1996 Expanding Exclusionary Rule Exceptions and Contracting Fourth Amendment Protection Journal of Criminal Law and Criminology. James v. Illinois, 493 U.S. 307 (1990) Josephson Mark 1996 “Fourth Amendment - Must Police Knock and Announce Themselves before Kicking in the Door of a House” Journal of Criminal Law and Criminology, Vol 86, 1996 Lasson B Nelson 1937 “The History and Development of the Fourth Amendment to the United States Constitution”: Johns Hopkins Press. Baltimore, MD. Mapp v Ohio (1961) 367 U.S. 643 (1961) Nix v. Williams 1984 432 US 1031(1975), 467 US 431 Nardone v. United States, 302 U.S. 379 (1937). People v. Stith, 69 N.Y.2d 313 (1987). http://www.law.cornell.edu/nyctap/comments/i97_0081.htm People v. Turriago, (1997) 90 N.Y.2d 77 US News No Search Without a warrant November 27, 2002, accessed July 20, 2008 http://www.post-gazette.com United States Segura v., 468 U.S. 796 (1984) United States v. Leon, 468 U.S. 897 (1984) Weeks v. United States 232 U.S. 383 (1914) Wilkes v Wood 98 Eng. Rep. 489, 498--99 C.P. 1763 “Amendment IV” The Founders’ Constitution, University of Chicago Press, retrieved July 23, 2008 Walder v. United states, 347 U.S. 62 (1954) Wolf v. Colorado, 338 U.S. 25. (1949) Wrong Sun v. United States, 371 U.S. 471 (1963) Read More