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Criminal Law Essay Research Paper Search and

Criminal Law Essay, Research Paper Search and Seizure by definition refers to a police practice whereby a person or place is searched and evidence useful in the investigation and prosecution of crime is seized. The Fourth Amendment and Fourteenth Amendment to the United States Constitution and constitutionally limit the search and seizure by provisions in the several state constitutions, statutes, and rules of court.

Criminal Law Essay, Research Paper

Search and Seizure by definition refers to a police practice whereby a person or place is searched and evidence useful in the investigation and prosecution of crime is seized. The Fourth Amendment and Fourteenth Amendment to the United States Constitution and constitutionally limit the search and seizure by provisions in the several state constitutions, statutes, and rules of court. Generally, people instinctively understand the rights and concepts and of privacy. It?s the freedom to decide which details of your life are private and public. Likewise, we acknowledge that society is served when the police, in appropriate circumstances, are allowed to investigate and confiscate contraband, stolen goods and evidence of a crime. However, the Constitution plays a significant role in our attempts to balance our desires for privacy against the legitimate needs of the police. It is the Fourth Amendment of the U.S. Constitution, which prohibits ?unreasonable? searches and seizures by state or federal law officers. Basically, this means that the police may conduct a search of your property according to the conditions: (1) The police can show that it is more likely than not that a crime has occurred and that if they are allowed to search, they will probably find evidence or contraband. This apparent and reliable fact that create a reasonable belief that a crime has been or is being committed is called probable cause. (2) A judge agrees there is probable cause and issues a search warrant, or the police are permitted to search without a warrant because of the particular circumstances involved.

In People vs. Bennett, 70 Cal. Rptr. 2d 850 (Cal. 1998), the Supreme Court upheld the seizure of a motel room in which the investigating officer told the manager to put a ?cuff? lock on the outside of the motel room. The defendant, who was arrested for a recent murder had been occupying the room and still had another 18 hours left until checkout time the next morning. The investigating officer ordered the motel manager to bar access to the room in order to prevent one of the defendant?s relative?s from entering the premises and possibly destroy evidence of the murder. The intrusion on the defendant?s Fourth Amendment interests was minimal here because only the police prohibiting anyone from entering it impaired the defendant?s rights of possession in the room.

However, there are exceptions to the warrant requirement that justify a search and is exempt from the general principle. The first one is Exigent Circumstances. The situations that are classified under the exigent circumstances exception can be grouped into three categories. ?An exigency exists if: 1) there is a good chance evidence-either contraband, instrumentalities used in the crime, or the fruits of the crime-is being or will be destroyed or concealed; 2) it is likely a suspect will flee; 3) there is a real danger to people. In Conway vs. Pasadena Humane Society, 52 Cal. Rptr. 2d 777 (Cal. App. 1 Dist. 1996), the court noted that ?absent consent, exigent circumstances must exist for a warrantless entry into a home, despite probable cause to believe that a crime has been committed or that incriminating evidence may be found inside.? The court pointed out that no hard and fast ?litmus test? would be employed to determine when exigent circumstances exist, and the presence or absence of such circumstances is determined on a case-by-case basis. Two primary considerations in making this determination are if there is imminent danger to the police or public safety. However, the underlying offense was minor which was a violation of a leash law, therefore, no exigent circumstances were present justifying the warrantless entry of a home by Humane Society agents to impound the animal.

The second exception to the warrant requirement is Destruction or Removal of Evidence. Where police have a reasonable belief that evidence is being or about to be destroyed, a warrantless entry may be permitted under this exception. Where police have an objectively reasonable fear that evidence is being or about to be destroyed and a reasonable belief that there are people within the home presently capable of destroying or hiding the evidence, and the officer?s fear is of an immediate or imminent destruction, the requirements of the exception are met. For example, In People vs. Ortiz, an officer was walking down a hallway in a motel, on his way to investigate reports of drug sales totally unrelated to the defendant, when he happened to look through an open door and see defendant and his female companion counting out packages of heroin and placing them on the table. Officer was at most six feet away from the pair, and as he could see them, they could certainly see him. The court noted that it is common knowledge that those in possession of narcotics will try to destroy them when seen by law enforcement. In addition, court discovered that the drug trafficking would have continued long before the officer could have obtained a search warrant, and the two may have been armed. Therefore, the officer?s warrantless entry to seize the narcotics was justified and valid.

Although the fact that the grounds for arrest involve narcotics, if there is no indication of drugs being hidden or destroyed, it will not justify the arresting officer conducting a warrantless search of the arrestee?s home for narcotics. However, if the police are able to view contraband or evidence on your property without actually entering it, they have not conducted a search. In other words, you cannot have a reasonable expectation of privacy in an area that can legitimately be seen from outside your property. This means that the police can use what they have seen as the basis for getting a warrant to come in and take a closer look. The situation would have to call for prompt action Furthermore, Law enforcement officers are allowed to take aerial photographs or come close enough to overhear your conversations-these actions are not considered searches. On the other hand, without a warrant or an exception to the rule requiring a warrant, officers are probably not allowed to use sophisticated equipment to discover what is on your property or to eavesdrop on your conversations. In general, if the investigation method is highly artificial and high-tech, it?s likely to be considered a search. Where the line is drawn, however, is not clear or consistent from state to state.

The third exception is Flight of the Suspect. If police have evidence demonstrating a suspect is an immediate flight risk, and has the present ability to flee the jurisdiction, a warrantless entry may be permitted to apprehend that suspect before flight. Fourthly, is the Safety of the Officer or Others. If the officer believes that the suspect is armed ands presents a real and immediate danger to the officers or other people, a warrantless entry is permitted. The officers are entitled to conduct such a warrantless search of a residence, if the shooting occurred outside the residence. The fifth element falling under warrantless searches is Hot Pursuit. A warrantless entry of a private dwelling will be allowed when police are in hot pursuit of a suspect who they have probable cause to believe committed a felony. The pursuing officers must have probable cause to believe the suspect entered a specific dwelling. After following the suspect into the dwelling, the police may seize contraband, weapons, instrumentalities or fruits of crime that are in plain view. This exception generally applies only to a ?fleeing felon.? If the police are pursuing a suspect for a misdemeanor or a non-jailable offense, or other minor infraction, hot pursuit will ordinarily not apply.

The sixth warrantless search is Search Incident to Arrest. When a person is placed under arrest, the police may search the person and the immediate surroundings for weapons that might be used to harm the officer. If the person is taken to jail, the police may search to make sure that weapons or contraband are not brought into the jail. (This is called an inventory search.) Inventory searches also frequently involve a search of the arrested person?s car(if it is being held by the police) and personal effects on the theory that the police need a precise record of the person?s property to avoid claims of theft. Seventh exception is Searches necessary to protect the safety of the public. The police don?t need a warrant if they have reasonable fear that their safety, or that of the public, is in imminent danger. For instance, an officer who suspected a bomb-making operation while walking his beat might be justified in entering immediately and seizing the ingredients.

Finally, there are Consent searches. If the police ask your permission to search your home, purse, briefcase or other property, and you agree, the search is considered consensual, and they don?t need a warrant. The police typically obtain a person?s consent by threatening to detain him/her while they obtain the warrant. In Florida vs. Jimeno, 500 U.S. 248 (1991), the Court approved the search of a paper bag, found on the floor of a car, for narcotics, after the defendant had given consent to a general search of his car. The court concluded that, based on these facts, it was reasonable for the searching officer to believe the scope of the consent given permitted him to open the bag. The defendant knew the purpose of the search was to look for drugs, and it was objectively reasonable to assume drugs could be found there.

In any occurrence, absolute facts must be distinguished before enacting a stop, and these facts must be expanded before a search and seizure is conducted. A person may not be immediately searched once he is detained. However, Terry vs. Ohio allows for a protective patdown of a person?s clothing when suspicious activity alerts the officer to some danger. Any search under Terry vs. Ohio must be used to discover weapons, though, not evidence of a crime. As in the case Minnesota vs. Dickerson, the defendant was seen evasively leaving a building known for cocaine traffic. The officers ordered the man to stop and submitted him to a patdown. A lump was detected in a coat pocket and taken by an officer during the probe. The object was removed and identified as cocaine. This stop and patdown was ruled constitutional, but the seizure of the drug was suppressed. The officer never thought the lump to be a weapon; therefore, the continued exploration of the pocket was unconstitutional. Only after its illegal removal was the lump recognized as cocaine.

To further examine the thin line as to what constitutes legal or illegal probable cause, the Supreme Court adjudicated Brown vs. Texas and Michigan vs. DeFillippo. In Brown vs. Texas, two police officers arrested a man who refused to identify himself and explain what he was doing in an alley. The premise for the arrest was a Texas statute that makes refusal of identity and addresses a criminal act. However, the person must be lawfully stopped. The officers claimed that the man had been approaching another bystander but upon observing the police, he walked away in the opposite direction. Chief Burger stated, ?Absent any basis for suspecting appellant of misconduct, the balance between the public interest in crime prevention and appellant?s right to personal security and privacy tilts in favor of freedom from police interference.? So, the conviction was overturned. Another case similar is Michigan vs. Defillippo. Detroit police stumbled upon a man and woman in an alley. The woman was in process of lowering her pants. Officers requested identity from the man, which was adamantly refused. The police then conducted a patdown search, which produced the discovery of narcotics. In this instance the conviction was upheld because here the arresting officer had probable cause to believe the suspect?s conduct had violated the ordinance. The respondent was also present with a woman describing the circumstance to warrant further investigation under the ordinance. It is by law to identify oneself when asked to do so by a police authority. Moreover, the respondent?s refusal to identify himself as the ordinance required was a direct violation of the law.

In the case involving consent searches misinterpretation of the law is illustrated in United States vs. Whitfield. Whitfield?s mother refused to sign a written consent form but allowed FBI agents to conduct a search of her son?s room. The agents had confirmed that Mrs. Whitfield owned the home, her son was not paying the rent, and his bedroom door was not locked. Accordingly, the agents believed that they had received a legal consent. The Circuit Court of D.C. disagreed, however. This appellate court proclaimed that although the agents truly believed Mrs. Whitfield could give an affirmative consent, the agents had misinterpreted the law in this situation because the mother had no authority to allow a search of her son?s room.

A case involving searches and seizures ?unconstitutionally? is described in Rawlings vs. Kentucky (448 U.S. 98). In this case, marijuana seeds were in plain view of police officers legally on the premises. The occupants were told that they could leave the house only if they consented to a search. Consent was not given. Police then requested a warrant to search the house and planned on using that warrant to search the occupants. Forty-five minutes passed before the warrant was presented. However, the Supreme Court said that even this delay was unacceptable and detaining the persons until the warrant was issued violated the Fourth and Fourteenth Amendments for the occupants. In the Bill of Rights smith stated: ?The Fourth Amendment provides language about governmental search and/or seizures based upon probable cause.? In addition, the ?Fourteenth Amendment guarantees every citizen the equal protection of laws and that no state shall deprive any person of life, liberty, or property without due process of law.? The case was in direct violation of these rights of the occupants; therefore the search was deemed ?unconstitutional.?

Conclusively, search and seizure is a powerful tool for law enforcement but one that any person would take as a personal insult. I believe Law enforcement personnel must be educated with the legal and illegal procedures of this investigative process for the legislative views this intrusive method seriously. Search and seizure seems to be of a complex method of incriminating an individual that gives the law enforcement agencies more emphasis on the legal and correct way to execute this particular technique. Evaluating from the cases I have studied the evidence and facts are objective enough to label some of these law enforcement officers as ?incompetent? and a negative reflection of the agency. My greatest concern for the authorities is to suppress their actions if they do not fully understand the concept and interpretation of the law.

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