Search and Seizure

8 August 2016

As the United States formed as a republic its need to form laws to protect its people became an evident need. Along with the powers to be at control of these laws, there were also limitations on what the government could and could not do to protect the people from the government as well. One of these controlling factors is the Fourth Amendment, which protects our citizens and visitors from an array of items. A few in particular would be; right to privacy, search, and seizure.

The Fourth Amendment also sets the tone for how arrests are affected and how reasonableness is weighed on heavily. The Fourth Amendment grants American citizens protection from illegal searches and seizures. The Fourth Amendment is designed to protect the right to privacy and freedom from arbitrary invasions. In order to seek restitution for a violation of the Fourth Amendment, the plaintiff must have standing. Standing requires that the plaintiff had an expectation of privacy at the searched location.

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Standing requires that both the subjective and the objective tests are met.

The subjective test requires that the plaintiff actually expected privacy while the objective test checks whether the plaintiff would have expected privacy (Fourth Amendment). The Fourth Amendment protects against unlawful searches and seizures, but what exactly are a search and a seizure? As per the Legal Dictionary search and seizure is an “examination of a person’s premises (residence, business or vehicle) by law enforcement officers looking for evidence of the commission of a crime, and the taking (seizure and removal) of articles of evidence (such as controlled narcotics, a pistol, counterfeit bills, and a blood-soaked blanket).

The basic question is whether the search and seizure were “unreasonable” under the 4th Amendment to the Constitution (applied to the states under the 14th Amendment), which provides: “The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. ” Thus, searches and seizures must be under the authority of a search warrant or when the officer has solid facts that give him/her “probable cause” to believe there was evidence of a specific crime on the premises but no time to get a warrant.

Evidence obtained in violation of the Constitution is not admissible in court, nor is evidence traced through such illegal evidence. ” Once a search and seizure of a premise and property has been completed, it is the job of law enforcement to gain the status of probable cause to affect an arrest on the individual(s) for crimes related to the investigation. An arrest as defined to The Legal Dictionary is “to take or hold a suspected criminal with legal authority, as by a law enforcement officer.

An arrest may be made legally based on a warrant issued by a court after receiving a sworn statement of probable cause to believe there has been a crime committed by this person, for an apparent crime committed in the presence of the arresting officer, or upon probable cause to believe a crime has been committed by that person. ” Arrest defined by Utah State Code reads as follows: 77-7-2. Arrest by peace officers.

A peace officer may make an arrest under authority of a warrant or may, without warrant, arrest a person: (1) (a) for any public offense committed or attempted in the presence of any peace officer; and (b) as used in this Subsection (1), “presence” includes all of the physical senses or any device that enhances the acuity, sensitivity, or range of any physical sense, or records the observations of any of the physical senses; (2) when the peace officer has reasonable cause to believe a felony or a class.

A misdemeanor has been committed and has reasonable cause to believe that the person arrested has committed it; (3) when the peace officer has reasonable cause to believe the person has committed a public offense, and there is reasonable cause for believing the person may: (a) flee or conceal himself to avoid arrest; (b) destroy or conceal evidence of the commission of the offense; or (c) injure another person or damage property belonging to another person; (4) when the peace officer has reasonable cause to believe the person has committed the offense of failure to disclose identity under Section 76-8-301.

When the peace officer has reasonable cause to believe that the person is an alien: (a) subject to a civil removal order issued by an immigration judge; (b) regarding whom a civil detainer warrant has been issued by the federal Department of Homeland Security; or (c) who has been charged or convicted in another state with one or more aggravated felonies as defined by 8 U. S. C. Sec. 1101(a)(43). Another exception to requiring a warrant lands within the “reasonableness” requirement. The United States Supreme Court has attempted to balance the reality of police work and the time to complete a warrant with the freedom interests of the public. If an officer is always required to pursue a warrant, the suspect may have time to destroy the evidence or hide it outside the search parameters of the warrant. On the other hand, never requiring a warrant could get out of hand with police doing random searches on your property.

Seven categories to determine if a warrantless search, seizure, or arrest is reasonable were created: No warrant is required for a felony arrest in a public place; No warrant is required for searches incident to lawful arrests; Automobiles may be stopped if an officer possesses reasonable suspicion that the suspect violated a traffic law; If an officer has reasonable suspicion that the suspect is participating, or about to participate, in criminal activity, the officer may frisk the person for weapons; If exigent circumstances arise; At fixed roadside locations, it is alright to have a brief seizure to ascertain the legality of citizens; And if the officer is acting upon “good faith” (Reasonableness, 2014). All of these play a large part in enforcing law in the United States. As the law has many definitions, there are many parts of the law that are affected by these rules and guidelines. One in particular is the stop and frisk that occurs frequently in law enforcement. For this action the officer must reasonably believe that the individual may be armed with a weapon. The frisk is confined to a suspect’s outer clothing when either a bulge in the clothing or the outline of the weapon is visible.

The search is commonly called a “pat down,” and any further search requires probable cause to believe the suspect will commit or has committed a crime. The limited right to “stop and frisk” is intended to halt the practice of random searches of people in hopes of finding evidence of criminal activity. Another scrutinized part of search and seizure is the automobile search exception. Law enforcement is routinely stopping vehicle on traffic related violations. On some stops officers come across situations that lead them to believe that illegal activity is or will be occurring and a further investigation is accomplished. Most times during a traffic stop plain view and plain smell play a large part in a deeper investigation.

The courts have held that due to the fact that an automobile is mobile and has the ability to drive away it is not protected under the normal circumstances of obtaining a warrant for the search as a house or business. The vehicle is subject to search by officers in situations where probable cause can be met. Another situation that occurs on vehicle stops is the lengthening of the stop for the investigation. An officer must have reasonable suspicion of illegal activity beyond the reason of the initial stop to widen the scope of the traffic stop and detain beyond the normal traffic stop time frame.

The right to privacy does apply to the vehicle as to the officer can’t cross the threshold of the vehicles interior to gain evidence, all seen or smelled instances must be seen or smelled from the exterior of the car, unless consent to search is provided by the driver. This consent can also be revoked by the driver at any time during the search. The use of canines has also proven to be an effective tool to gain entry into a vehicle for searches. Border patrol has been in the news lately, especially after the passing of the Patriot Act bill. Border patrols have an exception to the search and seizure clause within the Fourth Amendment. Border patrols are still governed by rules and do not have free reign to do as they please. Border searches generally fall into one of two categories: routine or non-routine.

A routine stop is usually conducted at the border and consists of limited intrusion. A non-routine stop is usually conducted on reasonable suspicion and will vary in techniques and intrusion. The provision allows the border patrols to interrogate any alien as to their right to remain in the United States; to arrest any alien attempting to enter the United States in violation to the law; to board and search for aliens within a reasonable distance from a border; and to make arrests (Border Search, 2014). The Fourth Amendment is a very important part of our society and covers a large spectrum of items to protect individual’s rights and govern how law enforcement can perform their duties. Without the Fourth Amendment we would find ourselves living in a very different place, a place where the law rules and individuals were subject to unfair search seizure and from this unlawful arrests and the right to privacy would be nonexistent.

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Search and Seizure. (2016, Aug 31). Retrieved May 25, 2019, from
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