The Fourth Amendment

Abstract This paper will investigate the fourth amendment, unlawful search and seizure, and will explain what is considered to be unlawful and what is not. This paper will also discuss the right of privacy that Americans are entitled to as citizens of the United States. Events that have marked history in regards to the fourth amendment will also be explored, explaining the nature of searches and the key components that coincide. The court ruling in the historic case of Arizona vs. Gant will be explored in detail.This court case set out to establish what was actually considered unlawful, and what guidelines must be followed to be considered lawful. The case suggests that because of probable case that a search would then in fact be lawful. But in this case it is discussed that even when probable cause is present, there is still factors that must be considered. Unlawful Search and Seizure Imagine being pulled over while driving on a suspended license; you are handcuffed, and placed in t he backseat of a squad car, while the officer searches your car, without your consent.There you are sweating profusely, nervous of what may and will be found, and then it is found, in the glove box a gun and drugs. What should be said in defense? What should be done? Was this in fact a situation where unlawful search and seizure had taken place? Did this go against your constitutional rights as a citizen? There was no consent, but there was probable cause because of the suspended license. Imagine driving with friends and you are speeding. You are then pulled over, the officer smells marijuana, and arrest everyone inside of the vehicle.He then returns to the vehicle, and searches it finding cocaine in a jacket coat pocket. Was this too an act of unlawful search and seizure? Did this go against your reasonable expectation of privacy? The Bill of Rights Many of us may struggle when it comes to knowledge about laws, and our constitutional rights as citizens. We want to protect ourselves from situations that may be unconstitutional, but may not be aware of our rights when unconstitutional behavior occurs. When The U. S.Constitution was ratified in 1788 and 1799 there were not many laws set in place in regards to the criminal justice system. â€Å"The Fourth Amendment was adopted as a response to the abusive search and seizure practices used by the British government during the American colonial period. The colonists were particularly concerned about broad, particularized searches performed under the authority of general warrants. General warrants authorized searches for persons or papers not named specifically in the warrant† (Josephson, 1996). The U. S.Constitution did not set forth the rights of individuals in enough detail; so ten amendments were added in 1791, and were called the Bill of Rights (Cole & Smith, 2011). According to Cole and Smith (2011), The Bill of Rights are the first ten amendments that were added to the U. S. Constitution to provide spe cific rights for individuals, including criminal justice rights concerning searches, trials, and punishments. Unlawful search and seizure is the fourth amendment, which is a part of the first ten amendments. Unlawful Search and SeizureThe Fourth Amendment states: 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 and affirmation, and particularly describing the place to be searched, and the persons or things to be seized (Cole & Smith, 2011). Unlawful search and seizure was made to limit the capability of law enforcement officers to search a person or property in order to obtain evidence.It is believed that law enforcement should not be able to pursue criminals at all cost. A search is a court document that gives law enforcement the authority to examine and hunt for evidence in or on a person or place in a manner th at intrudes on reasonable expectations of privacy (Cole & Smith, 2011). The reasonable expectation of privacy, that was developed by the courts, is normally from the government; but if there is probable cause law enforcement can receive an search warrant from a judge and search wherever the warrant states.A seizure is a situation in which police officers use their authority to deprive people of their liberty or property and which must not be â€Å"unreasonable† according to the Fourth Amendment (Cole & Smith, 2011). All types of things can be seized such as a person’s freedom, which is also called an arrest, and also even property. Law enforcement must ensure that there is probable cause because if not that is an infringement of that person’s right. Being unconstitutional can lead to fines, and law enforcement officers even losing their jobs, depending on the severity of the situation.Requirements of the Fourth Amendment There are requirements that law enforceme nt are expected to be knowledgeable of and have to follow, even while trying to catch criminals. The requirements are probable cause, affidavit, and describing the place being searched, and the persons or things to be seized (Cole & Smith, 2011). Probable cause is the amount of reliable information indicating that it is more likely than not that evidence will be found in a specific location or that a specific person is guilty of a crime (Cole & Smith, 2011).In order for search and seizure to take place there has to be probable cause. Affidavit is a written statement, which is supported by oath or affirmation, submitted to judicial officers to fulfill the requirements of probable cause for obtaining a warrant. The place or person to be searched or seized has to be described in detail to help establish if probable cause is reasonable. There are however, exceptions to the probable cause and warrant requirements.Some exceptions are investigatory detentions, warrantless arrest, searches incidents to a valid arrest, seizures of items in plain view, exigent circumstances, consent searches, vehicle searches, container searches, border searches, searchers at sea, administrative searches, and searches in which the special needs of law enforcement make the probable cause requirement impractical (Calsyn et al. , 1998). A warrantless search can be conducted if law enforcement believes that the evidence is imminent danger of being moved or destroyed.Also if there is belief that law enforcement may be in danger they may enter a dwelling and conduct a full warrantless search (Calsyn et al. , 1998). The Fourth Amendment does not require law enforcement to have a warrant when searching vehicles when they have probable cause. The â€Å"automobile exception† to the warrant requirement stems from both the inherent mobility of vehicles, which often creates exigent circumstances that make obtaining a warrant impractical, and the reduce expectation of privacy due to configurat ion, use, and regulation of automobiles (Calsyn et al. 1998). â€Å"In certain circumstances, law enforcement officers may lawfully arrest persons without an arrest warrant. Such arrests are permitted for any offense committed by the arrestee in the presence of a law enforcement officer and for any felony that an officer has probable cause to believe the arrestee has committed. After making a warrantless arrest, an officer must promptly secure a judicial determination of probable cause. The probable cause required to make a lawful warrantless arrest is identical to the probable cause required to secure an arrest warrant (Calsyn et al. 1998). According to Nolo (2012), the fourth amendment only applies to a search if a person has a legitimate expectation of privacy in the place or thing searched. If not, the Fourth Amendment offers no protection because there are, by definition, no privacy issues. For example, when the police look for and find a weapon on the front seat of a car, it is not considered a search under the fourth amendment because it is very unlikely that the person would think that the front seat of the car is a private place and expectation of privacy is unlikely.Even if the individual did, society is not willing to extend the protections of privacy to that particular location. On the opposing side, a person who uses a public restroom expects not to be spied upon and most people, including judges and juries would consider that expectation of privacy to be reasonable Therefore, the installation of a hidden video camera by the police in a public restroom will be considered a search and would be subject to the fourth amendment's requirement of reasonableness. However, the fourth amendment does permit searches and seizures that are considered reasonable.In practice, this means that the police may override your privacy concerns and conduct a search of you, your home, barn, car, boat, office, personal or business documents, bank account records, trash barrel, or whatever, if the police have probable cause to believe they can find evidence that you committed a crime, and a judge issues a search warrant, or the particular circumstances justify the search without a warrant first being issued (Nolo 2012). The Supreme Court has ruled that warrantless police conduct may comply with the Fourth Amendment so long as it is reasonable under the circumstances.The exceptions made to the Fourth Amendment's warrant requirement reflect the Court's reluctance to unduly impede the job of law enforcement officials. The Court has attempted to strike a balance between the practical realities of daily police work and the privacy and freedom interests of the public (FindLaw 2012). A warrant is a document issued by the courts allowing law enforcement to search your private property. All that is needed to obtain a warrant is probable cause, meaning there must be sufficient reason based upon known facts to believe a crime has been committed or that certai n property is connected with a crime.Also, as explained by The Lecture Law Library (1995-2012), the fourth amendment provides no protection for what a person knowingly exposes to the public. For instance a man's facial characteristics, or handwriting, his voice is repeatedly produced for others to hear. No person can have a reasonable expectation that others will not know the sound of his voice, any more than he can reasonably expect that his face will be a mystery to the world. These are simply a fraction of the examples as to when the fourth amendment of unlawful search and seizure does not apply.Courts use a two-part test established by the U. S. Supreme Court to determine whether, at the time of the search, a defendant had a legitimate expectation of privacy in the place or things searched. Evaluating whether or not the person actually expected some degree of privacy and if the person's expectation is one that society is willing to recognize? Also, if upon review, a court finds that an unreasonable search occurred, any evidence seized as a result of the search cannot be used as direct evidence against the defendant in a criminal prosecution, state or federal. This rule, established by the U. S.Supreme Court in 1961, has come to be known as the exclusionary rule. The exclusionary rule prevents the government from using most evidence gathered in violation of the United States Constitution. Many commentators criticize the exclusionary rule on the ground that it unfairly lets the criminal go free simply due to error. Adversely, the rule's supporters argue that excluding illegally seized evidence is necessary to deter police from conducting illegal searches. According to this deterrence argument, the police won't conduct improper searches if the resulting evidence can't be used to convict the defendant.In addition to being excluded as evidence against the defendant, evidence resulting from an illegal search may not be used to discover other evidence, under a le gal rule colorfully known as the â€Å"fruit of the poisonous tree† doctrine. The â€Å"tree† is the evidence that the police illegally seize in the first place; the â€Å"fruit† is the second-generation product of the illegally seized evidence; both tree and fruit are inadmissible at trial (Nolo 2012). Moreover, when the fourth amendment is broken there are consequences that are handled by the courts. The Knock-and-Announce RequirementThis requirement is meant to protect the security, privacy, and property interest of people in their homes (Josephson, 1996). â€Å"The knock-and-announce rule requires that police officers give notion of both their authority and purpose to the occupants of a residence to be searched. Before breaking and entering the premises to search, officers must also give the occupants a reasonable opportunity to voluntarily allow the police to enter† (Josephson, 1996). This rule has to be follow even if officers do have a warrant. Thi s rule also serves for protection for the officers that are entering a home owner home.Citizens have an expectation to privacy and with this rule it allows the occupants to give consent to enter. Arizona v. Gant This case was taken all the way to the U. S. Supreme Court, and is used as a guideline for what is considered constitutional in regards to Unlawful Search and Seizure. The facts of the case states that Gant was arrested for driving with a suspended license. He then was handcuffed and placed in the backseat of an officer car. While under arrest the officers searches his car. The officers find cocaine in a jacket pocket (The Daily Record, 2009, p. 1).Gant’s motion to dismiss the evidence was denied and he was convicted of drug charges. â€Å"Reversing, the State Supreme Court distinguished New York v. Belton, which held that police may search the passenger compartment of a vehicle and any containers therein as a contemporaneous incident of recent occupants lawful arres t on grounds that it concerned the scope of a search incident to arrest but did not answer the question whether officers may conduct such a search once the scene has been secured† (Justia. com, 2009). One major concern was of the officer’s safety if the occupant was allowed to be within the reach of the area being searched.This could be absolutely dangers for the officer and could endanger the public. Under the Gant ruling, if an officer wishes to search the vehicle of an arrested suspect, he or she may delay handcuffing the suspect until after the search is complete (NJ. com, 2009). This allows the occupant to be able to access his car while being searched. Conclusion The Fourth Amendment is the primary, essential limit on the power of governments in the U. S. to inquire into people's lives, arrest them, and take their property. It is also what prevents governments and their agents from invading citizens' privacy.In a society that both deplores crime and values liberty , there will always be a tension between law enforcement interests and the privacy of individuals. The tools and system of the fourth amendment are as followed: Is it governmental conduct? Does the defendant have a legitimate expectation of privacy? Will society protect the defendant’s expectation as objectively reasonable? And was a warrant issued? If any of the stated reason within the system of unlawful search and seizure hold true then there I no violation of the fourth amendment. The fourth amendment to the U. S. onstitution places limits on the power of the police to make arrests, search people and their property, and seize objects and contraband, such as illegal drugs or weapons. The amendment of unlawful search and seizure is one of ten amendments within The Bill of Rights and reads as follows: â€Å"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 Warrants sh all 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 (Nolo 2012). † ReferencesArizona v. Gant. (2009). Retrieved November 22, 2012, from http://supreme. justia. com/cases/federal/us/556/07-542/ Calsyn, J. D. , Hale, B. C. , Kranz, H. , Grossman, M. R. , & Kim, N. E. (1998). Warrantless searches and seizures. Georgetown Law Journal, 86, 1214-1288. Cole, G. F. , & Smith C. E. , (2011) Criminal Justice (6th ed. ). Belmont, California: Wadsworth. Josephson, M. (1996). Fourth amendment–must police knock and announce themselves before e. g. Microsoft Corporation (1995-2012). The Fourth Amendment [U. S. Constitution]. [ONLINE] Available at: http://www. lectlaw. com/def/f081. htm. (2012). The Fourth Amendment