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The Fourth Amendment: Search and Seizure Essay

The purpose of this assignment is to look in further to the rules and regulations, or rather; laws that police officials must abide by when executing their duties. These rules and regulations include search and arrest warrant in addition to protocol that the Courts oversee for public search and arrest. There are certain requirements that must be met by an officer in order to obtain a warrant. Such must be done in a manner in which is appropriate and consistent with the law as opposed to the opposite which happens so often when officers decide to go beyond their jurisdiction.

In this paper, controversial topics dealing with constitutional rights of U. S. citizens will be presented and how they are governed. As previously stated, police officials have laws that they must follow. Such laws are in place in order to avoid corruption and abuse of power. There is a constant weight of upholding the law while simultaneously preserving the right of every U. S. citizen. Since police officials have laws to abide by, they also have to be consistent with the constitutional rights of every citizen.

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As an influential unit, law enforcement plays a crucial role in obtaining the tools possible to make their duties as thorough as they can be. Aside from police officials carrying out this balance, our government and lawmakers are obligated to oversee the leverage between police power and constitutional rights. Such is done in a manner that will not weaken police force or impede on the constitutional rights of U. S. citizens. Police officials are given a manual. This manual dictates the rules and guidelines necessary in order to catch criminals. If for some reason these rules and regulations are not followed as a protocol, a U.

S. citizen’s privacy or right has been stricken. If a police official senses that there is a law being violated, they want to be able to centralize the problem without violating any individual’s rights or breaking constitutional rights. The Fourth Amendment under the U. S. Constitution protects every citizen, by restricting police officials to enter their private entity without a valid warrant. At times when police officials want to get information on the spot from a suspect, they will question them under the Due Process provisions of the Fourteenth Amendment.

The Fifth Amendment is in place to protect individuals from unfair questions or in other words, against self-incrimination. When evidence is needed to prove a crime, there are various steps that law enforcement must first follow in order to carry out an arrest and/or detention. Prior to entering a premises or stopping a vehicle, police officials are required to ask themselves whether: 1) Is there enough evidence to search the vehicle; and 2) If probable cause exists. Lawmakers or more importantly, the Supreme Court permits law enforcement to make the determination of what they can and cannot do.

As stated before, this is in an effort to not break any individual’s rights or constitutional rights. Ultimately, the power to conduct thorough searches or not lies within the power of the U. S. Supreme Court. The aforementioned are all examples that are presumably made under a police official’s discretion, unless it is decided differently by the U. S. Supreme Court. The rule of law states that in order to conduct a search and seizure without violating the Fourth Amendment, police officials must know how to act under these circumstance.

Even though this is a general guideline and can be interpreted in many ways, there are exceptions in certain situations. Often, there are changes in law. However, it is important to remember that the Fourth Amendment does not change, just the law at times. The Fourth Amendment will always place limits on the power of police officials when they are going to make an arrest, search suspects and their property, and seize belongings, illegal drugs or weapons. Upon an investigation, law enforcement is mainly looking for an indication of self-incrimination.

This is usually evidence that can be seized and taken to Court as evidence at the time of trial. Under this Amendment, there are a few points that are important: 1) Reasonable clause; and 2) Warrants clause. Although they are not required to coincide with one another, often they contradict each other. A search and seizure is required to be reasonable and judicious. Prior to this warrant, all requirements must be met. What defines a search? A search is primarily defined to be done by law enforcement as an act to invade an individual’s privacy.

Police officials are able to invade someone’s privacy for the purpose of searching for illegal drugs or weapons. This is done without running the risk of breaking the Fourth Amendment prohibitions. The majority of the time police officials will solely use the Fourth Amendment as the excuse to search for evidence. The purpose for this is to search where the individuals seek the most privacy such as their house, bedroom, office, etc. However, there are exceptions to when the Fourth Amendment cannot be used. An example of this is California v. Greenwood. In this case, Mr. Greenwood was suspected of not only drug usage but also sale. How was this discovered? A police official found the drugs in his trash bin outside of his property. There is legal reasoning that when you are disposing anything that is indication that you no longer want privacy over that item. This is a pertinent example of search without violating the Fourth Amendment. Another case example is Oliver v. United States wherein the Plaintiff was growing marijuana in a field just outside of his home. It just so happens that a police official flew over Oliver’s home and saw the plants in the field.

Although this may seem like too much of a coincidence, it is possible and this served as clear “probable cause” for a legal search according to the Fourth Amendment. Probable cause is sufficient to make an arrest. At this point, law enforcement is able to take Oliver into custody. The police official is able to do so because he has evidence that Oliver committed a crime by witnessing the field just outside of his house covered with marijuana plants. In order to make this arrest legal, the suspect has to have full knowledge that they are unable to leave police custody as they please.

Since this is the case, this is a prime example of the exception wherein a warrant is not required. The next step is an arrest. In order for an arrest of Oliver to be made, an arrest warrant must be issued by a Judge. Arrest warrants are obligatory when a search is needed or an arrest needs to be made within a private residence or the individual’s private property. To recap, a warrant must be issued by a Magistrate when probable cause exists along with particularity. The standard wherein a police officer must act on prior to making an arrest is probable cause.

Probable cause is the belief that a crime has been committed and the individual, place or evidence involved must be searched or seized. The Fourth Amendment states that “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 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. ” However, law enforcement can find probable cause in other places.

Eyewitnesses or victims serve as informants that can indicate what happened due to the fact that they were present at the place and time of the crime. Once probable cause exists and evidence is present, the evidence must be presented to a Magistrate. This evidence must be in the form of an affidavit. The law enforcement officer thereafter must give a swear testimony reassuring that the information within the affidavit is accurate. If the Magistrate believes the evidence to be sufficient, then a warrant must be issued. This warrant can be either for seizure or arrest.

The warrant must contain pertinent information such as the location where the arrest or seizure will take place. In addition, if it is a seizure then the items that will be seized must be specified. Particularity in the items to be seized is a must so that law enforcement officials do not seize anything that does not fall within their jurisdiction. For example, if the warrant specifies that only the bathroom in the individual’s residence may be searched then law enforcement officials cannot cross those boundaries. Crossing the boundary would mean opening a suitcase that is in the bathroom.

Only items that are in plain sight is considered fair game. Should that boundary be crossed, the Magistrate will go as far as throwing out the case. The reasoning behind such would constitute that searching any place otherwise not specified is inappropriate. Law enforcement officials are not obligated to notify the homeowner of the search. In addition, they are not even required to “knock” prior to entering. Just as seen in the movies and television shows wherein law enforcement breaks down the door to forcefully enter someone’s home. The same can be done in reality.

Once inside the suspect’s home, they are not allowed to damage any property. If this occurs, then they will be held reliable for it in a Court of Law. Because the laws in place are not considered to be set in stone, often there exists a circumstance wherein a warrant may not be needed. This usually occurs in emergency situations. For example, a police officer is driving around a neighborhood and suddenly he hears gunshots. This would constitute an emergency and the officer may enter the premises without a search warrant. If an officer witnesses first hand a crime being committed, he has probable cause to make an arrest then and there.

In this case, an arrest warrant is not needed. There is no need for a warrant in order to stop and frisk someone. Should the police officer find an individual to be suspicious such as being in possession of a weapon, they are allowed to stop them and conduct a pat down. The pat down occurs down their clothing in search for any possession of weapons. This can be done in suspicion of drug paraphernalia as well. The first requirement for a stop and first is stopping the person. This is done when, as previous stated, the police officer believes the individual to be in possession.

Nevertheless, the law enforcement officer must have some reason to believe that the suspect is armed. An example of this is the case of Terry v. Ohio. The police officer in this case found three men to be suspicious of planning a robbery. Consequently, a handgun was found in the pocket of one of the men when a frisk was conducted. When the case was taken to Court, the Defendants being the three men argued that the frisk was conduct in an illegal manner. Their defense was illegal search and seizure mandated by the Fourth Amendment. Similarly, many citizens argue that stop and frisks are being illegally done against individuals of color.

They claim that it is a discrimination of race. Moreover, there are a plethora of exceptions governing the search warrant rule. Primarily, a search without an issued warrant is permitted if it is made in conjunction to a lawful arrest. What this means is that once the officer has arrested the individual, they are allowed to conduct a search simultaneously at the time of the arrest. They are able to search anything within the area of the suspect. An example of this situation would be the case of Chimel v. California wherein the officer obtains an arrest warrant for the Plaintiff, Chimel for a burglary charge.

When the officer shows up to the Defendant’s home he is entitled to conduct a search for an indication of items that may have be taken at the time of the burglary. As previously seen in other cases, the Plaintiff, Chimel argued that the search conducted was unconstitutional because the warrant was specified for the arrest as opposed to a search. Since there are loop holes, the Judge ruled that it was constitutional. The “loop hole” was evidently probable cause. The police officer had probable cause to conduct the search in order to locate evidence of the crime or contraband.


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