Freedom Against Unreasonable Search and Seizure

As said by the Fourth Amendment, " the right of the people to be secure in their persons, houses, papers, and effects, against an unreasonable search 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 be seized." In simplest terms the Fourth Amendment says that all searches are to be conducted under authority of a warrant( Barany). Many times this amendment is violated which can result in the dismissal of a case, release of a guilty suspect, or the arrest of an innocent individual that was not properly been given his or her rights. In this paper topics involving the violations and exceptions of the many prongs of the Fourth Amendment including: probable cause, Terry vs. Ohio, exceptions to warrantless search and seizures, racial profiling, rights we are awarded, and the Miranda Warning. The Fourth Amendment has many off shoots and I will try to cover the basics, so that you as a reader can more thoroughly understand your rights and privileges as well as the rights that you do not have in many circumstances.

Probable cause forms the basis of warrants, supported by the oath of affirmation. Many different definitions of probable cause are known, ranging from what a person with reasonable caution or prudence would believe in connection with a crime or criminal offender to what would make a reasonable person to more probably than not believe a guilty rather than innocent interpretation of facts, hearsay, or a combination of those two. This is considered the " more probable than not" test. Probable cause in most instances results in searches and seizures, many being unreasonable. A search is defined as an invasion of personal privacy. This privacy is only what people themselves deem to be private and what us as a society recognize as private and protected. Many do not know that the Fourth Amendment does not protect individuals against all privacy invasions but only forbids unreasonable searches and seizures. A seizure is lawfully defined as a deprivation of liberty or the enjoyment in exercising dominion over anything ( property or people). Police and government officials can temporarily seize your private property for about fourteen days ( depending on jurisdiction) and usually hold it indefinitely if it is material evidence for a court case (Cronin ,138-139).

For search and seizures to be executed lawfully an officer or official needs to come with a warrant handy. General warrants that allow an officer to search a place or person without limitation is deemed unconstitutional (Bloom, 12). Warrants must be very, very specific. Such as : a warrant for one side of a duplex does not allow for a search of the other side of the duplex; and all things to be looked for in connection with a crime that has been or about to be committed( i.e. one black Sony TV, serial # 38746) be written in the search warrant (Dash 3-4).

There are, however, warrantless arrests in public places if an officer has the true probable cause and a reasonable suspicion that an individual may have or will commit a crime. However, no longer than two days after making the arrest on the basis of probable cause, the officers must take the detained individual to the magistrate so that he-and not only the cop that did the arresting- can decide whether the probable cause used to justify a warrantless arrest was valid. This warrantless arrest does not justify that any people be arrested in their homes, except if there is an extreme emergency (Dash 5-6).

The Terry vs. Ohio case of 1963 was brought to the Supreme Court to look into the issue of police officers invading personal space of citizens, while not having probable cause. It had been and still is quite common for police officers to stop suspicious people on the street based on hunches ,because police believe that random interrogations can deter street crime. This method is more commonly known as "stop and frisk" (Wetterer ,119). This causes some repercussions that are not obvious to most people. Now a police officer has the right to detain and search any an all individuals without a warrant, just as long as she or he can justify a suspicion that the suspect may be armed. Also anything that an officer feels during pat downs may be used as probable cause for a complete and unwarranted search. Since the Terry vs. Ohio case the " stop and frisk" power had now been extended to the power to "frisk" cars (Cronin ,145-147).

There are a few exceptions to the general rule against warrantless search and seizure though., some of which I will review are : the plain view exception, emergency situation exception, automobile exception, and the border search exception.

The plain view exception refers to the police using the five senses: sight , hearing, smell, taste, and touch. By these means anything detected does not have the Fourth Amendment protection if police officers are lawfully present when they detect something (Berger). So in general, anything of evidence nature of another crime that is immediately observed without search is seizurable. For this the three pronged test is used: 1) a officer engaged in an activity of lawful nature at the time; 2) the object (s) of incriminating character was , from the start, apparent and my no means concealed; 3) the police or official had lawful access to the object and was accidentally discovered (Dash, 15-16, 19).

The second is the emergency situation exception. This exception is applicable when a criminal escapes capture, when there is a need to preserve life and avoid serious injury, or an officer don't have time to secure a warrant before the evidence is destroyed. This is also used to include fingernail scrapings, blood and urine samples, if a person is screaming, or if shots are fired (Wetterer, 120).

The automobile exception was first established in Carroll vs. U.S. in 1925 as a part of the Prohibition-era laws allowing roadblocks and check points (Cronin,117) . The law was later amended to allow free and unfettered passage on public highways. This allows for government officials and police to search and open luggage ; but the search of trunks without authorization requires special justifications (Barany). The Chambers vs. Moroney case of 1970 however, ruled that an automobile search need not be made immediately and all that is deemed necessary in a probable cause stop is to, after arresting the driver, confiscate the car that is now parked and take it to headquarters to make a complete inventory of its contents and any evidence found inside the vehicle can be legally seized (Berger).

The final example of warrantless search and seizure is the border search exception. This exception's basic idea is that special