4th Amendment Search and Seizure Research Paper

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Fourth Amendment

The United States, as a society, is based upon principles of which other nations in today's world can only dream. Most Americans are proud to admit their heritage, their citizenship, their identity. This "americanness" is fostered by various values that we hold, as well as by the documents that have literally formed our country. One such document is the United States Constitution, amended by the Bill of Rights.

The amendments within the Bill of Rights are truly unique to how our society has developed and how it functions, and most people cannot even dream of living without these amendments. For this reason, this paper will examine one of these amendments; namely the Fourth Amendment, which focuses upon searches and seizures. The paper will begin by describing this amendment, and continue by examining various aspects of it, as well as providing some examples as to how it functions in real life.

Essentially, the 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 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."

The scope of this amendment is quite vast, as seen above, and the vagueness is purposeful. However, as it has been examined throughout the years, one thing has been agreed upon by various scholars: "one protection firmly rooted within [the amendment] terms is the protection afforded to the privacy of a person's home from unreasonable government intrusion."

What one must realize at this point, however, is that government intrusion into one's home is no longer just physical. With the advent of telephones and of the internet, this can happen in a matter of seconds (i.e wire-tapping), and many cite the Fourth Amendment as a protection against such intrusions.

Furthermore, intrusion not only qualifies towards the home, as many now have cars, or RVs. It is important to mention also that historically, this amendment has been interpreted as prohibitory toward law enforcement entering a residence without a valid permit (i.e. An exception is with consent, or a court order/search warrant).

Due to the above-made points, it Is also important to define consent, for instance, before proceeding to specific cases involving the fourth amendment in its traditional way-namely, regarding searches and seizures as they relate to physicality, i.e homes and cars. In many cases, consent is the agreement of the party to be searched to allow law enforcement to do so. For this reason, the latter party needs authority, which can be defined in many ways. This authority is a vital basis for granting consent. The simplest case of it is when an owner gives permission for officers to enter his or her home. However, there are other kinds of authority, including:

1) Common Authority -- this is when officers "seek to obtain consent from a joint occupant of a residence, rather than the defendant. The permissibility of relying on this consent to permit entry into a residence has been the subject of three cases decided by the U.S. Supreme Court. These cases provide police officers with a framework to analyze the Fourth Amendment implications of relying on consent from an individual who possesses common authority over a premises."

2) Apparent Authority -- in this case, the author gives an example of a court case, Illinois vs. Rodriguez, where officers responded to a call for assistance, and who, when arriving at the scenes, saw the caller as suffering from "severe beating," and she gave the officers permission to enter and search the apartment, claming that she lived there, though not specifying whether it was her apartment. The police found many drugs laying around, and the man who actually lived there claimed that the woman had moved out and had no authority to allow the officers to search. The Supreme Court eventually ruled in his favor.

The above-mentioned cases are the forefront cases establishing authority, and ought to be examined prior to establishing authority. Though authority is vital to obtaining consent and being able to search premises, for example, it is important to examine what happens when these aspects of the Fourth Amendment are not followed as dictated by law.

The next issue to be examined with regards to the Fourth Amendment is thus putting it into practice. The cases above gave a glimpse of how it ought to function. There are three cases in which this will be examined: the use of cell phones, the instance of automobiles and evidence seized or search conducted, and emergency situations.

According to a 2009 article on the issue of cell phones, it was found that searching electronic devices actually led to higher arrests.

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It is important to mention here the current debates on cell phones and the utilization of the government of wire-tapping and whether these instances provide for better security for our nation, or simply an invasion of our privacy.

In the cases on cell phones, the following is also mentioned:

"With the advent of technology and the proliferation of personal electronic devices, particularly cell phones, courts have been called upon to address the application of the search incident to arrest doctrine to items discovered on the person of the arrestee unimagined at the time."

"Recent technological developments have led to the consolidation of personal communication devices into one. Today, it is less likely that officers will encounter pagers. Instead, when taking someone into custody, officers are likely to discover only one device, the cell phone, performing multiple functions, such as phone capability, texting, e-mailing, and Internet browsing."

Thus, it is important to note, especially with the advent of technology that searches and seizures can come from multiple places, and incriminating evidence can surface widely; furthermore, due to the fact that information is on something other than in a home or a personal space, and the fact that law adaption addresses this, it is important to note that cell phones will incriminate a person.

The next issue relates to vehicle searches. In one article, the author posits:

While the Court has now provided clarification to law enforcement on when vehicle searches are allowed incident to arrest, it did not address an intriguing possibility. Because vehicle searches following arrests are based on Chimel principles and because the twin rationales of Chimel do not allow the search of vehicles incident to every vehicle arrest, should nonvehicle arrests allow for the search of the area within an arrestee's immediate control in every situation?"

Such questions remain important to the study of whether seaches and seizures, and the objects seized are to be considered as evidence, for example.

Another article on this issue examines how the Supreme Court has actually bent the rules and regulations to better handle this issue. This particular issue relates to the Gant decision that was also brought up in the cases above. This case, according to the article, changed the rules in what concerns federal constituational law. According to a description "Gant" was arrested for driving on a suspended license. When officers searched his car, they found cocaine in a jacket left in the car. The trial court, "relying on the Belton case, denied a suppressive motion and Gant was convicted of possession of cocaine." However, the Arizona Supreme Court over-ruled the lower court.

This case is important to note because it sets a precent for it provides some, though not much, clarification on the issue of whether evidence found in a vehicle, even though not in plain sight, can be retained and utilized against the person that was arrested.

The third instance addresses the use of the "emergency" clause to warrant the neglect of the Fourth Amendment. In this case, it is posited that the "legal standard" that is "set forth by the Court […] enables officers to make onthe-spot decisions as to whether they should enter a home or other dwelling to resolve an emergency situation. Because the government has the burden of justifying warrantless searches and seizures occurring under this exception, officers need to fully articulate the specific facts and circumstances known to them at the time they acted."

This example of the "emergency situation" is cited by many, and should be taken into account, especially since it is so much left up to interpretation.

This paper has addressed the Fourth Amendment, and its application in various instances, some of them quite controversial. However, what is important to note is that no matter what the interpretation of the Amendment, there is always a precedent, and one should always be mindful of applying this lawfully.

"Fourth Amendment." The Bill of Rights. (Personal Copy).

"Questioning "Authority": Fourth Amendment Consent Searches."

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Carl A Benoit?.

http://proquest.umi.com.libproxy.troy.edu/pqdweb?RQT=318&pmid=18670&TS=1316880491&clientId=15382&VInst=PROD&VName=PQD&VType=PQD

FBI Law Enforcement Bulletin?. Washington:

http://proquest.umi.com.libproxy.troy.edu/pqdweb?RQT=572&VType=PQD&VName=PQD&VInst=PROD&pmid=18670&pcid=40280621&SrchMode=3

"Questioning "Authority": Fourth Amendment Consent Searches."

javascript:void (0);

Carl A Benoit?.

http://proquest.umi.com.libproxy.troy.edu/pqdweb?RQT=318&pmid=18670&TS=1316880491&clientId=15382&VInst=PROD&VName=PQD&VType=PQD

FBI Law Enforcement Bulletin?. Washington:

http://proquest.umi.com.libproxy.troy.edu/pqdweb?RQT=572&VType=PQD&VName=PQD&VInst=PROD&pmid=18670&pcid=40280621&SrchMode=3

Questioning "Authority": Fourth Amendment Consent Searches."

javascript:void (0);

Carl A Benoit?.….....

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