Search and Seizure Law, Known Term Paper

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Further, these writs, once issued, could be reused, and did not expire until the death of the reigning monarch (Knappman, 33).

In Massachusetts, a group of colonial merchants, represented by James Otis, petitioned the Superior Court to refuse any new applications of writ following the death of George II. Otis, using the phrase "A man's house is his castle," argued in the case that the writs were a direct violation of Englis liberties and traditional English customs. While his case was heard, the court elected to defer decision until English legal authorities could decide the case. Eventually, the court upheld the use of writ, but no further writs were issued (Knappman, 34).

Clearly, the issue of search and seizure was to be important in the foundation of the United States, and one can see even prior to the Constitution evidence of such importance in the states' Bills of Rights. Virginia, the first state to draft such a Bill, created a clause which stated:

general warrants whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive and ought not to be granted" (Lasson, 79).

Other states began to copy this type of clause in their own Bill of Rights, although some varied from the original. In Pennsylvania's Declaration of Rights, section 10 closely resembled what is now the Fourth Amendment. It is in Massachusetts Declaration of Rights that one can find the first use of the term "unreasonable search and seizure," which found its way directly into the Fourth Amendment (Lasson, 86).

The United States Constitution was drafted without mention of a Bill of Rights. Over the course of the next two years, 10 Amendments were ratified, and made into the Bill of Rights for the United States. Among these was the Fourth Amendment, which 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." (U.S. Constitution, amend. IV).

As one can see, the issues discussed in the history of the search and seizure law are represented in the wording of the Amendment. From the Biblical story of Achan, where Joshua required some proof of wrongdoing before searching, to the rebellion against non-specific writs of assistance, the Fourth Amendment specifically protected U.S. citizens against searches and seizures without cause.

Once written into law, however, there was still an issue with the interpretation and application of the Amendment. Since the original ratification of the Fourth Amendment, the legal system has struggled to determine how to apply the law. First, there is the question of what constitutes an "unreasonable" search and seizure. Secondly, the Amendment does not state that a warrant must be obtained to conduct a search, but only outlines the regulations required to obtain a search warrant. Third, while the Amendment states that "persons, houses, papers, and effects" are protected, it is unclear if this list is intended to be exhaustive or just examples. Finally, there is a question of what constitutes "probable cause" (McWhirter, 12).

The Courts began to address these issues with the first case in 1886, that of Boyd v. United States.

Before any interpretation of the law could begin, the Court first had to decide what the intention of the Amendment was. In the Boyd case, glass merchants were charged with possession of plate glass that had not been properly taxed. The lower court judged ordered the merchants to produce the invoice, to prove whether the glass had been imported. When the Supreme Court heard the case, however, the Justices rules that the merchants did not have to produce the invoice, since demanding the document would be in violation of the Fourth Amendment. The Court discussed at length the intensions of the Fourth Amendment, and their interpretation that the Amendment was designed to protect the privacies of life from arbitrary power (McWhirter, 13). The Court had made the first interpretation of the search and seizure law, that a person has a right to be safe and private in his or her home or business, and that discretion must be used when deciding to violate that right.

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Additionally, the Court's decision showed that documents, when obtained through illegal measures, were not to be used against the defendant, or accused.

It was almost three decades later before the Court handed down another ruling regarding interpretation of search and seizure law. In 1914, during Weeks v. United States, a man was arrested and charged with mail fraud, while a police officer was searching the man's home at another location. The officer searching the home had not obtained a search warrant. It was during this case that the Supreme Court began to establish the Exclusion Rule, or the concept that some evidence, if gathered in violation of the Fourth Amendment, could not be used as evidence in a federal court (McWhirter, 14).

This inadmissibility, however, only applied to federal courts until Mapp v. Ohio in 1961. While cases had come before the Court dealing with the application of the Fourth Amendment to individual states, such as Wolf v. Colorado in 1949, the Supreme Court had continuously decided that the States were capable of making their own regulations and statues to safeguard their citizens against unreasonable search and seizure. However, in Mapp, police officers forced their way into a residence while waving a "piece of paper" at the accused, which was not a warrant. The police were searching for a bombing suspect, but found pornography images in violation of Ohio law, and arrested Mapp on obscenity charges. In their decision, the Supreme Court ruled that Mapp's conviction should be overturned, because the evidence against her had been obtained in violation of the Fourth Amendment (McWhirter, 102). In doing so, the Court had set precedence that any and all evidence found in searches that violated the Constitution was inadmissible, even in a state court.

As mentioned, another issue with search and seizure law interpretation occurs when the information in question is not in the form of a "person, house, paper, or effect," those items mentioned in the Fourth Amendment. In Katz v. United States, the Court had to interpret this issue, since the information in question was a telephone conversation obtained through a phone tap of a public telephone. This issue, originally visited in 1928 in Olmsted v. United States, has been previously decided based on the idea that the wiretap allowed officers to obtain evidence without searching the person's home, and thus, did not fall under the Fourth Amendment. The Olmsted decision was then applied to Goldman v. United States in 1942, and again in Lee v. United States in 1952. In both cases, the obtaining of electronic evidence was not found to be unreasonable search and seizure, since the information was obtained without an intrusion on a "constitutionally protected area" such as a home (Lively, 282).

However, in Katz, the Court decided that a public telephone was considered a "protected area," since it was reasonably assumed that one would enter a public phone booth to obtain audio privacy, and that to gather information, unbeknownst to the accused, by bugging that private conversation was, in fact, unreasonable search and seizure (Lively, 283). In the Katz case, the Court finally decided that the Fourth Amendment was not to be taken literally, in terms of what the law protected against unreasonable search and seizure. With Katz, the Court set precedence that any search, be it physical, audio, visual, or using any other method, was to be at least considered protected.

Determining probable cause and deciding whether an officer requires a search warrant are still areas that require interpretation.

In Terry v. Ohio in 1968, an individual had been stopped by a police officer on suspicion of casing a store to rob. After identifying himself and asking the suspect questions, the officer "patted down" Terry, to determine if Terry was carrying a weapon. The officer found a pistol, and charged the defendant with possession of a concealed weapon. Terry fought the conviction, based on his belief that the "pat down" violated the search and seizure law, since the officer did not have a warrant (Lively, 286).

In their decision, the Court noted that police officers on the street are required to protect the public, and as such, may be required to determine if a suspect is carrying a weapon, or other criminal material. Since a "pat down" is non-intrusive, and since the officer must first have "probable cause," described in 1949 in Brinegar v. United States as "more than base.....

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