Search and Seizure the Question Term Paper

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The rights given under Fourth amendment are very clear and the search warrants that are issued have to clearly state the reasons for the search being conducted. The reasons must be clear, express and concise. There can be no fishing exercise. If the party concerned gives an acceptance for search after the illegal entry was done, then even the consent is tainted and invalid. What that means is that any acceptance of the search now from Mary Ellis would be invalid in the eyes of the law, and would not help the police in using the evidence that they have against William. The other problem was that evidence recovered from what was clearly a residence could not be accepted under the plain view doctrine, as the initial search itself was not under any warrant. The question of plain view doctrine is applicable only after the initial entry is made under a valid warrant. These legal points are discussed in detail in U.S. v. Hotal, 143 F.3d 1223 (9th Cir. 1998). (Restrictions on Search and Seizure)

Well, the position seems that the evidence of murder that the police have is likely to be ruled out of bounds and the police will have to depend on other grounds for getting a conviction. One of these may be malice as the West Virginia Supreme Court has declared that malice is an important factor of murder in both the first and second degree.

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This can be seen in the cases of State ex rel. Combs v. Boles, 151 W. Va. 194, 151 S.E. 2d 115 (1966); State v. Sharkey, 161 W.Va. 17, 244 S.E. 2d 219 (1978); State v. Lewis, 133 W. Va. 584, 57 S.E. 2d 513 (1949). The law also permits the malice to be either express or implied and this is a question to be decided usually by the jury. Malice is a state of mind and this is subjective to the individual human being, and can be discovered only through words and conduct. As per the definition of the concerned court "Malice is not confined to ill-will toward any one or more particular persons, but malice is every evil design in general." (Instructor's Notes: Malice) Thus the prosecuting authority is in a situation now that they will have to discover other elements for proving murder and not depend on the evidence that they have. They have had a lot of time as the person has been pursued to be caught. It is likely that William will be released under the present count if the police do not provide other grounds or reasons......

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