The United States judicial system offers certain protections for criminal suspects who are at risk of arrest or a search without a warrant. One of the most important safeguards afforded under the U.S. Constitution is the 4th amendment, which prevents government officials from illegally searching individuals or seizing property without following standard procedure. The concept has evolved over time, and the exclusionary rule is now the primary way to defend people from illegal search and seizure by government officials. However, history has shown that this is an ineffective solution because it allows those who would have been convicted to go free due to a procedural error – a loophole in the system. In order for the 4th amendment to protect all people, the exclusionary rule should be eliminated and replaced with a damages system for officers who act outside the scope of legal authority.
History of the 4th Amendment
The roots of the 4th amendment are traced back to the English common law theory of tort against trespass. In those days, general warrants were issued, with no name attached to them. This allowed agents for the King of England to rummage through, destroy and/or take anything they found in their searches with little to no accountability .
In America, general warrants were also issued by British agents looking for a way to enforce tax measures on the Colonists. The American Revolution gave men the power to resist the British’s’ controlling actions, by developing a strategy to embrace the concept of man’s home as his castle, and protect it from government intrusion. James Otis was the voice against the general warrants, called “writs of assistance”, which gave, in Otis’ opinion, unlimited power to anyone who held one. With the help of his testimony and efforts, the 4th amendment of the United States Constitution was ratified in 1791.
The 4th amendment was instituted as a means of protection against federal intrusion, but the states were not included in this rule of law. Instead, the states carried in their own constitutions what were referred to as “Lockean Natural Rights Guarantees”. These state constitutions provided life, liberty and property guarantees; however, only two-thirds of the states had adopted them by the time the 14th amendment was ratified in 1868. The due process clause of 14th amendment supplemented the 4th amendment, which provides that all citizens – including freed slaves, because the civil war had ended – receive equal protection under the law, both federally and state-wise. The purpose of the due process clause of the 14th amendment “was intended to guarantee procedural standardsto protect at all times people charged with or suspected of crime by those holding positions of power and authority.” (Chambers v. State of Florida, 309 U.S. 227 (1940)).
Fifty years later, the decision made in Weeks v. United States, 232 U.S. 383 (1914), introduced the concept of the exclusionary rule. In Weeks, an anonymous tip given to a police officer directed him as to how to enter a criminal suspect’s residence when he was not home. The officer entered the premises, obtaining documents and personal effects, which were used to charge Weeks with a crime. Weeks filed a motion to suppress the evidence, along with a motion for the return of the documents and personal effects; the lower courts denied these motions. However, the Supreme Court found that the lower court’s decision encroached on the 4th amendment and the conviction was overturned (Davies 939). Thus, the exclusionary rule was born.
The exclusionary rule is defined by Black’s Law Dictionary as “a rule that excludes or suppresses evidence obtained in violation of an accused person’s constitutional rights” . It is also known as the “fruit of the poisonous tree” doctrine, which arose in Silverthorne Lumber Company v. United States, 251 U.S. 385 (1920). In Silverthorne, government authorities illegally seized documents from the corporation and made copies of them to use against Silverthorne Lumber Company for tax evasion. The original documents were returned, but the copies were not. The government then tried to order the company to produce the originals to prove their case. The Supreme Court found the secondary evidence was tainted because of the way it had been initially obtained; the judgment against Silverthorne was reversed.
It would not be until Mapp v. Ohio, 367 U.S. 643 (1961), however, that the exclusionary rule would be applied to a state case. Prior to Mapp, in Wolf v. Colorado, 338 U.S. 25 (1949) the court found that states were not subject to federal standards. It was the Mapp decision which overturned Wolf; by applying the due process clause of the 14th amendment in conjunction with the 4th amendment, state officials became as equally accountable as federal officials were.
Presently, the challenges posed by privacy in technology are shaping the way the 4th amendment is applied. Smartphones and GPS tracking have changed our idea of what a search is. It appears the judicial system favors protecting cell phones and technology based on the decisions made in the last five years. In U.S. v. Jones, 132 S.Ct. 945 (2012), the Supreme Court found that a warrant must be issued to track a vehicle using GPS. Two years later in Riley v. California, 134 S. Ct. 2473 (2014), a cell phone searched incident to an arrest was found to be a violation of the warrant requirement of the 4th amendment. Personal technology is one of the things remaining which officers cannot investigate a person without a warrant.
Elements of the 4th Amendment
An examination of the 4th amendment’s language reveals multiple elements. First, it protects against “unreasonable searches and seizures.” (U.S. Const. amend. IV.). The second element stipulates what is protected by the 4th amendment, “persons, houses, papers, and effects” (U.S. Const. amend. IV.). Thirdly, the warrant requirement. “. . . no Warrants shall issue, but upon probable cause, supported by oath or affirmation” (U.S. Const. amend. IV.). Finally, if a search warrant is issued, it must “particularly describ[e] the place to be searched, and the persons or things to be seized.” (U.S. Const. amend. IV.). All of these elements must be met in order to protect the right to privacy of persons under the 4th amendment.
Unreasonable Searches and Seizures
An unreasonable search is any search made by a government official without a warrant issued by a magistrate of the court. To determine “what is reasonable within the meaning of the Fourth Amendment depends on the facts and circumstances of each case” (U.S. v. Barth, 288 F.Supp.2d 1021 (2003)). Generally, the entry into a person’s home without a warrant is considered an unreasonable (Weeks, at pp. 391-92).
A person’s home may provide a reasonable expectation of privacy, however, the 4th amendment “protects people, not places” (Katz v. United States, 389 U.S. 347 (1967)). This means that a person can be constitutionally protected outside of the home if two requirements are met. First, the person must have an expectation of privacy at the location. Id. Second, the expectation of privacy must be reasonable enough that others would find it to be reasonable as well. Id. In Katz, the defendant was able to prove a reasonable expectation of privacy; the phone booth used by the defendant was ruled to be constitutionally protected under this doctrine.
Warrant Requirement
The warrant requirement demands that in order to legally search or seize a person or his property, a warrant must be issued before the search can proceed, with only a few exceptions which will be discussed later. One element of the warrant requirement is an oath or affirmation before a judge or magistrate must given by the person requesting the warrant (F.R.C.P. 41(d)(2-3)). Additionally, the warrant must contain a description of person or items to be seized (F.R.C.P. 41(e)(2)(A)).
The warrant requirement expressly states probable cause must be present for a warrant to be ordered and executed. Black’s Law Dictionary defines probable cause as such: it “amounts to more than bare suspicion but less than evidence that would justify a conviction”. This is distinctive from reasonable suspicion, which has no formal burden of proof, and can be established by anything a police officer believes to be questionable, even race . For example, probable cause is not necessary for an officer to stop someone who is believed to be carrying a weapon (known as a Terry stop, or stop and frisk). An officer needs only reasonable suspicion for this type of stop.
Totality of the Circumstances
Prior to 1983, a magistrate who was to issue a warrant based on an informant’s tip would follow a “two-pronged test” . This test was defined in Aguilar v. Texas, 378 U.S. 108 (1964), and reinforced in Spinelli v. United States, 393 U.S. 410 (1969). In the two-part test, the magistrate first needed to establish whether there was sufficient probable cause provided by the informant’s tip. Secondly, the officer had to demonstrate the “veracity” or credibility of the informant before the warrant could be issued.
The two-prong test was abandoned in Illinois v. Gates, 462 U.S. 213 (1983), when the court began a using new approach called “totality of the circumstances” . This different approach toward issuing warrants requires a magistrate to consider all of the circumstances set before him. In doing so, this would help him to determine if “there is a fair probability that contraband or evidence will be found in a particular place.” (State v. Scholz, ____F.3d____ (2003)). This all-encompassing method takes much more into consideration than did the two-prong test; it is now the standard for determining whether to issue a warrant based on an informant’s tip.
Exceptions to the 4th Amendment
As previously noted, a search performed without a warrant is considered unreasonable, and therefore, illegal. There are only a handful of exceptions to this rule. One, known as the Good Faith exception, is not quite as steadfast as the other exceptions. U.S. v. Leon, 468 U.S. 897 (1984), was the first case to apply the Good Faith exception. In Leon, the court held that the exclusionary rule should not be applied when officers act on a warrant issued by a magistrate which they reasonably believe is valid, but it is discovered later that warrant is invalid. In a situation such as this, the officers were acting in good faith under the belief that the warrant was valid, and the exclusionary rule was not applied. Notably, there has been some negative treatment to this exception since the Leon decision in 1984. More recently, the Georgia Court of Appeals heard Brown v. State, 330 Ga.App. 488 (2014), in which the State attempted to apply the doctrine to the case, but was rejected; this is why it is not a steadfast exception.
Consent
The simplest way for an officer to avoid an illegal search is to ask for consent for the search at hand. There are two tests involved in the consent exception. First, the consent must be given voluntarily; officers cannot coerce a person into giving consent. The totality of the circumstances is considered in cases which argue consent was not given voluntarily. If it appears the consent was coerced or taken by force, the search is considered illegal.
Second, the consent must be given by someone who has actual or apparent authority over the place to be searched. For example, in The People v. Superior Court, 143 Cal.App.4th 1183 (2006), a college student was charged for possession of marijuana with intent to distribute after a university safety officer gave consent for law enforcement to search his dorm room. The defendant filed a motion to suppress to evidence under the 4th amendment because the university officer had no authority to give consent for the officers to enter his room.
The motion to suppress was ordered, but the People (the State of California) appealed the decision and won the case under the inevitable discovery doctrine. This doctrine allows for evidence to be allowed as admissible if it can be proven that the evidence would have discovered in a different, legal fashion. In this matter, the campus police had already contacted law enforcement to report the marijuana which had been found in the dormitory, so it was considered inevitable that they would have found it later on had a warrant been issued. Although the court held that proper consent had not been given, and the student’s 4th amendment rights violated, the inevitable discovery doctrine trumped his argument, rendering the consent issue moot.
I am of the belief that consent is the most logical of all the exceptions. It is evident that if someone gives permission for an officer to enter a building or search a person’s car, that the officer has the legal right to proceed. The difficulty with consent is, many people are unaware that they have the right to deny consent, so they do not know to invoke their 4th amendment right. Additionally, police officers are not required to inform people of their rights, so a person could theoretically be tricked by law enforcement officers under certain conditions. As citizens of the U.S., it is each individual’s responsibility to know the law, which is why officers are not required to share information with people. I don’t necessarily agree with that; since constitutional law is not taught on a general scale, many remain ignorant and thus, unaware of their rights under the law.
Stop and Frisk
As previously noted, the stop and frisk exception does not require probable cause, only reasonable suspicion is required for a law enforcement officer to perform a stop and frisk, or Terry stop. The name Terry stop is derived from Terry v. Ohio, 392 U.S. 1 (1968), a landmark case which introduced the stop and frisk exception to criminal procedure. A police officer, who had reasonable suspicion that two men were about to commit a crime, stopped the two men and found a gun. The defendant, Terry, argued the search was illegal and the exclusionary rule should be applied. The court held, however, that the officer’s reasonable suspicion, combined with the objective facts of the situation, was enough to justify the search.
I do not agree with the decision in Terry which led to the promulgation of the stop and frisk exception. Stop and frisk allows too much personal discretion on the part of law enforcement officers, who are all human beings with emotions. Meaning, a person’s bias (especially racially-charged bias), can and does influence how he approaches a situation. It is my belief that Terry laid the groundwork for the current problem of officers disproportionately targeting certain racial profiles in the United States. (Floyd v. City of New York, 959 F.Supp.2d 540 (2013)). Officers can target whomever they want and claim reasonable suspicion under this exception; I simply do not agree with it.
Incident to a Lawful Arrest
An officer who makes a lawful arrest is legally permitted to seize the items in possession (or control) of the person arrested without obtaining a warrant. (Haggerty v. Ryan, 53 F. 2d 1012 (1931)). The purpose of a search incident to arrest is to “disarm the suspect in order to take him into custody[and] to preserve evidence on his person for later use at trial.” (United States v. Robinson, 414 U.S. 218, 235 (1973)). In this type of search, a person, and the immediate area within the person’s reach or control may be searched legally without a warrant or consent as long as it is incident to a lawful arrest (State v. Adams, 144 Ohio St.3d 429 (2015)). Cell phones are not generally not included in searches incident to arrest; they fall into a separate category requiring a warrant.
I believe the search incident to arrest exception is appropriate. It is logical to perform a search for additional evidence when a person is under arrest. Disarming a person who is lawfully detained is a safety issue. Additionally, if a person is in possession of an illegal substance, the officer needs to make sure the person does not attempt to destroy, get rid of, or physically ingest the evidence. Again, this is a safety issue. Although it the exception can be abused, odds are most officers will only search the area relevant to the arrest. I base this on the idea that most people are good and will do the right thing, especially those who are hired to protect and to serve.
Automobiles
An automobile may be searched without a warrant if probable cause exists under the belief the vehicle contains items associated with criminal activity, making the items seizable. The U.S. Supreme Court defined a different, but important, part of the automobile exception in 1996. It was held that if a law enforcement officer has lawfully detained a suspect during a vehicle stop, the officer is not required to inform the suspect that he or she is free to go before asking for consent to search the vehicle (Ohio v. Robinette, 519 U.S. 33, 40 (1996)). This concept evidently posed too much of a burden on police officers in the eyes of the Robinette court, which found it would be “unrealistic to require police officers to always inform detainees that they are free to go” before consent is considered voluntary (Robinette at 40).
Referring back to the concept of third-person consent, in the event a person is in possession of another person’s vehicle and gives consent to a search, any evidence in the vehicle can be used against the vehicle’s owner (U.S. v. Matlock, 415 U.S. 171 (1974)). In a situation like this, authority over the vehicle is implied. Therefore, anyone who has implied authority has the ability to give consent to a search, but a lesser responsibility for the contents than the owner of the vehicle does.
I believe the automobile exception is especially important because most times when a vehicle is stopped by an officer, it is in a public place; therefore, public safety is at stake. The part I struggle with is the decision made in Robinette, which absolves officers of the responsibility of informing people they are free to go. This can lead to a person believing he is not free to go and making the decision to permit consent under a false impression. Again, it is the person’s responsibility to know his rights, but it gives officers a way to fool naïve people into giving up their rights. It just seems sort of shady.
If a person is free to go, he or she should be informed of that fact; officers should not be (and are not) allowed to detain people for longer than the purpose of the stop unless there is reasonable suspicion that some wrongdoing is involved. “Traffic stops have to be reasonably short officers can’t use the stop as a subterfuge for extraneous investigation.” .
Plain View
The plain view doctrine runs with the concept of reasonable expectation of privacy. If a person is growing marijuana in the middle of a city park, then it would be in plain view and there would be no expectation of privacy. However, if those same plants are housed in someone’s garage with no windows, there is an expectation of privacy and the plants are out of plain view.
Open and exposed windows fall under the plain view doctrine. If an officer can see – without having to trespass or make extra effort to look – something illegal inside a home, a warrant is not required for the officer to enter the house. ). If an officer wants to invoke the plain view doctrine in application to seizures, probable cause must be present (Arizona v. Hicks, 480 U.S. 321 (2010)).
I believe the plain view doctrine is a natural extension of the consent and automobile exceptions. Anything that is plain view does not offer a reasonable expectation of privacy. It is my view that this is an appropriate exception to the warrant requirement.
Evanescent/Emergency/Hot Pursuit
In the event of an emergency officers are under a lot of pressure and must act quickly. Under the 4th amendment, “police officers [are not required] to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others.” (Warden, Md. Penitentiary v. Hayden, 387 U.S. 294 (1967)). In some circumstances, for example if an armed robbery is being committed, there is no time to obtain a warrant – the officer must make a decision to pursue the criminal or risk endangering his own life or other’s lives.
Again, I agree with this exception to the warrant requirement. Safety must come first when it comes to police work. If an officer had to be burdened to get a warrant every time a crime was being committed, it would be nearly impossible to catch criminal suspects, leaving innocent bystanders vulnerable to dangerous people. It is better to prevent a dangerous situation from escalating than it is to allow someone to get away and hurt people, even at the risk of violating the person’s constitutional rights.
Conclusion
Upon evaluation of the 4th amendment – the history, elements, and exceptions – there is still much work to be done. The exclusionary rule is probably the most outdated aspect of the fourth amendment. It may have been appropriate a century ago, but the entire point of the exclusionary rule is to prevent future violations, not redress past errors. In Elkins v. United States 364 U.S. 206, 218 (1960), Justice Stewart acknowledged that "[e]mpirical statistics are not available" to prove the exclusionary rule reduces the frequency of 4th amendment violations. So if there is no way to prove the exclusionary rule reduces 4th amendment violations, what purpose does it really serve?
Essentially, it allows people who are criminals to get off on a technicality. How does this prevent future violations from occurring then? It does not. A more effective system would be to impose damages against officers who violate the 4th amendment. If a law enforcement officer had to pay a penalty every time he broke a procedural rule, he would eventually stop breaking the rules. If a criminal is released, he has no personal stake in it. Those officers who overstep the confines of the constitution don’t necessarily impose their illegal actions on “society as a whole, but rather disproportionately on the poor and minorities”. If we are to truly follow the due process clause of the 14th amendment, the exclusionary rule should be revoked and replaced with a damages system. Additionally, to prevent future violations, Stop and Frisk should be narrowed so as to remove the opportunity for bias in the system.
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