Search and Seizure

The Fourth Amendment governs the search and seizure of evidence in a criminal case. There are three important elements of this amendment that control the activities of law enforcement when it comes to searching for and collecting evidence. These critical elements have to do with

  • • When suspects and their property can be searched
  • • When a search warrant is needed
  • • How a search warrant is obtained

Stop and Frisk

A police officer can search a suspect if the officer has a search warrant or if the search is incident to a lawful arrest. But what if the officer wants to stop and frisk a suspect without a warrant or without making an arrest?

Although it has been common practice over the decades—virtually since police departments were established—for officers to stop and frisk people who look suspect, it hasn’t always been exactly clear whether the police actually had the right to stop a suspicious-looking individual and whether they could conduct a frisk looking for weapons or contraband. However, in the court case of Terry v. Ohio (1968), the U.S. Supreme Court defined this right and the parameters of what constitutes a stop and frisk.

The Terry u Ohio case involved an officer who observed three men walking slowly back and forth in front of a store. The officer thought the men were acting in a suspicious manner, and he concluded they might be casing the store for a robbery. The officer confronted the three men and, after asking some questions, patted them down. In the process of patting them down, he discovered that two of the men were carrying revolvers. He arrested the men, and they were subsequently charged with carrying concealed weapons.

Later, in court, the men claimed that the officer did not have probable cause to search them. Therefore, they argued that the search was illegal and the guns should not be admitted into evidence. The case was appealed up to the U.S. Supreme Court.The Supreme Court agreed that the officer did not have probable cause, but the court made a distinction between a search without a warrant (which would require probable cause) and a stop and frisk. The court held that a frisk (or a pat-down of the outer clothing of an individual) is essential to the proper performance of a police officers investigative duties (Albanese, 2013).

Procedural Law

Law enforcement—and indeed the entire criminal justice system—is governed by procedural law. Procedural law is a body of laws for how things should be done at each step of the criminal justice process. Procedural law includes court procedures, such as rules of evidence, and police procedures, which involve such things as search and seizure, arrest, and interrogation (Fagin, 2007).

Rules of Evidence

Rules of evidence stipulate the requirements for introducing evidence and define the qualifications of an expert witness and the nature of the testimony he or she may give (Fagin, 2012). Rules of evidence affect police officers’ conduct because collecting evidence is part of their job. The rules state that evidence gathered through immoral, illegal, or unconstitutional means should not be used as evidence in a trial.

Exclusionary Rule

Evidence is declared inadmissible under the exclusionary rule, and the rule prohibits the use of evidence or testimony obtained in violation of the Constitution. The origins of the exclusionary rule can be traced back to a 1914 case heard by the U.S. Supreme Court. The case was Weeks u United States (1914), and the court ruled that evidence against Freemont Weeks, who was accused of transporting lottery tickets through the mail, was obtained without a search warrant. Weeks took action against the police and petitioned for the return of his private possessions. The conclusion of the Supreme Court was unanimous. The court held that the seizure of items from Weeks’s residence directly violated his constitutional rights. The court also held that the government’s refusal to return Weeks’s possessions violated the Fourth Amendment. To allow private documents to be seized and then held as evidence against citizens would have meant that the protection of the Fourth Amendment, declaring the right to be secure against such searches and seizures, would be of no value whatsoever. This was the first application of what eventually became known as the exclusionary rule (Bohm and Haley, 2012).

In 1961, in Mapp v. Ohio, the Supreme Court extended the exclusionary rule by requiring that state courts use the rule—just as it was used in federal court proceedings. Mapp u Ohio (1961) was a case involving a woman by the name of Dolree Mapp. The police received a tip from an informant that there was evidence at her home related to a bombing suspect. The police arrived at Ms. Mapp’s house and asked for permission to search her house. Ms. Mapp refused them permission and they left. Later, they returned, and this time they said that they had a search warrant and they waved a blank piece of paper at her.

The police proceeded to search her home. They did not find any evidence of a bombing suspect, but they did find some obscene material. Ms. Mapp was arrested and was convicted in state court of possession of obscene materials (Fagin, 2007). Ms. Mapp appealed her conviction on the basis that her Fourth Amendment rights had been violated.The Supreme Court ruled that the same standards as in Weeks v. United States applied to defendants in state courts. That is, illegally obtained evidence would be inadmissible. As a result, Ms. Mapp’s conviction was reversed.

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