Fluent Essays

The following discussion comes from your week 2 readings. Outside research to address these issues is encouraged. I would suggest using the online library for additional sources of information and research. In addition, I would recommend utilizing the legal studies program guide. The Fourth Amendment sets limitations to stop and frisk and arrests. It also affords individuals to be protected against unreasonable searches and seizures. This forum asks you to examine probable cause and illegal searches and seizures. Please thoroughly discuss each of the following:A police officer must have probable cause to arrest an individual. What is probable cause? How much probable cause is needed to secure an arrest or search warrant? What is the exclusionary rule? Discuss the exceptions to the exclusionary rule. Discuss the difference in a stop and frisk and an arrest. What are the requirements for an officer to conduct a “stop and frisk”?______________________________________________________________Answer this on a different word document or page. Using the facts provided to you in the week one discussion forum #2, answer the following questions : 1) Did the police have probable cause to arrest Mayo? 2) Did law enforcement violate Mayos constitutional rights? If yes, explain how. If not, explain why. 3) Were the police required to read Mayo his Miranda rights? Discuss why. reading_wk_2.docx Unformatted Attachment Preview LSTD400 | LESSON 2: SEARCHES AND SEIZURES; STOP AND FRISK; SEIZURES OF PERSONS Introduction Topics to be covered include: • • • • • • • • • • • • • • • • • • • History and purpose of the Fourth Amendment Searches and seizure Warrant elements Searches Plain view doctrine Unprotected places Seizures Stop and frisk Reasonableness test Terry v. Ohio Stops and the Fourth Amendment Reasonable suspicion basis for Stop and Scope Frisks and the Fourth Amendment Special situations involving Stop and Frisk Seizures of persons: Arrest Definition of arrest Reasonable arrest Manner of arrest Post-Arrest In this lesson we will look historically at the Fourth Amendment, relevant court cases, the limitations and the scope of application of the Fourth Amendment to stop and frisk, and arrests. We will examine the Fourth Amendment in depth including searches, seizures, stop and frisk, the reasonableness test and arrests. We will also look at Terry v. Ohio, 392 U.S. 1 (1986). Historical Foundation The historical foundation and logic on which the Fourth Amendment is founded can be traced back to 1603 to a civil case in England known as Semayne’s Case, which recognized the right of a homeowner to defend his home against illegal and unlawful entry, even from the King’s agents. It was however three cases in the 1760s, which were the origin of the Fourth Amendment, as we understand it today. These cases, Wilkes v. Wood, Entick v. Carrington and the Writs of Assistance Case were not cases involving criminal law but the rights of individuals to be secure in their homes. The Founding Fathers and authors of the Bill of Rights had not forgotten the use and abuse by the British Monarchy of the writs of assistance. The first part of the writ of assistance was called a “general warrant” and allowed royal agents to search any individual, anywhere, and at any time. The second part, the writ of assistance, authorized the royal agents to order any individual to assist them in executing the warrant. The general warrant would specify only that a crime had been committed and would leave it to officials to decide which places should be searched. See Steagald v. United States, 451 U.S. 204, 220 (1981). Motivated by British Abuses In demanding Fourth Amendment protections, the people were motivated by this history of abuses in the British colonies; the colonists incensed by general warrants which gave British troops blanket authority to search their homes. Thus, in writing the Fourth Amendment, the authors sought to limit the power of the government to infringe upon both liberty and privacy. Even though the Framers of the Constitution believed it was unnecessary for the Constitution to contain a specific enumeration of rights and liberties, the people disagreed. Among other things, the people demanded protections for freedom of expression and assembly, and against governmental intrusions into their persons, papers, houses, and effects. The result was the Bill of Rights which, when ratified, became the first ten amendments to the new Constitution. Prohibition of Unreasonable Search and Seizure The Fourth Amendment prohibits all unreasonable searches and seizure, however; the intent is not to inhibit law enforcement’s ability to investigate a crime but rather to limit police powers so as not to infringe upon the privacy or liberty of individuals unreasonably. The Fourth Amendment is meant to ensure that all searches and seizures are done so reasonably and to protect individuals. In analyzing a Fourth Amendment issue, three issues must be evaluated. 1. Was the action taken by law enforcement a search or a seizure? 2. If the action taken was a search or seizure, was it reasonable? 3. If the search or seizure was unreasonable, does the Fourth Amendment ban the use of the evidence obtained in a criminal proceeding against the accused? Exclusionary Rule In Weeks v. United States (1914), the Supreme Court adopted the exclusionary rule and held that illegally seized evidence ordinarily could not be used in criminal trials. The defendant had been arrested at his place of work and the police officer subsequently searched his home without a warrant and turned over documents to the United States Marshalls. The Supreme Court held the evidence had been obtained illegally. It was not until the 1920s that the Fourth Amendment was applicable beyond the federal government. Proper Issuance Information relative to the investigation of a crime is not always readily available to law enforcement agencies. Sources of information can include witnesses, victims, suspects and the criminal themselves. Thus law enforcement must rely on obtaining evidence via searches, seizure, identification procedures, witness and victim statements and interrogation of suspects. While the Fourteenth Amendment guarantees protection against ‘unreasonable search and seizure’, several types of searches and seizures go beyond the scope of the criminal investigation and crime prevention. These are employed to: • • • • • Protect law enforcement officers from suspects who may be armed Protect property which belongs to detained suspects from damage or loss Protect law enforcement officials from civil suit Prevent drunk driving Detect drug abuse in public employees and students The Fourth Amendment requires a warrant be both properly issued and properly executed. Proper issuance requires that: • a proper judicial officer (a neutral and detached magistrate) • be presented with a sworn • statement of facts that is • sufficiently recent (i.e., not stale) • from which one can conclude there is probable cause to believe either • evidence or items to be seized will be found at a specific place (a search warrant), or • a specific person committed a specific crime for which they can be arrested (an arrest warrant). Warrant Elements: Particularity, Probable Cause, Nexus Warrants provide the government with authority to search for or seize items or individuals. Three requirements are necessary for a valid warrant. • • PARTICULARITY PROBABLE CAUSE • NEXUS Particularity: The Fourth Amendment states that warrants must “particularly describe the place be searched, and the persons or things to be seized. This requirement restricts law enforcement in where how, and what they can search for, and individuals they can seize, arrest or detain. The more specific the warrant is as to what or who may be seized, the more law enforcement must know prior to obtaining a warrant. Particularity in a search warrant will be dependent upon the items being sought. An arrest warrant will require a name or a description of an individual, which allows for identification with reasonable certainty of the individual to be arrested. The particularity requirement in a warrant is based upon the experience of the Framers of the Constitution and during the colonial era with ‘general warrants’ and ‘writs of assistance.’ Probable Cause: While related, the particularity requirement serves a distinctly different purpose than the requirement for probable cause. Probable cause ensures there is a reason for the intrusion authorized by the warrant; particularity limits the scope of that intrusion. If there is a lengthy delay between the facts set forth in an application for a search warrant and its issuance, probable cause can dissipate or become stale. Probable cause for an arrest warrant, by contrast, cannot become stale. If there is a reason to believe that an individual has committed a crime, time will not erode that fact. Probable cause is determined in a rational manner based upon the totality of the circumstances. It must show not only a reason to believe that a crime occurred, but that particularly described items will be found at a particular location (i.e., that there is a nexus between the reason to search and the place to be searched). Nexus: In addition to particularity and probable cause, there must be a nexus, a connection between what is being sought and the place to be searched, i.e., a reason to believe that the place to be searched will contain the items being sought. In other words, if law enforcement is searching for a weapon they believe to have been used in a crime, they must have probable cause to search a home for that weapon, and show a nexus, a connection between the weapon and the home to be searched. For example, the suspect in a shooting has a .45 caliber weapon registered in his or her name, and the suspect lives in their own home. A search warrant would show a nexus, or connection between the suspect, his or her home, and the weapon registered in his or her name. Searches Prior to 1967, the United States Supreme Court utilized the trespass doctrine to define searches. The utilization of the trespass doctrine meant that law enforcement had to physically invade a “constitutionally protected area.” Included in these constitutionally protected areas were: individuals, homes, papers and effects. In 1967, the United States Supreme Court replaced the trespass doctrine with a two-pronged expectation of privacy test. This two-pronged expectation of privacy test, known as the privacy doctrine contained both a subjective and objective privacy test. • • Subjective privacy: Did the individual demonstrate an actual personal expectation of privacy? Objective privacy? Does society recognize the privacy as reasonable? GRISWOLD V. CONNECTICUT In Griswold v. Connecticut (1965), the United States Supreme Court held that the Constitution through the Bill of Rights implies a fundamental right to privacy. Justice William Douglas who wrote the majority opinion for the Court stated that “although the Bill of Rights does not explicitly mention privacy, that the right was to be found in the ‘penumbras’ and ‘emanations’ of other constitutional protections, such as the self-incrimination clause contained within the Fifth Amendment. Justices Bryon White and John Marshall Harlan II wrote concurring opinions in which they argued, “privacy is protected by the due process clause of the Fourteenth Amendment.” Plain View Doctrine The plain view doctrine holds that there is no reasonable expectation of privacy when law enforcement officers discover evidence ‘by their ordinary senses’ or which are in plain view. The plain view doctrine is an exception to the warrant requirement that allows a law enforcement officer to seize items that he or she observes from a lawful vantage point, to which he or she has a lawful right of access, and which are immediately apparent as contraband or evidence of a crime. In Coolidge v. New Hampshire (1971), the United States Supreme Court held that the rationale for the plain view doctrine is that once an otherwise lawful search is in progress, and the police inadvertently come upon a piece of evidence, it would often be a needless inconvenience, and sometimes dangerous -- to the evidence or to the police themselves -- to require them to ignore it until they have obtained a warrant particularly describing it. Plain view ‘searches’ can be categorized as either: 1. Search related: Searches in which evidence that is in plain view of law enforcement officers is found while conducting an authorized search. 2. Non-search related: Searches in which evidence is discovered where no Fourth Amendment intrusion exists. Plain view searches must satisfy two conditions: 1. Law enforcement officers have a legal right to be where they are 2. A lawful vantage point 3. The items to be seized are immediately apparent as evidence of a crime Open Fields Open fields fail to provide the setting for activities that the Fourth Amendment is intended to protect individuals from. The area immediately surrounding a home is not considered “open fields,” and is referred to as the curtilage. Curtilage includes garages, patios and pools. The Supreme Court has defined and analyzed curtilage by: • • • • The distance from the home The use and purpose of the area The presence or absence of a fence surrounding the area Measures taken to inhibit the view by the public Public Places: The Fourth Amendment does not extend to public places such as streets, parks, and other publicly owned areas. Public places also include privately owned businesses open to the public, except that ‘employee only’ areas such as offices and restroom or any other area not open to the public and thus are protected by the Fourth Amendment. Abandoned Property The United States Supreme Court has held that no reasonable expectation of privacy exists relative to abandoned property. Abandonment consists of two elements, physical and mental: • • Physically giving up possession Intention to give up the expectation of privacy In evaluating abandonment, the United Supreme Court adopted a totality of circumstances test to determine if throwing away property proves the necessary intent to forfeit a reasonable expectation of privacy as guaranteed by the Fourth Amendment. Seizures A seizure has occurred when a law enforcement officer takes away your right to leave or takes away your right to stay in a place you want to be. Two types of Fourth Amendment seizures are referred to as “stops:” • • Actual seizure stops in which a law enforcement officer physically restrains a suspect with the intent to prevent him or her from leaving. Show of authority stops in which a law enforcement officer displays their authority by ordering suspects to stop and the suspect obeys the law enforcement officer’s command. Two types of restraint on an individual’s freedom of movement, psychological pressure and a sense of moral duty are not significant under the Fourth Amendment. Stops, Frisks, and the Fourth Amendment Law enforcement officials have historically had the power to stop and question suspicious individuals. This power was never questioned until the 1960s during what has been called the “due process revolution” when individuals argued that they needed protection from the police and the power which law enforcement had to stop and arrest individuals. Police countered this argument by claiming that their judgment based on their professional training and experience was sufficient. Fourth Amendment Stops Fourth Amendment stops are considered those stops that are brief detentions that allow law enforcement officials to briefly ‘freeze’ suspicious situations, which will enable them to investigate. Fourth Amendment frisks are considered light pat downs of the outer clothing of an individual for the purpose of protecting law enforcement officers by taking away any weapons a suspect may have. Stops and frisks require fewer suspicious facts and circumstances by law enforcement officers than are required for a full-blown search or arrest. Perceptions of stops and frisks: • • • • Law enforcement officers often stop individuals who have committed no crimes and are unarmed. These same individuals often want and need law enforcement protection more than those individuals who live in safer communities. Individuals in high crime neighborhoods form opinions based upon encounters with law enforcement and encounters with law enforcement that they have witnessed. Stops and frisks are predominantly conducted on Latino and Black youth in poor urban neighborhoods. Stop and Frisk Law Stop and frisk law differs slightly from the three-step analysis of searches. 1. Were the law enforcement officer’s actions a stop or a frisk? 2. If the action constituted a stop and frisk, was it reasonable? 3. If the action was unreasonable, should evidence obtained be excluded from legal proceedings? Frisks and the Fourth Amendment The intent of a frisk is not to discover evidence but to ensure the safety of the law enforcement officer during an investigation. Three elements exist in a lawful frisk: • • • Lawful stop Reasonable suspicion that the suspect may be armed. A light, once over pat down of the outer clothing of the suspect to ascertain in the suspect is in possession of any weapons. While a frisk is the least intrusive of all Fourth Amendment searches, a reasonable suspicion must exist to maintain individuals right to privacy. Not all law enforcement stops justify a frisk unless the suspects are stopped and detained based upon suspicion that they have committed a violent crime. Justification to go beyond a light pat down exist when • • The Law enforcement officer feels what may be a weapon. Unusually bulky outer clothing requires feeling underneath the outer clothing. • • A closed purse or handbag that may contain illegal substances or items. If contraband is discovered during the pat down. Terry v. Ohio and Stop and Frisk Current stop and frisk laws are a result of issues that face law enforcement officers in the investigation of crimes, which occur on the streets, or in public. Three possible interpretations exist when interpreting circumstances in light of the Fourth Amendment. • • • The Fourth Amendment is applicable only to arrests and full searches, so law enforcement must use their discretion. Every detention no matter how brief can be viewed as an arrest, thus pat downs can be considered searches and law enforcement must have probable cause. While stop and frisks are in fact searches and seizures, they are minor in nature and law enforcement must have at least a reasonable suspicion. It was this third interpretation that the United States Supreme Court held applicable in that law enforcement is provided with enough power to “freeze” suspicious events while they investigate the situation. TERRY V. OHIO In Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court held that even the brief detention of an individual and a pat down search for weapons constituted a seizure and a search for Fourth Amendment purposes. However, the Court did not agree that that conclusion should inevitably require a showing of probable cause by the officer. Instead, the Court applied the reasonableness approach to the Fourth Amendment and utilized the balancing test, rather than the requirement of probable cause, to determine the level of suspicion required to justify the officers actions. The Court further stated that the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. Later in Illinois v. Wardlow ,528 U.S. 119, 124-25 (2000), the United States Supreme Court held that “the officer must be able to point to specific and articulable facts that suggest the individual is engaged in criminal activity, in other words, reasonable suspicion. Further, “If the officer engages in conduct that constitutes a seizure without the required suspicion, the seizure is illegal, and any evidence discovered may be suppressed as fruit of the poisonous tree. The Supreme Court recognized that the determination whether reasonable suspicion exists must be based on common sense judgments and inferences about human behavior, rather than scientific certainty. The Court explained, “while reasonable suspicion is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, the Fourth Amendment requires at least a minimal level of objective justification for making the stop. The officer must be able to articulate more than a ‘suspicion or ‘hunch’ of criminal activity” on the part of the defendant. Reasonableness Clause and Warrant Clause in the Fourth Amendment The Fourth Amendment consists of two clauses, the reasonableness clause and the warrant clause. The reasonableness clause states that individuals have a right to be secure in their persons, homes, papers and effects against unreasonable search and seizure. The warrant clause allows the issuance of a warrant ... Purchase answer to see full attachment