Tuesday, February 7, 2012
Essay on Warrantless Search
Essay on Warrantless Search
The Fourth Amendment is essentially a limitation of the awesome and limitless power of the state. It is an affirmation of the right of the people against unreasonable searches and seizures. It reiterates the time-honored rule that a person’s house is sacred that not even the highest and mightiest monarch could enter it against the owner’s will. This provision protects a person’s right to privacy (Exploring Constitutional Conflict, p.1).
A search is conducted when there is “an exploration or examination of an individual’s house, premises, or person in order to discover things that may be used by the government for evidence in a criminal prosecution” (Criminal Procedure: Law & Practice, 2004, p.194). On the other hand, a constitutional search is when the search is made in compliance with the Fourth Amendment and relevant case laws.
As a rule before any search is made upon a person’s property, his person, house, documents and other personal things, a search warrant must be secured first. In one case, US v. Chadwick (433 US 1), the Supreme Court has had the occasion to explain that the protection of the Fourth Amendment extends even outside of the comforts of a person’s home. The Fourth Amendment protects persons and not places such that regardless of the location of the person, he can avail of the Fourth Amendment. The protection extends to any place where a person has a reasonable expectation of privacy even if the place is in a public area (Katz v. US, 389 US 347). Any evidence obtained without a valid search warrant will render the evidence inadmissible in court under the Exclusionary Rule.
The following are the requirements before a search warrant is issued: a) probable case; b) determination of the probable cause personally by the judge; c) after examination under Oath of Affirmation of the complainant and the witnesses he may produce and d) Particularity of the description of the person to be arrested or the thing to be searched.
Probable cause is the term used to describe the evidence that is sufficient to induce a cautious man to believe that a crime has been committed and that the suspect is probably guilty thereof. Probable cause is different from proof beyond reasonable doubt which is the burden of evidence required to determine the guilt of the accused. The probable cause will be determined by the judge himself upon the examination of all evidence and affidavits presented before the judge. These affidavits must be under oath to ensure that the witnesses and the complainants are telling the truth.
The request for a search warrant must identify the place to be searched with particularity so as to leave no room for discretion on the part of the arresting officer in deciding which place will be searched. The purpose for the issuance of the warrant is to leave no doubt or uncertainty insofar as the premises to be searched. Thus in case, the search warrant is an apartment building situated in the 34th St, the police officers cannot conduct a search of a commercial building in the 36th St. Any evidence that will be obtained in this search is inadmissible in evidence.
In addition, the things to be seized must also be described in detail in the search warrant. Its purpose is to avoid the possibility that the search warrant may be used by the police officers to harass and intimidate the person subject of search. Thus, the police officers can not merely describe in the search warrant that the property to be searched and seized are stolen goods. Instead, the police officers must particularly describe, i.e., a refrigerator or a microwave oven.
Another requirement for the constitutionality of the search warrant is that it generally should be served during daytime. However, if the affidavits are positive that the property is on the person or place to be searched then the search warrant may include an instruction that it could be served at any time. Unlike a warrant of arrest, however, a search warrant must be executed and served within a specific number of days. Otherwise, the search warrant may expire and the law enforcement officers must file another application with the court for the issuance of another warrant. The law enforcement officer serving and executing the warrant is enjoined to give a copy of the warrant and a receipt of any property seized from the premises either to the person from whom the property is taken or to leave a copy of the receipt of the same. The purpose of the inventory of the property taken is to ensure that all properties taken are well accounted for.
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