The Fourth Amendment Concepts In The Exclusionary Rule
The fourth amendment is put in place to enforce the rights of citizens against unreasonable searches and seizures unless in the case of there being a probable cause and a warrant issued. The issues warrant is supported by oath or affirmation and it particularly describes the place to be searched and the person or things to be seized. A search is said to occur when those enforcing the law trespass on a person’s property, this can take many forms, for example when a phone is tapped, it is a trespass of privacy or even when a Global Positioning System, GPS, tracker is placed on the vehicle (Maclin, 2012).
The probable cause is a reasonable belief that an individual has, is or will commit a crime (Siegel, 2009). The belief must be based on facts and not suspicion. To determine probable cause the court must determine that a person with reasonable intelligence believes that a crime is being committed under the same circumstances (Siegel, 2009). Proving of a probable cause to a judge is the only way a law enforcement agent can get a search or arrest warrant. A warrant is a legal document that allows law enforcement authorities to search a person’s property and arrest a person (Maclin, 2012). Arrest is the act of holding a suspected criminal with the legal authority of a law enforcement officer. At the moment of arrest, the officer must read the arrestee their Miranda rights and either cite the person to appear in court or take him to jail (Maclin, 2012). If a search or arrest is made without a warrant then the officer must prove that there was a probable cause. The court in turn may suppress any form of evidence obtained without probable cause.
There are different categories of evidences that fall under probable cause. They include circumstantial evidence, which is based on an accumulation of facts that when looked at together implies that a crime has been committed (Del Carmen, 2009). Observational evidence is based on what the arresting officer is able to see, smell and hear. An officer may also use his expertise in order to gather evidence or evidence may also be obtained through information such as hearing a call on a police radio or receiving information from a confidential informant (Del Carmen, 2009). On the other hand, some sources of evidence are strong enough on their own. A police officer does not have to be absolutely certain that criminal activity is taking place to perform a search or make an arrest. Probable cause exists still when there is some doubt as to the person’s guilt. Seizure is where a person’s property is taken from them or themselves taken as evidence (Maclin, 2012). A person is said to have been seized only if physical force is used, the person’s freedom of movement is infringed, and in the circumstances surrounding the incident, a rational person would think he was not free to leave.
To establish a reasonable expectation of privacy, a person must establish two things: one is the fact that an individual has a subjective expectation of privacy and second, the subjective expectation of privacy is one that society is prepared to recognize as reasonable (Siegel, 2009). If either element is missing, no protected interest is established. A person does not have a reasonable expectation of privacy in activities conducted in a public area but when in his home it becomes applicable (Siegel, 2009). The online communications however have deterred the reasonable expectation of privacy regarding to the use of IP addresses for websites and the emails which can be accessed as they are not protected under the amendment (Del Carmen, 2009).
The stop and frisk concept occur when the police come across a suspicious person and do some limited search on their body, after asking questions so as to prevent a crime from happening (Del Carmen, 2009). The police usually asks questions and pat down the person. A stop involves a temporary interference with a person’s liberty, where if the officer uncovers further evidence during the frisking the stop may lead to an arrest, but if no further evidence is found the person is released (Maclin, 2012). Unlike a full search, a frisk is generally limited to a patting down of the outer clothing. If the police officer feels the person carries something like a dangerous weapon, then the officer becomes obliged to reach inside the person’s garments. If no such dangerous weapon is felt, the search may only be restricted to the outer clothing (Maclin, 2012). Stops and frisks were noted to be considerably less intrusive than full-blown arrests and searches. It is also observed that the interests in crime prevention and police safety require that the police have some breathing space to act before full probable cause has developed (Siegel, 2009). The Fourth Amendment’s reasonableness requirement is sufficiently flexible to permit an officer to investigate the situation. As long as an officer has reasonable suspicion, a stop and frisk is legal under the Fourth Amendment. This is to ensure the officer’s safety and those around; therefore, probable cause is not required for this.
References
Del Carmen, R. V. (2009). Criminal Procedure: Law and Practice. New York: Cengage Learning.
Maclin, T. (2012). The Supreme Court and the Fourth Amendment’s Exclusionary Rule. London: Oxford University Press.
Siegel, L. (2009). Introduction to Criminal Justice. New York: Cengage Learning.
