Search and Seizure - Understanding the Fourth Amendment (From Law Enforcement Bible, Number 2, P 58-65, 1982, Robert A Scanlon, ed. - See NCJ-95077)

• NCJ Number: 95083
• Author(s): C E Moylan
• Date Published: 1982
• Length: 8 pages
• Sale Source: Stoeger Publishing Co
• Language: English
• Country: United States of America

Annotation

Search-and-seizure laws under the fourth amendment are reviewed.

Abstract

Search and seizure is an umbrella term embracing the privacy expectation of the fourth amendment, search incident to lawful arrest, the Carrol Doctrine, the Plain View Doctrine, consent searches, and stop and frisk. The first concern is determining if the fourth amendment is applicable. It may be deemed inapplicable to the place searched, when the searching is done by a private citizen rather than a government agent, or where the search by a government agent has occurred in a constitutionally protected area but the defendant's fourth amendment protection was not violated. This latter consideration classically required a defendant, when challenged, to establish a property interest in the item seized and/or the place searched (i.e., 'standing to object'). In general, the courts determine 'standing to object' by asking if there was or was not a reasonable expectation of privacy. When the fourth amendment does apply, the courts then examine whether the fourth amendment has been satisfied with respect to the initial intrusion into the zone of privacy and the scope of the intrusion. Thus, the fourth amendment contemplates that a search-and-seizure warrant will be obtained whenever possible. However, there are seven well-recognized exceptions to the warrant requirements. These are (1) search incident to lawful arrest, in which the search is used to disarm an arrestee and to protect evidence; (2) the Carroll Doctrine or automobile exception and (3) the suitcase exception, both of which permit warrantless search and seizure; (4) the exigent circumstances exception, which permits search and seizure under conditions of hot pursuit or general emergency; (5) the stop and frisk exception, which requires reasonable suspicion to stop and permits frisking to detect the presence of weapons; (6) the Plain View Doctrine, which requires a prior valid intrusion and the inadvertent spotting of what there is probable cause to believe is evidence; and (7) consent either by a third party with legal authority to consent or voluntary first-party consent.