Search and Seizure

A search and seizure research paper attempts to discuss the Fourth Amendment issue of search and seizure. Topics you may want to cover in your project may briefly cover the following issues in relation to the constitution and search and seizure:

1. The role that search and seizure currently plays in criminal investigations
2. The foundations of Search and Seizure in English common law and the Fourth amendment of the US Constitution
3. Aspects of search and seizure that are currently deemed problematic

"The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause" is language enshrined in the Fourth Amendment of the Bill of Rights. Lawrence Tribe notes that this Amendment is, on the most fundamental level, one of the sources of the "protected rights of personhood". As interpreted by the courts, the right to be protected from unreasonable searches and seizures places severe restrictions on police conduct.

Search and seizure can be divided into two aspects: searches with and without a warrant. It has been the distinct preference of the US Supreme Court that no search should be conducted without a warrant, however, the courts have pragmatically recognized that there are instances, "exigent circumstances," when the police may conduct warrantless searches. These instances, however, as Reid states, "are few, specifically established, and well delineated." In both searches made under a warrant and those that are warrantless, there must be "probable cause". In the former case a judge or magistrate makes this determination; in the latter the police do. If the case goes to court then the trial judge often will be asked to make a ruling on whether probable cause was in fact in play. But there is an institutional bias in the courts with respect to review of warrants issued by a magistrate and police behavior in the field. Judges and magistrates are assumed to be much more "impartial" than are the police and it is therefore when the police act on their own initiative, without a warrant, that probable cause is most often deemed not to have been operative.

When a search is deemed illegal the "exclusionary rule" comes into play. This means that that portion of the evidence that was obtained by an improper search is deemed to be tainted and cannot be used by the prosecution. This has proved to be the most controversial aspect of search and seizure. It is the source of the commonly held opinion on the part of lay persons that defendants frequently go free "on a technicality." In actuality there are limitations to its scope because it applies only to the specific piece of evidence that is tainted. Few cases that are brought to prosecution depend on one piece of evidence. As Freidrichs notes, it is a rare occurrence when an obviously guilty criminal goes scot free because of the application of the exclusionary rule.

Moreover, some have argued that while the exclusionary principle is flawed, it is the best means available in accomplishing an important goal: restraint on police misconduct. Few would argue that the police require no oversight. The essence of search and seizure, probable cause, and the exclusionary rule is that it deters the police from acting in a way that is improper. Here, some have argued, we encounter an area where statutory law has proved itself to be inadequate because statutory law is inherently more political in terms of how it is created than is judge made law. Steiker states, "Because history has shown us again and again that the political process will not create structures that can adequately contain police misconduct, the exclusionary rule is necessary to enlist the courts in this project."

It should be noted that, in theory, search and seizure might not have come to occupy the prominence that it does in the American court system taken as a whole. The vast majority of criminal prosecutions take place in state rather than federal courts. Prior to 1961 there was no requirement for state officers to adhere to Fourth Amendment standards with respect to searches and for state courts to adhere to the exclusionary rule when these standards were not met. But in Mapp v. Ohio, decided by a 5-3-1 vote of the US Supreme Court in June of 1961, the Court held that the Fourteenth Amendment requirement of due process required that the Fourth Amendment protections be applied in all criminal prosecutions. Because this extension immensely broadened the application of search and seizure, Mapp v. Ohio was a true landmark case.

It should be mentioned, parenthetically, that there are classes of searches that do not fall within the domain of criminal investigations at all. Administrative searches-such as health and safety inspections of buildings, or searching airline passengers-do not involve solutions of crimes. However, warrants are often required because invasion of privacy does occur in such searches. What is deemed probable cause for these types of warrants is comparatively lax and whole areas-not merely specific buildings-may be named in the warrant.

To return to the prohibition on improper searches and seizures in criminal cases, these and the use of the exclusionary rule have had enormous consequences on police practices, both directly and indirectly. We may make a semantical distinction between police investigations per se and those forms of searches that occur as a result of "exigent circumstances" that "make getting a warrant impracticable," such as warrantless searches of automobiles before they can leave the scene or warrantless search of persons made to effect police self-preservation and/or avoidance of a crime.

An "investigation" might be termed a more formal process than an ad hoc search of a person made in the field. As such it will always involve the obtaining of a warrant and that process, most certainly, involves certain inhibitions of police behavior. Any police officer would probably state that search and seizure, probable cause, and the possibility of the invocation of the exclusionary rule exercises an enormous and direct influence on the course of police investigations. The same would be true for a warrantless search under emergency conditions, but it is not as important as an inhibition placed on more formal police investigations. It is not as important because formal investigations are the process by which the vast majority of criminal evidence is gathered and inhibitions placed on investigations will effect far more cases than will inhibitions placed on warrantless searches.

And there are also indirect effects on investigations. Schwarz quotes former Chief Justice Warren Burger, who spoke of "the monstrous price we pay for the exclusionary rule in which we seem to have imprisoned ourselves." Tucker has made the argument that part of this "monstrous price" is not merely that, occasionally, the guilty go free, but that, under the interpretations of the Fourth and Fifth Amendments now in place, a situation has arisen in which the police are crippled in their work. The Fourth Amendment language forbidding the issuance of warrants without probable cause, Tucker argues, has come to mean that the police cannot draw a negative inference (which they often must do if they are to "have" probable cause) if a suspect refuses to answer questions under the Fifth Amendment. If they cannot draw such an inference, then "If the suspect declines to give an explanation of the circumstances, there may no grounds for initiating an investigation." Obviously, if Tucker’s reasoning is correct, a significant decrease in police efficiency has occurred as a result of this juxtaposition of the Fourth and Fifth Amendments.

Eskridge has noted that the post-Warren Supreme Court has retreated from the Warren Court’s position and that there has been in the post-Mapp environment a new emphasis on dealing with the problem of potential police misconduct through police administrative rule making. The problem with such an approach, however, is that it does not possess one of the strengths of having a magistrate or judge determine probable cause. If, as mentioned above, statutory law is too inherently political to adequately deal with the potential for police misconduct, then a situation where police administrators are expected to deal with that potential would also seem to be inadequate. The virtue of the situation as it now stands is that an impartial person now makes the crucial determination of what constitutes adequate grounds to make a search.

Another solution has been proposed by Yale law professor Akhil Amar. His argument is most interesting. He notes that search and seizure did not spring full-blown from the mind of Madison, rather, it came from English case law. In particular, Amar has argued that a late eighteenth century English cause celebre, the 1763 case of Wilkes v. Wood, probably influenced some of Madison’s choice of language when he wrote the amendment. That case had involved the use of general warrants to break into the house and peruse the papers of a member of parliament who had had the temerity to criticize George III and his government. Wilkes challenged the legality of the use of general warrants in his case and won. We should note that general warrants in the context of Wilkes were controversial, they involved the issue of prior restraint, a procedure against which there existed a common law rule and which could be, and was, directed against certain forms of political activity in England.

What is interesting about the Wilkes case is what Wilkes won. He won a judgment against the official who had issued the general warrant, a judgment which involved compensation for the harm he had suffered as a result of the search and seizure that had been made, and punitive damages designed to deter such misconduct in the future. Amar believes that the true interpretation of the Fourth Amendment must rest on the consideration that the deterrence of police misconduct was, at the time of its writing, a function of the civil courts. He therefore argues that the exclusionary rule was not envisioned by Madison, and that we should throw it out and as an alternative, replace it with a set of statutes that would establish a system in which civil recovery against the police would be the means to deter improper searches. He believes that such a provision would probably be upheld by a 5-4 vote of the Supreme Court as now constituted.

This is, as I have said, a most interesting idea. Whether it would be politically possible to get such a measure through the Congress is an open question, but it should be noted that there is wide spread dissatisfaction with Fourth Amendment interpretation as it now stands. There can be no doubt that police investigations are, in fact, greatly inhibited under current judicial interpretation of the Fourth Amendment. What is particularly interesting about Amar’s argument is that it is an instance of strict constructionism that suggests that the framers had something in mind that was quite different from the exclusionary rule, that they, in effect, felt that their status quo-recovery of damages, including punitive damages through action in the civil courts-was adequate to deter police misconduct. This has not been tried in modern times and perhaps it deserves a try.

In conclusion I have tried to discuss some aspects of the role that search and seizure plays in criminal investigations.I have discussed its Fourth Amendment origins and its current application to the collection of evidence.I have discussed some of the dissatisfactions that it has given rise to and made note of several suggestions that have been made as to how things might be done differently.