Definition, and Comparison of, Search and Seizure

CJ 140

Purdue University Global

A law enforcement officer is held to the expectations and restrictions that are laid out within the Fourth Amendment. The Fourth Amendment protects individuals from unreasonable search and seizures. With this amendment in place, a law enforcement officer must have a reasonable suspicion, or probable cause, to either perform a stop or an arrest.

Reasonable suspicion is a legal standard that is a step below that of probable cause, which involves a law enforcement officer having a reasonable belief that a crime has taken place before detaining an individual. The term reasonable is defined as, “sensible, rational, and justifiable .”

Probable cause is a legal standard in which a law enforcement officer has a reasonable belief that an individual has, or is planning to, be involved in a crime. Probable cause means that this cannot be based on a feeling, but instead must be based on facts and the preponderance of evidence. Probable cause must be proven before a judge in order to obtain a search warrant, but there are exceptions to allow for law enforcement officers to search and seize without a warrant in mitigating circumstances.

Another term to contemplate when considering the search and seizure laws is that of an expectation of privacy. This term basically means that an individual, in order to be protected fully by the Fourth Amendment, must have a legitimate expectation of privacy when the seizure of evidence occurred. An example of a violation of expectation of privacy would be if law enforcement officials were electronically monitoring all internet usage, including emails, and seized that usage as evidence without a warrant, or probable cause . On the other hand, if an individual leaves incriminating evidence out in the open, such as in open view on an automobile hood .

“Search”

The definition for the legal term of search is for an officer of the law to search a person, or personal property, including their vehicle, in order to search for contraband or for evidence of a crime that has taken place. Due to its highly invasive nature into an individual’s privacy, a search is firmly controlled by the Fourth Amendment and the court systems .

One such example of a police procedure involving a search would be the stop and frisk. This law enables an officer to act on their reasonable suspicion of an individual having been involved in the commission of a crime. This type of procedure is a temporary detention, and not an arrest, and thus the officer need not read the Miranda rights and, if no evidence is found, the individual is free to go.

“Seizure”

The definition for the legal term of a seizure is for an officer of the law to take into custody either contraband, evidence that a crime has taken place, or a suspect. The act of a seizure is strictly controlled by the Fourth Amendment, and the courts, as well .

A police procedure that involves a seizure would be that of the arrest. An arrest of an individual involves, “The taking into custody, in the manner authorized by law, to present that person before a magistrate to answer for committing a crime .” An arrest warrant is preferred when an arrest is made, but not always necessary under mitigating circumstances: A warrantless arrest can be made if, “A crime was committed in the presence of an officer, or for any felony crime with probable cause .”

Ethical Issues

Ethical issues facing police officers involving the Fourth Amendment would be that involving the obtaining of evidence and if it were reasonable. Did the officer have a warrant to obtain the evidence and, if not, did the officer have the permission of the of the individual to search their property? If no permission was obtained, did the officer have reasonable suspicion to be able to detain the individual, thus being able to stop and frisk them, in order to obtain the evidence? Did the officer use another individual in the obtaining of the evidence, such as a family member or friend? Or, if a search warrant was issued, did the officer follow the restrictions set within the warrant to the letter, or did they deviate from the warrant, in order to obtain evidence ?

Another ethical issue that law enforcement officers may face is that of evidence produced by means that shocks the conscience. This is a standard that qualifies as a violation of due process, and involves acts from officers that include violating the body, such as the case stated in our textbook, where the police took Rochin into the hospital to have his stomach pumped in order to produce the evidence of illicit drugs, i.e. morphine .

Law enforcement officials have a difficult job: They have to protect the society in general, as well as do their best to put those who commit crimes behind bars to serve their time. Thus saying, it is a slippery slope for the officers, as they have to keep in mind the Fourth Amendment, and the possible repercussions if they violate it, either intentionally or unintentionally. In order to try to avoid any of the repercussions, the officers need to try to stay within the letter of the law, while still performing in their capacity as a law enforcement officer.

I evaluated my resources by comparing the articles with the textbook information. I also evaluated, for the most part, if the websites or authors appeared to be trustworthy, as well as the information. I utilized the American Bar Association, which is known to be quite reputable for information, as well as two other law journal articles.