Constitutional Law in CJ CJ-3352 (Need to have excellent reveiws if not I will not take you on this one)

The Fourth Amendment gives citizens the right to secure themselves and their properties from searches and seizures that are unreasonable, protection from violence, issuance of warrants but upon a reasonable cause that has been unsupported by an Oath that describes the place that can be searched, and people and things to be searched. This amendment was put in place in order to give citizens key fundamental rights which that are the right to freedom and protection from arbitrary invasions. A search will take place where there will be an existence of privacy considered reasonable by the society and this privacy is infringed by a government employee or any government agent; Fourth Amendment prohibition are exempted to private individuals that do not act in their capacity.

The interference of an individual’s possessory interest of a property is known as seizure and in order to meet unreasonable seizure, the property owner will be required to have had a reasonable expectation of privacy in the items that have been seized (Kerr, 2010, p. 1006). An individual will have seizure when law enforcement personnel use physical force to restrain the individual if there is a reasonable person having the same situation would not feel free to leave the situation faced. There would be no unreasonable seizure if a previous owner of a property abandoned the property, this is because an abandoned property that has been left behind and the owner abandons possessory interest in that particular property will no longer retain a reasonable expectation of privacy when it comes to searching the property.

A law enforcement officer’s work is often affected by prohibition put on unreasonable seizures and this restricts their actions especially when carrying out criminal investigations. Moreover, the ban disallows carrying out unreasonable seizures and searches on settings such as that of the civil litigation; hence a search can be conducted by law enforcers if the suspicion of an individual motivates the search. Searches done for a general purpose are prohibited by the Fourth Amendment unless extraordinary circumstance exists and the circumstance places the general public in danger.

In the process of seeing violation of the Fourth amendment, the plaintiff is required to have a standing to Fourth Amendment which requires the plaintiff to have a legitimate expectation of privacy at the location where the search is to be conducted. To have a legitimate privacy expectation, the expectation should meet the objective and subjective tests of all the reasonableness; subjective test entails the plaintiff to genuinely expect privacy while objective test ensures that in the given circumstance a reasonable person also expects privacy.

History and Scope of the Amendment

The expression of William Pitt in parliament in 1763 was a forceful maxim and it stated that a poor man living in his cottage has the ability of bidding defiance to the force of crown; even though the practice may be frail, the King is not allowed to enter. Entick was Wilkes’ associate and litigated the government after it sent it’s to break into Entick’s house forcefully breaking desks and boxes that were locked; many printed charts were seized including the pamphlets. The court found the warrant and the behavior to be subversive of the society’s comfort hence the issuance of a warrant for seizure should be on the papers and not those alleged to be criminal in nature. The character of the warrant was general and bad based on the fact that it was issued for the purpose of showing probable cause and the records of what was seized was not necessary. Entick vs Carrington case made the court make great judgments that was a landmark of the English liberty and this became a monument for the British Constitution and it led to the understanding of the term Framers which is present in the fourth Amendment.

During the time of colonies, smuggling was a leading example showing the need to have protection against unreasonable searches and seizures; therefore the English experts made a great use of writs of assistance that warrants that made the bearer of this authority to enter any house or premise to search and seize. Once the writs were issued, they remained in force for a period not exceeding six months; after the death of George II the authorities obtained an issuance of new writs.

Scope of the Fourth Amendment

As the Fourth amendment went through the congress, it passed through some modest changes that reflected on the modest interpretation of the relationship present between two clauses. The version introduced by Madison provided the rights of a person to be secured together with the properties from unreasonable searches and seizures and warrants that are issued without reasonable cause even though they are supported by oaths and they do not have a particular description of the place that the search has to be done and the person to be seized. An inadvertent omission was corrected of the floor of parliament and it made the section almost identical to the version that was introduced, this made the House defeat the motion for substituting the issue of warrants for warrant issuing in the draft. The amendment that was rejected was inserted in a ratified constitutional provision language before the House passed it to become law. The character of warrants became the noteworthy dispute revolving around search and seizure in England and its colonies; despite this, lawful warranties existed especially in incidents that led to arrests leading to a rise of no disputes (Simmons, 2013, p. 551).

The main question arise on the two clauses of the Fourth Amendment that require the clauses to be read together even though the main intention is to mean reasonable searches and seizures that meet second clause requirements. The court has been divided several times by this issue making it have rehearsals of precedent; this has become an important aspect for resolving cases. The dispute has run throughout the cases in a consistent manner and it has involved the right to search an incident that needs an arrest. There is no question when a person is arrested is searched without a warrant, the crucial matter lies in the extent to which there is control of the arrestee and interesting is the range to which the search may range.

The Interest Protected

Application of the Fourth Amendment can be done on various set facts and this will require the search and seize to occur in a criminal case in order to attempt to use the seized property as evidence at the courts. Search and seizure meaning exists in the adjustment and provided an infringement occurred to the interest of the plaintiff, during consideration of this interest the plaintiff’s interests will be considered abused. During the case that involved Entick vs Carrington a statement was made by Lord Camden saying that the great end for which man came to this humanity was to protect his property. This right is considered sacred and cannot be communicated in any instance that has been taken away by the public law for the good of all, in England, every property invasion be it minute is considered a trespass (Kessler, 2009, p. 56). No man can set foot in another man’s property without the owner’s license and he is liable to action despite not damaging anything. The basis of the Fourth amendment is the protection of property interests and it is easily accepted in the Supreme Court; for instance, the case of Olmstead vs United States one of the premises underlie the holding that the Amendment did not cover wiretapping and there was no actual invasion physically on the defendant’s premise but in place there was an invasion which is considered technical trespass, therefore the Fourth Amendment restriction deemed electronic surveillance a subject in the case.

Arrests and Other Detentions

The intention of the fourth amendment was to protect against arrests and unreasonable searches, this was assumed by Chief justice Marshall and it was later established to become the law. The common law allowed warrantless arrest of people that were involved in breach of peace and felony; this is reflected in the Fourth Amendment that satisfies the arrest if made in a public place due to a probable cause. Such an arrest does not warrant obtaining of a warrant, in effectuating the arrest at home, in situations where there is an absent consent, or circumstances that are exigent, the police officers are required to have a warrant. Seizure use Fourth amendment and it is not necessary to have a formal detention before bringing to bear warranty requirements or a probable cause in an instance that a warrant will be forgone. In order for a seizure to be considered valid and objective justification must be present and this will involve brief detention which is usually short of arrest. The nature of carrying out the detention determines whether the necessity of a probable cause or an anticipated suspicion.

According to the Fourth amendment, an officer does not necessarily have to put into consideration issuance of citation rather than putting an individual in custody if the individual has committed a minor offense. Atwater vs City of Lago Vista case had the court acknowledge that the case had gratuitous humiliations imposed into the case by the police who had exercised poor judgment by refusing to determine the government need to place traffic offenders in custody but subject them to reasonableness inquiry. The court decided that the matter should be left to statutory rule after citing statutes that prevent warrantless arrests for offenders who commit minor offences; this is compared best as compared to applying the broad constitutional principle. For this case, it was clear that as far as the constitution is known, majority of police officers have unbridled discretion when making decisions on whether to issue summons minor offenders or place the offenders in jail for a period not exceeding 48 hours having little recourse. State laws may prohibit arrests of minor offenders since the arrest violates the fourth Amendment which was previously based on probable cause.

Arrest authority was recently contested in the Supreme Court based on the rule that an incarcerated person is pursuant to uninformed seizure and will remain subject to custody and presentation to the court. In applying self-incrimination as well as other exclusionary rules to the state and ensuring their scope has been heightened during the state and federal cases was responsible for bringing forth the rule of verbal confessions and admissions can be excluded since they may be obtained as a result of unlawful seizures (Henderson, 2008, p. 27). Therefore, confessions made by an individual that is illegally in custody are usually suppressed unless there is a casual connection present between an illegal arrest and the confession has become attenuated and the latter is eventually deemed tainted by the individual who formed it; other physical evidence such as the finger prints that are obtained during unlawful arrest should also be suppressed.

Searches and Inspections in Noncriminal Cases

There are cases that held the Fourth amendment applicable to searches undertaken to investigate various criminal purposes, until recently, the Supreme Court used to employ reasonableness for these types of searches without the presence of a warrant. Two cases that were alleged by the court in 1967 and administrative reviews were required to discover building code abuses that were to be undertaken in order to pursue a warrant if the occupant objects. Having routine inspections of the physical condition of a property is usually less hostile as compared to a search by a typical policeman based on the fruits of the crime (Crandall, 2010, p. 721). Fourth Amendments welfares are at stake during the assessment of the cases and this is merely a peripheral, therefore, it is inconsistent saying an individual and his private property are fully protected by the Fourth Amendment. This is because the individual will be subjected to criminal behaviors, hence certain inspections done by the administration are utilized when enforcing regulatory schemes with regards to items such as firearms which are exempted from the warrant of the fourth amendment requirement, this may simply be authorized by the state.

Reference

Crandall, C. (2010). Bombed away: How the second circuit destroyed fourth amendment rights of U.S. citizens abroad. Brigham Young University Law Review, 2010(2), 719-765.

Henderson, S. E. (2008). "Move on" orders as fourth amendment seizures. Brigham Young University Law Review, 2008(1), 1-45.

Kerr, O. S. (2010). APPLYING THE FOURTH AMENDMENT TO THE INTERNET: A GENERAL APPROACH. Stanford Law Review, 62(4), 1005-1049.

Kessler, D. K. (2009). FREE TO LEAVE? AN EMPIRICAL LOOK AT THE FOURTH AMENDMENT'S SEIZURE STANDARD. Journal of Criminal Law & Criminology, 99(1), 51-88.

Kinports, K. (2012). CAMRETA AND AL-KIDD: THE SUPREME COURT, THE FOURTH AMENDMENT, AND WITNESSES. Journal of Criminal Law & Criminology, 102(2), 283-328.

Simmons, R. (2013). ENDING THE ZERO-SUM GAME: HOW TO INCREASE THE PRODUCTIVITY OF THE FOURTH AMENDMENT. Harvard Journal of Law and Public Policy, 36(2), 549-604.