Definition of Terms
A search is any lawful action by a law enforcement officer aimed at obtaining or recovering evidence of crime from a potential suspect (Walkman and Goodman 2010). There are two forms of searches: one with a warrant and another without a warrant. The former refers to a search conducted on full authority of a magistrate through issuing a search warrant and upon proof of probable cause by a police officer. The latter is a search conducted without an official search warrant. The fourth amendment of the USA constitution prohibits search of premises, houses and persons without an official search warrant and considers evidence recovered through such searches void at law. A police officer can carry out a search without a warrant if the search would lead to discovery of evidence of crime.
A seizure is an act of depriving an individual of his freedom to liberty by temporarily detaining him against his will (Dressler, 2002). This process involves taking property or other personal effects believed to be articles of crime from a suspect. A police officer can conduct a seizure by either using force, or by demonstrating his authority through commands. A seizure does not arise under the fourth amendment if a person voluntarily consents or permits a police officer to interrogate him in relation to a crime. A police officer intending to conduct a seizure should ensure that it contains all particulars of an accused as well as the materials to be confiscated.
An arrest is any act by a law enforcement officer that leads to detention of an individual. It is done when a police officer believes that the person arrested has committed a crime (Zalman, 2011).
An arrested person is taken to a court of law and charged with the relevant offence within a reasonable time. An arrest is done by touching or hand scuffing a suspect or by demonstrating any act suggesting intention to take an individual to custody. In order to secure a lawful arrest, a police officer takes an oath confirming culpability of an offence, demonstrate probable cause as well as secure actual service of a warrant. In the ruling in United States, Watson V. provides circumstances under which an arrest can be conducted without a warrant. It is done under the following instances:
- When an offence categorized as a felony is done in presence of a police officer.
- When an offence categorized as a felony is done in view of a magistrate and officer is ordered to arrest.
- When a felony is committed in the presence of an officer and the offender is about to escape.
Reasonableness generally describes what is expected of a reasonable man in responding to an issue or circumstances. A police officer uses this ability in detecting crime and making arrest when without a warrant. It is ascertained by balancing and weighing the prevailing circumstances in crime detection against the latter of law or national interest. It is simply those factors that a police officer has to consider before conducting a search or seizure without a warrant. A recent decision in the USA Supreme Court stipulates that police officers have to demonstrate reasonable suspicion before they can conduct a search or seizure without a warrant.
Effect of search, seizure, arrest and reasonableness on privacy
Generally speaking, an arrest or seizure immediately denies a person the right to enjoy freedom freely. Under the USA fourth amendment, an individual has a right to be guaranteed privacy from interference by government (U.S. Constitution. n.d.). This right is only achieved when a search or seizure is done with a warrant. It also renders void and unenforceable, any evidence that is obtained from an illegal search, seizure or arrest. Searches, seizures and arrest in general affect or violates an individual’s right to privacy especially if they done in contravention of law. A test that is used to ascertain whether there has been a breach of right to privacy is whether; a person has reasonable expectation to privacy or whether an alleged breach is one that society would consider private. A search on a person’s body interferes with ones right to free enjoyment of freedom and subjection to unnecessary body searches lower ones esteem in a society.
The concept of stop and frisk
A stop and frisk basically involve restraining a person for the purpose of being searched. A police officer can stop and frisk a person upon reasonable suspicion that he has in his possession dangerous items of crime. Under the fourth amendment of the USA constitution, a police officer has to demonstrate reasonable cause before temporarily detaining a person. A police action in determining suspicion should be reasonable to suit circumstances necessitating the detention. A normal stop and search frisk involves touching the outer clothing of a suspect, use of metal detectors or sniff dogs. The rule on stop and frisk is an illustration of the case of Terry v Ohio (1968) (US Supreme Court Center 1968).
The rule on automobile searches
A search on an automobile is done on highway stops and is governed by a rule called reduced expectancy. In Carroll, United States, an under lying principle is that vehicles fall under a different category of private property that require less privacy protection compared to other types of property (Caroll v. United States 132 1924). Generally, the inside articles of a vehicle can easily be moved in and out, and law enforcement officials do not necessarily require a warrant to conduct a search. Searches on automobiles without a warrant are acceptable since citizens have lesser expectation of privacy in vehicles than in their homesteads. The rule in Caroll’s case allows a police not to only search a vehicle but even its contents.
Border searches and regulation
There are generally two kinds of boarder searches: routine boarder searches and non routine border searches (Salzburg 2003). A routine boarder search is one that is conducted without requiring a police officer to demonstrate reasonable suspicion, probable cause or warrant of search. A police officer working on a routine basis can search a person without a warrant such kind of a search does not cause much invasion of privacy. The realistic expectation of privacy in a border of an individual is lesser than in interior parts of a country since most travelers are aware of mandatory searches at borders. A non routine border search is done in complex cases when there is suspicion of smuggling. It may involve taking x-ray photos, detentions on suspicion, cavity searches and cargo scanning.
In conducting this category of search, a police officer has to establish reasonable suspicion before searching and detaining an individual.
US Supreme Court Center. (1968). Terry v. Ohio – 392 U.S. 1. Web.
Caroll v. United States 132. (1924). Web.
United States v. Watson 598. (1976). Web.
U.S. Constitution. (n.d.) The Constitution of the United States: Amendment four. Web.
Walkman, D. M., & Goodman, D. J. (2010). The search and seizure handbook (3rd ed.). Upper Saddle River, NJ: Pearson/Prentice Hall.
Dressler, J. (2002). Understanding Criminal Procedure. Newark, NJ: Lexis Nexis.
Zalman, M. (2011). Criminal procedure: Constitution and society (6th ed.). Upper Saddle River, NJ: Pearson/Prentice Hall.
Salzburg, S. A. (2003). Basic Criminal Procedure. St Paul, Minn: West Group.