POLICE LIMITATION ON THE POWER OF SEARCH AND ARREST 1
Police Limitation onthe Power of Search, Arrests, and Seizure
While the United States’ Constitution enshrines the individuals’right to privacy and certain freedoms, the rights are not absolute.When justifiable, the federal and state law enforcement personnel areallowed to search one’s property, car, and premises for the purposeof finding and seizing any illegal, stolen goods as well as asubstance that constitutes evidence of the occurrence of a crime.However, while the law grants police officers the right to infringeon a person’s right to privacy and certain freedoms, it has a clearprovision on how this ought to be done. The Fourth Amendment securesindividuals in their persons, properties, and premises againstunreasonable seizures and searches. The Fourth Amendment provides thetwo conditions only under which the right to privacy may beinfringed. They include in the presence of a probable cause and insupport of affirmation or an oath that undertakes to describe theplace and the property to be searched and items to be seized. Thereare two types of searches or arrests with and without a warrant.
Only under two circumstances can an arrest, search and seizure berecognized as legal. The first case is when the police have probablecause. The presence of probable cause is a requisite that empowers apolice officer to make an arrest without a search warrant. Under theprobable cause rule, police officers must prove that it is morelikely than not that the individual or property to be searched isinvolved in one way or another in the commission of a crime. Onlyupon the fulfillment of this basic tenet can a search be termed asreasonable. According to the Legal Information Institute (2014), aprobable cause entails the police having a reasonable basis thatmakes them believe that either a crime has been or is about to becommitted. The Fourth Amendment enshrines the probable cause andrequires that police have reasonable grounds for conducting an arrestor search without a search warrant. According to the Legal StudiesInstitute (2014), the Supreme Court in the Illinois v. Gates made anattempt to clarify the definition of the term probable cause. Itdefined probable cause as the practical and factual consideration ofeveryday situations under which any prudent or reasonable man acts.It means that police officers can only utilize the probable causeexemption to the right to privacy as provided for in the FourthAmendment when an individual fails to act in the way any reasonableor prudent person ought to (United States Government PublishingOffice, 1992). The deviation from the normal by an individual givespolice officers the basis on which to arrest without a warrant. Under the Fourth Amendment to the Constitution, a search and anarrest warrant must be preceded by probable cause. The existence ornonexistence of probable cause is left entirely to the policeofficers` use of their discretionary powers. It is up to the policeofficers to interpret the current situation and make an informeddecision on whether it mandates them to make an arrest without anarrest warrant.
Police are limited when making arrests, searches, and seizures in theabsence of probable cause, as a warrantless arrest is invalid.Besides, the absence of a probable cause invalidating a search orarrest, it also results in the suppression of all evidence seizedfrom the suspect or their property. Under the exclusionary ruleestablished by the U.S Supreme Court in 1961 if a Court whenreviewing the circumstance under which the search was made comes to aconclusion that there was an unreasonable search involved, the seizedevidence under the same condition are rendered inadmissible in acourt of law (Legal information Institute, 2014). It means that ifthere is no other evidence available to sustain the case broughtagainst an individual whose person or property was searched, underthe exclusionary rule the person ought to be acquitted of all thecharges. According to Katz (1997), the exclusionary rule tends toelevate the protection of the individual`s privacy to a supreme levelwhile relegating the truth-determining role of a criminal trial tosecondary importance. The rationale behind the exclusionary rule isthat police officers are more likely to conduct reasonable searchesif they know that an improper search will result in an acquittal evenwhen the suspect is guilty. The doctrine of the probable causeapplies in the search warrant only when there is a high chance that asearch without a warrant will culminate in the discovery of pertinentevidence. However, even in a circumstance that may result in thepolice officers obtaining crucial evidence, they are required toconsider the option of getting a search warrant. It means that thereliance of a probable cause without a search warrant should only bea last resort when the latter cannot be sought due to timeconstraints.
Police officers are limited in the exercise of their power to arrest,search and seizure as they are required to obtain a search or arrestwarrant prior to them executing the above mandates. If there are noissues of the time constraints involved, police officers are requiredto present their suspicion of the existence of evidence or a crime ina certain property or premises to a judicial officer before they aregranted the right to search the same. According to Smith (2009), inthe Arizona v. Gant, the U.S Supreme Court held that police officersought to get a warrant to grant them the right to search a suspect’svehicle after detaining or arresting the suspect when a probablecause is missing. When seeking a search warrant, police officers areexpected to present an affidavit that supports their contention thatthey have sufficient and credible information that establish theexistence of a probable cause. However, unlike when civilians areinvolved, affidavit involving police are not elaborate as there is apresumption that law enforcement officers can be trusted to provideimpeccable information. Hence, the affidavit to support their requestfor a search warrant does not require the presence of an attorney asthe judicial officer can rely on their word of mouth. Additionally,police officer’s power to search is limited as they can only searchand seize items indicated on the search warrant. As previouslyindicated probable cause should precede a search warrant. Accordingto the United States Government Publishing Press (1992), the doctrineof particularity requires that a search warrant particularly describethe items to be seized. Thus, the rationale behind the policesearching and seizing only the things indicated in the search warrantis that they were unaware of the existence or involvement of otheritems in a crime before coming into contacts with them. It means thatpolice officers cannot go about collecting any items they find in theproperty in which they are executing a search warrant.
In conclusion, while police officers enjoy massive power when makingan arrest, search, and seizures, these powers are limited by theConstitution. By limiting, the Constitution states the scope or theextent in which law enforcement officers may execute a search,arrest, and seizure. For instance, the Fourth Amendment to the U.SConstitutions enshrines the right to privacy that forbids any searchon an individual’s person, property and premises unless in theexistence of a probable cause and oath or affirmation. It means thatthe police can only make an arrest or search when they have aprobable cause which is the belief that crime is more likely that notto have occurred and that the person or property being searched wasinvolved in one way or another. While the existence of a searchwarrant is the other acceptable way the police can execute a search,arrest, and seizure, it must be preceded by the probable cause. Therepercussion of infringement of the rules stipulated by theconstitution on what constitutes reasonable search results in thesuppression of the evidence collected under what is termed as theexclusionary rule.
Legal Information Institute. (2014). “Probable Cause.” Accessedon May 4, 2016. https://www.law.cornell.edu/wex/probable_cause
Katz, R. L. (1997). Reflection on Search and Seizure and IllegallySeized Evidence in Canada and the United States. Canada-United StatesLaw Journal, 3(103).
Smith, P. (2009). Search and Seizure: Supreme Court Limits Police CarSearch Powers.” Accessed on May 4, 2016.http://stopthedrugwar.org/chronicle/2009/apr/24/search_and_seizure_supreme_court
United States Government Publishing Office. (1992). Fourth Amendment:Search and Seizure. Accessed on May 4, 2016.https://www.gpo.gov/fdsys/pkg/GPO-CONAN-1992/pdf/GPO-CONAN-1992-10-5.pdf