Search and Seizure
THE EXCLUSIONARY RULE
This legal concept is probably the most vilified rule in criminal jurisprudence, an anathema of Law Enforcement and the bane of both Federal and State prosecutors. The Rules destruction and total demise has been the goal of conservatives for decades. In short, the Rule prohibits or excludes the introduction of evidence at trial which was obtained by Law Enforcement in violation of either the State or United States Constitution. This could literally mean that the cocaine sold by a drug dealer or the murder weapon used in a homicide could not be used as evidence and that the drug dealer or the suspected killer might go free if Law Enforcement failed to obtain a warrant or otherwise improperly seize evidence. The logic behind the rule escapes most, and the benefit achieved for justice, if any, is argued to be at far to high a price. Yet, how do you stop Law Enforcement from disregarding the very laws they are sworn to uphold. While we are always aware of the criminal who is set free due to the inappropriate actions of Law Enforcement, we never hear or are made aware of the improper and numerous stops and searches by authorities which result in no arrests as no contraband or damning evidence is found. There are no statistics kept for searches that do not result in arrests or the finding of illegal items.
More importantly, this Rule actually affects in any material way less than a fraction of one (1%) Percent of the criminal cases prosecuted in the United States. What is more astounding to most is that it was not developed by a recent liberal court, but in the year 1914, by a very conservative U.S. Supreme Court in the case of Weeks v United States, 232 U.S. 383 (1914). In Weeks, a U.S. Marshall entered Mr. Weeks residence without a warrant, or permission, and thereafter seized various letters and other evidence which was used to prosecute Mr. Weeks. The Supreme Court held in overturning the conviction of Mr. Weeks and excluding the evidence illegally seized;
“The efforts of the Courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment, in the fundamental law of the land.”
The law never moving swiftly, required an additional forty seven (47) years for the Exclusionary Rule to be applied to prosecutions in State courts, pursuant to Mapp v. Ohio, 367 U.S. 643, (1961). As unfair as it seemed, and actually was, evidence obtained improperly by Law Enforcement Officers in State prosecutions which was used to convict and imprison Defendants for the interim forty seven (47) years, could not have been used as evidence in a Federal prosecution.
While our Constitution requires a warrant to be issued for the search and seizure of an individuals residence, there are a myriad of exceptions to the warrant requirement which allow Law Enforcement to search an individual or their property without a warrant, and to seize what is found to be evidence of criminal conduct. The following is a short, and not inclusive list of the most common exceptions to the “Warrant Requirement”:
- plain view – a Law Enforcement Officer (LEO) sees an item which she/he knows by her/his training and experience is either illegal (eg.- cocaine), fruits of a crime (eg. – stolen automobile or jewelry) , or illegal for a particular suspect to possess (eg. – possession of a legal firearm by a felon).
- exigent circumstances – LEO’s may enter your residence or your vehicle when called due to an accident (eg. – pulling you from your car after an accident the LEO observes illegal drugs between the seats), health crisis (eg. – medics are called to your residence as a family member has a medical emergency, and illegal substances are observed), or report of a crime (eg. – a burglary or robbery is reported at your residence, and the LEO observes child pornography on your laptop).
- incident to a lawful arrest – if you are arrested for any number of criminal charges, including Driving Under Suspension or Driving Under the Influence, you, your automobile and the vicinity in which you are located are subject to being searched and any evidence of illegal conduct seized.
- consent – if you are stopped by a LEO and you are asked if your purse, vehicle, residence, office, or any other structure you have access to can be searched and you agree.
- stop and frisk (cursory safety pat down) – if you are in an area, at a time where it is reasonable to conclude that you may be involved in criminal activity (non-specific), you may be stopped and for Officer safety, a quick pat down of your person (outside the clothes and pockets) may occur. The search may go further if the Officer feels what he believes is a potential weapon.
WHY REFUSE A SEARCH
Most Law Enforcement agencies as a matter of procedure routinely request the permission to search homes and more often the automobiles of most young adults, and almost always young African American males. The question which is asked is, “Do you have any illegal substances in your vehicle, or weapons?” If the response is “No”, then the next question is, “Then you will have no problem allowing me to search your vehicle.”
The vast majority of us who were raised to respect and cooperate with Law Enforcement would immediately respond, “Yes” and allow a search. Additionally, many would argue vehemently that if you have nothing to hide why should you be afraid of a search, or they offer the corollary that only the guilty fail to cooperate with Law Enforcement.
What is rarely raised is the query as to why you are being searched. Is there a reason, have you done something wrong, do you meet the description of the perpetrator of a crime? None of these usually apply, as there is no reason or cause for the search. Simply, this is a Law Enforcement technique.
Some basic reasons you may want to consider for declining a search:
- What is actually occurring is that you are being asked to prove that you are not a criminal, when in fact there is no indication that you are. If you don’t feel insulted, you should.
- If LEO’s had any justifiable reason to search, they would not ask for your permission.
- Ask anyone who has been detained for an extra thirty (30) to forty-five (45) minutes as the search is being conducted and the drug dog arrives how they feel now about their duty to cooperate.
- The impact of having friends and acquaintances drive by and see you sitting on a curb on the side of the road as the search is being conducted is especially memorable. (There is also a good chance you will be in handcuffs for Officer Safety).
- Parents should be especially conscious about encouraging their sons and daughters to accede to requests for searches of their cars, as the parent must not only be confident that their child is drug free, but that every friend or friend of a friend who caught a ride with your child did not unintentionally drop or leave something in the vehicle.
- The LEO’s who search your car are busy, so when they finish searching your car they do not take the time to put everything back in the trunk, center console and glove compartment. They do not reinstall the rear seat, the carpets, the trunk carpets, and spare tire. They do not put things back in brief cases, backpacks and luggage. They call it a search for a reason; it is not a, “Can I stick my head in your car and take a peek?“
- Wait for the “Thank you for cooperating, we are glad we didn’t find anything, have a great day” speech after the search………….. I bet you are still waiting!
- Even if you are compelled to allow a search to serve a perceived greater good, remember that no one knows how successful this LEO technique is, as Law Enforcement does not keep statistics for the number of residences, persons and vehicles searched where nothing is found. There could be a reason for this fact.
- Do not be a typical selfish liberal and waste both tax payer money and Law Enforcement time by agreeing to a search that you know will yield nothing.