A WORKABLE APPROACH TO SEARCH AND SEIZURE
This paper is designed to show peace officers how to make correct legal search andseizure decisions by using their common sense and logic. It can also be a valuableresearch tool for attorneys. Just about every Fourth Amendment issue will be discussedin a logical sequence with suggestions (
) offered for the peace officer.The laws on search and seizure are found in thousands of Appellate decisions and afew statutes. Courts have been interpreting the Fourth Amendment for over 100 yearsand have not yet resolved all the issues nor have they been consistent in those theyhave. Don’t be frustrated! An understanding of how each decision is arrived at revealswhat an officer should do to avoid losing any evidence in court.The
represents the opinion of the majority of the justices who happened to vote onthat case. But, every case has new evidence; another officer; different place and time.Any change in facts, judges or a judge’s opinion, could change the result. The officer’sanalysis will not have to change, if what the officer does will satisfy all the judges, all thetime. The workable approach is designed to show the officer how to accomplish that!There are
five steps to the workable approach
:1. Understand the reasons why the 4
Amendment was created.2. Understand that the 4
Amendment was intended to require warrants.3. Understand the reasons for exceptions to the "warrant" rule.4. Understand the legal requirements for warrants.5. Understand the legal requirements for warrantless intrusions.
THE FIRST STEP: THE REASON FOR THE FOURTH AMENDMENT
It is important in analyzing any rule, to determine why it was necessary in the first place.The Fourth Amendment was written by the American colonists who revolted againsttheir government because of certain abuses. They were particularly upset about theuse of general warrants and warrantless searches. After the Revolutionary War theydrafted the Constitution to limit the power of the federal government, and then added theBill of Rights to demonstrate that certain
rights would always belong to thepeople. The 4
Amendment was designed to prohibit general warrants and to restrictwarrantless searches and seizures.
It is critical for the officer to understand that theFourth Amendment was intended to limit peace officers in their quest to investigatecriminal activity. "The right of privacy was deemed too precious to entrust to thediscretion of those whose job is the detection of crime and the arrest of criminals."