CJ 100 Lecture Notes - Lecture 35: Civil Liberties, Nahum Sokolow, Exigent Circumstance
The Right to Privacy
The word “privacy” does not appear in the U.S. Constitution, but the U.S. Supreme Court has
said that several of the amendments create this right. One of these is the Fourth Amendment. It
stops the police and other government agents from searching citizens or their property without
facts or apparent facts that are reliable and generate a belief that incriminating evidence can be
found on the citizens or the property. Justice Louis Brandeis called the right to privacy “the right
to be left alone by the government.” Calling this right the most valuable of all rights, Brandeis
considered “every unjustifiable intrusion by the government upon the privacy of the individual”
to be a violation of the Fourth Amendment.
Searches
For police action to be brought under the protection of the right to privacy, it must be
considered to be a search. A search involves police actions designed to find, ascertain,
or recover evidence of crimes, weapons, and contraband. Common targets of searches
include homes, papers, effects, and persons suspected of criminal involvement.
Examples of searches include looking inside a container in a car, taking blood and urine
samples, and wiretapping.
Search warrants
Once an act of a police officer is determined to be a search, the next question is “Was it
reasonable?” The general rule of the Fourth Amendment is that any search or seizure
undertaken without a valid search warrant is illegal. A search warrant is a written order
from a judge directing the police to search a specific place for particular persons or
items to be seized. The objects sought may include drugs, stolen goods, burglars' tools,
weapons, or other items kept or concealed in violation of the law.
The standard of proof for a search warrant
For searches and seizures, the Fourth Amendment requires the government to
show probable cause.Probable cause consists of facts that would lead a reasonable
police officer to believe that the places or persons to be searched will yield the
contraband, fruits of a crime, persons, weapons, or other items named in the warrant.
As a standard of proof, probable cause requires more than mere suspicion but less
than legal guilt (proof beyond a reasonable doubt).
Particularity of search warrants
The Fourth Amendment requires that a search warrant describe with “particularity” the
place to be searched and the things—either people or objects—to be seized.
How the police obtain and execute a search warrant
Before going to a judge to get a warrant, an officer must prepare an affidavit, which
gives a detailed description of the place to be searched and the persons or things to be
seized. Next, the officer swears under oath that the information in the affidavit is truthful.
Then, the officer tries to convince a judge that the information amounts to probable
cause to believe that contraband or other evidence is in a specific place.
The Gates test
In deciding whether or not to authorize a search, a judge applies the Gates test. The
Supreme Court's ruling in Illinois v. Gates (1983) lowered the evidentiary requirements
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for probable cause in search warrant applications. Prior to Gates, the rule was that
probable cause for search couldn't be based solely on hearsay (secondhand)
information. In Gates, the Court made it easier for police to satisfy the evidentiary
requirements for a search warrant. It required judges to simply make a common sense ‐
decision, given all the circumstances set forth in an affidavit, that there is a fair
probability that incriminating evidence can be found in a particular place.
After a judge issues a warrant, the police must execute it promptly because the suspect
may move or destroy the evidence The Federal Rules of Criminal Procedure set a limit
of ten days within which the police must carry out a search. States establish similar
deadlines.
No-knock warrants
A no knock warrant‐ authorizes police to break down doors without warnings and to
enter homes or public places. The Supreme Court has ruled that no knock warrants can‐
be used when police fear that announcing their presence could endanger their lives or
give criminals time to destroy the evidence the police are seeking. Civil liberties
advocates think no knock warrants often violate the spirit of the Fourth Amendment ‐
because they are often based on unreliable sources of information. No knock warrants ‐
are sometimes based solely on the word of confidential informers, who are often
criminals seeking to trade what they know for reduced charges, shorter sentences, or
cash. Police officials defend no knock warrants, saying the warrants have enabled the ‐
police to mount an aggressive assault against drugs. Moreover, the police assert that a
majority of their no knock search warrants yield contraband.‐
Electronic eavesdropping as a search
Electronic eavesdropping is considered a search. It consists of both telephone
wiretapping and bugging. (Bugs are electronic listening devices that record sounds.)
Law enforcement agents sought a record number of court orders in 1997 to allow them
to secretly listen in on more than two million private conversations. The telephone
wiretap was the most common device used. Narcotics investigations spurred almost 75
percent of the wiretap requests in 1997. The most common location for the placement of
wiretaps in 1997 was a single family dwelling.‐
Conditions under which the government can use electronic eavesdropping
Title III of the federal Omnibus Crime Control and Safe Streets Act (1968) places
wiretapping and bugging under tight controls. Under this law, police must get a search
warrant before secretly intercepting conversations. Title III contains a statutory
exclusionary rule. It prohibits trial courts, grand juries, regulatory agencies, and other
government bodies from using evidence obtained by unauthorized interception.
Searches without warrants
An exception to the warrant requirement in Title III applies to officers who are parties to
conversations: they don't need a warrant to wear a wire or tape a phone call. The
Supreme Court has determined that exigent circumstances (in other words,
emergencies and other situations requiring exceptional police actions) justify exceptions
to the warrant rule. In reality, most police searches are conducted without warrants. The
majority of warrantless searches fall into one of the following categories.
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Document Summary
The word privacy does not appear in the u. s. constitution, but the u. s. supreme court has said that several of the amendments create this right. It stops the police and other government agents from searching citizens or their property without facts or apparent facts that are reliable and generate a belief that incriminating evidence can be found on the citizens or the property. For police action to be brought under the protection of the right to privacy, it must be considered to be a search. A search involves police actions designed to find, ascertain, or recover evidence of crimes, weapons, and contraband. Common targets of searches include homes, papers, effects, and persons suspected of criminal involvement. Examples of searches include looking inside a container in a car, taking blood and urine samples, and wiretapping. A search warrant is a written order from a judge directing the police to search a specific place for particular persons or items to be seized.
