Wednesday, October 17, 2007

4th Amendment part 1

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

I believe the Fourth Amendment to the United States Constitution has the most direct impact on the lives of the average citizen today than many of the other amendments. The loss of these rights would changes the face or culture and would make the US unrecognizable.

To understand how the 4th Amendment is applied today, we must address two key terms, probable cause and unreasonable.

The Supreme Court has stated that probable cause to search is a flexible, common-sense standard. It merely requires that the facts available to the officer would “warrant a man of reasonable caution in the belief.” The most widely held common definition would be "a reasonable belief that a crime as been committed" and that the person is linked to the crime with the same degree of certainty.

There are only two ways a person is arrested. The arresting officer has a warrant signed by a judge which already has been examined for probable cause or the arresting officer has probable cause and will present an affidavit to a judge to determine if probable cause exists. This is not a terribly high standard. In 11 years, I have written about thousand cause statement. Probable cause is a long way from proof beyond a reasonable doubt. Probable cause is a gate keeper, a low hurdle to begin the criminal prosecution.

What is unreasonable? This has evolved and will continue to evolve as technology has improved. Where things get complicated are issues such as telescopes, infrared heat sensors, collection of DNA and the developing field of human sent.

Just because we have these rights, where of the teeth to enforce them? The primary method is the exclusionary rule followed by the “fruit of the poisoned tree doctrine.” Before a trial the defense has the opportunity to request a motions hearing where they can raise issues regarding potential constitutional violations made by the police or prosecution. The judge will rule of the motion and determine if the evidence will be allowed.

If the judge applies the exclusionary rule, that single piece of evidence is not permitted to be used at the trial and jurors will never know it existed.

The doctrine of the fruit of the poisoned tree would apply if one piece of illegally collected evidence leads to other evidence. All the evidence is in jeopardy of being excluded from the trial.

I saw an example of this on TV recently. The police conducted an warrant less illegal search on a potential suspect’s home. The officer found photos in the home which showed where the body was buried. The evidence collected from the burial scene was excluded from the trial due to the initial search.

Next week we will conclude this discussion of the 4th Amendment with a look at several of the exceptions the courts have granted to the police and prosecution as well as a closer look at direct application of the issues.

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