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Search & Seizure

A hunt by law enforcement officials for property or communications believed to be evidence of crime. Search & Seizure. The act of taking possession of this property. “Right to Privacy?”. There is no EXPLICIT “right to privacy” in the Constitution

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Search & Seizure

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  1. A hunt by law enforcement officials for property or communications believed to be evidence of crime. Search & Seizure The act of taking possession of this property.

  2. “Right to Privacy?” • There is no EXPLICIT “right to privacy” in the Constitution • Fourth Amendment does, however, set out the right to be free from “unreasonable search and seizures”

  3. Fourth Amendment “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.”

  4. …In plain English? • The government can’t search your property without probable cause. • Under certain conditions, the gov’t needs a search warrant to actually look through your personal belongings.

  5. To be clear… • Does NOT grant citizens ABSOLUTE privacy • Does NOT prohibit ALL searches • Only those “unreasonable”

  6. Government’s need to gather information Individual’s reasonable expectation of privacy

  7. Is It Legal? • Once an individual is arrested, it may be up to the courts to decide whether any evidence found in a search was legally obtained • If search is found to be unreasonable, evidence in the search cannot be used against defendant in trial. • “Exclusionary Rule” • Defendant CAN still be convicted

  8. Search Warrants • Court order obtained from a judge, who is convinced there is a bona fide (real, genuine) need to search a person or place.

  9. Filing a Search Warrant • Someone, usually a police officer, must file an affidavit • a sworn statement of facts and circumstances that provide the probable cause to believe a search is justified. • Warrants must SPECIFICALLY list the person or place to be searched and the PARTICULAR things to be seized.

  10. Search Process • When a search warrant is granted, police generally must… • Knock • Announce their purpose and authority • Request admission before entering a premises • “Knock and announce” test can be broken if circumstances present a threat to officer OR if evidence would likely be destroyed if advance notice were given • Exigent circumstances

  11. Legal Searches Without Warrant • Stop and frisk • Search incident to a lawful arrest • “Grab area” and “protective sweep” searches • Consent • Border and Airport Searches • Hot Pursuit • Vehicle Searches • Emergency Situations • Plain View

  12. Public School Searches • SCOTUS granted school authorities broad discretion to search students and their possessions • New Jersey v. TLO (1985): Schools only need reasonable suspicion, rather than probable cause, that a search will turn up evidence that a student is either violating school rules or the law. • Lockers? School property and “students do not have a reasonable expectation of privacy in property owned by the school.”

  13. New Jersey v. TLO (1985) • Vice principal suspects student of smoking • Student questioned, denies smoking • VP searches student’s purse • Purse contains • Cigarettes, rolling papers • Marijuana, drug paraphernalia, $40 in singles

  14. Discussion Questions • Should the exclusionary rule apply to searches by school officials of students in high school? Why or why not? • How much evidence should a school official have before searching a student’s purse or locker? Should the standards of probable cause or reasonable suspicion be required?

  15. Discussion Questions • Do you believe that the principal had the right to open the student’s purse? Could the marijuana and drug paraphernalia be used against her in court? • Should high school students have fewer rights or the same rights as adults in the community? Explain.

  16. Suspicionless Searches • Searches usually considered unreasonable if there is no individualized suspicion of wrongdoing • Ex: Police can’t search all people gathered on a street corner if they suspected only one of them to have committed a crime • However, not ALL searches must be based on individualized suspicion

  17. Suspicionless Searches • A few exceptions: • Border Searches • Sobriety checkpoints • Random drug & alcohol tests for railroad employees • Why? • SCOTUS found these searches to be reasonable and in support of a special need beyond ordinary law enforcement

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