Criminal Justice -- Procedure Examine Discussion Chapter

Discuss with your peers the issue of whether the protection of the 4th Amendment against unreasonable searches and seizures has been seriously eroded by all these exceptions? Explain, in detail, why or why not?

(1) Search Incident to Lawful Arrest permits police to search persons who are lawfully arrested. This is a practical exception that does not seriously erode 4th Amendment protections, mainly because it does not interfere with the rights of citizens unless or until the other constitutional protections against unlawful arrest have been satisfied. In practical terms, lawfully arrested persons cannot be permitted to enter into the custody of the state without first ensuring that they are not in possession of weapons or other contraband.

(2) Search by Consent permits police to conduct searches of persons or property if they first obtain consent from subjects of those searches. Technically, consent obtained must be given freely and voluntarily and when that is the case, there is no violation of constitutional rights. However, in practice (i.e. "in the field"), consent may not always be properly obtained, such as where police ask in intimidating ways or by intimating that there might be negative consequences for refusing consent. In those cases, the particular facts (and not the concept of consent search) may violate the 4th Amendment.

(3) Emergency/Exigent Circumstance/Hot Pursuit is an exception based on the common sense of not requiring police to obtain a search warrant to follow a fleeing suspect into or onto private property or to respond to life-and-death emergencies. Since the police would be entitled to do so, if they happen to notice contraband or witness a crime on those premises, there is no violation of 4th Amendment rights when they seize that contraband or execute a lawful arrest for any crime they observe in the process of their lawful entry. (This exception is closely related to another, the Plain View exception.)

(4) Automobile Exception permits police to conduct searches of vehicles based on probable cause without first using that probable cause to obtain a warrant from a judge of magistrate, as is ordinarily required in other circumstances. Provided that police adhere to the requirements "in the field" pertaining to their initial justification for initiating traffic stops and provided they genuinely have probable cause, this exception makes sense and does not violate 4th Amendment protections because vehicles are so mobile that requiring a search warrant based on probable cause at the scene of traffic stops would be impractical as well as require violating other rights pertaining to the reasonableness of the maximum amount of time that subjects may be detained during traffic stops.

Sources Consulted

Akers, R.L. And Sellers, C.S. (2004). Criminological Theories: Introduction,

Evaluation, and Application. California: Roxbury Publishing Company.

Schmalleger, F. (2009) Criminal Justice Today: An Introductory Text…