Search and Seizure free essay sample

As the United States formed as a republic its need to form laws to protect its people became an evident need. Along with the powers to be at control of these laws, there were also limitations on what the government could and could not do to protect the people from the government as well. One of these controlling factors is the Fourth Amendment, which protects our citizens and visitors from an array of items. A few in particular would be; right to privacy, search, and seizure. The Fourth Amendment also sets the tone for how arrests are affected and how reasonableness is weighed on heavily. The Fourth Amendment grants American citizens protection from illegal searches and seizures. The Fourth Amendment is designed to protect the right to privacy and freedom from arbitrary invasions. In order to seek restitution for a violation of the Fourth Amendment, the plaintiff must have standing. Standing requires that the plaintiff had an expectation of privacy at the searched location. We will write a custom essay sample on Search and Seizure or any similar topic specifically for you Do Not WasteYour Time HIRE WRITER Only 13.90 / page Standing requires that both the subjective and the objective tests are met. The subjective test requires that the plaintiff actually expected privacy while the objective test checks whether the plaintiff would have expected privacy (Fourth Amendment). The Fourth Amendment protects against unlawful searches and seizures, but what exactly are a search and a seizure? As per the Legal Dictionary search and seizure is an â€Å"examination of a persons premises (residence, business or vehicle) by law enforcement officers looking for evidence of the commission of a crime, and the taking (seizure and removal) of articles of evidence (such as controlled narcotics, a pistol, counterfeit bills, and a blood-soaked blanket). The basic question is whether the search and seizure were unreasonable under the 4th Amendment to the Constitution (applied to the states under the 14th Amendment), which provides: The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. Thus, searches and seizures must be under the authority of a search warrant or when the officer has solid facts that give him/her probable cause to believe there was evidence of a specific crime on the premises but no time to get a warrant. Evidence obtained in violation of the Constitution is not admissible in court, nor is evidence traced through such illegal evidence. † Once a search and seizure of a premise and property has been completed, it is the job of law enforcement to gain the status of probable cause to affect an arrest on the individual(s) for crimes related to the investigation. An arrest as defined to The Legal Dictionary is â€Å"to take or hold a suspected criminal with legal authority, as by a law enforcement officer. An arrest may be made legally based on a warrant issued by a court after receiving a sworn statement of probable cause to believe there has been a crime committed by this person, for an apparent crime committed in the presence of the arresting officer, or upon probable cause to believe a crime has been committed by that person. † Arrest defined by Utah State Code reads as follows: 77-7-2. Arrest by peace officers. A peace officer may make an arrest under authority of a warrant or may, without warrant, arrest a person: (1) (a) for any public offense committed or attempted in the presence of any peace officer; and (b) as used in this Subsection (1), presence includes all of the physical senses or any device that enhances the acuity, sensitivity, or range of any physical sense, or records the observations of any of the physical senses; (2) when the peace officer has reasonable cause to believe a felony or a class. A misdemeanor has been committed and has reasonable cause to believe that the person arrested has committed it; (3) when the peace officer has reasonable cause to believe the person has committed a public offense, and there is reasonable cause for believing the person may: (a) flee or conceal himself to avoid arrest; (b) destroy or conceal evidence of the commission of the offense; or (c) injure another person or damage property belonging to another person; (4) when the peace officer has reasonable cause to believe the person has committed the offense of failure to disclose identity under Section 76-8-301. When the peace officer has reasonable cause to believe that the person is an alien: (a) subject to a civil removal order issued by an immigration judge; (b) regarding whom a civil detainer warrant has been issued by the federal Department of Homeland Security; or (c) who has been charged or convicted in another state with one or more aggravated felonies as defined by 8 U. S. C. Sec. 1101(a)(43). Another exception to requiring a warrant lands within the â€Å"reasonableness† requirement. The United States Supreme Court has attempted to balance the reality of police work and the time to complete a warrant with the freedom interests of the public. If an officer is always required to pursue a warrant, the suspect may have time to destroy the evidence or hide it outside the search parameters of the warrant. On the other hand, never requiring a warrant could get out of hand with police doing random searches on your property. Seven categories to determine if a warrantless search, seizure, or arrest is reasonable were created: No warrant is required for a felony arrest in a public place; No warrant is required for searches incident to lawful arrests; Automobiles may be stopped if an officer possesses reasonable suspicion that the suspect violated a traffic law; If an officer has reasonable suspicion that the suspect is participating, or about to participate, in criminal activity, the officer may frisk the person for weapons; If exigent circumstances arise; At fixed roadside locations, it is alright to have a brief seizure to ascertain the legality of citizens; And if the officer is acting upon â€Å"good faith† (Reasonableness, 2014). All of these play a large part in enforcing law in the United States. As the law has many definitions, there are many parts of the law that are affected by these rules and guidelines. One in particular is the stop and frisk that occurs frequently in law enforcement. Fo r this action the officer must reasonably believe that the individual may be armed with a weapon. The frisk is confined to a suspects outer clothing when either a bulge in the clothing or the outline of the weapon is visible. The search is commonly called a pat down, and any further search requires probable cause to believe the suspect will commit or has committed a crime. The limited right to stop and frisk is intended to halt the practice of random searches of people in hopes of finding evidence of criminal activity. Another scrutinized part of search and seizure is the automobile search exception. Law enforcement is routinely stopping vehicle on traffic related violations. On some stops officers come across situations that lead them to believe that illegal activity is or will be occurring and a further investigation is accomplished. Most times during a traffic stop plain view  and plain smell play a large part in a deeper investigation. The courts have held that due to the fact that an automobile is mobile and has the ability to drive away it is not protected under the normal circumstances of obtaining a warrant for the search as a house or business. The vehicle is subject to search by officers in situations where probable cause can be met. Another situation that occurs on vehicle stops is the lengthening of the stop for the investigation. An officer must have reasonable suspicion of illegal activity beyond the reason of the initial stop to widen the scope of the traffic stop and detain beyond the normal traffic stop time frame. The right to privacy does apply to the vehicle as to the officer can’t cross the threshold of the vehicles interior to gain evidence, all seen or smelled instances must be seen or smelled from the exterior of the car, unless consent to search is provided by the driver. This consent can also be revoked by the driver at any time during the search. The use of canines has also proven to be an effective tool to gain entry into a vehicle for searches. Border patrol has been in the news lately, especially after the passing of the Patriot Act bill. Border patrols have an exception to the search and seizure clause within the Fourth Amendment. Border patrols are still governed by rules and do not have free reign to do as they please. Border searches generally fall into one of two categories: routine or non-routine. A routine stop is usually conducted at the border and consists of limited intrusion. A non-routine stop is usually conducted on reasonable suspicion and will vary in techniques and intrusion. The provision allows the border patrols to interrogate any alien as to their right to remain in the United States; to arrest any alien attempting to enter the United States in violation to the law; to board and search for aliens within a reasonable distance from a border; and to make arrests (Border Search, 2014). The Fourth Amendment is a very important part of our society and covers a large spectrum of items to protect individual’s rights and govern how law enforcement can perform their duties.  Without the Fourth Amendment we would find ourselves living in a very different place, a place where the law rules and individuals were subject to unfair search seizure and from this unlawful arrests and the right to privacy would be nonexistent. Search and Seizure free essay sample As the United States formed as a republic its need to form laws to protect its people became an evident need. Along with the powers to be at control of these laws, there were also limitations on what the government could and could not do to protect the people from the government as well. One of these controlling factors is the Fourth Amendment, which protects our citizens and visitors from an array of items. A few in particular would be; right to privacy, search, and seizure. The Fourth Amendment also sets the tone for how arrests are affected and how reasonableness is weighed on heavily. The Fourth Amendment grants American citizens protection from illegal searches and seizures. The Fourth Amendment is designed to protect the right to privacy and freedom from arbitrary invasions. In order to seek restitution for a violation of the Fourth Amendment, the plaintiff must have standing. Standing requires that the plaintiff had an expectation of privacy at the searched location. We will write a custom essay sample on Search and Seizure or any similar topic specifically for you Do Not WasteYour Time HIRE WRITER Only 13.90 / page Standing requires that both the subjective and the objective tests are met. The subjective test requires that the plaintiff actually expected privacy while the objective test checks whether the plaintiff would have expected privacy (Fourth Amendment). The Fourth Amendment protects against unlawful searches and seizures, but what exactly are a search and a seizure? As per the Legal Dictionary search and seizure is an â€Å"examination of a persons premises (residence, business or vehicle) by law enforcement officers looking for evidence of the commission of a crime, and the taking (seizure and removal) of articles of evidence (such as controlled narcotics, a pistol, counterfeit bills, and a blood-soaked blanket). The basic question is whether the search and seizure were unreasonable under the 4th Amendment to the Constitution (applied to the states under the 14th Amendment), which provides: The right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. Thus, searches and seizures must be under the authority of a search warrant or when the officer has solid facts that give him/her probable cause to believe there was evidence of a specific crime on the premises but no time to get a warrant. Evidence obtained in violation of the Constitution is not admissible in court, nor is evidence traced through such illegal evidence. † Once a search and seizure of a premise and property has been completed, it is the job of law enforcement to gain the status of probable cause to affect an arrest on the individual(s) for crimes related to the investigation. An arrest as defined to The Legal Dictionary is â€Å"to take or hold a suspected criminal with legal authority, as by a law enforcement officer. An arrest may be made legally based on a warrant issued by a court after receiving a sworn statement of probable cause to believe there has been a crime committed by this person, for an apparent crime committed in the presence of the arresting officer, or upon probable cause to believe a crime has been committed by that person. † Arrest defined by Utah State Code reads as follows: 77-7-2. Arrest by peace officers. A peace officer may make an arrest under authority of a warrant or may, without warrant, arrest a person: (1) (a) for any public offense committed or attempted in the presence of any peace officer; and (b) as used in this Subsection (1), presence includes all of the physical senses or any device that enhances the acuity, sensitivity, or range of any physical sense, or records the observations of any of the physical senses; (2) when the peace officer has reasonable cause to believe a felony or a class/ A misdemeanor has been committed and has reasonable cause to believe that the person arrested has committed it; (3) when the peace officer has reasonable cause to believe the person has committed a public offense, and there is reasonable cause for believing the person may: (a) flee or conceal himself to avoid arrest; (b) destroy or conceal evidence of the commission of the offense; or (c) injure another person or damage property belonging to another person; (4) when the peace officer has reasonable cause to believe the person has committed the offense of failure to disclose identity under Section 76-8-301. When the peace officer has reasonable cause to believe that the person is an alien: (a) subject to a civil removal order issued by an immigration judge; (b) regarding whom a civil detainer warrant has been issued by the federal Department of Homeland Security; or (c) who has been charged or convicted in another state with one or more aggravated felonies as defined by 8 U. S. C. Sec. 1101(a)(43). Another exception to requiring a warrant lands within the â€Å"reasonableness† requirement. The United States Supreme Court has attempted to balance the reality of police work and the time to complete a warrant with the freedom interests of the public. If an officer is always required to pursue a warrant, the suspect may have time to destroy the evidence or hide it outside the search parameters of the warrant. On the other hand, never requiring a warrant could get out of hand with police doing random searches on your property. Seven categories to determine if a warrantless search, seizure, or arrest is reasonable were created: No warrant is required for a felony arrest in a public place; No warrant is required for searches incident to lawful arrests; Automobiles may be stopped if an officer possesses reasonable suspicion that the suspect violated a traffic law; If an officer has reasonable suspicion that the suspect is participating, or about to participate, in criminal activity, the officer may frisk the person for weapons; If exigent circumstances arise; At fixed roadside locations, it is alright to have a brief seizure to ascertain the legality of citizens; And if the officer is acting upon â€Å"good faith† (Reasonableness, 2014). All of these play a large part in enforcing law in the United States. As the law has many definitions, there are many parts of the law that are affected by these rules and guidelines. One in particular is the stop and frisk that occurs frequently in law enforcement. For this action the officer must reasonably believe that the individual may be armed with a weapon. The frisk is confined to a suspects outer clothing when either a bulge in the clothing or the outline of the weapon is visible. The search is commonly called a pat down, and any further search requires probable cause to believe the suspect will commit or has committed a crime. The limited right to stop and frisk is intended to halt the practice of random searches of people in hopes of finding evidence of criminal activity. Another scrutinized part of search and seizure is the automobile search exception. Law enforcement is routinely stopping vehicle on traffic related violations. On some stops officers come across situations that lead them to believe that illegal activity is or will be occurring and a further investigation is accomplished. Most times during a traffic stop plain view nand plain smell play a large part in a deeper investigation. The courts have held that due to the fact that an automobile is mobile and has the ability to drive away it is not protected under the normal circumstances of obtaining a warrant for the search as a house or business. The vehicle is subject to search by officers in situations where probable cause can be met. Another situation that occurs on vehicle stops is the lengthening of the stop for the investigation. An officer must have reasonable suspicion of illegal activity beyond the reason of the initial stop to widen the scope of the traffic stop and detain beyond the normal traffic stop time frame. The right to privacy does apply to the vehicle as to the officer can’t cross the threshold of the vehicles interior to gain evidence, all seen or smelled instances must be seen or smelled from the exterior of the car, unless consent to search is provided by the driver. This consent can also be revoked by the driver at any time during the search. The use of canines has also proven to be an effective tool to gain entry into a vehicle for searches. Border patrol has been in the news lately, especially after the passing of the Patriot Act bill. Border patrols have an exception to the search and seizure clause within the Fourth Amendment. Border patrols are still governed by rules and do not have free reign to do as they please. Border searches generally fall into one of two categories: routine or non-routine. A routine stop is usually conducted at the border and consists of limited intrusion. A non-routine stop is usually conducted on reasonable suspicion and will vary in techniques and intrusion. The provision allows the border patrols to interrogate any alien as to their right to remain in the United States; to arrest any alien attempting to enter the United States in violation to the law; to board and search for aliens within a reasonable distance from a border; and to make arrests (Border Search, 2014). The Fourth Amendment is a very important part of our society and covers a large spectrum of items to protect individual’s rights and govern how law enforcement can perform their duties.  Without the Fourth Amendment we would find ourselves living in a very different place, a place where the law rules and individuals were subject to unfair search seizure and from this unlawful arrests and the right to privacy would be nonexistent. Search and Seizure free essay sample Rules for searches conducted in plain smell are complex and varied based on the circumstances and location of the search. Under the plain smell doctrine, an officer can use his sense of smell as probable cause to search if there is an articulable belief that the origination of the odor is an illegal substance, or if it indicates an exigent circumstance. Plain smell is a principle under the plain view rule, which basically states that evidence in plain view of an officer is not protected by the Fourth Amendment, as â€Å"seeing† the evidence in that capacity does not constitute a â€Å"search†. For the plain view doctrine to apply for discoveries, the following requirements must be met (Horton v. California, (1990) 496 U. S. 128,136): 1. The officer’s observation of the evidence must be lawful, meaning the officer had a legal right to be at the location, or the suspect did not have a reasonable expectation of privacy in the location, 2. We will write a custom essay sample on Search and Seizure or any similar topic specifically for you Do Not WasteYour Time HIRE WRITER Only 13.90 / page The officer must have a lawful right of access to the object, and 3. The officer must have probable cause to believe the object is evidence of a crime. Plain smell falls under the â€Å"probable cause† prong of the plain view rule and would be considered circumstantial evidence, as determining the existence of something based on smell can only be inferred until the actual the object is seen and verified. Plain smell may also fall under the doctrine of exigent circumstances if there is an urgent need for an officer to take action based on the totality of the circumstances surrounding the suspect odor. (People v. Duncan (1986) 42 Cal. 3d 91, 103). In this case, the officer must believe the threat would have materialized before a warrant could be obtained. For example, a Meth lab or PCP lab might be considered exigent circumstances, as the chemicals used in the production of those substances are highly volatile and could explode. An officer relying on plain smell as probable cause should always attempt to obtain other supporting evidence to ensure the validity of his search under the Fourth Amendment, otherwise it may not hold up under close scrutiny. DISCUSSION Warranted searches based on plain smell: There have been numerous arrest warrants issued based on the principle of plain smell. However, there is usually other evidence, in conjunction with the plain smell evidence, to support the warrant request. In Taylor v. United States, (1932) 286 U. S. 1, 6, the court held that odors alone do not authorize a search without a warrant. In Johnson v. United States, (1948) 333 U. S. 0, 13, the court interpreted it further by saying that â€Å"if the presence of odors is testified to before a magistrate, and he finds the affiant qualified to know the odor, and it is one sufficiently distinctive to identify a forbidden substance, this Court has never held such a basis insufficient to justify issuance of a search warrant. † In essence, the odor plus the ability and experience to identify the odor as a criminal substance can be adequate to satisfy the request for a warrant. However, in most cases of plain smell, there is more than jus t odor presented as probable cause to obtain a warrant. The courts strongly support warranted searches over warrantless ones, indicating that â€Å"in a doubtful or marginal case, a search under a warrant may be sustainable where without one it would fall. † (Jones v. United States (1960) 362 U. S. 257, 270). Warrantless searches based on plain smell: Most challenges to searches conducted in plain smell arise from warrantless searches. The most common warrantless searches appear to be vehicle searches based on the smell of drugs. As with any warrantless search, â€Å"the burden to show proper justification for these searches rests on the prosecution. (Badillo v. Superior Court, 46 Cal. 2d 269, 272 [294 P. 2d 23]. ) United States v. Ross, (1982) 456 US 798 allows officers, with probable cause, to search a vehicle and any containers therein without a warrant. Many vehicle searches are based on plain smell—officers smell drugs or alcohol on the driver or an occupant, or they smell it inside the vehicle at the time of the car stop. The smell of alcohol on a driver’s breath or in the vehicle, which is easily identifiable to most officers, gives probable cause to search. The smell of drugs can be trickier. An officer must have the experience to know what a drug smells like before he will have probable cause to search. (Johnson v. United States, supra). Marijuana is fairly common and well known to law enforcement, so it would be easy for an officer to articulate his probable cause. Other drugs may be less familiar, especially to an unseasoned officer, or an officer that has not been exposed to cases involving specific types of illegal substances, therefore making it more difficult to use plain smell as probable cause to earch. As for using the plain smell doctrine as probable cause for any other type of warrantless search, odor can be sufficient, depending on the circumstances, but it is usually not enough. In many cases, odor may be the initial catalyst for the officer to decide to investigate, but normally there needs to be supportive evidence, such as plain view or strong circumstantial evidence to justify a warrantless search. (People v. Shandloff, (1985) 170 Cal. App. 3d 3 72, 381; People v. Divito (1984) 152 Cal. App. 3d. 1, 14) Usually, plain smell is just one of several factors that, as a totality, can add up to probable cause. Exigent circumstance is another situation in which odor alone may be probable cause enough to search. These circumstances can arise from a lot of factors, such as the strong smell of ether, possibly indicating a volatile drug lab, or the smell of smoke from a building indicating a fire, or even the smell of decomposition, possibly indicating a dead body. In these situations, an officer may have probable cause to conduct a search in plain smell. The fruits of the search would be admissible if the search was legal. (People v. Stegman (1985) 164 Cal. App. 3d. 936; People v. Duncan, supra). The United States Supreme Court ruled that the legality of an entry based on exigent circumstances depends on whether it was objectively reasonable under the circumstances. It also ruled that a police action will be deemed objectively reasonable if the need for it outweighed its intrusiveness. (Illinois v. Lidster, (2004) 540 US 419, 427). In judging reasonableness, we look to the gravity of the public concerns served by the seizure, the degree to which the seizure advances public interest, and the severity of the interference with individual liberty. † (Id. at p. 427. ) Conclusion: It is clear that the plain smell doctrine can be difficult to use as the sole reason for probable cause to search. The protections afforded us by the Fourth Amendment are interpreted and defined mainly by case law, which can create a lot of confusion, as pu blic policy and changes in our laws can make it difficult to stay informed. For instance, with some states passing laws to decriminalize small amounts of marijuana, searches conducted in plain smell with regards to marijuana are now being considered as lacking in probable cause. In Massachusetts, the state Supreme Court recently issued a decision (Commonwealth v. Benjamin Cruz (2011) 459 Mass 459, 469) which states in part â€Å"by mandating that possession of such a small quantity of marijuana become a civil violation, not a crime, the voters intended to treat offenders who possess one ounce or less of marijuana differently from perpetrators of drug crimes. Articulable facts, then, must demonstrate a suspicion that the defendant possessed more than one ounce of marijuana, because possession of one ounce or less of marijuana is not a crime. † This basically means that officers in Massachusetts will have to be able to determine if they smell more than an ounce of marijuana in order to use the plain smell doctrine as probable cause. Even though this is not binding case law in California, it could be persuasive and have far reaching ramifications.

GRE Sample Rubric - What You Need to Know About it

GRE Sample Rubric - What You Need to Know About itThe GRE sample rubric is a very useful tool in preparing for the GMAT or the Graduate Record Examination, but it is not only useful as a supplement to the GRE test. It is also very important for people who want to appear for a particular course or for the job market. But, getting a good score in the GRE is not enough. Without knowing what you have to do to prepare for the exam, you can't expect much success.There are several methods and approaches you can take to prepare for the GRE. One of the most popular ways is by reading different books on GRE preparation. These include general reference books and such, but there are also specific types of books, which are specifically designed to help you through the actual GRE.As this is an independent examination, which is mainly intended for students who want to study for the GMAT or graduate school admissions exams, the GRE sample rubric is one of the best resources to make your preparation work. It is a way to evaluate your aptitude for GRE by giving you a set of guidelines and test question papers that are designed in such a way that you can understand what you need to prepare for.If you are struggling with writing a GRE review essay, this is probably the best resource you can use. Unlike an essay, you have no idea how much time you can afford to devote to a standard essay. But since GRE review essays are long and involved, you have to make sure that you have enough time to prepare it.The GRE sample rubric is actually not an essay. Instead, it is a free series of questions and answer sheets that help you determine your current level of knowledge about GRE.Since this is a test that requires a lot of studying, itis wise to see how you can use GRE review essays as a way to take control of your own preparation. By learning from these particular pages, you can compare your answers to the questions. In other words, you will be able to check out your scores against the GRE, so that you can be sure that you are on the right track.Knowing how to use the GRE review essay as a way to sharpen your skills is important. You have to be able to develop a holistic approach to your GRE preparation so that you can benefit from it and create the final score you desire.