SEARCH AND SEIZURE IN A SHAMBLES? RECASTING FOURTH AMENDMENT LAW IN THE MOLD OF JUSTICE DOUGLAS

• NCJ Number: 57254
• Journal: Iowa Law Review Volume: 64 Issue: 3 Dated: (MARCH 1979) Pages: 435-460
• Author(s): V COUNTRYMAN
• Date Published: 1979
• Length: 26 pages
• Corporate Author: University of Iowa
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

THE TREATMENT OF SEARCH AND SEIZURE ASPECTS OF THE FOURTH AMENDMENT BY JUSTICE DOUGLAS OF THE U.S. SUPREME COURT IS CONSIDERED, WITH EMPHASIS ON ARREST, SEARCH, AND WIRETAPPING AND ELECTRONIC SURVEILLANCE.

Abstract

THE FOURTH AMENDMENT'S PROTECTIONS REACH ARRESTED PERSONS, AS WELL AS PERSONS SUBJECT TO SEARCH AND SEIZURE. WHEN POLICE OFFICERS SEEK AN ARREST WARRANT FROM A MAGISTRATE, THEY MUST FILE A SWORN COMPLAINT OR AFFIDAVIT SHOWING PROBABLE CAUSE FOR ARREST AND DESCRIBING THE PERSON TO BE ARRESTED. AN EXCEPTION FROM THE USUAL PROBABLE CAUSE PROCEDURE ARISES IN CIRCUMSTANCES WHERE THE ACCUSED HAS ALREADY BEEN INDICTED BY A FEDERAL GRAND JURY. JUSTICE DOUGLAS HAS HELD THAT A WARRANT FOR ARREST IS REQUIRED AS LONG AS POLICE OFFICERS HAVE AN OPPORTUNITY TO OBTAIN A WARRANT. IN THE ARREST CONTEXT, DOUGLAS HAS CONSISTENTLY SOUGHT TO REQUIRE INDEPENDENT JUDICIAL EXAMINATION BEFORE ARREST WHENEVER POSSIBLE. IN CIRCUMSTANCES WHERE OBTAINING A WARRANT IS NOT PRACTICAL, HE ADVOCATES REQUIRING AS MUCH INFORMATION AS WAS AVAILABLE AT TRIAL IN ORDER TO DETERMINE CORRECTLY WHETHER PROBABLE CAUSE EXISTS TO JUSTIFY AN ARREST. A WARRANT IS ALSO REQUIRED WHEN POLICE OFFICERS SEARCH PERSONS, HOUSES, PAPERS, AND EFFECTS. IN ADDITION TO THE PROBABLE CAUSE REQUIREMENT, THERE IS THE SEPARATE REQUISITE THAT A WARRANT PARTICULARLY DESCRIBE THE PLACE TO BE SEARCHED AND THE THINGS TO BE SEIZED. EXCEPTIONS TO THE SEARCH WARRANT REQUIREMENT CONCERN CASES IN WHICH A SEARCH IS INCIDENT TO A LAWFUL ARREST, AUTOMOBILES, AND 'STOP AND FRISK.' DOUGLAS BELIEVES THAT THE FOURTH AMENDMENT EMBODIES TWO FACES OF PRIVACY: ONE CREATES A ZONE OF PRIVACY THAT MAY NOT BE INVADED BY THE POLICE THROUGH RAIDS, BY LEGISLATORS THROUGH LAWS, OR BY MAGISTRATES THROUGH THE ISSUANCE OF WARRANTS; AND A SECOND CREATES A ZONE OF PRIVACY THAT MAY NOT BE INVADED BY THE POLICE IN HOT PURSUIT, BY A SEARCH INCIDENT TO ARREST, OR BY A WARRANT ISSUED BY A MAGISTRATE ON A SHOWING OF PROBABLE CAUSE. DOUGLAS HOLDS THAT ALLOWING WIRETAPPING OR ELECTRONIC SURVEILLANCE UNDER ANY CIRCUMSTANCES IS A VIOLATION OF THE FOURTH AMENDMENT SINCE THERE CAN BE NO PARTICULAR DESCRIPTION OF THE THINGS TO BE SEIZED. CASE LAW IS CITED. (DEP)