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Search & Seizure 1


Search & Seizure: A Look Inside

Jake J. Koppenhaver

Criminal Justice Capstone

Professor Scott

July 10, 2007

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Search & Seizure: A Look Inside

The practice of search and seizure by law enforcement is one of the most often criticized,

and dramatized, concepts in the world of criminal justice. It is no question whether a piece of key

evidence may convict or exonerate the accused during a criminal trial. We have all seen the gritty

crime dramas where the detectives know who did it with every fiber of their being, but can’t

prove it without kicking down somebody’s door to get a murder weapon or blood-soaked item.

They then get lectured by the Assistant District Attorney on things like the “exclusionary rule,”

the Fourth Amendment, and the “fruit of the poisonous tree” doctrine. But what do these terms

mean? How do they relate to the ways law enforcement is allowed to search for and seize

evidence to prove one’s guilt or innocence?

The purpose of a search is to find critical evidence in an investigative case. This evidence,

when found, must then be preserved by seizing it in order to submit it to trial. Without evidence

prosecutors are not able to do their job and see that offenders are prosecuted and brought to

justice. Likewise, with falsely obtained evidence, prosecution may also be unable to perform

their legal duties. In order for law enforcement to gain evidence to aid in prosecution they must

usually first obtain a search warrant. This gives them legal permission to enter into a premise,

vehicle, dwelling, or other such area to retrieve evidence they believe to be inside. It is easy for

one to question the sometimes exasperating practices of the criminal justice system: If evidence

may be somewhere, why can’t the police look for it in order to bring someone to justice? If the

evidence is true, why would a court deny its admission? The answer to these common questions

lie in the guarantees promised to all citizens by the Fourth Amendment of the United States

Constitution (FindLaw, 2007) :

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

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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.

The Fourth Amendment, as above, contains two very distinct personal protections, the

first being from unreasonable searches and seizures by the government. The other protection is

that reasonable searches may only be conducted by way of a search warrant based on probable

cause, supported by the word of a law enforcement officer, and must be limited to a specific area

of search. The three tenets of procuring a search warrant are based on this dual protection:

Reasonableness, probable cause, and particularity (Siegel & Senna, 2006).

Reasonableness refers primarily to the authority of law enforcement. Officers must heed

to the scope of their duties and base their request for the warrant on such. Probable cause is a set

of “facts, information, circumstances, or conditions that would lead a person to believe that an

offense was committed” (Siegel & Senna, 2006) and that evidence is likely to be found during a

search. Probable cause, while impossible to solidly define, may be one or more of the following:

Eyewitness testimony, undercover officers’ reports, confidential informants, confessions, and

anonymous tips. (It is important to note that while confidential informants may be used to obtain

warrants their information must be corroborated through traditional means. This was decided in

Aguilar v. Texas, 378 U.S. 108 (1964.). The presiding judge must believe that the officers

requesting the warrant have obtained this information legally and are acting in good faith.

Particularity limits the area to be searched: Take for example a vehicle seen involved in dumping

a dead body. Officers have found the vehicle and the registered owner refuses to consent to a

search of it. A judge issues a warrant to search the vehicle for any forensic evidence relating to

the transport of the dead body. This warrant may only permit officers to search the vehicle, not
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the home, office, or any other property owned by the suspect. Particularity is highly dependant

upon both probable cause and reasonableness.

While the search warrant is a popular way of searching for evidence, it is important to note

different situations where a warrant is not required. For example, officers wish to search the

premise of a subject believed to be involved in the distribution of pirated software. The subject

maintains his innocence and allows law enforcement agents to fully search his residence, obtain

his computer equipment for the purposes of searching for such software, and does so without

coercion. This is aptly referred to as a consent search and any evidence found is admissible in

court (Amos v. United States 255 U.S. 313, 1921). Also, crime scenes are areas which it is

generally not required to obtain a warrant before searching. Take for example a shooting which

occurred inside a home. Investigators are permitted to search the residence’s rooms during the

processing of evidence despite the act having taken place in the kitchen. If the home has an

occupied so-called “Mother-in-law apartment” in the basement they would have to obtain a

search warrant given the fact that it is treated as a separate residence. During the course of

everyday duties, law enforcement officers may come upon crimes in progress which also do not

require a search warrant: A vehicle is pulled over for a routine traffic violation and while at the

window speaking with the driver the officer notices a small baggie of what appears to be cocaine

sitting in the cup holder. The officer now has the legal right to detain the driver and search the

vehicle. This practice is commonly referred to as a “Terry Stop” and is based on the reasonable

suspicion (a baggie of what he suspects is cocaine) an officer has that a crime (possession of

cocaine) has occurred (Terry v. Ohio 392 U.S. 1, 1968). Not only may the driver be charged with

possession of cocaine, but also any other crime should additional evidence be found in his

vehicle pertaining to such crimes. This example also calls upon the plain view doctrine, which

holds that if an officer observes in plain view what he believes to be evidence in a crime that he
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may seize that evidence. The plain view doctrine has also recently been expanded to include the

sub doctrines of plain feel, plain smell, and plain hearing (Washington v. Chrisman 455 U.S. 1,


If law enforcement obtains any evidence unlawfully, generally by not adhering to any of

the principles and practices established above, that evidence would be subject to the exclusionary

rule. This rule is designed to help protect the Fourth Amendment rights held, but not without a

price: Once the exclusionary rule is in effect, that evidence is barred from being entered into a

criminal trial. In Mapp v. Ohio 367 U.S. 643 (1961), at its subsequent U.S. Supreme Court

appeal, it was found that evidence collected in an unlawful manner cannot be used to convict an

offender. If it were to be allowed, the Fourth Amendment would be found to be violated. Under

this same principle is the “fruit of the poisonous tree” doctrine. This doctrine holds that any

evidence (“fruit”) retrieved from unlawfully obtained information (“poisonous tree”) is likely to

be inadmissible in trial due to its manner of procurement, such as in Silverthorne Lumber Co. v.

United States 251 U.S. 385 (1920). As an example, detectives conduct an unlawful search of a

vehicle finding the key to a locker at a train station. Using the key, they open the locker and find

evidence which shows the offender’s absolute guilt. This evidence is likely to be inadmissible

due to its gain through an unlawful search and seizure if they are unable to find supporting

evidence through legitimate means.

In the example case of Illinois v. Ellis, Mr. Ellis’ attorney has filed a motion to exclude

certain physical evidences. Based on the search and seizure concept and laws surrounding it

there are arguments that could be made. Initially, evidence collected from Ellis’ habitat may be

argued as being collected unlawfully due to it being his private living area. The biggest issue that

I personally see is the exact layout of the home and Mr. Ellis’ living area in relation to Mrs.

Ellis’, where the body was actually found. If Mr. Ellis lives in a basement apartment (those
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which have separate, locked entrances) and police entered during the course of their crime scene

investigation, this would be considered unlawful. Even though Mr. Ellis does not pay his mother

rent, his residence is established in a private area not generally accessible to those who enter the

home. If, while attempting to question Mr. Ellis, police found the door open and in plain view

could see evidence relating to the crime, this is covered by the plain view doctrine and would be

admissible in court.

If his primary living area is a bedroom inside the townhouse then it can be argued that due

to the fact that it has a door it is considered private. However, the townhouse has become an

active crime scene, and crime scene technicians may process it at will in order to find additional

evidence relating to this crime (Osterburg & Ward, 2004), including using any and all technology

at their disposal to search for visible or invisible evidence (such as the use of a portable argon

laser to search for evidence left behind by the absorptive properties of blood). Due to his living

in the main portion of this townhouse his bedroom is also subject to an initial visual assessment

by E.M.S. and law enforcement in order to verify if any other persons in the home are injured

(Crawford, 1999). Any evidence seen in plain view is admissible in court. It is important to note

that the scenario given makes clear that Mrs. Ellis was taken to the hospital after E.M.S. staff

arrived, and was likely not present to give formal consent to a search of the premises—this is

also erroneous due to the residence being a crime scene.

If any of the evidence found by investigators is found unlawful, that evidence is likely to

be deemed inadmissible and subject to the exclusionary rule. If the judge finds that the

fingerprint was retrieved unlawfully by investigators then the DNA evidence attached to it (Mr.

Stevens’ blood) will likely also be inadmissible following the fruit of the poisonous tree doctrine.

Besides this DNA evidence left behind by Mr. Ellis’ fingerprint, there is not much else to tie Mr.

Ellis to this crime unless the murder weapon has on it Mr. Ellis’ fingerprints. Any testimony
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given by Mrs. Stevens as to Mr. Ellis’ intrusions into their home and attempting to “get into her

bed” are purely speculative unless corroborated by other testimony or evidence, and should not

be solely relied upon for conviction. Even then it is a large jump between breaking and entering

to murder, although could help prove a motive.

If I were an investigator in this scenario I would pay great attention to the Fourth

Amendment—all investigators should. In order to successfully find evidence which can aid in

the prosecution of a suspect I would make sure that all searches for items, and seizures of

evidence, would follow the rules set forth by the courts and not do anything which may possibly

allow a perpetrator to go free. Many rulings in Fourth Amendment trials are seen as customary: A

criminal is allowed to go free because of what others may perceive to be a small technical error

on law enforcement’s part. While I hold the constitution to be a vital concept in the United

States, a document which represents our very freedom, I also do not see law enforcement as

successful should these small mistakes occur resulting in the release of offenders back into the

world to offend.
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Crawford, K. (1999). Crime scene searches: The need for Fourth Amendment compliance

_____[Electronic version]. FBI Law Enforcement Bulletin, The.

Osterburg, J., & Ward, R. (2004). Criminal investigation: A method for reconstructing the past.

_____(4th ed.). Anderson Publishing.

Siegel, L, & Senna, J (2006). Introduction to criminal justice. Mason, OH: Thomson


U.S. Constitution: Fourth Amendment (2007). Retrieved July 5, 2007, from web site


Winfree, L.T., & Abadinsky, H (2003). Understanding crime: Theory and practice. Belmont,

_____CA: Thomson Wadsworth.