The purpose of this case study is to research and complete a thorough analysis of the Exclusionary Rule. Your paper will summarize the Exclusionary Rule and analyze the concepts below. Your paper shou

Warrantless searches o f school athletes (including blood or urine) are permitted, in the interest of safety of the students and the voluntary nature of an athletic program. Intrusion Example In most instances, law enforcement and governmental agencies cannot conduct a search of a physical premises, business, organization, or private residence without a warrant. There are exceptions that are generally referred to as exigent circumstances that are either about public safety or the preservation of evidence. There are several cases that modify the rules for a search based on factors such as abandoned property, trash left on the curb, plain view, or a reasonable belief that there is an emergency inside the house. Interestingly, the justification for such searches have some limi tations: in one case, the electric meter reader tipped police to an unusually large consumption of power, suggesting perhaps grow lamps for marijuana.

Police using what was then, a new capability on a helicopter, flew over the house and used the infrared camera to detect one area of the home that had an unusually hot roof temperature. The home had bl acked - out windows with reflective material blocking visibility. Based on these facts, they were able to obtain a warrant, searched the house and found an abunda nce of grow lamps and marijuana plants. The warrant was deemed illegal because there was no valid probable cause because of the use of special tools (the infrared camera) prior to the warrant. It was deemed a search and a violation of the Fourth Amendment . In this case, the Supreme Court ruled that police could use ordinal observations without a warrant, but enhanced observations were a search, therefore protected and required a warrant. In Alaska, the expectation of privacy in one’s home was determined t o be more important than stopping the harm associated with marijuana use. Therefore, if a police officer, who was walking past a home, looked in an open window and saw someone with marijuana, could neither enter the home, nor be granted a warrant if the on ly concern was marijuana. Other special cases for the Fourth Amendment, or rather areas that are probably misunderstood, involve people who are on community supervision (probation and parole). Persons who are on community supervision are under a civil contract in which they have ag reed to comply with a set of conditions. If these conditions are violated, the result can be the revocation of the community situation in lieu of incarceration or another option. As a condition in every situation, the offender waives his/her Fourth Amendme nt rights and grants blanket consent (only valid for the period of the community supervision) for the community supervision officer to conduct a four -point search (home/person/car/work place) at any time without any cause. This is not the case for police officers except in two situations: 1. The police officer is accompanying the parole officer on a legitimate community supervision action, and sees in plain view, evidence of a crime or contraband; 2. In California, and, by a de facto situation created by case law, Illinois police officers are permitted to use the waiver of the Fourth Amendment. In some states, during a traffic stop, the probation or parole status of the driver may also trigger the ability to search without probable cause, a warrant, or spe cific consent. Convicted felons do not surrender their Fourth Amendment right or any other right because of their felony status. Even inmates in prison have a Fourth Amendment right — but the key to understanding this is the word “reasonable.” The court bel ieves it is reasonable to search an inmate’s housing without him/her present and without reason or warrant. However, it would be unreasonable to conduct a search every few hours, or to conduct strip searches without some legitimate connection to security, and cavity searches are presumed to MCJ 6230, Constitutional Law for Criminal Justice 3 be unreasonable without reasonable suspicion. The inmate’s incoming and outgoing mail can be searched for physical contraband as well as read for content and even photocopied. Prison officials may not read or copy corres pondence between the inmate and an official or court officer (that includes his/her judge and lawyer). Bivens Action E xample As an extension of Weeks v. United States and Mapp v. Ohio which makes inadmissible evidence gained through actions that violate the Fourth and/or Fourteen th Amendment, there is also recourse to recover loss sustained during an illegal search. If a federal law enforcement officer unlawfully gains access to your home , and damages assets on your property, you, as a landowner ha ve recourse. You can file a Bivens action against the federal law enforcement officer’s organization for reimbursement of the damaged assets. A Bivens action was derived in 1971 in Webster Bivens v . Six Unknown Named Agents of the Federal Bureau of Narcotics in which the Supreme Court held that a violation of one’s Fourth Amendment rights by federal officers can give rise to a federal cause of action for damages for unlawful searches and seizures. Establishing Probable C ause Probable cause is the amount of evidence necessary to cause a reasonable person to conclude that it is more likely than not that a crime has been (or is about to be) committed. It is equal to the civil concept of preponderance and is defined as being one scintilla more than 50% sure. It is more than reasonable suspicion (25%) and less than clear and convincing (75%). Probable cause can be established a number of different ways — a police officer can develop probable cause during a roadside stop. Assuming there was probable cause for the traffic stop, additional information can be gathered that may rise to the level of probable cause to believe a crime has been committed or that there are other concerned besides the traffic stop. There is no requirement for a warrant so long as “in the totality of the circumstances” a reasonable person would conclude there was a violation of the law. This can be through plain view, it could be as a result of asking questions and the motorist respo nding in an incriminating fashion. It also could be as a result of finding evidence while conducting a sweep of the wingspan permitted without suspicion authorized in Chimel v . California , 395 US 752 (1969). What may start out as reasonable suspicion can a lso become probable cause as a result of ordinary interactions associated with a traffic stop. Probable Cause Example Probable cause can come from a traffic stop. Assuming a legitimate traffic violation as the underlying reason for the stop, police can d emand identification for the person and the vehicle as well as proof of insurance —no Fourth Amendment violation. The o fficer can ask the driver to step out of the car, and also place his/her hands on the driver’s outer clothing to pat search for weapons -no Fourth Amendment violation. The car’s occupants can be split up and asked about the destination and purpose of their trip, they can even be handcuffed —no Fourth Amendment violation. Other occupants of the car can be removed, checked for identification, a nd also frisked; this is called a “Terry Stop.” A Terry Stop is a stop of a person by law enforcement officers based on reasonable suspicion a person may have been engaged in criminal activity –no Fourth Amendment violation. If while the motorist is produc ing documents the officer sees what appears to be an unusual amount of cash, the motorist can be questioned about the source of the money, the intention of the money, and have the money confiscated without reason other than an unsatisfactory response about the source and intent. This is under civil asset forfeiture and actually the money can be held even in the event that no arrest or even no traffic citation is issued. The money can be recovered through civil action that is expensive and time consuming. So far all of this is permissible without probable cause of a crime (beyond the traffic stop). If the male passenger in the front seat of the car has a joint behind his ear, the police officer can search the contents of a female’s purse (and any packages, but not the whole car) in the back seat even if the male says the joint is his, and the female says the purse is hers. Wyoming v . Houghton (1999) . MCJ 6230, Constitutional Law for Criminal Justice 4 Everyone can be run through the computerized database and checked for warrants and probation status.

With or without any reasonable suspicion the police officer can call for a canine unit to search the vehicle without consent, reasonable suspicion or probable cause (so long as the length of time to get the dog does not prolong the traffic stop (specifics there are evolving in courts right now). In the event that there is an inconsistent story about dest ination and purpose, relationship among the occupants of the vehicle, or other concerns in the questions, all of this can be added into the weight of “totality of circumstance.” The smell of alcohol can result in a field sobriety test or even breath test. The smell of marijuana can result in additional questioning and/or searching the wingspan, but probably not pockets of clothes. Finding paraphernalia, seeds, or the remnant of a joint in the ashtray is enough to raise the level to probabl e cause. The Exc lusionary Rule Federal origin : The Exclusionary Rule originated in Weeks v. United States (1914), in the case of Fremont Weeks who was arrested at a train station based on a faulty indictment and without a warrant. Not finding the evidence they were seeki ng, police proceeded to the home of Weeks, and were told by the neighbor where Weeks kept a key to the house. Police entered and took possession of papers and other articles found there.

Later the same day, a marshal returned and gained entry from a boarde r in the house, and searched the defendant’s room. He removed letters, money, papers, stocks, certificates, insurance policies, deeds bonds, candy, clothes, and other content. Neither the police nor the marshal had a search warrant. Weeks appealed eventua lly to the United States Supreme Court primarily on the grounds of Fourth and Fifth Amendment violations. In a unanimous decision, the court reversed the conviction, but went a step further by creating what is now known as the Exclusionary Rule. Judicial activism : The ruling here stated that illegally seized evidence must be barred from use in a criminal prosecution in the federal system. This was somewhat controversial then, and remains so today. W hen the court went past reversing the conviction and creat ed the Exclusionary Rule it became lawmakers, and exercised what is called judicial activism. There is nothing in the Fourth or Fifth Amendments that prohibits items found in an unreasonable search and/or seizure from being admitted in a federal trial. Th ose opposing judicial activism criticize the judicial branch engaging in legislation. The supporters of the practice view the Exclusionary Rule as a reasonable procedural safeguard and remedy for situations in which the police have violated the rights of c itizens. At the time , there was some discussion about whether the rule would provide disincentive for police to engage in illegal practices, or whether such extra -constitutional safeguards were even necessary. There was substantial concern that the rule h ad the result of releasing guilty people, and that there should be another remedy that had less dire consequences. Silver Platter : Another interesting artifact of this ruling comes from the fact that it only applies in federal prosecutions. This created the Silver Platter Doctrine, referring to the practice employed at the time of state police officers who engaged in the illegal searc hes and seizures. The police could then turn over the proceeds of the searches and seizures to federal prosecutors for their use in a prosecution because the Exclusionary Rule only applied to federal police misconduct. In Elkins v. United States , 364 U.S . 206 (1960), the court finally ruled that this practice was also a violation of the Fourth Amendment. The reverse remained possible however, when federal officers found that evidence was made inadmissible by the Exclusionary Rule they could still turn it over to the state courts for use in a prosecution. Clearly, Elkins was groundwork for what was to come in Mapp v. Ohio, 367 U.S. 643 (1961) that essentially established that the Exclusionary Rule also applied in state prosecutions, closing the loopholes a nd extending the remedy to all prosecutions. It is important to note that the Exclusionary Rule was a narrowly crafted solution to what the court saw as intentional police misconduct; remove any or either of those concepts and it does not apply. A good fa ith exception was made into law that involved unintentional police misconduct resulting from a clerical mistake on MCJ 6230, Constitutional Law for Criminal Justice 5 a warrant. Intentional misconduct by someone other than the police is not covered by the Exclusionary Rule, but other mechanisms do provide f or relief. Some would argue that there is an Exclusionary Rule component in the Fifth Amendment prohibition against compelled self -incrimination, and that is not technically true, but is completely consistent in logic. The ruling in Miranda v. Arizona takes care of that without needing the Exclusionary Rule. Extension of Weeks : In subsequent cases, the spirit of the judicial activism from Weeks was tested with a case that produced the doctrine of “Fruit of the Poisonous Tree.” This is commonly misunde rstood to mean the evidence from an illegal search, but it is not. In Silverthorne Lumber Co. v. United States , 251 U.S. 385 (1920), and Wong Sun v. United States (1963), the Exclusionary Rule was extended to include all proceeds from an illegal search. This referred specifically to evidence illegally obtained that furthered the investigation. The evidence sought was based on items found as a result of an illegal search. This also includes evidence obtained with a warrant based on information tainted by a violation of the Fourth Amendment. In this respect, the information from an illegal interrogation is also included. Exceptions to the Exclusionary Rule: Just as some case law strengthened the protections of the Fourth and Fifth Amendments, other cases cr eated exceptions. The exceptions are circumstances in which the taint of the evidence can be removed. There are four main categories for these exceptions: 1. Inevitable discovery – if the state can show that it was inevitable, that even without the illegal information, the evidence would likely have been discovere d. 2. Good faith – in cases when the warrant was obtained but the predicate probable cause itself is subsequently found to be invalid, the agents have proceeded with good faith. 3. Attenuation – if there i s “attenuation between the illegal activity and the discovery” of the evidence — the connection between the discovery and the illegal action is too weak. 4. Independent source – if the evidence was also discovered from an independent source. Clarification : The re is sometimes confusion about what is provided by the Exclusionary Rule and Miranda rights. Neither the right to remain silent nor the right to appointed counsel comes from Miranda. Invoking your Miranda rights only gives you the right to be made aware o f these Fourth, Fifth, and Sixth Amendment constitutional rights when certain conditions exist. It is critical to make a distinction between the rights to be free from an unreasonable search and seizure that is exclusively provided by the Fourth Amendmen t, and the judge -made Exclusionary Rule. The Exclusionary Rule is neither a right nor a technicality on which criminals escape justice. It is a procedural safeguard put in place to dissuade police from violating a suspect’s Fourth Amendment rights. By remo ving the benefit to intentional police misconduct, a person may avoid prosecution when critical evidence bec omes inadmissible because of the Exclusionary Rule. Historical Cases Regarding the Fourth Amendment and the Exclusionary Rule  Boyd v. United States (1886)  Weeks v. United States (1914)  Silverthorne Lumber Co. v. United States (1920)  Carroll v. United States (1925)  Elkins v. United States (1960)  Mapp v. Ohio (1961)  Wong Sun v. United States (1963)  United States v. Leon (1984)  New Jersey v. T.L.O. (1985)  Vernonia School District v. Acton (1995 ) Historical Cases in Search and Seizure:  Katz v. United States (1967)  Terry v. Ohio (1968)  Illinois v. Gates (1983) MCJ 6230, Constitutional Law for Criminal Justice 6  Bond v. United States (2000)  Kyllo v. United States (2001)  Safford Unified School D istrict #1 v. Redding (2009)  United States v. Jones (2012)  Florida v. Jardines (2013) Conclusion In this unit , students will have the opportunity to apply the course learning objective to a case study that is supported through the course reading and outs ide scholarly research. Topics include understanding and interpreting the Fourth Amendment , the exclusionary rule, probable cause, law enforcement’s arresting power, and historical cases linked to the Fourth Amendment. At the end of this unit, students wil l have a full understanding of how the Fourth Amendment has changed from 1791 to today. Reference s Cornell University Law School. (n.d.). Riley v. California . Retrieved from https://www.law.cornell.edu/supct/cert/13 -132 U.S. National Archives. (n.d.). U.S. Const. Bill of Rights. Retrieved from http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html