Search and Seizure Essay Example

Search and Seizure Essay Example Search and Seizure Essay Search and Seizure Essay Unit 5: Midterm Project Carolyn Newton Associates Capstone in Criminal Justice CJ299-01 Professor: Jennifer Wills October 3, 2011 The search of the crime scene is the most important phase of any investigation. Decisions of the courts restricting admissibility of testimonial evidence have significantly increased the value of physical evidence in homicide investigations. Therefore, law enforcement personnel involved in the crime scene search must arrange for the proper and effective collection of evidence at the scene. The arguments the lawyer’s will make in the William’s case is: once an item is recognized as evidence it must be properly collected and preserved for laboratory examination. However, in order for physical evidence to be admissible, it must have been legally obtained. The courts have severely restricted the right of the police to search certain homicide crime scenes without a search warrant, (Mincey v. Arizona 437 US 385, 1978). His lawyer’s argument will be that Williams Forth Amendment rights were violated because it states that: â€Å"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 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 therefore, the police should have first secured a search warrant†. Because the evidence collected at the Ellis home was obtained without a warrant, this would be the argument of the defense to have the evidence excluded. The exclusion in this case should only pertain to the evidence collected from the Ellis home. Any and all evidence that was collected from the Stevens home should not be excluded because it was collected with consent of the homeowner. In this case, Mrs. Stevens gave permission for the police to search her home and the fact that Mr. Stevens was now deceased; there would be no need for his consent. Without probable cause or a warrant, the police can search when they have voluntary consent from the individual. The consent must in fact be voluntary and not the result of duress or coercion expresses or implied. State v. Pearson, 234 Kan. 906, 631 P. 2d 605 (1984); Schneckloth v. Bustamonte, 412 U. S. 218, 225-26, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). Consent would be a legal justification for a search because it states that: If the person who is in control of the property consents to the search without being coerced or tricked into doing so, a search without a warrant is valid. Note that police do not have to tell you that you have the right to refuse a search, but you do. Also, note that if you have a roommate, he or she can consent to a search of the common areas of your dwelling (kitchen, living room), but not to your private areas (bedroom, for instance). On the other hand, the Supreme Court recently ruled that one spouse cannot consent to the search of a house on behalf of the other. In 1984 The Supreme Court once again stepped in to address the same issue in Thompson v Louisiana 469 US 17 (1984). In the Thompson case, a woman who was reportedly depressed shot and killed her husband. She then took an overdose of pills in an attempt to commit suicide. She then suddenly experienced a change-of-heart and decided she didnt want to die. She called her daughter, who in turn called the Sheriffs Department, which dispatched an ambulance and deputies to the womans home. The woman was transported to the hospital where she was treated. Investigators were called to the house and gathered evidence of the murder in the crime scene. The woman was subsequently charged and convicted in the murder of her husband. The United States Supreme Court ruled against The State of Louisiana citing the Mincey Decision and the expectation of privacy provided in the Fourth Amendment. The womans conviction was overturned. Once again the courts ruled that there was NO Homicide Exception and that the police were required to obtain a search warrant. The Exclusionary Rule is available to a defendant in a criminal case as a remedy for illegal searches that violate the rights set forth in the Fourth Amendment. When applicable, the rule dictates that the evidence illegally btained must be excluded as evidence under the Fourth Amendment. Mapp v. Ohio, 367 U. S. 643. One important corollary to the Exclusionary Rule is the â€Å"fruit of the poisonous tree† doctrine. (McManus 2003). This rule holds that, in addition to the material uncovered during the illegal search being inadmissible, any evidence that is later gathered as an indirect result of the illegal search will also be excluded. Wong Sun v. United St ates, 371 U. S. 471. Example: 1- Say for instance, the police illegally search an individual’s home and find drugs. The drugs will be excluded as evidence in the case against the individual in accordance with the exclusionary rule. Example : 2 If the police conduct an illegal search of an individual’s home and find a map showing the location of a well-hidden, remotely located outdoor marijuana field. The police go to the field and seize the marijuana. Under the doctrine of fruit of the poisonous tree, the marijuana will be excluded as evidence in the case against the individual as it stemmed directly from an illegal search. There are two important exceptions to the â€Å"fruit of the poisonous tree† doctrine: 1. If the police have an independent source of knowledge of the evidence aside from the fruits of the illegal search, then the doctrine will not exclude the discovered evidence. 2. If the discovery of the evidence was inevitable, the evidence may be admitted, as it was not then the illegal search that caused the evidence to be found. â€Å"Inevitable† is a strong word, and in order to admit evidence under this exception, a court must find that police would have discovered the evidence whether or not they conducted the unreasonable search. Example: 1: 2- If an officer illegally searches an individual’s barn and discovers documents identifying the individual as the culprit behind an internet scam. The next day a confidential informant e-mails the officer the same documents. The documents are admissible as evidence because there was an independent source for the evidence besides the illegal search After arriving at the scene, I would have taken the route least likely to disturb evidence, noting my route of travel. After checking the victim for signs of life, (breathing and neck area for pulse). I would then have noted the time of arrival. Before allowing the removal of the victim (Mr. Williams), I would have photographed his position at the scene and obtained any and all physical evidence from victim. After notifying command, I would then request assistance, and begin by making a video tape recording of the crime scene which would include video tape shots of the evidence being collected, and examining the victim at scene. I would then begin organizing the search by adopting a specific plan, assigning tasks areas of search to individual officers. One officer would be assigned to collect, mark and transport items found. I would then execute the search by carefully following the planned assigned tasks. Next, by marking and photographing the location of objects found such as the knife, latent fingerprints, footprints, tool marks, hair, fragments of cloth, buttons, cigarette butts, bloodstains, etc. All of this would be done while the team is waiting for the search warrant to arrive. References Hendrie, Edward M. // FBI Law Enforcement Bulletin; Sep97, Vol. 66 Issue 9, p26 McManus, Brian C. // Defense Counsel Journal; Apr2003, Vol. 70 Issue 2, p540 (Mincey v. Arizona 437 US 385 (1978). State v. Pearson, 234 Kan. 906, 631 P. 2d 605 (1984); Schneckloth v. Bustamonte, 412. Thompson v Louisiana 469 US 17 (1984). S. 218, 225-26, 93 S. Ct. 2041, 36 L. Ed. 2d, 854 (1973).