About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

27 Ann. Rev. Crim. Proc. 1214 (1998)
Warrantless Searches and Seizures

handle is hein.journals/anrvcpr27 and id is 70 raw text is: THE GEORGETOWN LAW JOURNAL exclude evidence seized in violation of Rule 41.106 Christopher D. Comeau WARRANTLESS SEARCHES AND SEIZURES Under the Fourth Amendment, every search or seizure by a government agent must be reasonable.107 The Supreme Court has generally interpreted this requirement to mean that an arrest or search must be based on probable cause and executed pursuant to a warrant.108 There are, however, many exceptions to the probable cause and warrant requirements, including investigatory detentions, warrantless arrests, searches incident to a valid arrest, seizure of items in plain view, exigent circumstances, consent searches, vehicle searches, container searches, inventory searches, border searches, searches at sea, administrative searches, and searches in which the special needs of law enforcement make the probable cause requirement impracticable. Investigatory Detention of Persons. An investigatory detention, a brief seizure by police based on reasonable suspicion of criminal activity, is a narrowly drawn exception to the probable cause requirement of the Fourth Amendment. 109 In Terry v. Ohio,110 the Supreme Court held that a police officer may stop an individual reasonably suspected of criminal activity, question him briefly, and perform a limited pat-down frisk for weapons.' The Court emphasized the importance of balancing 'the need to search (or seize) against the invasion which the search or seizure entails.' 11112 Under this balancing approach, important government interests can 106. See U.S. v. Burke, 517 F.2d 377, 386-87 (2d Cir. 1975) (evidence not suppressed when warrant form directed to state police rather than federal officer, commanded search take place within reasonable time rather than 10 days, and provided for return to issuing judge rather than federal magistrate; evidence should be excluded only if search might not have occurred had rule been followed, or evidence suggests intentional or deliberate disregard of rule); Frisby v. U.S., 79 F.3d 29, 31-32 (6th Cir. 1996) (evidence not suppressed when agents inadvertently failed to provide plaintiff with copy of attachment to search warrant, which enumerated items to be seized, because agents searched in accordance to warrant, seized only items listed in attachment, and provided plaintiff with complete inventory of items seized after completing search and before leaving premises); U.S. v. Kelly, 14 F.3d 1169, 1173-74 (7th Cir. 1994) (evidence not suppressed when police failed to provide receipt of seized property because no prejudice shown); U.S. v. Berry, 113 F.3d 121, 122-23 (8th Cir. 1997) (dictum) (evidence would not have been suppressed when warrant failed to authorize night execution in violation of Rule 41 because suspect suffered no prejudice as circumstances surrounding procurement of warrant indicated magistrate knew night search was intended and police did not recklessly disregard proper procedure); U.S. v. Johns, 948 F.2d 599, 603-04 (9th Cir. 1991) (evidence not suppressed even though officer violated Rule 41(d) by failing to serve defendants with notice of search; violation found non-fundamental); U.S. v. Hugo- boom, 112 F.3d 1081, 1087 (10th Cir. 1997) (evidence not suppressed when magistrate failed to include expiration date on anticipatory warrant and search occurred minutes after warrant became effective); U.S. v. Loyd, 721 F.2d 331, 333 (lth Cir. 1983) (per curiam) (evidence not suppressed when magistrate's failure to certify transcript after search in accordance with Rule 41(e)(2)(D) merely technical, no evidence of bad faith, and defendant not prejudiced by error); U.S. v. Gerald, 5 F.3d 563, 566-67 (D.C. Cir. 1993) (evidence not suppressed when officers returned warrant five months after search conducted because prejudice not shown). Suppression of evidence is discussed more fully in THE EXCLUSIONARY RULE in this Part. 107. U.S. CONST. amend. IV. 108. See Katz v. U.S., 389 U.S. 347, 357 (1967) (Fourth Amendment imposes presumptive warrant requirement for searches and seizures); Johnson v. U.S., 333 U.S. 10, 14 (1948) (Fourth Amendment requires warrant for search and seizure unless pre-existing exception applies). 109. U.S. v. Sharpe, 470 U.S. 675, 689 (1985) (Marshall, J., concurring). 110. 392 U.S. 1 (1968). 111. Id. at 22-24. 112. Id. at 21 (quoting Camara v. Municipal Court, 387 U.S. 523, 534 (1967)); see also Delaware v. Prouse, 440 U.S. 648, 654 (1979) (the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against the promotion of 1214 [Vol. 86:1187

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most