Gale Encyclopedia Of American Law 3Rd Edition Volume 9 P6 pdf

Both the houseguest and the motorvehicle passenger must assert a property or possessory interest in the home or motor vehicle before a court will recognize any Fourth Amendment privacy i

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created creditor’s bill has supplanted the writ.

This bill creates an equitable remedy for a person who cannot enforce a judgment in a court of law

A court provides an equitable remedy based not

on legal authority but on principles of fairness

States that maintain the scire facias writ require it to be filed within a certain time after expiration of the judgment In Texas, for example, the Civil Practice and Remedies Code specifies that a scire facias writ may be brought

no later than two years after the date that the judgment became dormant (Tex Civ Prac &

Rem Code Ann § 31.002[West 1995])

The term scire facias also is used in the law

to describe a particular form of judicial foreclosure of a mortgage After a mortgagor

of property defaults on payment obligations, the mortgagee may obtain a writ of scire facias, which is an order commanding the respondent

to appear and explain why the mortgaged property should not be sold to satisfy the mortgage debt

FURTHER READINGS Edward M Reisner Practising Law Institute (PLI) 1995.

Using Litigation Support Programs and Graphic Evidence Media in Patent Cases, by Patents, Copyrights, Trade-marks, and Literary Property Course Handbook series, PLI order no G4-39.

Wiedemer, James 2008 The Homeowner’s Guide to Foreclo-sure 2d ed New York: Kaplan Publishing.

SCOPE OF EMPLOYMENT Activities of an employee that are in furtherance of duties that are owed to an employer and where the employer is, or could be, exercising some control, directly or indirectly, over the activities of the employee

Under the doctrine ofRESPONDEAT SUPERIOR, a employer is vicariously liable for theTORTS, civil wrongs, of an agent committed within the ambit of the agent’s occupation

The scope of employment includes all acts reasonably necessary or incident to the perfor-mance of work, including matters of personal convenience and comfort that do not conflict with specific instructions

SCOPES MONKEY TRIAL The criminal prosecution of John T Scopes was

an attack by citizens of Dayton, Tennessee, on a Tennessee statute that banned the teaching of evolution in public schools The Butler Act,

passed in early 1925 by the Tennessee General Assembly, punished public school teachers who taught “that man has descended from a lower order of animals” or any theory “that denies the story of the Divine Creation of man as taught in the Bible.”

Some citizens of Dayton decided to chal-lenge a crimonal statute On the last day of school in May 1925, they congregated in Robinson’s Drug Store and devised a plan to use a willing teacher to challenge its constitu-tionality According to the plan, a teacher would admit to teaching evolution and volunteer to face criminal charges under the statute One person in the assemblage suggested John T Scopes, a popular substitute teacher who had taught science and coached athletics at the high school for the past year

Scopes agreed, and within days he was accused of criminal teachings He was arrested, indicted, and released pending trial in the town

of Dayton He faced no jail time If convicted of the offense, Scopes would have had to pay a fine

of at least $100, but no more than $500 News of the case touched off a national debate on creationism, evolution, and public school teaching Vendors, preachers, journalists, and gawkers descended on the town of Dayton during the months of June and July The case also attracted legal celebrities General A T Stewart was joined by a host of special counsel for the prosecution, includingWILLIAM JENNINGS BRYAN Bryan, age 65, was a skilled speaker, veteran lawyer, and former presidential candi-date A Dayton newspaper asked the eminent litigator CLARENCE SEWARD DARROW, age 68, to defend Scopes Darrow, an ardent opponent of religious fundamentalism, agreed to defend Scopes free of charge He was assisted by Dudley Field Malone and Arthur Garfield Hays

of theAMERICAN CIVIL LIBERTIES UNION The trial began on July 10 in the midst of a blistering heat wave, but the intense heat did not deter spectators The courtroom was so crowded that the last part of the trial was held outside in the courthouse yard to accommodate the large audience

Much of the trial was consumed by argu-ments on evidence and orations delivered by Bryan, Darrow, or Hays Some of these orations were directed not toward the judge and jury but toward the gallery, which responded with jeers,

38 SCOPE OF EMPLOYMENT

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cheers, and catcalls Because Scopes did not

deny that he had taught evolution, his lawyers

sought to sway the jury into nullifying the

statute by acquitting him in spite of the

evidence Darrow, Malone, and Hays attempted

to win over the jury by attacking creationism

and confirming the theory of evolution

The most significant evidence offered by the

defense did not make it into the record Darrow

placed Bryan on the WITNESS STAND and

ques-tioned him on the merits of evolution and

creationism The most memorable moments of

the trial consisted of the debate between the two

men However, the examination of Bryan had

little impact on the jury’s decision because the

jury was not present to hear it After Bryan

stepped down from the witness stand, the

defense rested The Tennessee jury found

Scopes guilty

Judge Raulston instructed the jury that it

could leave the punishment to the court The

jury did not set the fine, so Raulston set it at

$100 Scopes appealed the verdict to the

Tennessee Supreme Court, arguing that the

statute was unconstitutional because it violated

the separation of church and state under the

FIRST AMENDMENT to the U.S Constitution

Unfortunately, his local counsel, John R Neal,

failed to file a bill of exceptions within 30 days

after the trial Without such a bill, Scopes’s

arguments on appeal were limited to the actual

trial transcript

The Tennessee Supreme Court did not

decide whether the statute was constitutional

It held merely that the fine was invalid under

the state constitution (Scopes v State, 154 Tenn

105, 289 S.W 363 [1927]) Under article VI,

section 6, of the Tennessee Constitution, a judge

could not fine anyone more than $50 In the

opinion, written by Chief Justice Grafton Green,

the court urged the state to dismiss the case

against Scopes, noting that Scopes was no

longer in the employ of the state and declaring,

“We see nothing to be gained by prolonging the

life of this bizarre case.”

Bryan died shortly after the trial Darrow

litigated several more high-profile cases, and

Scopes returned to his teaching career Scopes

never had to pay the fine When asked later in

life whether he had any regrets about the case,

Scopes said, “ my decision would be the

same as it was in 1925 I would go home and

think about it I would sleep on it And the next day I would do it again.”

Scopes received a measure of vindication shortly before his death in 1970 In 1968 the U.S Supreme Court declared unconstitutional statutes that forbid the teaching of evolution (Epperson v Arkansas, 393 U.S 97, 89 S Ct

266, 21 L Ed 2d 228) Since the Epperson case, advocates of creationism have been hard pressed to find public schools willing to teach scientific creationism In a gradual reversal of fortune, scientific creationists have been unable

to obtain equal time for the teaching of creationism in public schools In 1987 a splintered U.S Supreme Court ruled that a Louisiana statute that mandated equal time for the teaching of creationism violated the First Amendment because it served no identified secular purpose and had the primary purpose of promoting a particular religious belief (Edwards

v Aguillard, 482 U.S 578, 107 S Ct 2573, 96 L

Ed 2d 510)

Epperson and Aguillard did not directly resolve whether school officials could constitu-tionally prohibit the teaching of creationism in public schools, or whether school officials could affirmatively require public school teachers to teach evolution At least three post-Aguillard federal appellate cases have directly involved these issues The U.S Court of Appeals for the Seventh Circuit held that school officials may require a teacher to teach evolution without violating the teacher’s Free Speech rights under

In May 1925, John T Scopes challenged the Butler Act, a Tennessee state law that prohibited public school teachers from teaching evolution.

AP IMAGES SCOPES MONKEY TRIAL 39

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the First Amendment Webster v New Lenox School Dist No 122, 917 F.2d 1004 (7th Cir

1990) Similarly, the U.S Court of Appeals for the Ninth Circuit held that the required teaching of evolution, either as fact or as theory, did not contravene the Establishment Clause

Peloza v Capistrano Unified School Dist., 37 F.3d

517 (9th Cir 1994) The U.S Court of Appeals for the Fifth Circuit held that a school authorized disclaimer qualifying the teaching

of evolution as“theory” violated the Establish-ment Clause because the disclaimer was adopted as a substitute for“a failed attempt to introduce creationism into the school curricu-lum as a legitimate scientific alternative to evolution.” Freiler v Tangipahoa Parish Bd of Educ., 185 F.3d 337 (5th Cir 1999)

In 2005 a Pennsylvania district court became the first federal court to address the constitutionality of teaching Intelligent Design

in public schools Intelligent Design is the belief that the universe and laws of nature show convincing proof of a divine creator, though Intelligent Design does not reveal the identity of the creator or rely on the Bible as its foundation

The court held that the teaching of Intelligent Design really amounts to teaching creationism

by disguise and struck down the school district’s program Kitzmiller v Dover Area School Dist.,

400 F Supp 2d 707 (M.D Pa 2005) The court found that a required disclaimer explain-ing the holes in the theory of evolution and offering Intelligent Design as a viable alternative was unconstitutional Like the disclaimer in Freilier, the disclaimer in this case was uncon-stitutional because a reasonable student would view the presentation of the disclaimer as a strong endorsement of religion, the court found

FURTHER READINGS Baker, Debra 1999 “Trials of the Century.” ABA Journal 85 (January).

Larson, Edward J 1997 Summer for the Gods: The Scopes Trial and America’s Continuing Debate over Science and Religion New York: BasicBooks.

Moran, Jeffrey P 2002 The Scopes Trial: A Brief History with Documents New York: Palgrave.

Paine, Donald F 1996 “State of Tennessee v John Scopes Revisited ” Tennessee Bar Journal 32 (May–June).

Scopes, John Thomas 1997 The World’s Most Famous Court Trial: Tennessee Evolution Case: A Complete Stenographic Report of the Famous Court Test of the Tennessee Anti-Evolution Act, at Dayton, July 10 to 21, 1925, Including Speeches and Arguments of Attorneys Union, N.J.: The Lawbook Exchange.

Uelmen, Gerald F 1996 “The Trial as a Circus: Inherit the Wind ” University of San Francisco Law Review 30 (summer).

CROSS REFERENCES Bryan, William Jennings; Darrow, Clarence Seward; Reli-gion; Schools and School Districts.

SCORCHED-EARTH PLAN

A slang expression for a defensive tactic used by an unwilling corporate takeover target to make itself less attractive to a buyer

Scorched-earth tactics include selling off assets or entering into long-term contractual commitments A difficulty with such maneuvers

is that they tend to be irreversible and may permanently harm the company As a result, they tend to be used as a last resort in a takeover struggle The name comes from the military strategy of destroying everything that might be useful to an enemy in a city or town that a fighting force is passing through or retreating from It is generally considered a war crime

CROSS REFERENCES Mergers and Acquisitions; Risk Arbitrage.

SCOTTSBORO CASES SeePOWELL V.ALABAMA

SEA SeeLAW OF THE SEA

SEABED ARMS CONTROL TREATY

OF 1971 The Seabed Arms Control Treaty of 1971 was an agreement for the denuclearization of the seabed, the ocean floor, and the subsoil of the seabed It may be regarded as a NUCLEAR NONPROLIFERATION TREATY since it limits or prevents the spread of nuclear devices to the seabed areas The full name of the treaty, which didn’t enter into force until May 18, 1972, is Treaty on the Prohibition of the Emplacement

ofNUCLEAR WEAPONSand OtherWEAPONS OF MASS DESTRUCTIONon the Seabed and the Ocean Floor and in the Subsoil Thereof, Feb 11, 1971, 23(1) U.S.T 701; 955 U.N.T.S 115

CROSS REFERENCE Arms Control and Disarmament.

40 SCORCHED-EARTH PLAN

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To close records by any type of fastening that

must be broken before access can be obtained

An impression upon wax, wafer, or some other

substance capable of being impressed

The use of seals began at a time when writing

was not common, but when every person of

means possessed a coat-of-arms or other

distinc-tive device Great significance was attached to the

use of seals as a means of distinguishing persons

With the spread of education, the signature on

an instrument became more important than the

seal, and seals lost their former dignity and

importance

Modern judicial decisions minimize or

eliminate the distinctions between sealed and

unsealed instruments, and most statutes have

abolished the use of seals Other statutes

abolishing the use of private seals do not make

sealed instruments unlawful, but merely render

the seals ineffective In jurisdictions that still

recognize the use of seals, the seal can assume

the form of a wax impression, an impression

made on paper, or a gummed sticker attached

to the document The letters L.S., an

abbrevia-tion for the Latin phrase locus sigilli, meaning

“the place of the seal,” can also be used in place

of a material seal, as can the word seal or a

statement to the effect that the document is to

take effect as a sealed instrument

Seals are currently used for authenticating

documents, such as birth and marriage records

and deeds to real property They are also used to

authenticate signatures witnessed by a NOTARY

PUBLICand in formalizing corporate documents

In regard to contracts, at COMMON LAW a

promise under seal was enforceable without the

necessity of legal consideration—something of

value—either because the seal was a substitute

for consideration or because the existence of

consideration was conclusively presumed

Al-though most states have abolished seals, some

states have provided by statute that a seal raises

a presumption of consideration Article 2 of the

UNIFORM COMMERCIAL CODE (UCC)—a body of

law adopted by the states to govern commercial

transactions—has eliminated the seal as

consid-eration in commercial sales to which the

act is applicable At one time, the statute of

limitations—the prescribed period during

which legal proceedings must be instituted—

was longer for an action brought on a contract

under seal than for one not under seal

SEAL OF THE UNITED STATES The official die or signet, which has a raised emblem and is used by federal officials on documents of importance

The United States seal is sometimes offi-cially known as the great seal TheSECRETARY OF STATEhas custody and charge of the official seal and makes out, records, and affixes the seal to all civil commissions for officers of the United States, who are appointed by the president alone, or by the president with the advice and consent of the Senate In order for the seal to be affixed to any commission or other instrument, the president must sign or specially warrant the commission When the seal is affixed to an appointment, such appointment is made and the commission is valid

Each state also has an official seal, which is carefully described by law and serves functions

on the state level of government that are similar

to those of the seal of the United States on the federal level

SEALED VERDICT

A decision reached by the jury when the court is not in session, which is placed in a closed envelope

by the jurors, who then separate

The Great Seal of King Edward III of England Often used

as a signature or imprimatur, seals once had a practical importance In the early 2000s, many government offices have seals, though they are mainly decorative in function.

BRITISH MUSEUM COLLECTION.

SEALED VERDICT 41

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A sealed verdict is opened and read when the court reconvenes, and it has the same effect as if it had been returned in open court before the jury separated However, the court holds that a sealed verdict is merely an agreement reached by the jurors and does not become final until it is read into the record and the jurors are discharged

SEARCH AND SEIZURE

A hunt by law enforcement officials for property or communications believed to be evidence of crime, and the act of taking possession of this property

In international law, the right of ships of war,

as regulated by treaties, to examine a merchant vessel during war in order to determine whether the ship or its cargo is liable to seizure

Overview

Search and seizure is a necessary exercise in the ongoing pursuit of criminals Searches and seizures are used to produce evidence for the prosecution of alleged criminals The police have the power to search and seize, but individuals are protected against arbitrary, unreasonable police intrusions Freedom from unrestricted search warrants was critical to American colonists

Under England’s rule, many searches were unlimited in scope and were conducted without justification Customs officials could enter the homes of colonists at will, to search for violations

of customs and trade laws, and suspicionless searches were carried out against outspoken political activists Searches in the colonies came

to represent governmental oppression

To guard against arbitrary police intrusions, the newly formed United States in 1791 ratified the U.S Constitution’s FOURTH AMENDMENT, which states:

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

State Action

Law enforcement officers are entrusted with the power to conduct investigations, make arrests, perform searches and seizures of persons and their belongings, and occasionally use lethal force in the line of duty But this power must be exercised within the boundaries of the law, and

when police officers exceed those boundaries, they jeopardize the admissibility of any evidence collected for prosecution By and large, the Fourth Amendment and theCASE LAW interpret-ing it establish these boundaries

The safeguards enumerated by the Fourth Amendment only apply against STATE ACTION, namely action taken by a governmental official

or at the direction of a governmental official Thus, actions taken by state or federal law enforcement officials or private persons work-ing with law enforcement officials will be subject to the strictures of the Fourth Amend-ment Bugging, WIRETAPPING, and other related snooping activity performed by purely private citizens, such as private investigators, do not receive Fourth Amendment scrutiny

Reasonable Expectation of Privacy

Individuals receive no Fourth Amendment protection unless they can demonstrate that they have a reasonable expectation of privacy in the place that was searched or the property that was seized The U.S SUPREME COURT explained that what“a person knowingly exposes to the public, even in his own home or office, is not a subject

of Fourth Amendment protection But what

he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected” (Katz v United States, 389 U.S 347, 88

S Ct 507, 19 L Ed 2d 576 [1976]) In general, the Court has said that individuals enjoy a reasonable expectation of privacy in their own bodies, PERSONAL PROPERTY, homes, and business offices Individuals also enjoy a qualified expecta-tion of privacy in their automobiles

Individuals ordinarily possess no reasonable expectation of privacy in things such as bank records, vehicle location and vehicle paint, garbage left at roadside for collection, hand-writing, the smell of luggage, land visible from a public place, and other places and things visible

in plain or open view Houseguests typically do not possess a reasonable expectation of privacy

in the homes they are visiting, especially when they do not stay overnight and their sole purpose for being inside the house is to participate in criminal activity such as a drug transaction (Minnesota v Carter, 525 U.S 83, 119 S Ct

469, 142 L Ed 2d 373 [1998]) Similarly, a

DEFENDANTshowing only that he was a passenger

in a searched car has not shown an expectation of privacy in the car or its contents (Rakas v Illinois,

439 U.S 128, 99 S Ct 421, 58 L Ed 2d 387

42 SEARCH AND SEIZURE

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[1978]) Both the houseguest and the motor

vehicle passenger must assert a property or

possessory interest in the home or motor vehicle

before a court will recognize any Fourth

Amendment privacy interests that would prevent

a police officer from searching those places

without first obtaining a warrant

Probable Cause and Reasonable

Suspicion

Once it has been established that an individual

possesses a reasonable expectation of privacy in a

place to be searched or a thing to be seized, the

Fourth Amendment’s protections take hold, and

the question then becomes what is the nature of

those protections Police officers need no

justification to stop someone on a public street

and ask questions, and individuals are completely

entitled to refuse to answer any such questions

and go about their business However, a police

officer may only search people and places when

the officer has probable cause or reasonable

suspicion to suspect criminal activity

“Probable cause” means that the officer must

possess sufficiently trustworthy facts to believe

that a crime has been committed In some cases,

an officer may need only a reasonable suspicion

of criminal activity to conduct a limited search

Reasonable suspicion means that the officer has

sufficient knowledge to believe that criminal

activity is at hand This level of knowledge is less

than that of probable cause, so reasonable

suspicion is usually used to justify a brief frisk

in a public area or a traffic stop at roadside To

possess either probable cause or reasonable

suspicion, an officer must be able to cite specific

articulable facts to warrant the intrusion Items

related to suspected criminal activity found in a

search may be taken, or“seized,” by the officer

Arrest and Miranda

Under the Fourth Amendment, a seizure refers

to the collection of evidence by law enforcement

officials and to the arrest of persons An arrest

occurs when a police officer takes a person

against his or her will for questioning or criminal

prosecution The general rule is that to make an

arrest, the police must obtain anARREST WARRANT

However, if an officer has probable cause to

believe that a crime has been committed, and

there is no time to obtain a warrant, the officer

may make a warrantless arrest Also, an officer

may make a warrantless arrest of persons who

commit a crime in the officer’s presence An

invalid arrest is not generally a defense to prosecution However, if an arrest is unsup-ported by probable cause, evidence obtained pursuant to the invalid arrest may be excluded from trial

When an arrest is made, the arresting officer must read the Miranda warnings to the arrestee

The Miranda warnings apprise an arrestee of the right to obtain counsel and the right to remain silent If these warnings are not read to an arrestee as soon as he or she is taken into custody, any statements the arrestee makes after the arrest may be excluded from trial

Legal commentators have criticized Miranda and its subsequent line of decisions, stating that criminal suspects seldom truly understand the meaning or importance of the rights recited to them Studies have indicated that the Miranda decision has had little effect on the numbers of confessions and requests for lawyers made by suspects in custody Moreover, critics of Miranda cite concerns that the police may fabricate waivers, since a suspect’s waiver of Miranda rights need not be recorded or made to a neutral party Defenders of Miranda argue that it protects criminal suspects and reduces needlessLITIGATION

by providing the police with concrete guidelines for permissible interrogation

In 1999, the U.S Court of Appeals for the Fourth Circuit fueled long-standing speculation that Miranda would be overruled when it held that the admissibility of confessions in federal court is governed not by Miranda, but by a federal statute enacted two years after Miranda

The statute, 18 U.S.C.A § 3501, provides that a confession is admissible if voluntarily given

Congress enacted the statute to overturn Miranda, the Fourth Circuit said, and Congress had the authority to do so pursuant to its authority

to OVERRULE judicially created rules of evidence that are not mandated by the Constitution

U.S v Dickerson, 166 F.3d 667 (4th Cir 1999)

The U.S Supreme Court reversed In an opinion authored by Chief Justice WILLIAM REHNQUIST, the Court said that, whether it agreed with Miranda or not, the principles of STARE DECISIS weighed heavily against overruling it

While the Supreme Court has overruled its precedents when subsequent cases have under-mined their doctrinal underpinnings, that has not happened to the Miranda decision, which the Court said “has become embedded in routine police practice to the point where the

SEARCH AND SEIZURE 43

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warnings have become part of our national culture.” Although the Court acknowledged that a few guilty defendants may sometimes go free as the result of the application of the Miranda rule, “experience suggests that the totality-of-the-circumstances test [that] § 3501 seeks to revive is more difficult than Miranda for law enforcement officers to conform to and for courts to apply in a consistent manner”

(Dickerson v United States, 530 U.S 428, 120 S

Ct 2326, 147 L Ed 2d 405 [2000])

The Search Warrant Requirement

A SEARCH WARRANT is a judicially approved document that authorizes law enforcement officials to search a particular place To obtain

a search warrant, a police officer must provide

an account of information supporting probable cause to believe that evidence of a crime will

be found in a particular place or places The officer must also make a list of the particular places to be searched and the items sought

Finally, the officer must swear to the truthful-ness of the information The officer presents the information in an AFFIDAVIT to a magistrate

or judge, who determines whether to approve the warrant

An officer may search only the places where items identified in the search warrant may be found For example, if the only item sought is a snowmobile, the officer may not rummage through desk drawers Only the items listed in the warrant may be seized, unless other evidence of illegal activity is in plain view

Judges or magistrates may approve a variety of types of searches The removal of blood from a person’s body, a search of body cavities, and even surgery may be approved for the gathering

of evidence.ELECTRONIC SURVEILLANCEand phone records may also be used to gather evidence upon the issuance of a warrant

A warrant is not required for a search incident to a lawful arrest, the seizure of items

in plain view, a border search, a search effected

in open fields, a vehicle search (except for the trunk), an inventory search of an impounded vehicle, and any search necessitated by exigent circumstances It is also not required for a stop-and-frisk, a limited search for weapons based on

a reasonable suspicion that the subject has committed or is committing a crime A police officer may also conduct a warrantless search if the subject consents

Exceptions to Warrant Requirement

Administrative agencies may conduct warrant-less searches of highly regulated industries, such

as strip mining and food service Federal and state statutes authorize warrantless, random drug testing of persons in sensitive positions, such as air traffic controllers, drug interdiction officers, railroad employees, and customs offi-cials In each of these types of searches, the Supreme Court has ruled that the need for public safety outweighs the countervailing privacy interests that would normally require a search warrant However, a few lower federal courts have ruled that warrantless searches of public housing projects are unconstitutional, notwith-standing the fact that residents of the public housings projects signed petitions supporting warrantless searches to rid their communities of drugs and weapons

Nor may states pass a law requiring candidates for state political office to certify that they have taken a drug test and that the test result was negative, without violating the Fourth Amendment’s warrant requirement In Chandler v Miller, 520 U.S 305, 117 S.Ct 1295,

137 L.Ed.2d 513 (U.S 1997), the state of Georgia failed to show a special need that was important enough to justify such drug testing and override the candidate’s countervailing privacy interests, the Court said Moreover, the Court found, the certification requirement was not well designed to identify candidates who violate anti-drug laws and was not a credible means to deter illicit drug users from seeking state office, since the Georgia law allowed the candidates to select the test date, and all but the prohibitively addicted could abstain from using drugs for a pretest period sufficient to avoid detection

The Supreme Court has given law enforce-ment mixed signals over the constitutionality

of warrantless motor vehicle checkpoints The Court approved warrantless, suspicionless searches at roadside sobriety checkpoints These searches must be carried out in some neutral, articulable way, such as by stopping every fifth car However, a highway checkpoint program whose primary purpose is the discovery and interdiction of illegal narcotics violates the Fourth Amendment In distinguishing between sobriety and drug interdiction checkpoints, the Court said that the sobriety checkpoints under review were designed to ensure roadway safety,

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while the primary purpose of the narcotics

checkpoint under review were to uncover

evidence of ordinary criminal wrongdoing,

and, as such, the program contravened the

Fourth Amendment (City of Indianapolis v

Edmond, 531 U.S 32, 121 S.Ct 447, 148 L

Ed.2d 333 [U.S 2000])

Warrant exceptions have been carved out by

courts because requiring a warrant in certain

situations would unnecessarily hamper law

enforcement For example, it makes little sense

to require an officer to obtain a search warrant

to seizeCONTRABANDthat is in plain view Under

the Fourth Amendment’s reasonableness

re-quirement, the appropriateness of every

war-rantless search is decided on a case-by-case

basis, weighing the defendant’s privacy interests

against the reasonable needs of law enforcement

under the circumstances However, in Arizona

v Gant, U.S. , S.Ct. , L.Ed.2d 2009

WL 1045962 (2009), the Supreme Court put

limits on when police make search a vehicle

without a warrant In New York v Belton, 453

U.S 454, 101 S.Ct 2860, 69 L.Ed.2d 768 (1981),

the Court had authorized police to search a

vehicle without a warrant if the vehicle was

within an arrestee’s reach In another case,

Chimel v Califrornia, 395 U.S 752, 89 S.Ct

2034, 23 L.Ed.2d 685 (1969), the Court held

that a search-incident-to-an-arrest warrant

re-quirement was justified by interests in officer

safety and evidence preservation Over time,

lower court decisions led police to believe that

this type of search was an “entitlement" rather

than an exception justified by the two factors in

Chimel The Court made clear that this practice

must end It held that a vehicle search“incident

to a recent occupant’s arrest only when the

arrestee is unsecured and within reaching

distance of the passenger compartment at the

time of the search." Moreover, even if police

meet these requirements, they must also have a

reasonable belief“evidence relevant to the crime

of arrest might be found in the vehicle

The Exclusionary Rule and the Fruit of

the Poisonous Tree Doctrine

A criminal defendant’s claim of unreasonable

search and seizure is usually heard in a

suppression hearing before the presiding trial

judge This hearing is conducted before trial to

determine what evidence will be suppressed, or

excluded, from trial When a judge deems a

search unreasonable, he or she frequently

applies theEXCLUSIONARY RULE

For the entire nineteenth century, a Fourth Amendment violation had little consequence

Evidence seized by law enforcement from a warrantless or otherwise unreasonable search was admissible at trial if the judge found it reliable This made the Fourth Amendment essentially meaningless to criminal defendants

But in 1914, the U.S Supreme Court devised a way to enforce the Fourth Amendment In Weeks v United States, 232 U.S 383, 34 S Ct

341, 58 L Ed 652 (1914), a federal agent conducted a warrantless search for evidence of gambling at the home of Fremont Weeks The evidence seized in the search was used at trial, and Weeks was convicted On appeal, the Supreme Court held that the Fourth Amend-ment barred the use of evidence secured through a warrantless search and seizure

Weeks’s conviction was reversed, and thus was born the exclusionary rule

The exclusionary rule is a judicially created remedy used to deter police misconduct in obtaining evidence Under the exclusionary rule, a judge may exclude incriminating evi-dence from a criminal trial if there was police misconduct in obtaining the evidence Without the evidence, the PROSECUTORmay lose the case

or drop the charges for lack of proof This rule provides some substantive protection against illegal search and seizure

The exclusionary rule was constitutionally required only in federal court untilMAPP V.OHIO,

367 U.S 643, 81 S Ct 1684, 6 L Ed 2d 1081 (1961) In Mapp, the Court held that the exclusionary rule applied to state criminal proceedings through the Due Process Clause of the FOURTEENTH AMENDMENT Before the Mapp ruling, not all states excluded evidence obtained

in violation of the Fourth Amendment After Mapp, a defendant’s claim of unreasonable search and seizure became commonplace in criminal prosecutions

The application of the exclusionary rule has been significantly limited by a GOOD FAITH

exception created by the Supreme Court in United States v Leon, 468 U.S 897, 104 S Ct

3405, 82 L Ed 2d 677 (1984) Under the good faith exception, evidence obtained in violation

of a person’s Fourth Amendment rights will not

be excluded from trial if the law enforcement officer, though mistaken, acts reasonably For example, if an officer reasonably conducts a search relying on information that is later

SEARCH AND SEIZURE 45

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proved to be false, any evidence seized in the search will not be excluded if the officer acted in good faith, with a reasonable reliance on the information The Supreme Court has carved out this exception to the exclusionary rule because, according to a majority of the court, the rule was designed to deter police misconduct, and excluding evidence when the police did not misbehave would not deter police misconduct

In Herring v United States, U.S. , 129 S

Ct 695, L.Ed.2d (2009), the Court ex-tended this good faith exception to evidence that was seized as a consequence ofNEGLIGENCE

by the police records department

A companion to the exclusionary rule is the

FRUIT OF THE POISONOUS TREEdoctrine, established

by the Supreme Court in Nardone v United States, 308 U.S 338, 60 S Ct 266, 84 L Ed 307 (1939) Under this doctrine, a court may exclude from trial any evidence derived from the results of an illegal search For example, assume that an illegal search has garnered evidence of illegal explosives This evidence is then used to obtain a warrant to search the suspect’s home The exclusionary rule excludes the evidence initially used to obtain the search warrant, and the fruit of the poisonous tree doctrine excludes any evidence obtained in a search of the home

The Knock and Announce Requirement

The Fourth Amendment incorporates the

COMMON LAW requirement that police officers entering a dwelling must knock on the door and announce their identity and purpose before attempting forcible entry At the same time, the Supreme Court has recognized that the“flexible requirement of reasonableness should not be read to mandate a rigid rule of announcement that ignores countervailing law enforcement interests” (Wilson v Arkansas, 514 U.S 927, 115 S.Ct 1914, 131 L.Ed.2d 976 [1995]) Instead, the Court left to the lower courts the task of determining the circumstances under which an unannounced entry is reasonable under the Fourth Amendment

The Wisconsin Supreme Court concluded that police officers are never required to knock and announce their presence when executing a search warrant in a felony drug investigation

But the U.S Supreme Court overturned the state high court’s decision in Richards v

Wisconsin, 520 U.S 385, 117 S.Ct 1416, 137

L.Ed.2d 615 (U.S 1997) In Richards the Court said Fourth Amendment does not permit a blanket exception to the knock-and-announce requirement for the execution of a search warrant in a felony drug investigation The fact that felony drug investigations may frequently present circumstances warranting a no-knock entry, the Court said, cannot remove from the neutral scrutiny of a reviewing court the reasonableness of the police decision not to knock and announce in a particular case Rather, it is the duty of a court to determine whether the facts and circumstances of the particular entry justified dispensing with the knock-and-announce requirement To justify a no-knock entry, the Court stressed that police must have a reasonable suspicion that knocking and announcing their presence, under the particular circumstances, would be dangerous

or futile, or that it would inhibit the effective investigation of the crime by, for example, allowing the destruction of evidence

The Fourth Amendment does not hold police officers to a higher standard when a no-knock entry results in the destruction of property (U.S v Ramirez, 523 U.S 65, 118 S.Ct

992, 140 L.Ed.2d 191 [U.S 1998]) The

“reasonable suspicion” standard is still applica-ble The Supreme Court found that no Fourth Amendment violation occurred when, during the execution of a“no-knock” warrant to enter and search a home, police officers broke a single window in a garage and pointed a gun through the opening A reliable confidential informant had notified the police that an escaped prisoner might be inside the home, and an officer had confirmed that possibility, the Court said The escapee had a violent past and reportedly had access to a large supply of weapons, and the police broke the window to discourage any occupant of the house from rushing toward the weapons However, excessive or unnecessary destruction of property in the course of a search may violate the Fourth Amendment, the court emphasized, even though the entry itself is lawful and the fruits of the search are not subject to exclusion

Search and Seizure at Public Schools

A public school student’s protection against unreasonable search and seizure is less stringent

in school than in the world at large In New Jersey v T.L.O., 469 U.S 325, 105 S.Ct 733, 83 L.Ed.2d 720 (U.S 1985), the U.S Supreme

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Court held that a school principal could search

a student’s purse without probable cause or a

warrant Considering the “legitimate need to

maintain an environment in which learning can

take place,” the Court set a lower level of

reasonableness for searches by school personnel

Under ordinary circumstances, the Court

said, a search of a student by a teacher or other

school official will be“justified at its inception”

when there are reasonable grounds for suspecting

that the search will turn up evidence that the

student has violated or is violating either the law

or the rules of the school Such a search will be

permissible in its scope when the measures

adopted are reasonably related to the objectives

of the search and not excessively intrusive in light

of the age and sex of the student and the nature of

the infraction The “ordinary circumstances”

justifying a warrantless search and seizure of a

public school student, the Court continued, are

limited to searches and seizures that take place

on-campus or off-campus at school-sponsored

events Warrantless searches of public school

students who are found off campus and not

attending a school-sponsored event would still

contravene the Fourth Amendment

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