Tightening the Restraints of Law Enforcement: Searches, Seizures, and Frisks Incident to Arrest

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Tightening the Restraints of Law Enforcement: Searches, Seizures, and Frisks Incident to Arrest


Searches incident to arrest are a common feature in law enforcement in America. For decades, the criminal justice system has had to amend and revise certain sections of law to thoroughly understand and explain the rights and privileges to any citizen, and their due process of law. With every arrest that is made by any law enforcement agency, there are several stipulations in court cases that contribute to either a conviction or an appeal. Whether the arrest was justified under specific causes or unreasonable due to violations of individual rights, the officer must be able to establish effective reasoning as to the entire situation from the first stop to arrest. This paper will explain the severity of individual rights, the common conception of probable cause and the justification to searches that lead to arrests. It will also explain the infractions developed due to uncommon policing techniques and misappropriated uses of force when dealing with searches, seizures and frisks of individuals.

Keyword(s):search, seizure, frisk, law enforcement, supreme court, arrest

Tightening the Restraints of Law Enforcement:

Searches, Seizures, and Frisks Incident to Arrest

In today’s society, many individuals have an issue with their right to privacy. With the adaptation of technology into everyday life, law enforcement are making a conscious effort to making sure their tactics and operations are reasonable to the public community. Two questions remains, however: what makes a person’s right to privacy unviolated in any search, frisk or interrogation, and when is a person aware that his or her rights have been violated due to improper policing techniques? With the Fourth Amendment of the United States Constitution in question during every arrest and search, individuals are constantly wondering whether or not their right to privacy was violated.

Under the Fourth Amendment, the law establishes that “the right of the people [shall] be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” (Lippmann, 2011). Since most searches are conducted by law enforcement officials, many cases come into consideration judging whether or not a search or seizure follows the Fourth Amendment. In order for a search to be reasonable, it is known by most law enforcement officials that a warrant must be granted in order to search a person’s home or vehicle within the scope of the official document. This was established under the ruling of the US Supreme Court in the matter of Olmstead vs. US (1928), where after numerous pages of notes were gathered from wiretaps did not intentionally involve the seizure of a physical object despite the initial wiretapping being “unethical” (Olmstead vs. United States, 2014). This helps justify that in order for there to be a violation of person’s privacy, there has to be a physical intrusion, in Olmstead’s case there was none (Lippmann, 2011).

For Katz vs. US (1967), on the other hand, the issues rests solely on a person’s expectation of privacy. Within the scope of the case, the FBI placed wiretaps outside Katz’s establishment without the act of a search warrant, and gathered information to his illegal offenses and resulted in Katz’s arrest. While the wiretapping was seen as unethical, like Olmstead’s, this was more of an issue since, according to the US Supreme Court (cited in United States Courts, 2014), because the wiretapping of a “constitutionally protected area” would result in a violation of Fourth Amendment rights and the information “solely depending on the surveillance of the area.” Since both cases was justifiable precautions as to their probable cause, one always has the expected right to privacy against any search, but how far can an officer go to search an area?

When officers have to conduct a search of a person’s home or vehicle, a facially-valid warrant is the most important piece of information when working around a person’s expectation to privacy. Since the warrant has to be issued by a magistrate, justify probable cause to the issuing of the warrant, and be specific in what to search and what to be searching for, it is common to believe that most warrants can be misused to obtain an arrest and/or conviction. For Mapp vs. Ohio (1961), a piece of paper was used to recognize a warrant to search a person’s house, but was in direct violation of the Fourth Amendment as the officers did not have a warrant to search the premises and the officers illegally obtained evidence to make an arrest, therefore, making the search and arrest unreasonable and appealed before the Supreme Court (Street Law Inc., 2014). Because of this decision, most searches and seizures have to be justify probable cause to the search and be facially-valid before a removed magistrate in order to conduct one without violating a person’s rights.

Since most court cases involving warrants include an issue with searching a person’s house, when it is reasonable to search a person’s vehicle? For most stops, it is justified that a warrantless search can be to the extent of the driver’s reach as to “ensure for the safety of the officer and other persons around, but not to surpass it” (LawBrain, 2011). Since this follows under the principle of a standard “Terry stop and frisk,” it can noted that for an officer to make a search of a vehicle or home, probable cause and reasonable suspicion can be met to justify their reasoning for a search or arrest. According to Lippmann (2011), reasonable suspicion can assist an officer to “investigate possible criminal behavior, but does not establish probable cause to make an arrest.” Instead, it guarantees a balance between swift action in an investigation and justification of individual privacy. Therefore, an officer has to ensure what is stopping a person for is reasonable and that he is not overstepping the boundaries of a frisk or search before reciting the Miranda warning and placing restraints on the suspect.

If certain vehicles do not require warrants for specific searches, what is the matter in the situation of a mobile home? In the case of California vs. Carney (1984), a search of a motor vehicle is not in violation of the Fourth Amendment as long as the vehicle meets specific criteria, such as whether the vehicle is mobile or grounded due to lines connected from the ground to the vehicle to make a home (Legal Information Institute, 2014). If the vehicle is found in a public area like a parking lot, then it is considered an automobile and does not require a search warrant; whereas if the vehicle was connected to a water source and grounded electricity, then the vehicle would subject to a home, therefore a warrant would be needed. Since most vehicles are mobile, it is justified that warrantless searches would be issued to the public community, but the public still has an expectation of privacy to their persons and belongings, as established under the Fourth Amendment.

By granting the procedures of law towards vehicles and homes, what would constitute a reasonable search of a person? When stopping a person in public, it is clear for an officer to establish the difference between a stop and an interrogation, as there is to be appropriate circumstances to question an individual and/or search and individual. In the matter of Terry vs. Ohio (1968), the justification of a stop and frisk of an individual is based on reasonable suspicion, where, as earlier described, there must be a balance “between the interest in swift action by an officer on the beat to detect, investigate, and prevent crime against the slight intrusion on the privacy of the individual citizen” (Lippmann, 2011). Since the officer has a right to speak to people in order to investigate a certain, he is able to abstain from any interrogation of a witness that may be deemed too objectified to compel any self-incriminating information towards authorities.

On the other hand, when questioning and searching a suspect, it should be note-worthy that officers must be aware of the search of an individual and never assume anything. With Minnesota vs. Dickerson (1993), two officers stopped a suspicious individual outside of an apartment complex frequent for being searched for illegal narcotics; when they stopped the individual for a search, one of the officers felt a lump in the suspect’s pocket and prodded around it before revealing it to be cocaine, making an arrest for possession of an illegal substance (University of Arkansas School of Law, 2014). Because the officer tried to determine what the bag was by prodding outside of the pocket, it is clearly evident that the officer was not acting under reasonable suspicion – with the scope of his search – to justify the arrest, and overstepped their boundaries to uphold the law.

There are many issues that factor into justifying searches before the result of an arrest. From first contact with an officer to the irrefutable trial, it is clearly evident that if officers overstep their boundaries in any form to execute a search and convict a possible offender, their rationale could affect the nation as a whole. From cases like Katz and Olmstead to the despising issue of Mapp vs. Ohio, law enforcement has had issues with the public to ensure their safety as well as protect their dignity and integrity. For some agencies, a search provides insight to send an offender into prison, while another could establish probable cause to rewrite the law books and cite more public concern than is necessary. As long as officers conduct themselves professionally and carefully around the community they are sworn to protect, then issues like the cases described can be averted and justice can be served rationally.


Legal Information Institute. (2014). California vs. Carney, 471 U.S. 386 (1984). Legal

Information Institute. Retrieved from http://www.law.cornell.edu/supremecourt/text/471/386

Lippmann, M. (2011). Criminal Procedure. Thousand Oaks: Sage Publications, Inc.

Olmstead vs. United States (1927). (2014). The Oyez Project at IIT Chicago-Kent College of

Law. Retrieved from http://www.oyez.org/cases/1901-1939/1927/1927_493

Street Law, Inc. (2014). Mapp vs. Ohio: Exclusionary Rule/Due Process. Landmark Cases of the

United States Supreme Court. Retrieved from http://www.streetlaw.org/en/landmark/cases/mapp_v_ohio

United States Courts. (2014). Facts and Case Summary: Katz vs. United States, 389 U.S. 347

(1967). United States Courts. Retrieved from http://www.uscourts.gov/educational-resources/get-involved/constitution-activities/fourth-amendment/wiretaps-cell-phone-surveillance/facts-case-summary.aspx

University of Arksanas School of Law. (2014). Minnesota vs. Dickerson, 508 U.S. 366 (1993).

Retrieved from http://law.uark.edu/documents/Minnesota_v_Dickerson.pdf