Why the Fourth Amendment Applies to the Federal Government - Coursework Example

Download file to see previous pages The Fourth Amendment states that unreasonable searches and seizures are forbidden (Harr, Hess, and Orthmann 195). This ensures that citizens can go about their daily lives without fear of unreasonable intrusion by the government. Unreasonable search and seizure are both infringements on the rights of individuals to privacy and freedom. Search means the “examination of a person, place or vehicle for contraband or evidence of a crime” (Harr, Hess, and Orthmann 195-6). Seizure, on the other hand, means “the taking by law enforcement or another government agent of contraband, evidence of a crime or even a person into custody” (Harr, Hess, and Orthmann 195-6).
How does a stop differ from an arrest?

=> A stop is one of the ways “to balance the rights of an individual and the government's need for tools to carry out its job of protecting society from lawbreakers” (Harr, Hess, and Orthmann 212). It is “a brief detention of a person based on specific and articulable facts for the purpose of investigating suspicious activity” (Harr, Hess, and Orthmann 212). However, a stop should be "[due to a] reasonable suspicion [and not merely a] reasonable belief” (Harr, Hess, and Orthmann 212). The difference between a stop and an arrest is that in an arrest, “the person is not free to go” (Harr, Hess, and Orthmann 212).

In an arrest, the Miranda warning is necessary, while in a stop, no such warning is needed. This is because a stop is not detention and the person is usually free to go after a short time. One good example of a stop is when a driver is stopped because of a simple traffic violation. No Miranda warning is needed, and usually, the driver is free to go after a few minutes (Harr, Hess, and Orthmann 212). An arrest, however, is a more complex process. For example, a person is stopped or frisked and the police officer finds a probable cause for an arrest (i.e. drugs found in pockets), then the Miranda warning is delivered and an arrest ensues.

How does a frisk differ from a search?
=> “A frisk is a limited pat-down search for weapons for the protection of the government agent and others. It is not automatically permitted with a stop, but only when the agent suspects the person is armed and dangerous” (Harr, Hess, and Orthmann 212). Just like a stop, a frisk should be done only under reasonable suspicion (Harr, Hess, and Orthmann 212). In frisking a person, no warrant is necessary. On the other hand, a search is, as mentioned above, an “examination of a person, place or vehicle for contraband or evidence of a crime” (Harr, Hess, and Orthmann 195-6). Before a search can be conducted, a search warrant issued by a “neutral, detached judicial officer” (Harr, Hess, and Orthmann 197) is necessary. ...Download file to see next pages Read More