David Bernthal/Off the Bench: Do you have a warrant, Dan-O?

David Bernthal/Off the Bench: Do you have a warrant, Dan-O?

Hear more from Judge Bernthal Tuesday at 7:40 on WDWS.

Admittedly, I am not much of a television watcher. One exception is "Hawaii Five-0." At the time of the airing of the original version, I had not attended law school so I focused mostly on the mystery and the beautiful scenery. Now, however, I confess that while I still enjoy the Hawaiian views, I also look at the actions of the elite unit in terms of the constitution. I admit there are times when I am skeptical about some action. As a result, I thought I would write this column on the Fourth Amendment to the United States Constitution.

This amendment is one of the provisions in the constitution that define the relationship between citizens and the government. It limits the power of agents of the government with respect to the person and property of the citizens.

The language of the Fourth Amendment is as follows:

"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."

Scholars write treatises on the subject. Fourth Amendment jurisprudence continues to develop. One column can hardly do it justice but I'll attempt to hit a few high points. This effort will be limited to property searches. We can always deal with searches and seizures of the person another time.

The restrictions apply to people operating "under color of law." So if private citizen Jim, who is not acting on behalf of any government agent, goes into his neighbor's house and looks around for his missing golf club, the Fourth Amendment is not implicated. (Note: Jim may have a problem with trespass, so this self-help is not recommended.)

The citizen whose property is the subject of the search must have a reasonable expectation of privacy. Jill has this in her home, but if she decides to hide her meth in a county park, she does not.

If these two criteria are met, any search of the premises is governed by the Fourth Amendment. Any challenge to the validity of the search will be determined by a court. That determination will depend upon the specific facts.

The clearest situation is the search pursuant to a warrant. Agents who believe a place may contain evidence (including items used in the crime) or fruits of the crime (such as cash from a bank robbery or marked money from a controlled drug purchase) can seek a warrant from a judicial officer. The agent may present a written statement outlining the basis for the agent's belief that the place to be searched contains items such as those just described. In the alternative, the agent can testify before the judicial officer. If probable cause to search is found, a search warrant will be issued and the search may take place.

The vast majority of these warrants are obtained during the work day. However, law enforcement is not an 8-to-5 endeavor. As a result, on occasion, judges are awakened in the wee hours by a prosecutor calling with a request for a search warrant. The judge then meets with the prosecutor and the agents, reviews the facts and proceeds in the manner described above. I even recall meeting a prosecutor and agent under the bleachers during a high school football game.

While the Fourth Amendment makes specific reference to the warrant, the absence of a warrant is excused in certain circumstances. For example, a warrant is not necessary if a person who has authority consents to the search. The consent must be voluntary, but a valid consent excuses the warrant.

Some searches take place in connection with an arrest. For protection, the officer may search a person being placed under arrest. Searches of vehicles following a traffic stop also have Fourth Amendment implications and are the subject of Supreme Court decisions. Other exceptions exist and may be included in a future column.

One might think that all possible issues of police search must have been raised and adjudicated. Not so. This area of the law continues to evolve. Courts are now being asked to consider matters never dreamt of by those who ratified the Fourth Amendment. Cellphones, computers and social media present new and interesting challenges for the courts. In the meantime, Commander McGarrett, remember the warrant. Maybe you can get one during a commercial.

David Bernthal, who lives in Mahomet, is a retired 21-year federal magistrate. He is of counsel with the Webber & Thies PC law firm and serves as senior mediator and arbitrator with ADR Systems. His email is askthejudge1@gmail.com.

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