A Conversation on the Constitution: Search and Seizure
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A Conversation on the Constitution: Search and Seizure

October 16, 2019


Good evening, Justice O’Connor.
My name is Jordan Speed, and I’m from Wichita, Kansas. How does the Supreme Court decide
when a search and seizure is unreasonable and when it is reasonable?
Well it’s a vague sort of a standard as you well know. What’s reasonable depends
very often on the circumstances in the particular case. The Supreme Court in
effect has determined that if a search of a suspect is unreasonable under
constitutional standards, then the evidence cannot be admitted against that
person in any criminal proceeding, against the person. Now, you know, many
countries around the world don’t follow an exclusionary, that’s called an
exclusionary rule, where you can exclude that evidence from any trial proceeding
against the person that the state is trying to prosecute, and that’s rather a
dramatic limitation on evidence that can be used by the state against someone. And many
countries don’t do that, so Great Britain did, and the United States has done that,
and I guess Australia to a degree and other common law countries from the
British system, but not everybody in the world thinks that’s a good system. But we
do and we have this exclusionary rule so deciding whether a particular search or
a seizure of some kind of evidence to use against someone in a criminal
proceeding requires judges at the end of the day, to make a determination whether
that particular seizure or search was reasonable. Well what’s reasonable? You
have arguments on both sides, probably, but it depends on the facts in that
particular situation and whether there circumstances and facts that are
objective, that it adds up to some kind of reasonable suspicion, that would
justify admitting the evidence into a trial and using it in a criminal
proceeding. And there’s no hard and fast guide. Judges who sit in criminal cases
get used to these questions and get used to having to answer them, in case after
criminal case, so I don’t know what guidelines to give you, but they tend to
want to try to find some facts, the judge does, that would indicate that this is
the circumstances and facts add up to some kind of reasonable suspicion
sufficient to justify letting that evidence in. Good evening, my name is Alex Nunez
Thompson and I’m actually from here in Phoenix, Arizona. -Oh you are? From a local
high school? -Yes. -Good. -My question is, I have two actually, in general do judges
agree on what it takes for the police to establish that there is a probable cause?
And how do judges learn how to make good judgments about when to issue a warrant?
-Well it’s like anything else, it takes a little practice. I suppose first of all,
you can assume that the judges have gone to law school. If they’ve passed that,
they’ve taken a state bar exam, and they’ve passed, and you can assume that
they practiced for a time, or they wouldn’t already be judges. And you can
assume that most of these judges have had some experience already on the bench,
trying to answer these very questions, because they come up time after time in
criminal cases, and it’s kind of a combination of learning, study, and
experience, and most judges end up serving, as I did, for some years in a
criminal court, hearing criminal cases day in and day out. So, you begin to get
comfortable, if you will, in what you need to ask and what you need to know, in
order to determine that yes, for this piece of evidence there is reasonable
suspicion, and we think that it was reasonable under constitutional
standards for the police to have it and to use it against the defendant. My name is Addison Marshall and I’m from
Jonesboro, Arkansas, and my question is why, what is the importance of requiring
the police to have probable cause, and having an impartial judge to sign a
warrant? -Well, when our Constitution was written, you know at first it didn’t have
a Bill of Rights, you know, that it was a constitution that told us how we we have
three branches of government. We had a president, and it said something about
how the president would be selected, and we had a congress, with two houses and
how they would be formed, and we’d have it, the third branch, the judicial branch,
and the judges would be appointed by the president with advice and consent of the
Senate. Now that was the sum and substance of the original Constitution,
and it dealt some with the powers that each branch would have. But when it was
presented to the states to see if the states wanted to ratify it, many people
in the state thought that it needed some protection for individuals, that we
needed some kind of a bill of rights, they called it. And it became clear that some
states, not enough states were going to ratify it unless we got a bill of rights.
And that was it ended up being the first ten amendments to our Constitution,
that’s the Bill of Rights. And it was intended to try to add some protections
for individuals, because the Constitution originally didn’t do that. And so the
ten amendments, the First Amendment as you know, dealt with freedom of speech
and assembly number one, and then it deals with freedom of religion, and then
it deals with the concerns that we’re dealing with today, protecting people in
their homes and in their private lives from unreasonable
violations by authority, on behalf of the state. It wanted to protect individual
citizens, and that’s how the Constitution finally got ratified because they
produced a Bill of Rights and then they got the necessary number of states to
approve it, and we became a nation. Well of course, the language in the Bill of
Rights is pretty general. What does it say? No state shall make or enforce any law
which shall abridge the privileges or immunities of citizens of the United
States, nor shall any state deprive any person of life liberty or property
without due process of law or deny any person the equal protection of the laws.
Well those are grand-sounding general principles, but when it comes right down
to it, when is someone deprived of liberty or property without due process
of law, that’s where these questions start coming in. What if the police say
we suspect you of stealing something and we’re going to go in your house and
search it, just generally not knock, maybe not even knock on the door, just go in and
start searching. Is that a situation where a court, the judicial branch would
then get in and say, wait a minute that’s not a reasonable action on the part of
the police that deprived that citizen of property without due process of law.
Those were the issues that would then come before courts and judges to decide.
And they set up three branches of government. Of course every state, then
adopted a similar system, setting up three branches of government and having
state courts as well. But that’s how courts began to get into these questions
in the first place, and through the years they’ve developed
principles that courts look at and judges look at, in making these decisions.
And decisions of courts are written down, and they become part and parcel of the
law, and people can read them and follow them in the future. And you build up a
body of law by way of the cases that have been decided. Hello Justice O’Connor, my name is an
alliance and I’m from Des Moines, Iowa. My question is, what are the democratic
values underlying the Fourth Amendment? -That every citizen wants to feel secure
and safe in the citizens own person, and property, and dwelling, and home. I mean I
don’t want to be accosted when I’m walking on the street by a policeman and
grabbed and searched because the policeman thinks, oh there’s been a
robbery in this neighborhood and we’re just going to search everybody. We’ll
search you. Well, that’s pretty frightening for a citizen, and I think
it’s that kind of action that the Bill of Rights was designed to prevent, to
make sure that if you’re going to be searched, for example by a police officer,
that there has to be some reasonable grounds for taking that action that
severe. To be, if I’m walking down the street and I have my purse, and the
police come up and say well we’ve had a theft here recently, now I want to look in
your purse and see what’s in there, well we don’t do that. We think that’s beyond
the bounds of what’s permitted, absent reasonable suspicion, that yes this
person I’m talking to was on the scene at the time the event occurred and could
well have been involved, and could well have had something incriminating in her
purse, and we’ve examined the evidence and talk to people and we think there
are reasonable grounds to search that woman’s purse. Well you have to present
those, sometimes to a judge and see if the court is satisfied that that amounted to reasonable suspicion, because it doesn’t always, and these are where
reasonable people can differ too at the margins. Hello Justice O’Connor, my name is Chan
Hu Lee, I’m from the Northern Mariana Islands -From the Marianas? -Yes, yes your Honor. -Well you came a few miles, didn’t you? -Yes, your Honor. – Good.
-Is the respect for privacy one of the values underlying the Fourth Amendment?
-Absolutely. Absolutely, and privacy of the person, and your home, and your your
personal property. And that’s why we require some standard of reasonable
suspicion before law enforcement officials can get in there and start
digging around and looking, and we hope that those standards are protective on
the right standards of the rights of individual citizens. That’s what we try
to do, anyway. Hello Justice O’Connor, my name is David
Berman and I’m from the state of Minnesota. Do you agree with Justice
Clark’s statement in the Map case, that without the exclusionary rule the Fourth
Amendment would just be a form of words and valueless? -Well I think that’s right. If
you don’t have a means of enforcing the protections that these amendments are
intended to give, then it’s kind of worthless, it’s just so many words. And the
exclusionary rule, to say the evidence cannot come in if it violates one of the
principles in the Bill of Rights, that’s pretty drastic to say the state can’t
use it unless there was probable cause or reasonable suspicion or whatever it
is. I mean, that’s a pretty drastic remedy to say no, you can’t use it. And many countries
do not do that. The Anglo-American legal system is more protective of individual
rights than many legal systems around the world. That’s a big step to take, to say no, if you can’t meet the standards of reasonable suspicion, and so
on, we’re going to keep the evidence out. Or Mr. policeman, if you violated them
we’re not going to allow that evidence to come in. That’s very drastic in
certain cases, but we feel that individual liberty is so important, and
it was how we got people in this country to agree to the Constitution in the
first place, so it mattered to them and and we believe in them, and I think
they’ve served our nation well. You probably do too. I think it’s okay, and
that’s why we have a judicial branch to try to have people who are qualified to
serve as judges, and who look at these questions, and respond responsibly to the
issues that are presented, and who don’t modify their standards every time the
case comes, they have certain legal principles they’re trying to apply,
and to apply them similarly, in similar circumstances. That’s very important. Hello Justice O’Connor, my name is Jordan
Speed, and my question is, what would you say to the argument that the
exclusionary rule lets guilty defendants go free? -It could, if it’s
employed and if the only evidence against the person was evidence that
under, under our legal principles should not be admitted against the defendant,
because it was seized without reasonable suspicion, for instance. It’s drastic to
say, no the evidence can’t come in, that person is going to go free ,that’s a
drastic step, but we think these basic principles are so important, we are
willing to have that result, to keep our standards high and satisfied under the
Bill of Rights and I guess it’s justified. It has served us pretty well.

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