LAW, ORDER, AND THE RIGHTS OF CRIMINAL DEFENDANTS | 111array of complicated questions. It has attempted to achieve a balance between
security and privacy by requiring court approval for search warrants, while carv-
ing out limited exceptions to this general rule.SEARCHES AND WARRANTS
Under most circumstances a law enforcement offi cial seeking a search warrant
must provide the court with “personal knowledge” of a “probable cause” of specifi c
criminal activity and outline the evidence that is the target of the search. Broad
“fi shing expeditions” for evidence are not allowed.
Police searches inherently involve a clash between public safety and the private
freedom from government intrusions. These issues came to the fore with passage of
the USA PATRIOT Act of 2001 after the terrorist attacks of September 11. Several
of the most controversial parts of the act strengthen police surveillance powers;
make it easier to conduct “sneak and peek” searches (the police enter a home with a
warrant, look for evidence, and do not tell the suspect of their search until months
later); broaden Internet surveillance; increase the government’s access to library,
banking, and medical records; and permit roving wiretaps for suspected terrorists.
The most common reason for police searches without warrants is consent of
the suspect (the offi cers are not required to tell the suspect that he or she may say
“no” or request a warrant). Other cases in which the Court allows a warrantless
search include: conducting a search that happens at the time of a legal arrest and
“is confi ned to the immediate vicinity of the arrest”; collecting evidence that was
not included in the search warrant but is out in plain view; searching the passen-
ger area and passengers of a car if the driver has been stopped for a traffi c off ense;
and searching school lockers with probable cause.^64 The Supreme Court recently
upheld strip searches after an arrest and before the suspect is put in jail even when
there was no suspicion of illegal substances. Dissenting justices argued that “the
humiliation of a visual strip-search” after being “arrested for driving with a noisy
muffl er, failing to use a turn signal and riding a bicycle without an audible bell”
should not be allowed under the Fourth Amendment.^65
The Court has generally made it easier for law enforcement offi cials to conduct
searches without warrants, but one important decision in the other direction was
a 2012 case that required a warrant to place a GPS tracking device on a vehicle.
The FBI suspected Antoine Jones of selling cocaine, so they placed a tracking
device on his vehicle without a warrant, monitored his movements for four
weeks, and then used the evidence to convict him. Jones was sentenced to life in
prison. While the Court required a warrant in this specifi c case, the basis for the
majority’s decision was fairly narrow: the placement of the device was a “physi-
cal trespass,” and the lengthy monitoring of his movement constituted an illegal
search.^66 Remote tracking without physical trespass or shorter term monitoring
with a GPS device without a warrant may be acceptable to the Court. Additional
cases will be required to sort this out.
If the police illegally obtain evidence, the need to balance security and privacy
becomes concrete. Either the evidence is excluded from a criminal trial to protect
privacy rights, or it is allowed in order to support conviction of the suspect.
THE EXCLUSIONARY RULE
In 1961 the Fourth Amendment was incorporated (applied to the states through
the Fourteenth Amendment) in a case that established the exclusionary rule
for all courts.^67 Previously, the rule had applied only at the national level. The ruleexclusionary rule The principle
that illegally or unconstitutionally
acquired evidence cannot be used in
a criminal trial.