The Fourth Amendment: Search and Seizure discussion As discussed in modules One and Two, the Fourth Amendment is very important in Evidence Law. The exclus

The Fourth Amendment: Search and Seizure discussion As discussed in modules One and Two, the Fourth Amendment is very important in Evidence Law. The exclusionary rule will sometimes mean that evidence obtained improperly will not be available as evidence in a criminal trial. For this essay please use the following basic fact pattern and answer the questions that follow. You are a police officer observing a house with suspicious activity that may be related to the manufacture and/or sale of illegal drugs. Neighbors complain of automobile traffic at all times of the day and night, as well as a variety of “suspicious” looking characters (that don’t live there and don’t appear to be family members) going in and out of the house for short periods of time, also at all times of the day and night. You have a reliable registered informant that corroborates drug activity is going on in the house, and a recent arrest of a suspect possessing illegal drugs who claims that he purchased the drugs inside the house. Based on this evidence the police officer obtains and executes a search warrant along with his team, and they seize illegal drugs found in the house. 1) Use table 5-4 found on page 135 of your text book, and answer the questions posed in sections A-C. As you proceed through the questions you may need to add additional facts to justify the police officer’s request and/or the issuance of the search warrant to make it proper. What else could the police officer investigate? What other facts would be helpful and/or necessary? Justify your answers to these questions with the use of facts provided above or added by you. 2) Now change the facts as necessary and apply the warrantless actions based on probable cause of: a) Searches incident to arrest (and the proper scope of that search), and b) the three categories listed under exigent circumstances. (These are all discussed from pages 142-146 of your text). How would/could you change the scenario or facts used for question (1) above to justify a lawful search and seizure under each of those circumstances? This assignment is intended to allow you to show your competence and understanding of the course materials as we progress through the semester. These responses are to be 3-4 pages in length, with a thorough but succinct answer to the posed research questions. Name, assignment, and class heading do not count for this purpose. (Although not required, papers exceeding 4 pages in length will not be penalized). Most of the answers will be found in your book (which should be cited), but you are also required to research and cite material from at least two outside sources. These essays are not intended to be strict academic papers, such as a final research paper would be; however, I expect them to adhere to the guidelines that a college paper should embody, such as a consistent and organized structure, proper grammar and English, and properly cited references. Citations to references should be in APA style, examples of which are contained in Module 1. Essays are to be written in Microsoft word, double spaced, with 12 point Times New Roman font and 1 inch margins all around. 128
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the service of warrants and (2) whether, if such activity violates the Fourth Amendment, the
officers were nonetheless entitled to qualified immunity.
Clearly, the police were authorized to enter the Wilsons’ home. But, it does not necessar-
ily follow that they were entitled to bring the reporters into the residence. In Horton v. Cali-
fornia (1990, p. 140), for example, the Court held that “if the scope of the search exceeds that
permitted by the terms of a validly issued warrant or the character of the relevant exception
from the warrant requirement, the subsequent seizure is unconstitutional without more.”
This does not mean that every police action during the service of the warrant should be
explicitly set forth in the warrant (e.g., Michigan v. Summers 1981, p. 705), but it does mean
that the police actions in the execution of the warrant should be related to the objectives of
the intrusion (Arizona v. Hicks 1987, p. 325).
Chief Justice Rehnquist, writing for the majority Wilson, began by stating that the
Fourth Amendment embodies the “centuries-old principle of respect for the privacy of the
home” (p.5). The court went on to state that, although the law enforcement officers were au-
thorized to enter the Wilsons’ home, “it does not necessarily follow that they were entitled to
bring a newspaper reporter and photographer with them” (p.5). The Court then considered
whether the actions of the reporters were related to the objectives of the intrusion into the
Wilsons’ home. It ruled that they were not. Since the reporters were in the Wilsons’ residence
for their own purposes, “they were not present for any reason related to the justification for
police entry into the home” (p. 6).
The government offered arguments against this finding. First, it argued that the reporters
were present to aid legitimate law enforcement purposes. The Supreme Court disagreed with
this argument, claiming that Fourth Amendment protections would be “significantly watered
down” (p. 6) if a media presence was to be seen as assisting in law enforcement objectives.
The government’s second argument was that a media presence informs the public of
law enforcement efforts to combat illegal activity. Previous Court decisions seemed to
support this position. For example, in Cox Broadcasting Corp. v. Cohn (1975, pp. 491-492)
the Court stated that “in a society in which each individual has but limited time and
resources with which to observe at first hand the operations of his government, he relies
necessarily upon the press to bring him in convenient form the facts of those operations”
(see also Richmond Newspapers, Inc. v. Virginia 1980). Despite past decisions that seemed
to support the government’s position on this point, the Court disagreed with this First
Amendment argument, holding that “the Fourth Amendment also protects a very impor-
tant right, and in the present case it is in terms of that right that media ride-alongs must
be judged” (p. 6).
Finally, the government argued that media’s presence aids in the reduction of police
abuses, but the Court concluded that the reporters in Wilson were acting with their own
interests in mind. “They were not there for the purpose of protecting the officers, much less
the Wilsons … evidenced in part by the fact that the newspaper and not the police retained
the photographs” (p. 7). The Court ruled, then, that “it is a violation of the Fourth Amend-
ment for police to bring members of the media or other third parties into a home during the
execution of a warrant when the presence of the third parties in the home was not in aid of
the execution of the warrant” (p. 7).
Searches and Arrests with Warrants
129
The second issue in Wilson concerned the issue of qualified immunity. Neither the
language nor the legislative history of Section 1983 makes any mention of immunity from
liability. However, courts now recognize a qualified immunity defense for conduct that,
while unconstitutional, prevents the police from being held liable. Police officers charged
with violating a plaintiff’s constitutional rights may be entitled to qualified immunity if
their conduct did not “violate clearly established statutory or constitutional rights of which
a reasonable person would have known” (Harlow v. Fitzgerald 1982, p. 818).
At one point, qualified immunity was determined by inquiring into whether the
officer acted in good faith (Wood v. Strickland 1975); recently, however, the courts have sub-
stituted the subjective, good faith test with a test of objective legal reasonableness (Harlow
v. Fitzgerald 1982). The test for qualified immunity was set forth by the Court in Anderson v.
Creighton (1987):
Whether an official protected by qualified immunity may be held personally liable for an
allegedly unlawful action generally turns on the “objective legal reasonableness” of the
action, assessed in light of the legal rules that were “clearly established” at the time it was
taken. (p. 639)
Qualified immunity can be extended to state law enforcement as well as federal law en-
forcement officials, as in Wilson (Butz v. Economou 1978; Malley v. Briggs 1986, 340), and it
owes its existence to the argument that the need for effective law enforcement outweighs the
risk of police error (Scheuer v. Rhodes 1974).
The issue in Wilson, according to the Court, was “whether a reasonable officer could
have believed bringing members of the media into a home during the execution of an arrest
warrant was lawful, in light of clearly established law and the information the officers pos-
sessed” (Wilson v. Layne 1999, p. 8). The Court then set out to determine whether the right
allegedly violated was defined at the appropriate level of specificity” (Anderson v. Creighton
1987, p. 123). The Court concluded that it was not, and held that “it was not unreasonable
for a police officer to have believed that bringing the media observers along during the ex-
ecution of an arrest warrant (even in a home) was lawful” (p. 8).
In support of its position the Court noted that there were no published federal opinions
holding that media presence during the service of warrants was illegal, despite the fact that
ride-alongs had become quite popular (Florida Publishing Co. v. Fletcher 1976). The Court
based its decision on case law published at the time of the entry into the Wilsons’ residence,
not in 1999, when the final decision was rendered.
There was one published state intermediate court decision that supported the Court’s
position (Prahl v. Brosamle 1980), and there were two unpublished District Court decisions
that seemed to also support the Court’s position (Moncrief v. Hanton 1984; Higbee v. Times-
Advocate 1980), but it still concluded that these cases cannot “clearly establish” that media
entry into private homes violates the Fourth Amendment.
As part of their argument the Wilsons cited a decision in Bills v. Aseltine (1992) in which
the Sixth Circuit Court of Appeals denied summary judgment to law enforcement officers
after they were sued for exceeding the scope of their warrant by bringing a private security
officer along with them to identify stolen property. Bills was decided five weeks prior to the
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OBTAINING EVIDENCE: ARREST AND SEARCH PROCEDURES
entry into the Wilsons’ home; however, the Court stated that it “cannot say, even in light of
Bills, (that) the law on third-party entry into homes was clearly established in April 1992”
(Wilson v. Layne 1999, p. 9).
The Court also argued that the Marshals acted legally by relying on a policy that permit-
ted media ride-alongs, again because the law in this area was not entirely clear. On the issue
of qualified immunity the Court thus ruled, quoting Procunier v. Navarette (1978) that “the
officers in this case cannot have been ‘expected to predict the future course of constitutional
law,” and by noting that “If judges. disagree on the constitutional question, it is unfair
to subject police to money damages for picking the losing side of the controversy” (p. 9; see
also Pierson v. Ray 1967, p. 557).
The Court’s decision in Wilson seems to suggest that police officers have nothing to
worry when it comes to allowing the media to accompany them on the ser of
warrants, as they will be granted qualified immunity. The issue is hardly settled, however.
Others, including the dissenters in Wilson, have argued that the law in the area of third-party
ride-alongs is abundantly clear; it is unconstitutional invasion of privacy, a violation of the
Fourth Amendment. For example, Justice Stevens, in his dissent from the majority’s decision
in Wilson, argued that the Court ruled mistakenly on the issue of qualified immunity. He
stated that “the clarity of the constitutional rule, a federal statute (18 U.S.C. 3105), common-
law decisions, and the testimony of the senior law enforcement officer” all support the claim
that the officers violated the Wilsons’ Fourth Amendment rights.
Other problems are evident with the Supreme Court’s decision in Wilson. Arguably, the
Court was mistaken in holding that it was not unreasonable for a police officer in April 1992
to believe that media accompaniment into a private residence was not constitutional. This
is because the law in the area of media ride-alongs is limited; few published decisions have
been reached on this issue. Nevertheless, generations of Fourth Amendment jurisprudence
clearly determines that the right to privacy is of paramount importance. The Court could
have easily turned to Fourth Amendment precedent in reaching their decision on qualified
immunity, but it did not. Instead, the majority grasped at straws in citing three media-related
cases decided prior to the invasion of the Wilsons’ home.
According to the Court in Ayeni v. Mottola (1994), “the objectives of the Fourth Amend-
ment are to preserve the right of privacy to the maximum extent consistent with reasonable
exercise of law enforcement duties and that, in the normal situations where warrants are
required, law enforcement officers’ invasion of the privacy of a home must be grounded on
either the express terms of a warrant or the implied authority to take reasonable law enforce-
ment actions related to the execution of the warrant” (p. 686). The warrant in the Wilsons’
case authorized “any duly authorized peace officer” to serve the warrant, not any third par-
ties. And even the though the Court could not defer to the decision in Ayeni (because the
entry into the Wilsons’ home occurred well before Ayeni was decided), the Court could have
clearly adopted similar reasoning in its decision. Instead, the Court elected to undermine the
protections provided by generations of Fourth Amendment jurisprudence.
Numerous court decisions attest that third parties cannot be present during the execution
of a warrant, especially if their presence has little to do with the warrant (eg., United States v.
Wright 1982; United States v. Clouston 1980; United States v. Gervato 1973). More specifically,

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