I'm surprised they did not show the men and women attacking the man, and throwing insults at him. I've not seen the movie, don't think I want to either. If anyone else has seen the movie, what did you think about it?
Saturday, January 3, 2009
You see folks, all it takes is for you to tick someone off, and an accusation is enough for your life to be ruined forever! So think twice before you make that husband or wife angry, you might wind up on the sex offender registry for life.
BY SCOTT F. DAVIS - Northwest Arkansas Times
A University of Arkansas employee faces charges for recording a teenage girl in the shower even though his girlfriend told police she did it to get him in trouble.
_____, 35, was charged Tuesday with possessing or viewing matter depicting explicit conduct involving a child and video voyeurism.
_____ is accused on Oct. 6 of possessing nude images of a 16-year-old girl and using a digital camera to secretly record her while she was taking a shower.
_____ who works as a systems programmer for the UA's information technology services department, told Fayetteville police when he was arrested Nov. 12 that he did not take the video recording of the teenage girl.
He said his longtime girlfriend, Lela Churchwell, took the video herself in an effort to get him in trouble, according to the arrest report. He also produced for police an e-mail from Churchwell sent Oct. 21 in which she admitted to being a pathological liar and setting him up.
_____ told police the whole incident was concocted by Churchwell because she was jealous of his close relationship with the victim and two other juveniles. Police did not consider his story to be credible or believable and arrested him on probable cause.
- What kind of close relationship with the teens?
On Nov. 13, Churchwell told police that she had recorded the nude shower footage but told the victim and police that _____ did it to get him in trouble. She said she tried to convince _____ that he did it when he was drunk.
- Why would he do it himself to get himself in trouble?
She also told police she had become pregnant by another man and she planned to blackmail _____ so he would move out of the house and she could stay there while he paid the mortgage.
Churchwell was arrested on probable cause on charges of video voyeurism, theft of property and filing a false police report.
- OK, so she was arrested for it?
She was charged on Dec. 12 with second-degree battery. Other possible charges she was arrested on are pending.
In the battery case, Churchwell is accused of striking _____ in the head with a shovel on Oct. 12 - when police responded to the initial call from the victim about being recorded in the shower.
The victim told police that Churchwell struck _____ with the shovel after catching him using a digital camera to take shower pictures.
Churchwell told police she was very intoxicated when she smacked _____ in the head two or three times with the shovel. After the last blow, _____ "fell over onto the ground like a rag doll," she said, according to the police report.
"Developments in the case" convinced prosecutors to file charges against _____ even though his girlfriend claims she made up the story, said Mark Booher, 4th Judicial District deputy prosecutor.
- What? So they arrest him on something he did not do!!!! What an F'ed up world we live in, where just an accusation is all it takes to ruin your life.
"It's a bizarre case," Booher said.
- Doesn't sound "bizarre" to me, sounds like a crazed women who was out for revenge because she slept around and got knocked up by someone who wasn't he husband. And an innocent man is being blamed for all of it.
Police reports indicate that _____ was accused of making numerous comments of a sexual nature to the 16-year-old girl, but he is not accused of any sexual contact with her.
- So this would be sexual harassment then, if it's actually true!
University officials could not be reached over the holiday break to confirm _____'s continued employment, but his name remained on the UA's online employee directory Wednesday.
The alleged incident did not happen on campus and did not involve any students, according to police reports.
So now we are to have a new sex offender law creating a new crime, aggravated sexual assault of a minor under 16, with a Jessica's Law-type provision for a mandatory 25-year sentence without parole upon conviction. What's not to like about this?
- Well for one, what about a 16 year old having sex with another 16 year old? Are you comfortable sentencing this child to 25 years in prison for teenage consensual sex?
The first thing to realize is that the existing sexual assault on a minor law, with its arbitrary sentencing guidelines, has not been repealed. Whether a sex offender is prosecuted under the new law or the old seems to be left to the discretion of the state's attorney running the prosecution. With this in mind let's try to estimate how many sex offenders will end up serving the mandatory 25-year sentence. I suspect the number will be zero for the foreseeable future.
Prosecutors are reluctant to bring sex offenders to a jury trial under the existing law. A trial requires a lot of work and expense, and getting testimony from an alleged victim can be traumatic and quite difficult. The conviction rate is fairly low. Since the existing law has fairly stiff penalties, alleged offenders have little incentive to enter guilty pleas.
So why do we have this new law? Clearly its only purpose is to provide prosecutors with a tool to induce alleged offenders to plead guilty under the existing law, with a plea bargain arrangement. This may be OK, but the thousands of Vermonters who signed petitions demanding a Jessica's Law should be aware that this is not what we are getting from our legislators.
The Sixth Amendment to the Constitution guarantees the right to a jury trial. Nowhere in the Constitution is the practice of plea bargaining mentioned. I have heard that the vast majority (over 90 percent) of criminal offenses in Vermont are settled by guilty pleas as a result of plea bargains. Maybe it's time to ask whether our heavy reliance on plea bargains is in the best public interest.
By PATRICK MCCALLISTER - Correspondent
DELAND -- Jesus said, "Let the little children come to me, and do not forbid them; for of such is the kingdom of heaven."
That Bible verse (Matthew 19:14) may help explain why many churches actively seek to build and operate youth ministries.
- But you cannot take one verse of the entire bible, to suit your needs. Would Jesus deny anyone from entering his church?
But places where children and teens gather may also draw pedophiles. That possibility, however remote, increasingly leads church officials to require extensive background checks on workers and volunteers and take other steps to keep children safe.
"I do think there is an expectation, and rightly so, that church is a place a person can find some level of security and forgiveness," said the Rev. Tim Mann, senior pastor of First Baptist Church of Daytona Beach, in a telephone interview. "We tend to give people the benefit of the doubt in wanting to extend that grace and understanding toward people.
"Having said that, we live in a fallen world where the depravity of man is not excluded from the church."
The recent arrest of former youth pastor Joel Price, 36, on two counts of distribution of child pornography and one count of possession of child pornography highlights the fact that church officials cannot assume children are always safe within their walls.
The Volusia County Sheriff's Office reported Price was a former youth pastor and missionary for New Tribes Mission in Sanford. In an online church publication, Price wrote about teaching Bible classes to high school students in Venezuela, and doing "computer tech work."
On Dec. 26, investigators said they found more than 6,000 images and about 250 video clips of children engaged in various sex acts on a computer at Price's Osteen home.
"The investigators who made the arrest said he indicated that he said he had an obsession with child pornography and had been trying on his own to stop it, but was unable to," said Gary Davidson, the sheriff's public information officer. "He said he needed counseling; he needed help."
There's no evidence Price had sex with, or personally took pornographic photos of, any children at New Tribes. However, it's at least the second time that New Tribes has dealt with pedophilia. In 2006, church employee George Allen Goolde was arrested for sexually molesting foster children at his Orange City home. He was sentenced to 50 years in prison in 2007.
Calls to telephone numbers listed for Price and for New Tribes Mission went unanswered.
CHECKS HELP, BUT NOT PERFECT
Mike Carroll, associate pastor at DeLand's First Assembly of God, said most church officials are aware of the responsibilities to keep children and teens safe.
"I haven't run into a minister yet that didn't have some kind of procedure in place," he said in a telephone interview.
"Anybody that works with children and youth, (First Assembly does) a background screening on them. We check the sexual offender registry. We have a service that performs that for us."
But background checks aren't going to catch every pedophile and ephebophile, according to Bob Van Domelen, director of Broken Yoke Ministries in De Pere, Wis. The former schoolteacher served a five-year sentence for having sex with underage boys in the 1980s. Among other things, his ministry offers services to those seeking to end what he calls "age-inappropriate sexual attractions."
Van Domelen said with an emphasis on God's love, forgiveness and transformational power, churches do attract those wishing to be freed of pedophilia. However, he said few feel safe in confessing their sexual attractions.
"The individuals who've contacted me, who've never acted out, I've asked them, 'have you come out,' and they'll say no," Van Domelen said in a telephone interview.
TOPIC IS TABOO
Mann said that in his 16 years as pastor of First Baptist, no one has ever approached him to confess their sexual attraction to children or teens.
"The one area that seems to be sort of elusive -- people don't come out and talk about it -- is any sexual addiction," he said. "That is not confessed.
"There's so much shame attached to (pedophilia), and people have so much guilt. There has to be a culture of trust. People don't need to feel ostracized if they come out and confess, but helped."
Like First Assembly, Mann's church requires applications, background checks and interviews for all children's ministry volunteers. The church also has a policy against any worker or volunteer being alone with children or teens.
Additionally, prospective volunteers are encouraged to wait until they've been members of First Baptist for at least a year before volunteering. Mann said no one is allowed to work with children or teens before six months of membership.
Mann's church is in the Southern Baptist Convention, Florida Baptist Convention and Halifax Baptist Association. Josh Bishop, pastor of Calvary Baptist Church in Daytona Beach, said all three have taken steps to educate church leaders about protecting children by detecting pedophilia. He said the Halifax Baptist Association's director of missions, Dennis Belz, has been aggressive in offering training on the subject.
"Under the direction of Dennis Belz, he has given me personal instruction, as well as software and different forms that need to be filled out, and contacts to perform background checks," Bishop said.
Bishop took the helm at Calvary about a year ago. Before that, he worked at Riverbend Community Church in Ormond Beach. He said that church also was aggressive about ensuring children's safety and implemented many of the same policies practiced at First Assembly and First Baptist.
"I was a worker in the kids' wing, and they ran a background check on me, everybody who worked with children," Bishop said.
Van Domelen agrees that more denominations, ministries and churches are becoming aware of the need to protect children. He added it's not difficult, if ministers are willing to consider and talk about the seemingly unthinkable.
"There's a ton of stuff churches can do," offered Van Domelen. "I think the most important thing they should do is have 'what if' sessions."
View the article here
And these, are the people, you and your kids are suppose to trust? See more corrupt police, lawyers, mayors, senators, etc, by clicking here.
By Cass Rains Staff Writer
Major County Sheriff’s Office is preparing for one of the biggest trials in the county’s history, which begins with jury selection Monday morning.
Former Custer County Sheriff Michael G. Burgess, 56, is being tried on more than 30 felony charges of rape, bribery and forgery. He was granted a change of venue to Fairview Nov. 3 after judges and prosecutors in Custer County were recused or asked to be excused from the case due to relationships with the former sheriff.
Sheriff Steve Randolph said more than 200 people were expected at the Fairview Court House Monday, including nearly 200 potential jurors, 40 prospective witnesses and members of the media.
He said one of the biggest problems his office faces with the trial is parking, because a school is next door to the courthouse. He said his office is working with Fairview Police Department to ensure everyone can get to where they need to be.
“They will have an officer outside and we will have an officer outside just so the kids will be able to go to and from school,” Randolph said.
Increased security is planned for the trial. The south door of the courthouse will be the only point of entry into the building. Those entering must pass through a metal detector, and all purses, bags and backpacks will be subject to search.
Randolph said cameras, cell phones and recording devices are prohibited on the third floor of the courthouse, where the trial will take place. He said media crews with video cameras must remain on the first floor of the courthouse.
Randolph said members of the media will not be allowed inside the courtroom until jury selection is complete because “there just isn’t enough room.”
“The courtroom can only hold about 130 people and there’s 200 possible jurors,” he said.
Randolph asked anyone with business at the courthouse to postpone it, if they can, until the trial is complete.
Burgess resigned as sheriff after the charges were filed against him April 16, 2008.
Burgess, a former police officer and state investigator, was appointed sheriff in 1994 when his predecessor died. He was elected to the position in 1996 and re-elected in 2000 and 2004.
A yearlong investigation by prosecutors and law enforcement agents in Oklahoma resulted in 35 felony charges against Burgess, who could face up to 467 years in jail if convicted.
The charges were announced by James Boring, a district attorney in Texas County who took control of the investigation in May 2007 after prosecutors in Custer County cited a conflict of interest in the case and the state attorney general requested Boring’s involvement.
Burgess allegedly used his power as sheriff repeatedly to pressure a female employee, inmates and members of his county’s drug court program to perform sex acts in exchange for special treatment between 2005 and 2007.
According to court records, authorities said Burgess would force inmates under his supervision to perform sex acts in his office, his official sheriff’s vehicle, local motels and hotels, a truck stop and houses belonging to inmates and friends.
The four women named in the affidavit were either inmates or members of the county’s drug program, and all were promised some type of leniency or preferential treatment in return for sexual favors.
The alleged sexual liaisons took place between February 2006 and April 2007, according to the affidavit.
Burgess, who is free on $50,000 bond and ordered to have no contact with potential witnesses, was charged with 13 counts of second-degree rape, eight counts of forcible oral sodomy, five counts of bribery by public official, four counts of sexual battery, two counts of kidnapping, two counts of perjury and one count of engaging in a pattern of criminal offenses.
By Adam Silverman - Free Press Staff Writer
A South Burlington High School student and two-sport athlete was accused in court today of sexually assaulting two fellow students at the school and during school hours.
_____, 17, of South Burlington, pleaded not guilty to one count of sexual assault without consent and two counts of sexual assault on a victim younger than 16. The first charge alleges _____ forced a 15-year-old girl to perform a sex act on him; the other charges are essentially statutory-rape accusations involving a 14-year-old girl.
Conviction carries a potential sentence of up to life in prison.
“It’s disturbing for a number of reasons,” said Chittenden County State’s Attorney T.J. Donovan. “They’re kids.”
Authorities also say _____ asked the girls — and several other classmates — to send him cell-phone messages with naked pictures of themselves, and the young women complied. Some did so willingly, while others felt compelled to submit because _____ was a popular senior who allegedly threatened to ruin the reputations of the underclassmen.
Possession of the pictures could fall under child-pornography statutes, and Donovan said law enforcement is investigating whether to file any additional charges.
Exchanging explicit photo messages, an increasingly popular phenomenon known as “sexting” at schools nationwide, is on the rise in South Burlington, according to court papers. “It is so common,” said one girl police interviewed.
The allegations came to light just before Thanksgiving, and a month-long investigation followed. Authorities alleged the assaults occurred twice in an athletic training room and once in the auditorium at the school during November. Police cited _____, who played varsity football and basketball, on Tuesday.
Judge Geoffrey Crawford allowed _____ to remain free on conditions of release, including a 24-hour curfew with exceptions for his job at a local grocery store and to attend school. His attorney, Lucas Collins, told Crawford the defendant is considering alternative educational opportunities.
“He’s been asked to leave school,” Collins said.
The superintendent of South Burlington’s school district, John Everitt, said confidentiality requirements prevent him from commenting on a student’s enrollment status, but he said _____ is “not active as a student-athlete.” Everitt also said students “by and large” remain in a secure environment, but the allegations have prompted a re-evaluation of security measures.
“We have been reviewing, looking at all the spaces in the school as far as safety goes. These charges will certainly make us look again,” Everitt said. “Students by and large at the school are safe.”
History and Scope of the Amendment
History .--Few provisions of the Bill of Rights grew so directly out of the experience of the colonials as the Fourth Amendment, embodying as it did the protection against the utilization of the ''writs of assistance.'' But while the insistence on freedom from unreasonable searches and seizures as a fundamental right gained expression in the Colonies late and as a result of experience, 1 there was also a rich English experience to draw on. ''Every man's house is his castle'' was a maxim much celebrated in England, as was demonstrated in Semayne's Case, decided in 1603. 2 A civil case of execution of process, Semayne's Case nonetheless recognized the right of the homeowner to defend his house against unlawful entry even by the King's agents, but at the same time recognized the authority of the appropriate officers to break and enter upon notice in order to arrest or to execute the King's process. Most famous of the English cases was Entick v. Carrington, 3 one of a series of civil actions against state officers who, pursuant to general warrants, had raided many homes and other places in search of materials connected with John Wilkes' polemical pamphlets attacking not only governmental policies but the King himself. 4
Entick, an associate of Wilkes, sued because agents had forcibly broken into his house, broken into locked desks and boxes, and seized many printed charts, pamphlets and the like. In an opinion sweeping in terms, the court declared the warrant and the behavior it authorized subversive ''of all the comforts of society,'' and the issuance of a warrant for the seizure of all of a person's papers rather than only those alleged to be criminal in nature ''contrary to the genius of the law of England.'' 5 Besides its general character, said the court, the warrant was bad because it was not issued on a showing of probable cause and no record was required to be made of what had been seized. Entick v. Carrington, the Supreme Court has said, is a ''great judgment,'' ''one of the landmarks of English liberty,'' ''one of the permanent monuments of the British Constitution,'' and a guide to an understanding of what the Framers meant in writing the Fourth Amendment. 6
In the colonies, smuggling rather than seditious libel afforded the leading examples of the necessity for protection against unreasonable searches and seizures. In order to enforce the revenue laws, English authorities made use of writs of assistance, which were general warrants authorizing the bearer to enter any house or other place to search for and seize ''prohibited and uncustomed'' goods, and commanding all subjects to assist in these endeavors. The writs once issued remained in force throughout the lifetime of the sovereign and six months thereafter. When, upon the death of George II in 1760, the authorities were required to obtain the issuance of new writs, opposition was led by James Otis, who attacked such writs on libertarian grounds and who asserted the invalidity of the authorizing statutes because they conflicted with English constitutionalism. 7 Otis lost and the writs were issued and utilized, but his arguments were much cited in the colonies not only on the immediate subject but also with regard to judicial review.
Scope of the Amendment .--The language of the provision which became the Fourth Amendment underwent some modest changes on its passage through the Congress, and it is possible that the changes reflected more than a modest significance in the interpretation of the relationship of the two clauses. Madison's introduced version provided ''The rights to be secured in their persons, their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.'' 8 As reported from committee, with an inadvertent omission corrected on the floor, 9 the section was almost identical to the introduced version, and the House defeated a motion to substitute ''and no warrant shall issue'' for ''by warrants issuing'' in the committee draft. In some fashion, the rejected amendment was inserted in the language before passage by the House and is the language of the ratified constitutional provision. 10
As noted above, the noteworthy disputes over search and seizure in England and the colonies revolved about the character of warrants. There were, however, lawful warrantless searches, primarily searches incident to arrest, and these apparently gave rise to no disputes. Thus, the question arises whether the Fourth Amendment's two clauses must be read together to mean that the only searches and seizures which are ''reasonable'' are those which meet the requirements of the second clause, that is, are pursuant to warrants issued under the prescribed safeguards, or whether the two clauses are independent, so that searches under warrant must comply with the second clause but that there are ''reasonable'' searches under the first clause which need not comply with the second clause. 11 This issue has divided the Court for some time, has seen several reversals of precedents, and is important for the resolution of many cases. It is a dispute which has run most consistently throughout the cases involving the scope of the right to search incident to arrest. 12 While the right to search the person of the arrestee without a warrant is unquestioned, how far afield into areas within and without the control of the arrestee a search may range is an interesting and crucial matter.
The Court has drawn a wavering line. 13 In Harris v. United States, 14 it approved as ''reasonable'' the warrantless search of a four-room apartment pursuant to the arrest of the man found there. A year later, however, a reconstituted Court majority set aside a conviction based on evidence seized by a warrantless search pursuant to an arrest and adopted the ''cardinal rule that, in seizing goods and articles, law enforcement agents must secure and use search warrants wherever reasonably practicable.'' 15 This rule was set aside two years later by another reconstituted majority which adopted the premise that the test ''is not whether it is reasonable to procure a search warrant, but whether the search was reasonable.'' Whether a search is reasonable, the Court said, ''must find resolution in the facts and circumstances of each case.'' 16 However, the Court soon returned to its emphasis upon the warrant. ''The [Fourth] Amendment was in large part a reaction to the general warrants and warrantless searches that had so alienated the colonists and had helped speed the movement for independence. In the scheme of the Amendment, therefore, the requirement that 'no Warrants shall issue, but upon probable cause,' plays a crucial part.'' 17 Therefore, ''the police must, whenever practicable, obtain advance judicial approval of searches and seizures through a warrant procedure.'' 18 Exceptions to searches under warrants were to be closely contained by the rationale undergirding the necessity for the exception, and the scope of a search under one of the exceptions was similarly limited. 19
During the 1970s the Court was closely divided on which standard to apply. 20 For a while, the balance tipped in favor of the view that warrantless searches are per se unreasonable, with a few carefully prescribed exceptions. 21 Gradually, guided by the variable expectation of privacy approach to coverage of the Fourth Amendment, the Court broadened its view of permissible exceptions and of the scope of those exceptions. 22
By 1992, it was no longer the case that the ''warrants-with- narrow-exceptions'' standard normally prevails over a ''reasonableness'' approach. 23 Exceptions to the warrant requirement have multiplied, tending to confine application of the requirement to cases that are exclusively ''criminal'' in nature. And even within that core area of ''criminal'' cases, some exceptions have been broadened. The most important category of exception is that of administrative searches justified by ''special needs beyond the normal need for law enforcement.'' Under this general rubric the Court has upheld warrantless searches by administrative authorities in public schools, government offices, and prisons, and has upheld drug testing of public and transportation employees. 24 In all of these instances the warrant and probable cause requirements are dispensed with in favor of a reasonableness standard that balances the government's regulatory interest against the individual's privacy interest; in all of these instances the government's interest has been found to outweigh the individual's. The broad scope of the administrative search exception is evidenced by the fact that an overlap between law enforcement objectives and administrative ''special needs'' does not result in application of the warrant requirement; instead, the Court has upheld warrantless inspection of automobile junkyards and dismantling operations in spite of the strong law enforcement component of the regulation. 25 In the law enforcement context, where search by warrant is still the general rule, there has also been some loosening of the requirement. For example, the Court has shifted focus from whether exigent circumstances justified failure to obtain a warrant, to whether an officer had a ''reasonable'' belief that an exception to the warrant requirement applied; 26 in another case the scope of a valid search ''incident to arrest,'' once limited to areas within the immediate reach of the arrested suspect, was expanded to a ''protective sweep'' of the entire home if arresting officers have a reasonable belief that the home harbors an individual who may pose a danger. 27
Another matter of scope recently addressed by the Court is the category of persons protected by the Fourth Amendment--who constitutes ''the people.'' This phrase, the Court determined, ''refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with [the United States] to be considered part of that community.'' 28 The Fourth Amendment therefore does not apply to the search and seizure by United States agents of property that is owned by a nonresident alien and located in a foreign country. The community of protected people includes U.S. citizens who go abroad, and aliens who have voluntarily entered U.S. territory and developed substantial connections with this country. There is no resulting broad principle, however, that the Fourth Amendment constrains federal officials wherever and against whomever they act.
The Interest Protected .--For the Fourth Amendment to be applicable to a particular set of facts, there must be a ''search'' and a ''seizure,'' occurring typically in a criminal case, with a subsequent attempt to use judicially what was seized. Whether there was a search and seizure within the meaning of the Amendment, whether a complainant's interests were constitutionally infringed, will often turn upon consideration of his interest and whether it was officially abused. What does the Amendment protect? Under the common law, there was no doubt. Said Lord Camden in Entick v. Carrington: 29 ''The great end for which men entered in society was to secure their property. That right is preserved sacred and incommunicable in all instances where it has not been taken away or abridged by some public law for the good of the whole. . . . By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set foot upon my ground without my license but he is liable to an action though the damage be nothing . . . .'' Protection of property interests as the basis of the Fourth Amendment found easy acceptance in the Supreme Court 30 and that acceptance controlled decision in numerous cases. 31 For example, in Olmstead v. United States, 32 one of the two premises underlying the holding that wiretapping was not covered by the Amendment was that there had been no actual physical invasion of the defendant's premises; where there had been an invasion, a technical trespass, electronic surveillance was deemed subject to Fourth Amendment restrictions. 33 The Court later rejected this approach, however. ''The premise that property interests control the right of the Government to search and seize has been discredited. . . . We have recognized that the principal object of the Fourth Amendment is the protection of privacy rather than property, and have increasingly discarded fictional and procedural barriers rested on property concepts.'' 34 Thus, because the Amendment ''protects people, not places,'' the requirement of actual physical trespass is dispensed with and electronic surveillance was made subject to the Amendment's requirements. 35
The test propounded in Katz is whether there is an expectation of privacy upon which one may ''justifiably'' rely. 36 ''What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.'' 37 That is, the ''capacity to claim the protection of the Amendment depends not upon a property right in the invaded place but upon whether the area was one in which there was reasonable expectation of freedom from governmental intrusion.'' 38
The two-part test that Justice Harlan suggested in Katz 39 has purported to guide the Court in its deliberations, but its consequences are unclear. On the one hand, there is no difference in result between many of the old cases premised on property concepts and more recent cases in which the reasonable expectation of privacy flows from ownership concepts. 40 On the other hand, many other cases have presented close questions that have sharply divided the Court. 41 The first element, the ''subjective expectation'' of privacy, has largely dwindled as a viable standard, because, as Justice Harlan noted in a subsequent case, ''our expectations, and the risks we assume, are in large part reflections of laws that translate into rules the customs and values of the past and present.'' 42 As for the second element, whether one has a ''legitimate'' expectation of privacy that society finds ''reasonable'' to recognize, the Court has said that ''[l]egitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.'' 43 Thus, protection of the home is at the apex of Fourth Amendment coverage because of the right associated with ownership to exclude others; 44 but ownership of other things, i.e., automobiles, does not carry a similar high degree of protection. 45 That a person has taken normal precautions to maintain his privacy, that is, precautions customarily taken by those seeking to exclude others, is usually a significant factor in determining legitimacy of expectation. 46 Some expectations, the Court has held, are simply not those which society is prepared to accept. 47 While perhaps not clearly expressed in the opinions, what seems to have emerged is a balancing standard, which requires ''an assessing of the nature of a particular practice and the likely extent of its impact on the individual's sense of security balanced against the utility of the conduct as a technique of law enforcement.'' As the intrusions grow more extensive and significantly jeopardize the sense of security of the individual, greater restraint of police officers through the warrant requirement may be deemed necessary. 48 On the other hand, the Court's solicitude for law enforcement objectives may tilt the balance in the other direction.
Application of this balancing test, because of the Court's weighing in of law enforcement investigative needs 49 and the Court's subjective evaluation of privacy needs, has led to the creation of a two-tier or sliding-tier scale of privacy interests. The privacy test was originally designed to permit a determination that a Fourth Amendment protected interest had been invaded. 50 If it had been, then ordinarily a warrant was required, subject only to the narrowly defined exceptions, and the scope of the search under those exceptions was ''strictly tied to and justified by the circumstances which rendered its initiation permissible.'' 51 But the Court now uses the test to determine whether the interest invaded is important or persuasive enough so that a warrant is required to justify it; 52 if the individual has a lesser expectation of privacy, then the invasion may be justified, absent a warrant, by the reasonableness of the intrusion. 53 Exceptions to the warrant requirement are no longer evaluated solely by the justifications for the exception, e.g., exigent circumstances, and the scope of the search is no longer tied to and limited by the justification for the exception. 54 The result has been a considerable expansion, beyond what existed prior to Katz, of the power of police and other authorities to conduct searches.
Arrests and Other Detentions .--That the Fourth Amendment was intended to protect against arbitrary arrests as well as against unreasonable searches was early assumed by Chief Justice Marshall 55 and is now established law. 56 At the common law, it was proper to arrest one who had committed a breach of the peace or a felony without a warrant, 57 and this history is reflected in the fact that the Fourth Amendment is satisfied if the arrest is made in a public place on probable cause, regardless of whether a warrant has been obtained. 58 However, in order to effectuate an arrest in the home, absent consent or exigent circumstances, police officers must have a warrant. 59 The Fourth Amendment applies to ''seizures'' and it is not necessary that a detention be a formal arrest in order to bring to bear the requirements of warrants or probable cause in instances in which warrants may be forgone. 60 Some objective justification must be shown to validate all seizures of the person, including seizures that involve only a brief detention short of arrest, although the nature of the detention will determine whether probable cause or some reasonable and articulable suspicion is necessary. 61
Until relatively recently, the legality of arrests was seldom litigated in the Supreme Court because of the rule that a person detained pursuant to an arbitrary seizure--unlike evidence obtained as a result of an unlawful search--remains subject to custody and presentation to court. 62 But the application of self-incrimination and other exclusionary rules to the States and the heightening of their scope in state and federal cases alike brought forth the rule that verbal evidence, confessions, and other admissions, like all derivative evidence obtained as a result of unlawful seizures, could be excluded. 63 Thus, a confession made by one illegally in custody must be suppressed, unless the causal connection between the illegal arrest and the confession had become so attenuated that the latter should not be deemed ''tainted'' by the former. 64 Similarly, fingerprints and other physical evidence obtained as a result of an unlawful arrest must be suppressed. 65
Searches and Inspections in Noncriminal Cases .--Certain early cases held that the Fourth Amendment was applicable only when a search was undertaken for criminal investigatory purposes, 66 and the Supreme Court until recently employed a reasonableness test for such searches without requiring either a warrant or probable cause in the absence of a warrant. 67 But in 1967, the Court held in two cases that administrative inspections to detect building code violations must be undertaken pursuant to warrant if the occupant objects. 68 ''We may agree that a routine inspection of the physical condition of private property is a less hostile intrusion than the typical policeman's search for the fruits and instrumentalities of crime. . . . But we cannot agree that the Fourth Amendment interests at stake in these inspection cases are merely 'peripheral.' It is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior.'' 69 Certain administrative inspections utilized to enforce regulatory schemes with regard to such items as alcohol and firearms are, however, exempt from the Fourth Amendment warrant requirement and may be authorized simply by statute. 70
Camara and See were reaffirmed in Marshall v. Barlow's, Inc., 71 in which the Court held violative of the Fourth Amendment a provision of the Occupational Safety and Health Act which authorized federal inspectors to search the work area of any employment facility covered by the Act for safety hazards and violations of regulations, without a warrant or other legal process. The liquor and firearms exceptions were distinguished on the basis that those industries had a long tradition of close government supervision, so that a person in those businesses gave up his privacy expectations. But OSHA was a relatively recent statute and it regulated practically every business in or affecting interstate commerce; it was not open to a legislature to extend regulation and then follow it with warrantless inspections. Additionally, OSHA inspectors had unbounded discretion in choosing which businesses to inspect and when to do so, leaving businesses at the mercy of possibly arbitrary actions and certainly with no assurances as to limitation on scope and standards of inspections. Further, warrantless inspections were not necessary to serve an important governmental interest, inasmuch as most businesses would consent to inspection and it was not inconvenient to require OSHA to resort to an administrative warrant in order to inspect sites where consent was refused. 72
In Donovan v. Dewey, 73 however, Barlow's was substantially limited and a new standard emerged permitting extensive governmental inspection of commercial property, 74 absent warrants. Under the Federal Mine Safety and Health Act, governing underground and surface mines (including stone quarries), federal officers are directed to inspect underground mines at least four times a year and surface mines at least twice a year, pursuant to extensive regulations as to standards of safety. The statute specifically provides for absence of advanced notice and requires the Secretary of Labor to institute court actions for injunctive and other relief in cases in which inspectors are denied admission. Sustaining the statute, the Court proclaimed that government had a ''greater latitude'' to conduct warrantless inspections of commercial property than of homes, because of ''the fact that the expectation of privacy that the owner of commercial property enjoys in such property differs significantly from the sanctity accorded an individual's home, and that this privacy interest may, in certain circumstances, be adequately protected by regulatory schemes authorizing warrantless inspections.'' 75
Dewey was distinguished from Barlow's in several ways. First, Dewey involved a single industry, unlike the broad coverage in Barlow's. Second, the OSHA statute gave minimal direction to inspectors as to time, scope, and frequency of inspections, while FMSHA specified a regular number of inspections pursuant to standards. Third, deference was due Congress' determination that unannounced inspections were necessary if the safety laws were to be effectively enforced. Fourth, FMSHA provided businesses the opportunity to contest the search by resisting in the civil proceeding the Secretary had to bring if consent was denied. 76 The standard of a long tradition of government supervision permitting warrantless inspections was dispensed with, because it would lead to ''absurd results,'' in that new and emerging industries posing great hazards would escape regulation. 77 Dewey suggests, therefore, that warrantless inspections of commercial establishments are permissible so long as the legislature carefully drafts its statute.
Dewey was applied in New York v. Burger 78 to inspection of automobile junkyards and vehicle dismantling operations, a situation where there is considerable overlap between administrative and penal objectives. Applying the Dewey three-part test, the Court concluded that New York has a substantial interest in stemming the tide of automobile thefts, that regulation of vehicle dismantling reasonably serves that interest, and that statutory safeguards provided adequate substitute for a warrant requirement. The Court rejected the suggestion that the warrantless inspection provisions were designed as an expedient means of enforcing the penal laws, and instead saw narrower, valid regulatory purposes to be served: e.g., establishing a system for tracking stolen automobiles and parts, and enhancing the ability of legitimate businesses to compete. ''[A] State can address a major social problem both by way of an administrative scheme and through penal sanctions,'' the Court declared; in such circumstances warrantless administrative searches are permissible in spite of the fact that evidence of criminal activity may well be uncovered in the process. 79
In other contexts, the Court has also elaborated the constitutional requirements affecting administrative inspections and searches. Thus, in Michigan v. Tyler, 80 it subdivided the process by which an investigation of the cause of a fire may be conducted. Entry to fight the fire is, of course, an exception based on exigent circumstances, and no warrant or consent is needed; firemen on the scene may seize evidence relating to the cause under the plain view doctrine. Additional entries to investigate the cause of the fire must be made pursuant to warrant procedures governing administrative searches. Evidence of arson discovered in the course of such an administrative inspection is admissible at trial, but if the investigator finds probable cause to believe that arson has occurred and requires further access to gather evidence for a possible prosecution, he must obtain a criminal search warrant. 81
One curious case has approved a system of ''home visits'' by welfare caseworkers, in which the recipients are required to admit the worker or lose eligibility for benefits. 82 In another unusual case, the Court held that asheriff's assistance to a trailer park owner in disconnecting and removing a mobile home constituted a ''seizure'' of the home. Supp.1
In addition, there are now a number of situations, some of them analogous to administrative searches, where '''special needs' beyond normal law enforcement . . . justify departures from the usual warrant and probable cause requirements.'' 83 In one of these cases the Court, without acknowledging the magnitude of the leap from one context to another, has taken the Dewey/Burger rationale--developed to justify warrantless searches of business establishments--and applied it to justify the significant intrusion into personal privacy represented by urinalysis drug testing. Because of the history of pervasive regulation of the railroad industry, the Court reasoned, railroad employees have a diminished expectation of privacy that makes mandatory urinalysis less intrusive and more reasonable. 84
With respect to automobiles, the holdings are mixed. Random stops of automobiles to check drivers' licenses, vehicle registrations, and safety conditions were condemned as too intrusive; the degree to which random stops would advance the legitimate governmental interests involved did not outweigh the individual's legitimate expectations of privacy. 85 On the other hand, in South Dakota v. Opperman, 86 the Court sustained the admission of evidence found when police impounded an automobile from a public street for multiple parking violations and entered the car to secure and inventory valuables for safekeeping. Marijuana was discovered in the glove compartment.
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- Page 1 - SEARCH AND SEIZURE (What you are reading now)
- Page 2 - Searches and Seizures Pursuant to Warrant
- Page 3 - Valid Searches and Seizures Without Warrants
- Page 4 - Continued from above...
- Page 5 - Electronic Surveillance and the Fourth Amendment
- Page 6 - Enforcing the Fourth Amendment: The Exclusionary Rule