Criminal Procedure – Probable Cause, Essay Example

Introduction

In 2008 we witnessed a new and short lived law in Rhode Island. This put 17 year olds in court and was subsequently cited as being unconstitutional by the judge. It was stated that the teens failed to get probable cause hearings before they were referred to superior court hearing from family courts. As such the Superior Court judge Daniel Procaccini dismissed felony charges against 115 teenagers. The judge however did defer the decision on a 17 year old Ryan Greenberg who had been charged with second degree murder. (Neil, M. 2008)

Search and Arrest Warrents

It is the 4^th Amendment in the US constitution that makes provision appropriate to the Citizens right to be free from unreasonable search and seizures. As such government agents must have an appropriate warrant in order to search or seize property or person. This is all about reasonable cause and this is deemed appropriate in the following requirements:-

• Where the judge has issued a search warrant based upon a reasonable cause;
• Those situations where the judge deems a warrant to be unnecessary, for example a search for weapons after a prior arrest.

Where the government violates a person’s 4^th Amendment rights, then any evidence that is found during the search will be deemed inadmissible in a future trial. This is known as the ‘exclusionary rule’ and is aimed at deterring police officers from making unreasonable searches. (Find Law, 2012).

A search warrant may be issued by judge under the following circumstances:

• Where there is considered evidence of a crime;
• Items of contraband or other illegal possessions;
• Where a property is deemed a potential crime scene;
• A person the law wishes to arrest or apprehend.

In general terms the judge or magistrate, upon receiving an appropriate affidavit, or under the ruling of provision Rule 41(b) may issue the warrant to search or seize a person or property and if appropriate install a tracking device. The issued warrant must clearly identify the person or property to be seized or searched. It designates the judge or magistrate who has issued the warrant and the police officer is instructed to:

• Ensure that the warrant is executed in a specified timeframe, normally within 14 days of issue;
• Execute the order in daylight hours unless a specific instruction stipulates another time;
• Ensure the warrant is returned to the designated judge or magistrate(Legal Information Institute, 2012).

There are certain exceptions where search warrants cannot be issued. This is in instances where judges and magistrates cannot issue intrusive warrants without statutory authority. In addition the Police have statutory and common law powers to conduct searches in relation to drug related offences. The key to this again falls within the 4^th Amendment. A judge cannot issue a search warrant without identified probable cause. Hence the police may stop cars without a warrant and ask such reasonable questions. They are not however entitled to search the vehicle without having identified the probable cause for such an action.

References

Find Law. (2012, 2 15). Search Warrant Requirements. Retrieved from Find Law: http://criminal.findlaw.com/criminal-rights/search-warrant-requirements.html

Legal Information Institute. (2012, 2 15). Rule 41. Search and Seizure. Retrieved from Legal Information Institute: http://www.law.cornell.edu/rules/frcrmp/rule_41#rule_41_b

Neil, M. (2008). Cases dropped for 115 R.I. teens; no probable cause hearings. ABA Journal, 1.