Search Warrant Exceptions
With the popularization of crime-based television shows, it seems like nowadays everyone believes that they are a qualified expert on the various exceptions that exist to the Fourth Amendment rules of law regarding search warrants. That doesn’t mean, however, that those rules are any less controversial than they once were. For instance, I would inform my FTO that while I agree wholeheartedly with the concept of “protective sweep” exception to the search warrant rules, I feel that the “stop and frisk” exception is simply taking things too far in the other direction.
First and foremost, it would be appropriate to mention the exception that I do agree with in principle. That is what I would refer to as the “protective sweep” exception. Essentially, this exception is in place in order to ensure the safety of the officers involved, and of any nearby civilians, during the search of a residence or place of business. It is applicable when a suspect is being arrested at a residence or place of business and allows for the arresting officers to do a “protective sweep” of the premises, in order to quickly make sure that there are no other felons present and that they are in no immediate danger .
I support this exception because the presence of the felon that is being arrested seems like a sort of probable cause to suspect that other dangerous people might be within the premises. Also, I like the fact that this exception does not grant the officers the broad right to search everything in detail, but only to quickly survey the area and eliminate any threats. On the other hand, I firmly disagree with the entire chain of logic behind what I would describe to my FTO as the “stop and frisk” exception, which is usually called the “Terry stop and frisk.
The “stop and frisk” exception is basically the idea that officers can ask a suspect to halt and then perform a brief pat-down search of their outer clothing layers, in a search for weapons or contraband of any nature. The officers are only permitted to do so if they feel that the suspect in question might conceivably be carrying a weapon and either has been, is, or will soon be involved in the commission of a criminal act.
They also must testify that they performed the “stop and frisk” because they felt that they, or someone else, would be endangered if they did not search the suspect in question . The reason that I support the “protective sweep” exception and do not agree with the “stop and frisk” one, is the simple fact that the first seems to much more closely imitate the idea behind probable cause. I think that it is imperative that the police be governed as closely as possible by the tenant of probable cause.
Officers perform the “protective sweep” because they have a very real, easily shown reason to believe that other dangerous felons might be in the area, because the only reason that they are within the premises is to arrest someone for the commission of a crime. On the other hand, the “stop and frisk” can be done in public, based solely upon the “suspicion” of the officers involved. This type of language leaves much more room for abuse and misuse of the exception, and for the violation of the suspects’ constitutional rights.