I have to do a paper based on this question, but I'm having trouble understanding the word symbolic. What does symbolic mean in this sense. Is it asking if police discretion makes the 4th amendment valid? Someone help!
2007-11-27 01:05:28 · 6 answers · asked by dgirl9258 1 in Politics & Government ➔ Law Enforcement & Police
I know that typically you can only be searched if there is a valid warrant. However, there are circumstances in which a warrant is not needed and there are circumstances in which although there was no warrant, the evidence obtained against you can still be used against you. The papers' question is DOES THIS ABILITY MAKE THE 4TH AMENDMENT SYBOLIC? My question however, is WHAT DOES SYMBOLIC MEAN IN THIS SENSE?
2007-11-27 01:49:53 · update #1
In this sense, symbolic means that the fourth ammendment is a formality and not really important, or to be followed.
In this sense, the statement is wrong.
An officer does not have any kind of discretion in performing a search. If he asks for permission to search and it is granted, the owner of the property being searched has the discretion. Not the officer. That person can change their mind at any time, or limit the scope of the search that the officer performs. (ie: "You can look in the trunk, but you can't touch anything.") If the officer has Probable Cause (PC) to conduct a warrantless search, then he does not need the owner's consent. However, he still doesn't have discretion. PC to cunduct a search means that the officer has reason to believe that a crime has been committed and that evidence of that crime will be found in the area being searched. Even with a warrant, the officer is limited to the scope of the warrant. If he is looking for a fugitive, for example, in your house, he cannot open up a desk drawer and go flipping through papers, unless the warrant specifically states that he may. If the warrant doesn't state that he may inspect documents to locate the persons whereabouts, then he may not do so, and can only search for the person himself. Any area too small to fit a human body will be considered outside of the scope of the search, and if challenged in court, any evidence of that or any other crime found will be thrown out.
If an officer has PC to believe there is evidence of a crime in the trunk of your car, or if he has a warrant to search your house, and fails to do so, then the officer has committed nonfeasance, and can be disciplined or even arrested on charges.
El Chistoso
2007-11-27 03:28:05 · answer #1 · answered by elchistoso69 5 · 1⤊ 0⤋
It does not make the 4th symbolic. The 4th is protection from UNREASONABLE searches. What you refer to as discretion is really how a police officer and a court, would define a search as a reasonable one.
The Supreme Court has continiously defined what the meaning of reasonable is. The 4th amendment is one of the strongest and most powerful amendments today. Many cases are decided based on the court interpretation of the 4th. Lately, there is not a session of The Supreme Court that hasn't had a case involving the 4th.
In fact, it is not the police officer's decision that determines if a search was legal, it is a court. If an officer makes an illegal search, the court will throw out the evidence simple as that.
2007-11-27 15:02:21 · answer #2 · answered by joseph b 6 · 0⤊ 0⤋
There is a threshold which has to be crossed depending on which state you are in - reasonable suspicion or probable cause. Both are based on facts presented at the scene. The officer uses discretion based on training and experience and what the law says he/she can do. If you are in a state where the threshold to be crossed is reasonable suspicion, the officer must follow that - "would a reasonable person be suspicious of this crime taking place under these circumstances?" The 4th amendment IS valid because the Officer cannot simply rip people out of a car and go through their belongings until he finds something. People are protected by thier 4th amendment rights.
I would ask the instructor for clarification on symbolic, though I think it is intended to mean valid in this case.
2007-11-27 01:15:06 · answer #3 · answered by The Diggity 3 · 1⤊ 0⤋
The real protection comes in court, when the court gets to decide if the decision to conduct a search was constitutionally valid. Police have some pretty wide discretion to search based on suspicion or safety. Not all searches or evidence gathered during searches will be admissible in court.
2007-11-27 01:19:58 · answer #4 · answered by thegubmint 7 · 0⤊ 0⤋
No I do not think its symbolic. Police do have discretion to search or not to search if they legally have that option when they handle an incident. If they do not have the right to search and they do search and find evidence illegally it will be thrown out by a court and that is not symbolic.
2007-11-27 01:31:53 · answer #5 · answered by Kent N 2 · 0⤊ 0⤋
the police can only search if they have either permission or reasonable doubt (a reason to). its not symbolic, because no one can enter your house, or car without permission, UNLESS given permission, or they have a major reason (hear people getting killed etc)
2007-11-27 01:13:48 · answer #6 · answered by Anonymous · 0⤊ 2⤋