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Due process in criminal cases: The 4th Amendment

By Robert G. Stahl Esq., NJ & NY Criminal Defense Lawyer posted in Federal Crimes on Friday, July 24, 2015

In an earlier post we introduced the subject of how the concept of due process interacts with the criminal justice system. Although not all of the amendments that comprise the Bill of Rights to the U.S. Constitution are related to procedural due process, the 4th, 5th, 6th and 8th Amendments are directly connected to it. We will briefly cover each of these amendments going forward, starting with the 4th Amendment.

The 4th Amendment safeguards against unreasonable searches and seizures of persons and property, and except for situations that courts have carved out as exceptions (see below) requires the use of search and arrest warrants based on probable cause. Evidence gathered by the police in violation of the 4th Amendment cannot be used against you; courts have referred to this exclusion as the "fruit of the poisonous tree" rule.

Characteristics of the 4th Amendment include:

  • As with due process rights overall, it protects against government action and not actions of private individuals.
  • It is not a prohibition on all searches and seizures. To qualify for its protection, you must have a reasonable expectation of privacy in the place or the item that the police seek to seize.
  • What constitutes a "search or seizure" depends on the immediate circumstances. For example, if a police officer stops you on the street and starts asking you questions, that is not a search or a seizure (and conversely you are not obligated to answer any of those questions). But if the officer seeks to search your clothing or personal effects without a warrant, then he must have at least a reasonable suspicion in advance that you have been engaged in some criminal activity.
  • If a police officer has probable cause to believe that you have committed a crime, then he can arrest you without having to obtain an arrest warrant first. Or, if you have committed a misdemeanor crime in the officer's presence no arrest warrant is needed. But unless the officer is in "hot pursuit" of someone who has committed a felony and is trying to flee, any arrest in a private place will ordinarily require the issuance of an arrest warrant.

In our next post on the topic of your due process rights, we will cover the Fifth Amendment protections that you have available when you have been charged with a federal or New Jersey criminal offense.

Tags: Federal Crimes

Related posts: The Trial Penalty: How Federal Judges Can Increase Sentences Using Acquitted Conduct The Importance of Accepting Responsibility at Sentencing Target Letters and Proffer Agreements Plea Bargaining in the Federal System

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