4th, 5th, and 6th amendment

The Fourth Amendment protects the right of the people to be secure in their persons,

houses, papers and effects, against unreasonable searches and seizures, and provides that no

warrants shall issue but upon probable cause supported by oath or affirmation, and particularly

describing the place to be searched and the persons to be seized. In order to establish probable

cause, the officer must establish that there is a fair probability that the area to be searched

contains evidence or the person to be arrested has committed a crime; a mere possibility is

insufficient. A search without a warrant is presumed unreasonable absent the presence of a

recognized exception. U.S. v. Johnson. The Supreme Court has held that this is

permissible, but only under certain circumstances.

The first issue is whether Detective Davis (DD) committed a search when she went

down to the basement. A search occurred if Bishop Short had a subjective expectation of

privacy which society would deem to be reasonable (Katz v. U.S.) The defense would likely

argue that the Bishop (B) had a subjective expectation of privacy in the basement, and that there

was an objective expectation of privacy also because only the area where services took place

were open to the public. The government would counter by arguing that DD simply walked

downstairs during the services, which were open to the public, so anyone had access to this area.

Additionally, there was a children’s playroom, which could be used to take loud or crying babies

during the services, and that was therefore accessible to the public. If other members of society

could gain access and view the basement, then there was not an objective expectation of privacy.

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Accordingly, DD did not commit a search simply by going into the basement.

Whether a search occurred becomes less clear once DD entered B’s office. The

government would argue that the door was open, so DD did not commit a search by merely

entering B’s office. Whether this was a search was less significant, however, than the opening of

the desk drawer. Even if DD had legal access to the office, she certainly “searched” when she

opened the drawer. According to the plain view exception of the warrant requirement, a police

officer can seize anything in plain view once legally in a space, but the officer needs probable

cause to believe that what is immediately apparent is contraband or evidence of a crime, and it

cannot require further investigation. Arizona v. Hicks. The Supreme Court has even held that

lifting a turntable to view a serial number is an illegal search that extends beyond the limits of

the plain view doctrine. Arizona v. Hicks. Certainly, opening the desk drawer is more of an

invasion of privacy than lifting a turntable. Further, the defense would argue that B had both a

subjective and objective (an expectation that society is prepared to recognize as reasonable)

expectation of privacy in the contents of the drawer. Katz. B would argue he had a subjective

expectation of privacy, mostly because the drawer was closed, but also that society would

recognize this as a reasonable expectation because the drawer was closed.

If the government had not brought this up earlier, it would certainly bring up the

argument by now that it had probable cause to believe there was evidence of the crime

(possession of cocaine with the intent to distribute) based on the informant’s tip. Whether an

informant’s tip is sufficient for establishing probable cause depends on the Gates totality of the

circumstances test, where there should be particularized facts that show given all the

circumstances, there is a fair probability that contraband or evidence of a crime will be found. To

simply say that the drugs are “stored somewhere in the church” is not necessarily enough to

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