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The legislature was primarily concerned with the protection of the public


A 16 years old girl was arrested with the others in a raid of a house of prostitution. She was immediately brought to the district attorney’s office and questioned in the presence of the police officers. She stated that she had been forced by a man to enter and remain in the place. The police officer was then ordered by the district attorney to arrest the said man. The arrest however happened a few hours later without a warrant.

Upon the original arrest for the felonies of compulsory prostitution and abduction, an incidental search was made by the police officer. The said search uncovered a revolver from the man. An arrest was immediately made for the unrelated crime of possession of a dangerous weapon, a crime then and there being committed in the presence of the police officer.

The man was then separately indicted for the felonies of compulsory prostitution and abduction, and for the instant crime for possession of a dangerous weapon as a felony.

Yet, the indictment charging compulsory prostitution and abduction was dismissed on motion by another judge. Even if the girl’s testimony was not quite the same as related to the district attorney, the dismissal was based mainly on the lack of supporting evidence required by the law for the crimes of compulsory prostitution and abduction.

Based on records, the specific problem will arise most frequently in the unrelated crime area of the law of search and seizure. It can also occur in a primary taint matter. For most frequently in other areas, the motion to suppress will be made prior to any ultimate acquittal or conviction.

Moreover, the general principle is that if the original search is reasonable, any fruits, instrumentalities or contraband of an unrelated crime observed or uncovered in the course of that reasonable search may reasonably be seized provided a contemporaneous arrest is then and there made for the unrelated crime. Further, the said general principle is always applicable if the original incidental search is confined to the same person.

The court stated it is from the basic limitations on the incidental search that the rule has emerged, that the search must be incidental to a lawful arrest but lawful only in the sense that it is authorized by the law. For a police officer like any citizen is presumed to know the law and if he makes an unlawful arrest unauthorized by the arrest statutes, the law conclusively presumes that his primary purpose was to search rather than arrest.

Sources revealed that the fourth amendment is not concerned with acquittals or convictions. It is only concerned with searches. It commands that probable cause and legal authority to arrest precede every search. As a sanction it excludes the product of an unreasonable search.

Consequently, the inquiry should solely be directed toward determining whether the arrest was authorized by the law rather than to ultimate acquittal or conviction.

But the inquiry whether legal authority to arrest exists is confused by the fact that most state felony arrest decree make ultimate acquittal or conviction the test of the lawfulness of the arrest. There are many decisions so holding where civil or criminal sanctions are sought against the arresting officer.

The legislature was primarily concerned with the protection of the public from unwarranted or irresponsible arrests.

The court had previously expressed the view that the rule was not intended to change the law of arrest but merely to afford greater protection than therefore to the police officer against criminal and civil sanctions for a mistake. However the appellate courts have recently given a literal construction to that provision and no doubt justified by the terminology employed.

The overall problem for the legislature may be briefly stated. The fourth amendment is not concerned with state arrest law itself. As discussed, it is only concerned that a search be incidental to a lawful arrest authorized by the law.

At one extreme, a state may permit arrests on mere suspicion or without any probable reason at all. Such an arrest will be lawful in the law of arrest itself. The fourth amendment however requires that probable reason can lead a search. And since a search must be contemporaneous with the arrest, it requires that probable cause precede the arrest even though the state arrest law makes no such requirement. It is the sole mandate of the fourth, that probable cause precede the arrest and search.

At the other extreme, a state, from concern for its obligation to its citizens, may surround its arrest law with safeguards not required by the fourth amendment. Typical of such safeguards are the requirements in the state arrest law of in the presence or fact of felony. In such states an incidental search may be unreasonable for want of the said requirements, while in another state the same search may be reasonable.

The court stated that each state must balance its interest in the protection of the public from arrest against its interest in effective law enforcement and determine whether the additional legal safeguards surrounding the law of arrest are in the public interest.

In the latter connection it is only fair to observe that, during the years for which reliable statistics are available, over forty percent of all felony arrests in the state have resulted in dismissal or acquittal. The exclusionary rule has not measurably affected the percentages.

Based on records, the court’s concern may very well be exaggerated, although every judge can point to several specific experiences in which a serious criminal escaped conviction. But, it is also true of other exclusionary principles, self-incrimination and involuntary confessions.

The court also found that the loitering arrest was not authorized by the law because of the presence of the requirement. But the holding seems that acquittal gives the right to resist. Therefore, the court held that even if the arrest had been for a felony on abundant probable cause and with legal right to arrest the findings.

Sources revealed that it is not inconsistent with the court’s holding. The right to resist depends on the subjective mind of the victim of the arrest who presumably knows whether he is committing or has committed a crime. The right to search depends on the subjective mind of the police officer, who is entitled to arrest upon probable cause. But, he is not a guarantor of the fact of felony or the identity of the felon.

The other judge held that other case requires a holding that acquittal invalidates a search. The court also believes that they are required by the principles of law discussed to find that the search of the man was reasonable despite ultimate acquittal.

The court however did not argue that such conclusion is only that it is required. Justice as well as practicality rather requires acceptance in principle ruling that ultimate acquittal should determine the reasonableness of the search.

Yet, such holding is practical in that it avoids collateral issues of pretext arrests and exploratory searches. It is just in that the exclusionary rule is intended to dissuade unlawful police conduct and ultimate acquittal is a more precise test than the uncertainties surrounding a determination of probable reasons. Consequently, the motion to suppress is denied.

There are people who are forced to do things that are immoral. Whenever you experienced the same matter and it involves sexual crime, you can seek legal help from the Kings County Criminal Attorney. You can also ask guidance and legal representation from the Kings County Prostitution Lawyer at Stephen Bilkis and Associates.

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