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Over the centuries, the police have necessarily sought to preserve the peace and maintain order. In the view of John Adams, the founding father of the American experiment in self-government, the Constitution itself is riddled with Circumstances in which the police may seize and search, when necessary.
This principle has informed America’s constitution ever since, and it naturally leads to a series of questions. Does the Constitution require probable cause to conduct a general search? The Supreme Court has held that it does. (But only in the chambers of the judge and under the most secure circumstances... )
Does it require probable cause to seize a person and subject him to a partial search? The answer is clear: No. (But the search must be reasonable and the Constitution must be satisfied. Is the defendant in custody? Only for a reasonable period of time. And does the issue of the dog’s reliability matter?)
And, finally, does the Fourth Amendment require the police to obtain a warrant before seizing and searching a person during a traffic stop? Again the answer is clear: Yes. As the Supreme Court said in Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968):
Separate and apart from its reasonableness under the Fourth Amendment as a general rule, there is a much more specific rule that requires officers to obtain a search warrant except in certain well-defined classes of cases....
We conclude that, like a search warrant, an arrest warrant authorizes a less intrusive search than a general search. As the Supreme Court held in this case, a search authorized by arrest warrant is limited to “a search which is reasonable.” This means putting the arrest warrant within the context of contemporary Fourth Amendment jurisprudence, which as we have said lasts not despite the tyranny of stringent national security and intelligence legislation but because of it. In this context, where the police have arrested a suspect, here Mr. Terry, there is justification for a full search of the person. d2c66b5586