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Due Legal Process in the United States Essay (Critical Writing)

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Updated: Oct 27th, 2019


Due process is legal principle that ensures protection of civil rights against violation by the government in order to guarantee justice, fairness, and liberty in the application of the law. The due process of the law is fundamental in law application since at some instances, government can act in contravention to the law process thus violating an individual’s rights. The United States amendments provide for the basic rights of citizens and further protect them against unfair treatment by the government.

According to Fourteenth Amendment of United States, “no State shall make or enforce any law, which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law,” (Garlinger, 2009, p. 32). This amendment gives United States citizens immunity against undue processes of the law by the government. This essay explores the due process of law regarding the Fourth and the Sixth Amendment of the United States.

Reasonable Suspicion and Probable Cause

The fourth Amendment in the United States constitution provides rights to citizen not to have unreasonable searches of their premises and arrests without warrant. However, the police too have right to conduct warrantless searches under exigent circumstances. Exigent circumstances are situations that require immediate and expedient action of law enforcement by the police, for example, in face of evidence destruction or planning of crime.

Reasonable suspicion and probable cause are two approaches that the police use in determining exigent circumstances. Reasonable suspicion requires the police to use their judgment in deciding the exigent circumstances without any tangible evidence so that they can conduct warrantless searches. On the other hand, probable cause demands the police to have tangible evidence of exigent circumstances before conducting warrantless searches.

Sonntag argues that, ” reasonable suspicion as opposed to a probable cause requirement strikes the appropriate balance between the legitimate law enforcement concerns at issue in the execution of search warrants and the individual privacy interests affected by no-knock entries” (2003, p. 635). Probable cause limits police investigation and gives a chance to the suspect to escape or destroy important evidence.

For example, an exigent circumstance where the police suspect destruction of criminal evidence demands the police to either use probable cause or reasonable suspicion approach. Exigent circumstances based on probable cause exist when “facts and circumstances within the officer’s knowledge are sufficient to warrant a prudent person, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense” (Sonntag, 2003, p. 651).

The requirement of facts and concrete reasons when determining exigent circumstances are quite strict for the police to conduct warrantless searches and arrests. Reasonable suspicion approach gives the police leeway to conduct warrantless searches and arrests contrary to the United States Fourth Amendment because the police can determine exigent circumstances based on mere speculation.

Under circumstances where the police officers do not have enough evidence to determine exigent circumstances by probable cause approach, and the matter in question is of great public interest, then, reasonable suspicion can warrant searches or arrests. Davidson describes reasonable suspicion as “a particularized and objective basis for suspecting the person stopped of criminal activity, and probable cause to search as existing in the belief that contraband or evidence of a crime will be found (2006, p. 3).

The determination of reasonableness needs objective suspicion of suspects. If the police officer believes and suspects that there is an imminent criminal activity, destruction of evidence, and the criminals are aware of police tracking them, then reasonable suspicion can suffice warrantless searches or arrests. Therefore, factors surrounding exigent circumstances determine whether the police will employ probable cause or reasonable suspicion in their warrantless searches and arrests.

Exceptions to Warrant Requirement

Although the Fourth Amendment of the United States constitution protects citizens against searches and arrests unless warranted, the Supreme Court has realized that this is not always applicable and has come up with exceptions to warrant requirement. These exceptions are exigent circumstances, searches with consent and automobile exception amongst others.

An exigent circumstance is a situation where it compels police officers to conduct warrantless searches or arrests due to danger the circumstances pose. Glenn argues that, “police officers who have established probable cause that evidence is likely to be at a certain place and do not have time to get a search warrant may conduct a warrantless search or seizure” (2007, p. 142). Due to danger an exigent circumstance poses to the police, public, or destruction of evidence, it qualifies warrantless searches or arrests of the suspects.

For instance, exigent circumstances occur when one is in great danger and needs rescue, when there is danger of evidence destruction, and when there is an impending criminal activity. Under such circumstances, there is no enough time for the police to acquire warrant and at the same time prevent the imminent danger.

Warrantless search can also occur when an individual consent to it. The condition of the consent demands that, the person giving out consent must be the owner or sharing the searched property or residence. For example, husband or wife can consent search of their bedroom but not a relative living in the same house. Automobile search is an exception of warrant requirement because automobile cannot wait for the police officer to obtain a warrant.

Warrantless searches and arrests are applicable “if a government agent has probable cause to believe the vehicle contains contraband or evidence of a crime in the time it would take to get a warrant, the car, driver and contraband or evidence could be long gone” (Harr & Hess, 2005, p. 230). For example, if a police officer has suspected a vehicle in a highway to be carrying illegal drugs, it will be a futile effort for the police to obtain a warrant first.

The fourth exception is the search incident to arrest. Police officer haves the right to search a suspect for any weapon or incriminating evidence during arrest without any warrant. For instance, a police cannot arrest a terrorist without conducting search lest there be explosives or a gun, which threatens the life of the police officer and the public.

Right to Counsel

The sixth Amendment right to counsel protects the accused during the process of prosecution by ensuring fair trial, including assistance of counsel. The right to counsel of this Amendment comes into effect during critical stages of investigation under adversarial system.

“The Supreme Court has held that the accused has the right to the assistance of counsel at all critical stages of the prosecution during which the accused is simply advised of the charges and constitutional rights” (Weiss & Wharton, 2000, p. 11). In this case, adversarial court proceedings form the critical stages in the prosecution process.

While right to counsel of the Sixth Amendment guards the suspects against undue process of prosecution, the right to counsel of the Fifth Amendment safeguards the suspect against forced self-incrimination that may occur during investigation. The former ensures due legal process of prosecution and the latter protects against self-incrimination.


Due legal process is a fundamental principle that ensures justice and fairness in the application of the law. Given that the United States Amendments are prone to many interpretations by various courts, it is imperative to apply due legal process that will enable citizens enjoy their basics rights.

As shown in the fourth Amendment, it is very subjective to state whether individuals still have the fundamental right not to have their property searched or arrested without warrant. Basing on the exceptions of the Fourth Amendment, there is no clear cut between warrant search and warrantless search because the police officers have the prerogative to determine exigent circumstances that warrant search or arrest.


Davidson, M. (2006). Probable Cause, Reasonable Suspicion, and Reasonableness

Standards in the Context of the Fourth Amendment and the Foreign Intelligence Surveillance Act. Congressional Research Service 4(6), 1-12.

Garlinger, P. (2009). United States Constitution: Fourteenth Amendment. New York University Law Review 2(4), 30-34.

Glenn, S. (2007). Exceptions to the Warrant Requirement of the Fourth Amendment. Human Rights Journal 3(2), 130-163.

Harr, S., & Hess, M. (2005). Constitutional Law and the Criminal Justice System. United States: Thomson Wadsworth.

Sonntag, G. (2003). Probable Cause, Reasonable Suspicion, or Mere Speculation?

Holding Police to a Higher Standard in Destruction of Evidence Exigency Cases. Washburn Law Journal 42(6), 629-656.

Weiss, P., & Wharton R. (2000). The Sixth Amendment Right to Counsel. The New York Journal 2(6), 1-30

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