May 24, 2011 – Amendment IV of the United States Constitution – Guest Essayist: Jeffrey Reed, a professional orchestra conductor, holds a degree from the Louis B. Brandeis School of Law, and has taught constitutional law at Western Kentucky University in Bowling Green, Kentucky

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Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized

The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures. It also requires warrants issued by courts to be supported by probable cause.

Debates surrounding Fourth Amendment law involve balancing an individual’s right to privacy against law enforcement’s need to aggressively investigate crime. As crime rates soar, the legal trend has been to give police more leeway under the amendment.  However, it has not been without debate. One only need point to the controversy surrounding the Patriot Act, where police were granted expanded powers to wiretap phone conversations, intercept emails, etc., without a warrant. No doubt, the Fourth Amendment has created a growing body of law, affecting all Americans.

The text says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The framers of the Constitution adopted the amendment in response to the writs of assistance (a type of blanket search warrant) that were used during the American Revolution.

Before one can answer whether a search is reasonable, it must be established that there was, indeed, a search under the meaning of the Fourth Amendment. In Katz v. United States, the Supreme Court ruled that there is a search if a party has a “reasonable expectation of privacy” in the area searched.

In Katz, the government wiretapped a telephone booth. The court found that it was an unreasonable search because the defendant expected his phone             conversation to be private. The court used a “reasonable man” standard. Would society believe that Katz’s expectation of privacy was reasonable? The court held that the government should have obtained permission from a court, via a search warrant, before wiretapping the phone booth.

In order to obtain a warrant, an investigating officer must state, under oath, that he has reason to believe that the search will uncover criminal activity or evidence of a crime. A judge must find that probable cause exists to support the warrant. The Supreme Court has ruled that the term probable cause means that there is a “practical, nontechnical” probability that incriminating evidence is involved.”

The standards of probable cause differ for an arrest and a search. A “seizure” under the Fourth Amendment occurs when a person is arrested and taken into custody. The officer must have probable cause to seize the person. Police have probable cause to make an arrest when the facts they possess, based on “reasonably trustworthy information” would lead a reasonable person to believe that the person arrested had committed a crime.

Not every incident involves an “arrest” requiring probable cause. Under Terry v. Ohio, police may conduct a limited warrantless search (frisk them) on a level of suspicion less than probable cause when they observe “unusual conduct” that leads them to reasonably believe “that criminal activity may be afoot” and that the suspect is presently dangerous to the officer or others.

The Fourth Amendment also prohibits the unreasonable seizure of personal property without a warrant. A seizure of property occurs when there is meaningful interference by the government with an individual’s possessory interests.

Courts enforce the Fourth Amendment via the exclusionary rule. Any evidence obtained in violation of the amendment cannot be used to prosecute the defendant at trial. The defense attorney must move the court to suppress the evidence.

Like any rule, there are exceptions. No warrant is needed if a person agrees to the search. Likewise, if an officer is legally in a place and sees objects in “plain view” that he has probable cause to believe are evidence of a crime, he may seize them without a warrant. “Open fields” such as wooded areas or pastures may be searched without a warrant (there’s no reasonable expectation of privacy in them). And so on and so forth.

The most recent exception was handed down by the Supreme Court on May 16th.  In a case originating in my state of Kentucky, the Court created a new exception to the warrant requirement. Now, police may enter a home without a warrant when they have reason to believe that drug evidence is being destroyed. The Kentucky police acted properly when they smelled marijuana at an apartment door, knocked loudly, announced themselves, and kicked in the door.

Jeffrey Reed, a professional orchestra conductor, holds a degree from the Louis B. Brandeis School of Law. Before beginning his music career, he practiced law and  taught constitutional law at Western Kentucky University in Bowling Green, Kentucky, where he resides.

7 replies
  1. yguy
    yguy says:

    I have yet to encounter a cogent rationale by which any warrantless search can be considered legal under this amendment.

    As for the exclusionary rule, it is grossly deficient, as it puts the public at risk by providing a means of acquitting those who are plainly guilty – and that for no good reason, seeing punishment of those government agents who actually violate the amendment is every bit as much of a deterrent as is punishing the citizenry by excluding incriminating evidence.

    Reply
    • Ralph T. Howarth, Jr.
      Ralph T. Howarth, Jr. says:

      Yes, absolutely. There is not even a war, rebellion, insurrection exception made on this amendment like how the 5th amendment allows for suspending the protection of a Grand Jury from automatic prosecution, or that of not being imprisoned without arraignment before a judge.

      Now state and municipal police and laws are another matter. They are not subject to the 4th Amendment as that is a federal matter concerning federal laws and federal agents. But state governments have their own constitutions with a similar bill of rights to have, in the end, the same affect as the 4th, et.al., amendments here. Actually, such rights were generally upheld in the states first, and the federal government had those same rights conferred on them.

      Reply
      • yguy
        yguy says:

        Now state and municipal police and laws are another matter. They are not subject to the 4th Amendment as that is a federal matter concerning federal laws and federal agents.

        I think most would argue that the privileges or immunities clause of 14A indicates otherwise, though my personal view is that 4A was applicable against the states when it was ratified.

        Reply
        • Ralph T. Howarth, Jr.
          Ralph T. Howarth, Jr. says:

          Nope, the Bill of Rights had other articles on it…the actual draft bill that went through the houses had articles applying much the same to the states; but the Senate killed the state affected articles. The only article that passed that affected states was the 4th article known as the 2nd Amendment. The rest of the federal Bill of Rights affected only the federal government. The states had their own constitutions. The priviledges and immunities, aka, “interstate travel” clause in the 14th changed nothing as the constitution already provided for the same prior to the 14th. The object of the 14th was to reinforce such interstate travel rights to all blacks, not just “free” blacks. The part of the 14th that did affect internal state matters was that of the 14th Equal Protection (the right to sue somebody) and Due Process (the right to defend oneself) clauses that dealt with procedural law in court. That is where the federal government was given scope to determine whether or not citizens of a state are being given the same rights in court under state laws as any other citizen of a state regardless of race. The application of the federal Bill of Rights onto the states did not happen until the 1920 by the SCOTUS “Doctrine of Incorporation” that I am sure is coming up in an essay right quick. Congressman Lawrence McDonald also wrote about the 14th calling it the “Illegal 14th” because the was not a solitary version of the amendment that was ratified by 3/4th of the states. The states ratified on different versions of that bill and so the vote of the states was not equal. But in any case, the 14th was never inteded by the states to give the federal seat inspection of state laws; only that state laws applied equally to the people in that state.

          Reply
          • yguy
            yguy says:

            Nope, the Bill of Rights had other articles on it…the actual draft bill that went through the houses had articles applying much the same to the states; but the Senate killed the state affected articles.

            Taking this at face value, it does not support your assertion by itself. You would have to show that such amendments were rejected for no other reason than to assure that no one would have redress in federal court if these rights were abridged by a non-federal government entity.

            On a more general note, criminal law circa 1790 was pretty well established in the states by comparison to its status at the federal level, so it strikes me as passing strange that amendments dealing with criminal law would not be perceived as applying to the states.

            The only article that passed that affected states was the 4th article known as the 2nd Amendment.

            You lost me. Why would 2A be applicable against the states if 8A is not?

            [I]n any case, the 14th was never inteded by the states to give the federal seat inspection of state laws; only that state laws applied equally to the people in that state.

            That seems rather a difficult proposition to defend given 14AS5.

  2. Ralph T. Howarth, Jr.
    Ralph T. Howarth, Jr. says:

    I don’t get the whole common law reasoning behind how illegally obtained evidence causes the evidence to be thrown out. It seems to me there are actually two trials at stake here. The criminal trial of the accused, and then the grievance against the government for violating rights of the accused. So instead of having two trials, the whole process is summarized and the evidence is thrown out, though a crime has been committed and that evidence is the smoking gun. Then the accused walks free. I suppose it is an adequate deterrent to keep the government from harming the innocent as our whole system is supposed to allow ‘ten guilty go free rather than putting away one innocent person in prison.’

    Reply
  3. Ralph T. Howarth, Jr.
    Ralph T. Howarth, Jr. says:

    The Lawrence v Texas case used this 4th amendment to first: derive the right of privacy, second: incorporate the jurisdiction ovee the state laws with abusive use of the 14th amendment, third: trump criminal law that touches the civil moral code of criminal law. The scope of the Constitution was to only run the government and assure procedural law was followed–not touch morals. But what we have now is that the federal government can preside over your life in things like whether or not you can incinerate or puncture an aerosol can in the privacy of your own home; but turn around and strike down state laws prohibiting criminal sexual behaviors. What next? If I commit fraud in the privacy of my own home, and dodge taxes, do I go scott free? The sophistry the SCOTUS uses is so inconsistent and extra-jurisdictional.

    Reply

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