The Fourth Amendment is one of the Bill of Rights, a group of ten amendments introduced by James Madison during the First Congress in 1789, fulfilling a promise by the proponents of the Constitution’s ratification to place specific limits on government power. They were ratified in 1791.
The Fourth Amendment
The Fourth Amendment reads as follows:
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.
What is a Fourth Amendment Search?
The Fourth Amendment applies to searches by agents of the government. It applies to both the federal government and to state governments through the due process clause of the Fourteenth Amendment. It is important to determine if a search has taken place within the meaning of the Fourth Amendment.
The amendment applies only to searches that are unreasonable. A government search of something is unreasonable if the person with possession of the place or item to be searched has a reasonable expectation of privacy in the place or item.
An expectation of privacy is reasonable regarding someone’s home, office or suitcase in their possession. In those cases for a government agent to conduct a search, there is a requirement for the agent to present under oath the reasons for the desired search to a judge and the judge will decide if there is probable cause to issue a warrant allowing the search.
What is a Fourth Amendment Seizure?
The Fourth Amendment prohibits unreasonable government seizure of a person, or their property without a warrant. Property is seized when meaningful interference by the government with an individual's possessory interests takes place. A person is seized when they have been arrested or a reasonable person would believe under the surrounding circumstances they are not free to leave.
Even momentary encounters with the police when an individual reasonably believes they are not free to go are seizures for Fourth Amendment purposes.
Warrant
A warrant is a document issued by a judge, also referred to as a writ. The warrant grants law enforcement authority to search a location or item, seize a particular item of property or arrest an individual. A law enforcement agent seeking a warrant presents the request to a judge along with an affidavit executed under oath explaining to the judge why the agent wishes to conduct the search, seizure or arrest. If the judge agrees the reasons meet the constitutional standard of probable cause, the warrant will issue. If the judge does not believe the officer has met the standard than the warrant will be denied.
A warrantless search or seizure is generally unreasonable and unconstitutional and the police must obtain a warrant whenever it is practical. Warrantless searches and seizures are not considered unreasonable by the courts if a specifically established exception to the warrant requirement applies.
Exceptions to the Fourth Amendment Warrant Requirement
Exceptions to the warrant requirement for arrest have been carried over from the common law, which allows for warrantless arrests when an officer has probable cause to believe a particular individual has committed a crime, a warrantless arrest may be made. There are levels of police encounters with citizens that do not rise to the level of “arrest”.
The question is whether a police/citizen encounter rises to the level of a seizure within the meaning of the Fourth Amendment. The Supreme Court has allowed what has become known as a Terry Stop, giving officers authority to stop and search an individual when the officer has a “reasonable, suspicion” of criminal activity. This suspicion is more than a hunch, but less than probable cause.
There are many established exceptions to the warrant requirement. If a situation falls into an exception items may be seized without a warrant. These exceptions include:
- Consent: If someone consents to a police search.
- Plain View: If a police officer can observe an item of evidence from a location the officer is legally entitled to be, no search has taken place.
- Open Fields: The Supreme Court has ruled that open fields are not protected by the Fourth Amendment as there is no reasonable expectation of privacy.
- Exigent Circumstance: If there is an emergency situation requiring a search for purposes of public safety, a search may proceed without a warrant.
- Motor Vehicles: There may be an expectation of privacy in an automobile, but the nature a vehicle is such that evidence may disappear, there are special rules for these searched.
- Search Incident to Arrest: When someone is arrested there is a need to search their person for several purposes including officer safety.
- Border Searches: The nation has the authority to control its borders and there is not a reasonable expectation of privacy for someone crossing an international border
Airport Searches
The newly instituted extensive searches at airports fall within the purview of the Fourth Amendment. It is a government search of a person. The 4th Amendment test regarding search and seizure is a reasonableness test and an initial review in a vacuum would lead one to believe such searches are unreasonable. If the polls are to believed many Americans accept such measures as needed for security. If the courts ultimately rely upon the fact that most in society find these measures to be reasonable, they will be found constitutional.
Ben Franklin has been quoted in many ways on this issue: "People willing to trade their freedom for temporary security deserve neither and will lose both." Further discussion of this issue can be found at: Full Body Scans and The Fourth Amendment.
Exclusionary Rule
If evidence is obtained as the result of a warrantless search or seizure, that evidence may not be used in the prosecution of a criminal case. This evidence is subject to the Exclusionary Rule and subject in court to a Motion to Suppress Evidence.
David J. Shestokas - Mr. Shestokas is a former prosecutor & writes on the Constitution & legal issues for the Save America Foundation & Suite 101.
Join the Conversation