Fourth Amendment to the United States Constitution

Amendment IV (the Fourth Amendment) of the United States Constitution, which is part of the Bill of Rights, guards against unreasonable searches and seizures. It was a response to the controversial writs of assistance (a type of general search warrant) which were a significant factor behind the American Revolution.

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Summary

The fourth amendment can be broken down into 2 distinct parts. The first part provides protection against unreasonable searches and seizures, although historically there have been myriad ways in which unreasonable searches were remedied. Modern jurisprudence has afforded the police officers an incentive to respect the amendment.

The second part of the amendment provides for the proper issue of warrants. When warrants are issued, there must be probable cause. Probable cause is tested using the "totality of circumstances" test as defined in Illinois v. Gates, 462 U.S. 213 (1983).

Reasonable expectation of privacy

Not every incident where an officer ascertains information is considered a "search." An officer who views something which is publicly viewable (for instance, by looking through the window of a house from the street) is not conducting a "search" of the house. In Katz v. United States, 386 U.S. 954 (1967), the Supreme Court ruled that there is no search unless an individual has an "expectation of privacy" and the expectation is "reasonable"—that is, it is one that society is prepared to recognize. So, for example, there is generally no search when officers look through garbage because there is no expectation that garbage is private (see California v. Greenwood, 486 U.S. 35 (1988)). Similarly, there is no search where officers monitor what phone numbers an individual dials (Smith vs Maryland 442 U.S. 735 (1979); although Congress has placed statutory restrictions on such monitoring). This doctrine sometimes leads to somewhat unexpected results; in Florida v. Riley, 488 U.S. 445 (1989), the Supreme Court ruled that there was no expectation of privacy (and thus no search) where officers hovered in a helicopter 400 feet above a suspect's house and conducted surveillance.

The Supreme Court has also ruled that there can be no expectation of privacy in illegal activity. Therefore, investigations that reveal only illegal activity (such as some use of drug sniffing dogs) are not searches.

Searches and seizures without warrants

A warrant is not necessary for a search or seizure under certain circumstances. Officers may search and seize objects that are in "plain view." Before the search and seizure, however, the officers must have probable cause to believe that the objects are contraband.

Similarly, "open fields"—pastures, open water, woods and other such areas—may be searched without warrant, on the basis that the individuals conducting activities therein had no reasonable expectations of privacy. Contrary to its apparent meaning, the "open fields" doctrine has been expanded to include almost any open space other than the land immediately surrounding a domicile (for instance, in Oliver v. United States 466 U.S. 170 (1984), the police ignored a "no trespassing" sign, trespassed onto the suspect's land without a warrant, followed a path several hundred yards, and discovered a field of marijuana. The Supreme Court ruled that no search had taken place). See also: open fields doctrine.

There are also "exigent circumstances" exceptions to the warrant requirement-for instance, if an officer reasonably believes that a suspect may destroy evidence, he might be permitted to seize the evidence without a warrant.

The Supreme Court has also held that individuals in automobiles have a reduced expectation of privacy, because vehicles generally do not serve as residences or repositories of personal effects. Vehicles may not be randomly stopped and searched; there must be probable cause or reasonable suspicion of criminal activity. Items in "plain view" may be seized; areas that could potentially hide weapons may also be searched. With probable cause, police officers may search any area in the vehicle. They may not, however, extend the search to the vehicle's passengers without probable cause to search those passengers.

Under common law, a police officer could arrest an individual (arrests constitute seizures, at least for the purpose of the Fourth Amendment) if that individual committed a misdemeanor in the officer's presence, or if the officer had probable cause to believe that the individual committed a felony. The Supreme Court has applied the common law rule in American jurisprudence. The officer in question must have had probable cause before making the arrest; evidence discovered after the arrest may not be retroactively used to justify the arrest.

The person must also be under arrest to allow a search to be relevant. A person merely detained, such as someone pulled over for a traffic stop, is not "under arrest"; once the traffic ticket is written there is no right to search without permission as no further search could possibly provide any additional evidence regarding the stop. A search without permission after a speeding ticket was written that discovered marijuana was determined to be unlawful under these conditions. Knowles v. Iowa, 525 US 113 (1998)

Another common law rule—that permitting searches incident to an arrest without warrant—has been applied in American law. The justification for such a search is that the arrested individual must be prevented from destroying evidence or using a weapon against the arresting officer. In Trupiano v. United States, 334 U.S. 699 (1948), the Supreme Court held that "a search or seizure without a warrant as an incident to a lawful arrest has always been considered to be a strictly limited right. It grows out of the inherent necessities of the situation at the time of the arrest. But there must be something more in the way of necessity than merely a lawful arrest." In United States v. Rabinowitz, 339 U.S. 56 (1950), the Court reversed its previous ruling, holding that the officers' opportunity to obtain a warrant was not germane to the reasonableness of a search incident to an arrest. The decision suggested that any area within the "immediate control" of the arrestee could be searched, but it did not define the term. In deciding Chimel v. California, 395 U.S. 752 (1969), the Supreme Court elucidated its previous decisions. It held that when an arrest is made, it is reasonable for the officer to search the arrestee for weapons and evidence. Similarly, it was held that it is reasonable for the officer to search the area within the arrestee's immediate control, that is, the area from which the defendant may gain access to a weapon or evidence. A search of the room in which the arrest is made is therefore permissible, but the same is not true of a search of other rooms, as the arrestee would not probably be able to access weapons or evidence in those rooms at the time of arrest.

The reasonable grounds standard is further applied to searches of homes of individuals on probation.

It has been held that searches in public schools require neither warrants nor probable cause. (See New Jersey v. T. L. O., 468 U.S. 325 (1985)). It is merely necessary that the searching officers have reasonable grounds for believing that the search will result in the finding of evidence of illegal activity. Government offices may be searched for evidence of work-related misconduct by government employees on similar grounds. Searches of prison cells are subject to no restraints relating to reasonableness or probable cause; neither are searches conducted at the border. Finally, a search is reasonable if the target without coercion consents to the search, even if the target is unaware and not told about their right to refuse to cooperate.

Conditions of searches

In general, a few things have been established. First, in an instance where a person has not been arrested and a search must be conducted in an area where a person has a reasonable expectation of privacy, law enforcement officials are required to gain permission from an arbiter, i.e. the courts, in order to be allowed to search someone. It is, for example, unlawful to force someone to undergo surgery to uncover incriminating evidence because that would interfere with the privacy of the human body. The application of this has been vague, however. Under HIPAA, for example, federal agents are allowed to search medical records through administrative subpoenas, which do not require court approval.

Also, the courts have established that in certain cases, probable cause is not necessary in order to conduct a search. If a police officer suspects you may present a threat to others, he has the right to frisk you on reasonable suspicion (see Terry v. Ohio, 392 U.S. 1 (1968)). If you are driving drunk, you are likewise open to be searched on reasonable suspicion. In the case of random drug tests, no probable cause must be established in order to force you to be tested.

Regarding what level of notification must be provided to those who are to be searched: in some cases, notification of not only being searched, but also what is being searched, is necessary. For example, if you are being provided the service of a pregnancy test, and your sample is used to determine whether or not you have used illicit drugs, that is an illegal means of search if you are not informed. In certain cases the courts have found that where there is reason to believe that notification will lead to the destruction of evidence or the endangerment of lives, the government is not required to notify the searched party. This has been applied in the case of delayed notification, where the government is not required to inform you that you or your residence has been searched. It remains difficult to determine, though, whether certain federal actions are truly legal, or are merely the result of poorly defined legal boundaries.

Exclusionary rule

At common law, all evidence, no matter how seized, could be admitted in court. In Weeks v. United States, 232 U.S. 383 (1914), however, the Supreme Court adopted the "exclusionary rule," under which evidence seized unlawfully is rendered inadmissible in court. The rule was made applicable to the states in Mapp v. Ohio 367 U.S. 643 (1961).

The exclusionary rule serves primarily to deter police officers from conducting unlawful searches and seizures. It has, however, a number of exceptions. In United States v. Leon, 468 U.S. 897] (1984), the Supreme Court applied the "good faith" rule and held that evidence seized by officers objectively and in good faith relying on a warrant later found to be defective was still admissible. The evidence would still be excluded if an officer dishonestly or recklessly prepares an affidavit forming the basis of the warrant, if the issuing magistrate abandons his neutrality, or if the warrant lacks sufficient particularity. It remains unclear whether the "good faith" exception applies to warrantless seizures. On January 8, 1974, the Supreme Court ruled that grand juries may use illegally obtained evidence in questioning witnesses. United States v. Calandra, 414 U.S. 338.

The Supreme Court has held the rule does not apply in certain situations: (1) probation or parole revocation hearings; (2) tax hearings; (3) deportation hearings; (4) when government officials illegally seize evidence outside the United States; (5) when a "private actor" (i.e., not a State employee) illegally seized the evidence; or (6) when the illegally seized evidence is used to impeach the defendant's testimony. Furthermore, a defendant has standing to object to the admission of unconstitutionally seized evidence only if such seizure violated his own Fourth Amendment rights; a defendant may not assert the rights of a third party.

Closely related to the exclusionary rule is the "fruit of the poisonous tree" doctrine, under which the government is prohibited from introducing any evidence that was obtained subsequent to and as a result of the illegal search.

An Alternative View of the Fourth Amendment

It is important to understand that the bill of rights are amendments to the original constitution submitted to the constitutional congress by the states. This was done in order to preserve certain rights of individuals under the constitution by the federal government and to make the constitution more palpable to the general public in order to secure ratification.

There has always been some confusion as to whether the prohibitions applied only to the federal government or were generally applicable to states. This argument actually resulted in the fourteenth amendment which specifically spelled out federal jurisdiction of all civil rights.

The constitution clearly declares that all powers not specifically granted to the federal government are the domain of the individual states. But this cuts both ways; it also instructs that if such powers or prohibitions are granted the federal government then they are not in the purview of the states.

In reading the forth amendment carefully it does not specifically indicate that it is applicable only to the federal government. Evaluating the actual wording under this theory results in an unexpected conclusion.

First the statement;

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated..”

This is a general statement applicable to the federal government and the states by exclusion. If a prohibition is spelled out in the constitution then it excludes the states from making laws which may go against it. This view is further justified by the fact that it was the states themselves which agreed that this should be a federal protection.

Legal Constructs

Second, and more subtly, the first statement above is a legal definition or construct. Before determining how this applies to the fourth amendment a cursory view of a legal construct should be understood.

In United States jurisprudence a construct must be strictly defined so as to apply laws to it. In the various statutes of the states and the United States Code (USC) before any law is specifically spelled out there will be a preamble of definitions. These definitions are then used as the objects of the subject. In this way when there is court review of a law the judge can determine if the party meets the definition of the object and can then determine if the subject applies.

For instance, Florida child support dependency actions depend on the definition of parent (the object), and then the subject of child support obligations of a parent.

In J.L., v. G.L., 2003 WL 23095276, 29 Fla. L. Weekly D109 (Fla,App 4th Dist. 2003) the court of appeal rendered the following ruling;

”Fathers legal obligation to provide child support ended when court terminated father’s parental rights; since fathers rights were terminated, he no longer qualified as parent, and thus, no longer had the legal obligation to pay child support. (F.S. Sec 39.01(49).”

This last citation 39.01(49) is subsection 49 of the statute 39.01 which defines what a parent is. The court found that since the party seeking relief did not meet the definition of the object the subject did not apply.

Fourth Amendment as Defining the Object Privacy

But the definition of an object can be inherent in the law. In the fourth amendment the object is the right of people to be secure in those things which they own and which are personal to them. Thus the object of the fourth amendment is privacy. To see this simply define privacy this way;

Definitions;

(1) Privacy -

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, without fear of violation.

If we accept this as the definition of privacy then the fourth amendment can be written with object and subject as follows;

Privacy, 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.

Fourth Amendment Subject Exclusions

Reviewing now the first statement of the subject of the fourth amendment to-wit “shall not be violated”. Again this excludes the right of anyone in the United States from violating the privacy of any person.

“Shall not” is a legal term which is supported by a great deal of precedent or common law. In these rulings ‘shall not’ is to be interpreted in its widest possible application. The widest possible application of this term in this context is that no one, no where, can violate the privacy of an individual for any reason except those specified by the amendment itself.

Fourth Amendment Subject Inclusions

It now comes to determine who and how the privacy of an individual can be violated.

The ability to violate the privacy rights of an individual must meet the following included burden;

.. and no Warrants shall issue..

The subject of the fourth amendment includes the right to violate a persons privacy by an entity (object) which has the legal power to issue a legal warrant. This statement implicitly defines another object i.e. a court of jurisdiction. Thus only a court with the legal power to issue a warrant is included so as to provide the power to violate privacy.

Jurisdiction and Due Process

Finally, how can the court violate the privacy of an individual? The fourth amendment provides potential jurisdiction over privacy by including the definition of a court of law. Potential jurisdiction means that the court never has direct jurisdiction over a persons privacy but must somehow get that jurisdiction by some process.

In other words, in order to violate the privacy of an individual the court must get jurisdiction and to get jurisdiction the person who is the target of the privacy violation is due and owed some process.

Due process in terms of privacy can be defined this way;

Due Process of Search and Seizure -

Jurisdiction of the court cannot be had without a process which establishes probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Fourth Amendment Short Definition

In modern terms then the fourth amendment can be defined this way;

Amendment Four -

The privacy of an individual cannot be violated by anyone at any time unless by a court of jurisdiction which awards jurisdiction over only those items required to achieve the narrowest of goals and only by due process.

The Distinction Between Current Interpretation and The Alternative

The current interpretation of the fourth amendment visa-vi privacy is that privacy is implicit in the amendment not that the amendment defines privacy. Since privacy is not believed to be directly spelled out it is subject to controversy and some disagreement between the courts and legal experts. Some legal activists and experts believe that a specific privacy amendment is required to protect privacy.

James Madison, the main author of the constitution did not believe that the bill of rights was even required since the prohibitions were all inherent in the constitution. And in the opinion of the author he was correct but way too ahead of his time for the general public or even legal experts to comprehend.

There is yet another reason the authors had for making the constitution subtle. It’s effect was to outlaw slavery, unequal rights for any citizen, limit states rights, the involvement of religion in government, and otherwise to contain the various governments and people in ways in which they would not accept at the time - and in many ways still do not accept.

In general the constitution states that no entity within the United States can “extend the hand of jurisdiction” over any person (“all men are created equal”) or that persons activities (“pursuit of happiness” - see Epicurianism) unless that entity is a legally formed entity with potential jurisdiction and only then if the hand of jurisdiction is extended by a process which insures that the jurisdiction will be as narrow as possible and which allows the individual under this jurisdiction to challenge it.

By this view of the constitution all non-procedural amendments (time limiting presidential terms, prohibition, etc.etc.) are mute. They are simply restatements of the constitution itself and if the constitution were properly interpreted by the courts it would have negated the need for both the prior and the more modern amendments.

In the opinion of the author this results from the citizens of the United States being without a clear understanding of or our way of life and a lack of confidence in our constitution as a document still ahead of its time.