Amendment IV to the U.S. Constitution

While investigating crime, police detain or arrest persons, frisk for weapons, and search for incriminating evidence or contraband such as illegal drugs. Other government officials, ranging from regulators to school principals, conduct a wide variety of inspections. The Fourth Amendment to the federal Constitution is the principal legal limitation on government arrest, search, and inspection authority. It is enforced primarily by an exclusionary rule that sometimes prohibits the use as evidence of items or information obtained in violation of Fourth Amendment standards. At various points during the twentieth century it appeared that the Supreme Court might fashion the amendment into a comprehensive regulation of government intrusions into citizens' liberty and privacy, but decisions since the early 1970s have undercut that potential, and the protections afforded by the amendment are now rather limited.

History

The Fourth Amendment was prompted by a prerevolutionary controversy over the legality of “general warrants.” A warrant is a command from a judge ordering an officer to arrest a person or search a place for evidence or contraband. However, because a general warrant did not specify who was to be arrested or what place was to be searched it conferred discretionary search authority on peace officers. Because discretionary arrest or search authority conflicted with common‐law standards, in the 1760s English courts declared such warrants illegal. Nevertheless, in 1767 Parliament reauthorized customs officers in the American colonies to use a form of general warrant called a “writ of assistance.” However, American colonial courts generally refused to issue such writs, and sometimes denounced them as illegal. On independence, several states included bans against general warrants in state declarations of rights, and the Fourth Amendment was included in the federal Bill of Rights to prohibit Congress from ever authorizing general warrants.

For various reasons, the amendment was not construed by the Supreme Court until Boyd v. United States when, in 1886, the justices interpreted the reference to a right against “unreasonable searches and seizures” in the amendment as a broad “reasonableness” requirement for government searches and struck down a statute on that basis. There was still hardly any litigation regarding searches until after the 1914 decision in Weeks v. United States. In that decision, the Court held both that a warrantless search of a house by a federal marshal violated the amendment and that the items that were seized unconstitutionally would be inadmissible as evidence in legal proceedings—what became known as the exclusionary rule. Because exclusion gave defendants an incentive to challenge searches, search litigation increased dramatically after Weeks. During the early twentieth century, the Supreme Court developed the elements of modern search‐and‐seizure law while reviewing lower court decisions regarding admissibility of evidence seized in police searches.

Fourth Amendment Reasonableness

During the twentieth century, the justices continued to interpret the amendment as setting a broad “reasonableness” requirement for government intrusions. Although some historical treatments of the amendment assumed that this reading reflected the intended meaning of the text, it now appears that the amendment was actually intended only to ban general warrants. Instead, the Fifth Amendment was meant to regulate the initiation of criminal prosecutions and the common‐law standards for warrantless arrests and searches—standards more rigorous than “reasonableness”—were understood to be components of the “due process of law” required by that amendment. Thus “unreasonable searches and seizures” in the Fourth Amendment was simply a pejorative label for the gross illegality of general warrant searches. However, the original meanings of both amendments were lost during the nineteenth century as courts relaxed common‐law standards to make it easier for newly created police departments to maintain order in a rapidly urbanizing society.

The modern reasonableness standard necessarily involves balancing personal rights to liberty and privacy against the government's interest in effective law enforcement. Unsurprisingly, that balance has shifted as the justices' ideological commitments and social concerns have changed. When the Supreme Court initially applied the Fourth Amendment in the early twentieth century, it treated the amendment as applying only to searches and arrests by federal officers. Moreover, the justices were especially concerned with protecting business records. The justices interpreted the reasonableness standard to mean that it usually was unreasonable for police to search private property without previously obtaining a warrant. Searches pursuant to warrants were preferred because it was assumed magistrates were less likely to approve of poorly justified intrusions.

By the amendment's terms, a warrant must be supported by a sworn showing of “probable cause” and must particularly identify the place to be searched and the items or persons to be seized. Traditionally, “probable cause” meant that a person who asked a magistrate to issue a warrant had to swear to personal knowledge of facts sufficient to warrant a prudent man in the belief that the person to be arrested had committed a crime (for an arrest warrant) or that evidence of a crime or contraband would be found in the place to be searched (for a search warrant). The particularity requirement is usually satisfied if a search warrant states the address of a building to be searched and identifies the general nature of the contraband or evidence sought.

However, the warrant requirement was never absolute. Even at common law, peace officers could sometimes make warrantless arrests and they could also search the person arrested if there was reason to think that the arrestee had a weapon or that he might possess evidence of the crime for which they had been arrested. In addition, during Prohibition, the justices ruled in Carroll v. United States (1925) that, because a vehicle could be driven away while police were obtaining a warrant, the exigency involved made it reasonable for police to search a vehicle thoroughly without a warrant if they had probable cause to believe the vehicle contained contraband.

During the 1940s and 1950s, the warrant requirement was undercut when justices advanced a competing generalized‐reasonableness interpretation of the amendment. In cases such as United States v. Rabinowitz (1950), a divided Court sometimes permitted warrantless searches of even entire residences in which an arrest had been made. In addition, although some justices began to advocate applying the Fourth Amendment and the exclusionary rule to the states through the Fourteenth Amendment incorporation doctrine, a majority of the justices rejected that change, and the Fourth Amendment was still applied only to federal searches.

Warren Court

During the 1960s, the Warren Court reinvigorated and extended the amendment's protections in several respects. Most importantly, in 1961 in Mapp v. Ohio the Court incorporated the Fourth Amendment into the Fourteenth Amendment and thus, made state searches that did not comply with Fourth Amendment standards subject to the exclusionary rule. In addition, the Warren Court renewed the earlier emphasis on search warrants. Thus, when the justices expanded the scope of the amendment's protections beyond property concerns to cover private phone conversations in Katz v. United States (1967), they also required that police obtain warrants for wiretaps. However, by the 1960s, search warrants were often issued based upon police reports of hearsay information from unidentified informants. The Warren Court attempted to give the warrant requirement more substance by ruling, in Spinelli v. United States (1969), that police had to provide magistrates with certain information about the informants who provided information used for probable cause.

In addition, in an attempt to create a standard for police “stop and frisk” practices during street encounters, the Warren Court ruled that the Fourth Amendment applied to such police conduct in Terry v. Ohio (1968), but also ruled that such stops were valid if the police had “reasonable suspicion,” a less demanding standard than probable cause.

Shift toward Law Enforcement Interests

During the 1968 presidential election, Richard Nixon campaigned against the criminal procedure rulings of the Warren Court. During his first term as president, Nixon appointed four justices who were critical of Warren Court rulings, including Chief Justice Warren Burger and Justice William Rehnquist (who later became chief justice). Since the early 1970s, a majority of justices in the Burger and Rehnquist Courts have favored law enforcement interests over protection of citizens' liberty or privacy. Although those Courts have not overruled major Warren Court rulings, they have created numerous limitations and exceptions to the amendment's protections which, taken together, have drastically limited the amendment's protections.

Standing Requirement

Soon after Weeks, lower federal courts developed a “standing” requirement that prevented a defendant from challenging the admission of evidence seized by police unless a search had intruded upon his own premises or property, and the justices later acquiesed in that doctrine. Under that test, police are able to deliberately violate person A's privacy to obtain evidence against B, because B usually cannot challenge the search of A's property (United States v. Payner, 1980). Thus, the Burger Court ruled that passengers in automobiles may not challenge a search of the vehicle (Rakas v. Illinois, 1978); however, guests in a residence usually still may challenge a search of the residence (Minnesota v. Carter, 1998).

Scope of Protection

Not all police interactions with individuals involve searches or seizures. A person is not “seized” if police approach him or her in a public place and ask questions; rather, there is a seizure only if a reasonable person would not feel free to go on his or her way (Florida v. Bostick, 1991). Likewise, police investigation constitutes a “search” only if it intrudes upon a person's “reasonable expectation of privacy.” There cannot be an expectation of privacy in “open fields”—outside areas other than the “curtilage” immediately around a house (Oliver v. United States, 1984). In addition, the protection of the amendment is lost if a person exposes information or fails to adequately maintain privacy. Thus, the amendment does not protect bank records because that information has been exposed to the banker (United States v. Miller, 1976) or garbage set out for collection (California v. Greenwood, 1988). Likewise, if marijuana plants in a fenced yard can be seen from a helicopter, privacy is lost and the discovery is deemed to be “in plain view” (Florida v. Riley, 1989). Similarly, a sniff by a police dog trained to detect drugs is not deemed a search, so the government does not have to justify use of a drug dog (United States v. Place, 1983). In addition, like other constitutional rights, the protections afforded by the amendment can be waived if a person consents to a search. The justices do not require police to have suspicion prior to seeking consent or to inform the person that he or she can refuse to consent (Schneckloth v. Bustamonte, 1973). A large proportion of searches are conducted pursuant to consent.

Standards

The Court still requires police to obtain a warrant to enter a residence unless there is an emergency situation or consent has been given (Payton v. New York, 1980), and also limits technological surveilances of houses (Kyllo v. United States, 2001). However, warrants are now rarely required except for residences.

In the 1983 decision Illinois v. Gates, the justices also made it easier for police to obtain warrants by significantly relaxing the probable cause standard to a totality of the circumstances analysis of whether information indicated a “fair probability” of crime. That standard also makes it easier for police to justify warrantless arrests or searches of vehicles under the Carroll doctrine.

Police now also have broad authority to temporarily detain persons under the Terry reasonable suspicion standard (Alabama v. White, 1990). That standard also authorizes police to “frisk” a person for weapons if there is reasonable suspicion the person might be dangerous, and police also may frisk a car for weapons on the same basis (Michigan v. Long, 1983) as well as conduct a “protective sweep” of a house they have lawfully entered to locate persons who might pose a danger (Maryland v. Buie, 1990). If police come across evidence or contraband in the course of such frisks or sweeps, they may legally seize it as being in plain view.

In addition, police automatically may search a person who has been arrested for any offense (United States v. Robinson, 1973), and also may automatically search the passenger compartment of any vehicle that an arrested person has recently exited (Belton v. New York, 1981). This search incident to arrest authority is especially significant because the amendment does not bar custodial arrests for even the most minor traffic offenses (Atwater v. City of Lago Vista, 2001), and police are authorized to make pretextual stops or arrests for traffic violations in order to investigate other crimes (Whren v. United States, 1996). Hence, there is very little protection of privacy in a vehicle, and police engaged in criminal law enforcement often may bypass standards for detentions, arrests, or searches simply by following a car until the driver commits a traffic violation. In addition, police may make an inventory search of an arrested person's possessions or an impounded vehicle (Florida v. Wells, 1990).

Exclusion

In addition to relaxing search and arrest standards, the Burger and Rehnquist Courts have also limited the operation of the exclusionary rule. In 1974 in United States v. Calandra the Court repudiated the understanding that exclusion was a constitutional right of the victim of an unconstitutional search and redefined exclusion as only a policy aimed at deterring future police illegality. Because critics of the rule had asserted that exclusion was ineffective as a deterrent, that redefinition initially appeared to herald abolition of the rule. However, the justices did not go that far. Instead, subsequent decisions have limited the operation of the rule to the prosecutor's case‐in‐chief in a criminal trial, but permit use of unconstitutionally seized items for other purposes in criminal proceedings. For example, prosecutors can use unconstitutionally obtained evidence to impeach a defendant who testifies in his own defense (United States v. Havens, 1980). The justices have also created several exceptions that allow the government to freely use certain kinds of unconstitutionally obtained evidence even in the prosecutor's case‐in‐chief in a criminal trial. For example, the justices ruled in United States v. Leon (1984) that evidence seized under unconstitutionally issued warrants is almost always admissible under a “good‐faith mistake exception” (See Good Faith Exception) because the illegal warrant is the fault of the issuing magistrate rather than the police. Thus, the illegality of a search warrant usually no longer matters. However, the Court has not recognized any exception for misapplication of legal standards by police themselves in warrantless searches. The Court has also recognized an “inevitable discovery” doctrine that allows use of unconstitutionally discovered evidence if the government can show it is more likely than not that police would have found that evidence legally had they not already discovered it unconstitutionally (Murray v. United States, 1988). Taken collectively, these limitations on exclusion severely limit enforcement of Fourth Amendment protections, and unconstitutionally seized evidence is seldom excluded in serious prosecutions.

Moreover, alternative remedies for unconstitutional police intrusions are quite limited. Absent police brutality, the qualified‐official‐immunity doctrine usually protects police from civil damages lawsuits for illegal arrests or searches (Anderson v. Creighton, 1987). Likewise, the justices generally have not allowed use of injunctions against abusive police practices (Los Angeles v. Lyons, 1983). Hence, government violations of the Fourth Amendment now often have no legal consequence.

“Special Needs” Searches

Government officers or employees other than police sometimes conduct searches or inspections for purposes other than ordinary criminal law enforcement. Such searches usually are subject to the amendment, but the reasonableness of such searches is assessed according to the “special needs” of the particular context: for example, effective regulatory enforcement, public safety, or the preservation of discipline in educational institutions. Such searches usually do not require probable cause and in some instances special needs permit random searches not based on any individualized suspicion, such as vehicle checkpoints to identify inebriated drivers (Michigan Department of State Police v. Sitz, 1990) or drug testing of students (Board of Education v. Earls, 2002).

Conclusion

After three decades of decisions that have relaxed standards and curtailed enforcement, the Fourth Amendment now provides only marginal protection of individual privacy and liberty. Moreover, it seems unlikely that the Court will enhance the amendment's protection in the foreseeable future. Rather, attempts to prevent terrorism after the attacks of 11 September 2001 may result in further curtailments of those protections that still exist. For example, antiterrorism legislation has loosened restrictions on wiretaps and has authorized novel forms of searches such as “sneak‐and‐peak” warrants that permit police to surreptitiously enter and search a residence without giving notice to the residents that the search ever occurred. The Supreme Court has not yet addressed the constitutionality of these practices under the Fourth Amendment.

See also Search Warrant Rules, Exceptions to.

Bibliography

• Thomas Y. Davies, Recovering the Original Fourth Amendment, Michigan Law Review 98 (1999): 547–750.
• Thomas Y. Davies, The Fictional Character of Law‐and‐Order Originalism, Wake Forest Law Review 37 (2002): 239–437.
• Joshua Dressler, Understanding Criminal Procedure, 3rd ed. (2002).
• Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, 3rd ed. (1996).
• Jacob Landynski, Search and Seizure and the Supreme Court (1966)

— Thomas Y. Davies

The Fourth Amendment to the U.S. Constitution reads:

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 American Revolution was fought in part to create a system of government in which the rule of law would reign supreme. The rule of law is often identified with the axiom that the United States is a nation of laws and not of men and women. Under the rule of law, the actions of government officials are prescribed by the principles and laws that make up the U.S. legal system, and do not reflect the arbitrary whim and caprice of the government officials themselves.

A distinction is sometimes drawn between power and authority. Law enforcement officers are entrusted with the power to conduct investigations, make arrests, and occasionally use lethal force in the line of duty. But this power must be exercised within the parameters authorized by the law. Power exercised outside these legal parameters transforms law enforcers into lawbreakers, as happened when Laurence Powell was convicted for using excessive force against Rodney King, who had been stopped for speeding in Los Angeles. Powell repeatedly struck King with his nightstick even though King was in a submissive position lying prone on the ground.

The Fourth Amendment was intended to create a constitutional buffer between U.S. citizens and the intimidating power of law enforcement. It has three components. First, it establishes a privacy interest by recognizing the right of U.S. citizens to be "secure in their persons, houses, papers, and effects." Second, it protects this privacy interest by prohibiting searches and seizures that are "unreasonable" or are not authorized by a "warrant" based upon "probable cause." Third, it states that no warrant may be issued to a law enforcement officer unless that warrant describes with particularity "the place to be searched, and the persons or things to be seized."

The Framers drafted the Fourth Amendment in response to their colonial experience with British officials whose discretion in collecting revenues for the Crown often went unchecked. Upon a mere suspicion held by British tax collectors or their informants, colonial magistrates were compelled to issue general warrants, which permitted blanket door-to-door searches of entire neighborhoods without limitation as to person or place. The law did not require magistrates to question British officials regarding the source of their suspicion or to make other credibility determinations.

The writ of assistance was a particularly loathsome form of general warrant. The name of this writ derived from the power of British authorities to enlist local peace officers and colonial residents who might "assist" in executing a particular search. A writ of assistance lasted for the life of the king or queen under whom it was issued, and applied to every officer and subject in the British Empire. In essence, such a writ "constituted a long-term hunting license for customs officers on the lookout for smugglers and articles imported in violation" of the law (Levy 1988, 227).

Colonial opposition to general warrants was pervasive and kinetic. In Paxton's case, 1 Quincy 51 (Mass. 1761), James Otis, appearing on behalf of colonists who opposed the issuance of another writ of assistance, denounced general warrants as instruments of "slavery," "villainy," and "arbitrary power." These writs, Otis continued, were "the most destructive of English liberty" because they placed the freedom of every person "in the hands of a petty officer" (as quoted in O'Rourke v. City of Norman, 875 F.2d 1465 [10th Cir. 1989]). To be valid, Otis railed, a warrant must be "directed to specific officers, and to search certain houses" for particular goods, and may only be granted "upon oath made" by a government official "that he suspects such goods to be concealed in those very places he desires to search" (as quoted in Illinois v. Krull, 480 U.S. 340, 107 S. Ct. 1160, 94 L. Ed. 2d 364 [1987]).

Although Otis lost the case, his arguments fueled angry colonial crowds that subsequently interfered with British customs and revenue agents who attempted to seize miscellaneous goods pursuant to general warrants. Some provincial courts began declining to issue writs of assistance, and other courts issued writs with greater specificity. Colonial newspapers complained that British officers were ransacking the colonists' houses, violating the sanctity of their bedrooms, and plundering their privacy under the auspices of general warrants. On the night before the Declaration of Independence was published, John Adams cited the "argument concerning the Writs of Assistance … as the commencement of the controversy between Great Britain and America."

The American Revolution answered the questions surrounding writs of assistance, but the Fourth Amendment raised other questions in the newly founded republic. If a police officer's suspicion is no longer sufficient to obtain a search warrant, as it was in colonial America, where should the line be drawn separating suspicion from probable cause? Although general warrants are now clearly prohibited, how detailed must warrants be to pass constitutional muster? The Fourth Amendment expressly forbids "unreasonable" searches and seizures, but what criteria should be considered in evaluating the reasonableness of a search? The Fourth Amendment also leaves open the question of who should review warrant applications — the judiciary or some other branch of government. The answers to these questions were fleshed out in criminal litigation over the next two centuries.

Fourth Amendment questions arise during criminal litigation in the context of a suppression hearing. This hearing is prompted by a defendant who asks the court to review the method by which the police obtained evidence against her or him, and to determine whether that evidence survives constitutional scrutiny. If the evidence was obtained in violation of the Fourth Amendment, it is usually excluded from trial, which means the prosecution is unable to present it to the jury. The legal doctrine under which illegally obtained evidence is suppressed is known as the exclusionary rule, and its purpose is to deter police misconduct and protect defendants from rogue cops.

The exclusionary rule requires the suppression of not only evidence that was the direct product of illegal police work but also any evidence derived from a tainted source. The suppression of tainted derivative evidence, also known as fruit of the poisonous tree, typically occurs when the police obtain a confession after an illegal arrest or pursuant to an unconstitutional search. Although the manner in which the confession itself was obtained may have been perfectly constitutional, the confession is still suppressed because the law does not permit the government, which the prosecution represents at a criminal trial, to benefit from its own misconduct.

Before a court may exclude any evidence, it must first determine whether the Fourth Amendment even applies to the case under consideration. Two requirements must be met before a particular search or seizure will give rise to Fourth Amendment protection. First, the search or seizure must have been conducted by a government agent or pursuant to government direction. Thus, the actions of state and federal law enforcement officers or private persons working with law enforcement officers will be subject to the strictures of the Fourth Amendment. Bugging, wire tapping, and other related snooping activities performed by purely private citizens, such as private investigators, will not receive Fourth Amendment protection.

Second, a defendant must be able to demonstrate that he or she had a "reasonable expectation of privacy" in the place that was searched or the thing that was seized (Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 576 [1967]). In Katz, the Supreme Court explained that "[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection… . But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."

Applying this principle, the Supreme Court has ruled that U.S. citizens maintain a reasonable expectation of privacy in the " curtilage" immediately surrounding their home, but not in the "open fields" and "wooded areas" extending beyond this area (Hester v. United States, 265 U.S. 57, 44 S. Ct. 445, 68 L. Ed. 898 [1924]). A person may have a reasonable expectation of privacy in the automobile she or he is driving, but not in items that are in "plain view" from outside the vehicle (Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 564 [1971]). Nor do people have reasonable expectations of privacy in personal characteristics (United States v. Dionisio, 410 U.S. 1, 93 S. Ct. 764, 35 L. Ed. 2d 67 [1973]). Thus, the police may require individuals to give handwriting and voice exemplars as well as fingerprint samples, without complying with the Fourth Amendment's warrant or reasonableness requirements.

Once a court has determined that the Fourth Amendment is an issue in a particular case, it must next decide whether law enforcement complied with the amendment's requirements. When making this decision, a court begins with the premise that the Constitution expresses a preference for searches made pursuant to a warrant (Mincey v. Arizona, 437 U.S. 385, 98 S. Ct. 2408, 57 L. Ed. 2d 290 [1978]). Searches performed without a warrant are presumptively invalid, and evidence seized during a warrantless search is suppressed unless the search was reasonable under the circumstances.

The Supreme Court has ruled that warrantless searches may be deemed reasonable in certain situations. First, no warrant is required for searches incident to a lawful arrest (United States v. Watson, 423 U.S. 411, 96 S. Ct. 820, 46 L. Ed. 2d 598 [1976]). If a police officer has probable cause to believe a crime has occurred, the Fourth Amendment permits the officer to arrest the suspect and conduct a search of the suspect's person and clothing and of all areas within the suspect's immediate reach. Second, a police officer who possesses an "articulable" and "reasonable" suspicion that an automobile has violated a state or local traffic law may stop the driver and conduct a search of the vehicle's interior, including the glove compartment (Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660 [1979]). The trunk of a vehicle cannot be searched unless an officer has probable cause to believe that it contains contraband or the instrumentalities of criminal activity.

Third, an officer who reasonably believes "that criminal activity may be afoot" in a public place may stop an individual suspected of wrongdoing and "conduct a carefully limited search of [the suspect's] outer clothing" for weapons that may be used against the officer (Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 21 L. Ed. 889 [1968]). Fourth, officers who are in " hot pursuit" of "fleeing felons" or are gathering "evanescent" evidence (evidence that could readily disappear — e.g. blood samples from drunken drivers) are also permitted to act without first obtaining a search warrant.

These four exceptions to the warrant requirement are based on the need to facilitate law enforcement during unforeseen or emergency circumstances in which criminal activity is strongly suspected but police officers lack sufficient time to complete an application for a search warrant and testify before a magistrate. These exceptions also reflect a need to protect police officers from hidden weapons and to preserve evidence that could easily be destroyed or compromised.

When law enforcement does obtain a warrant before conducting a search, the warrant must comply with the Fourth Amendment before evidence from the search will be admissible in court. A warrant may be defective if it is not supported by probable cause established by a detailed sworn statement made by a law enforcement officer appearing before a magistrate.

No definition of probable cause has ever satisfied both prosecutors and defense attorneys. But the Supreme Court has said that probable cause exists where "the facts and circumstances within [the police officer's] knowledge" are of a "reasonably trustworthy" basis to "warrant a man of reasonable caution" to believe that an offense has been or is about to be committed (Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 [1925]). Probable cause can be established by out-of-court statements of reliable police informants even though the credibility of those statements cannot be tested by a magistrate (Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 [1983]). However, probable cause will not be found where the only evidence of criminal activity is an officer's "good information" or "belief" (Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 [1964]).

The Fourth Amendment requires not only that search warrants be supported by probable cause but also that they "particularly" describe the person or place to be searched. A warrant must provide enough detail so that an "officer with the search warrant can, with reasonable effort, ascertain and identify the place [or person] intended" (Steele v. United States, 267 U.S. 498, 45 S. Ct. 414, 69 L. Ed. 757 [1925]). For most residences, a street address usually satisfies the particularity requirement. However, if a warrant designates an apartment complex, hotel, or other multiple-unit building, the warrant must describe the specific subunit that will be searched. When a warrant designates that a person will be searched, it must include a description that provides enough detail so that the suspect's identity can be ascertained with reasonable certainty.

Probable cause must be established by testimony made under oath by a law enforcement officer appearing before a magistrate. The testimony can be oral or written, and cannot contain any "knowingly" or "intentionally" false statements, or statements made in "reckless disregard for the truth" (Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 [1978]). Inaccuracies due to negligence or innocent omission do not jeopardize a warrant's validity.

The magistrate before whom an officer applies for a warrant must be "neutral and detached" (Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 [1971]). This means the magistrate must be impartial and not a member of the "competitive enterprise" of law enforcement (California v. Acevedo, 500 U.S. 565, 111 S. Ct. 1982, 114 L. Ed. 2d 619 [1991]). Thus, police officers, prosecutors, and attorneys general are disqualified from the role of magistrate. However, judges, lawyers, and court clerks all potentially qualify as "neutral and detached," and therefore may become magistrates. The requirements that states set for becoming a magistrate vary widely, from having an attorney's license to having a high school diploma to simply being literate.

If a search is performed pursuant to a defective warrant, any evidence obtained as a result of the search is usually suppressed. An exception to this rule arises when an officer has obtained evidence pursuant to a defective warrant that the officer relied on in "good faith" (United States v. Leon, 468 U.S. 897, 104 S. Ct. 3430, 82 L. Ed. 2d 677 [1984]). For this exception to apply, the warrant must have been issued by a magistrate and then later ruled defective for a valid reason, and the defect must not have been the result of willful police deception. If these two requirements are satisfied, law enforcement was entitled to rely on the warrant in conducting the search, and any evidence obtained during the search is admissible against the defendant.

This exception was created to ensure that police officers would not be punished for blunders made by magistrates when issuing search warrants. Again, the primary reason courts suppress illegally obtained evidence is to deter future police misconduct. No deterrent value is served by excluding evidence obtained by an honest police officer who acted pursuant to an ostensibly valid warrant that was later ruled defective owing to an error by the magistrate.

See: Criminal Law; Criminal Procedure; Mapp v. Ohio; Stop and Frisk; Terry v. Ohio.

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.

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The Bill of Rights in the National Archives.

The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures. It was ratified as a response to the abuse of the writ of assistance, which is a type of general search warrant, in the American Revolution. The amendment specifically requires search and arrest warrants be judicially sanctioned and supported by probable cause. Search and arrest should be limited in scope according to specific information supplied to the issuing court, usually by a law enforcement officer, who has sworn by it.

In Mapp v. Ohio, 367 U.S. 643 (1961), the Supreme Court ruled that the Fourth Amendment applies to the states by way of the Due Process Clause of the Fourteenth Amendment. The Supreme Court has also ruled that certain searches and seizures violated the Fourth Amendment even when a warrant was properly granted.

Contents 1 Text 2 Background 2.1 English law 2.2 Colonial America 3 Applicability 3.1 In general 3.2 Searches 3.3 Reasonable expectation of privacy 3.3.1 Stop and frisk 3.4 Seizure 3.4.1 Exceptions 3.5 Arrest 3.5.1 Arrest by a citizen 3.6 Warrant 3.7 Probable cause 4 Exclusionary rule 4.1 Exceptions 5 Exceptions to the warrant requirement 5.1 Plain view 5.2 Open fields 5.2.1 Curtilage 5.3 Exigent circumstance 5.4 Motor vehicle 5.5 Searches incident to a lawful arrest 5.6 Border search exception 5.7 Other exceptions 6 Computers and privacy 7 Important cases 7.1 Exclusionary Rule 7.2 Privacy 7.3 Informants 7.4 Search Warrants 7.5 Arrest and Search of a Person Without a Warrant 7.6 Search of and Seizure from a Residence Without a Warrant 7.7 Search and Seizure of Vehicles and Containers Without a Warrant 7.8 Plain-view & Plain-feel 7.9 Stop and Frisk 7.10 Border Searches 7.11 Deportation 8 See also 9 References 10 Further reading 11 External links

Text

“

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.

”

Background

English law

See also: Entick v. Carrington

John Wilkes authored pamphlets critical of the British government.

Like many other areas of American law, the Fourth Amendment finds its roots in English legal doctrine, and was first identified by Edward Coke in Semayne's case (1604) in which he articulated that:^[1]

The house of every one is to him as his castle and fortress, as well for his defence against injury and violence as for his repose.

The case acknowledged that the King did not have unbridled authority to intrude on his subject's dwelling but recognized that, when the appropriate agents were employed, their purpose was lawful and a warrant was obtained, government agents were permitted to conduct searches and seizures.^[2] The following years saw a growth in the intensity of litigation against state officers, who, using general warrants, conducted raids in search of materials relating to John Wilkes' publications attacking both government policies and the King himself. The most famous of these cases involved John Entick, whose home was forcibly entered by the King's Messenger Nathan Carrington, along with others, pursuant to a warrant issued by George Montagu-Dunk, 2nd Earl of Halifax authorizing them “to make strict and diligent search for . . . the author, or one concerned in the writing of several weekly very seditious papers intitled, ‘The Monitor or British Freeholder, No 357, 358, 360, 373, 376, 378, and 380,’″ and seized printed charts, pamphlets and other materials. In the resulting case, Entick v. Carrington (1765), Charles Pratt, 1st Earl Camden ruled that the search and seizure was unlawful as the warrant authorized the seizure of all of Entick's papers, not just the criminal ones and the warrant lacked probable cause to even justify the search. Entick established the English precedent that the executive is limited in intruding on private property by common law.^[2]

Colonial America

In Colonial America, legislation was explicitly written to enforce English revenue gathering policies on customs.^[2] Until 1750, all handbooks for justices of the peace, the issuers of warrants, contained or described only general warrants.^[2] William Cuddihy, Ph.D. in his dissertation entitled The Fourth Amendment: Origins and Original Meaning,^[3] claims there existed a "colonial epidemic of general searches." According to him, until the 1760s, a "man's house was even less of a legal castle in America than in England" as the authorities possessed almost unlimited power and little oversight.

James Otis

In 1756, the colony of Massachusetts enacted legislation that barred the use of general warrants. This represented the first law in American history curtailing the use of seizure power. Its creation largely stemmed from the great public outcry over the Excise Act of 1754, which gave tax collectors unlimited powers to interrogate colonists concerning their use of goods subject to customs and permitted the use of a general warrant known as a writ of assistance, allowing them to search the homes of colonists and seize “prohibited and uncustomed” goods.^[4]

A crisis erupted over the writs of assistance on December 27, 1760 when the news of King George II's October 23 death arrived in Boston. All writs automatically expired six months after the death of the King and would have had to be re-issued under the name of the new King, George III, in order to remain valid.^[5]

In mid-January 1761, a group of over 50 merchants represented by James Otis, petitioned the court to have hearings on the issue. During the five hour hearing on February 23, 1761, Otis vehemently denounced English colonial policies, including their sanction of general warrants and writs of assistance.^[6] However, the court ruled against Otis.^[7] Because of the name he had made for himself in attacking the writs, he was elected to the Massachusetts General Assembly and helped pass legislation requiring that special writs of assistance be “granted by any judge or justice of the peace upon information under oath by any officer of the customs” and barring all other writs. The governor overturned the legislation, finding it contrary to British law and parliamentary sovereignty.^[8] John Adams, who was present in the courtroom when Otis spoke, viewed these events “as the spark in which originated the American Revolution.”^[9]

Seeing the danger general warrants presented, the Virginia Declaration of Rights explicitly forbade the use of general warrants. This prohibition became precedent for the Fourth Amendment:^[10]

That general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive and ought not to be granted.^[11][12]

Applicability

In general

The Fourth Amendment specifies that any warrant must be judicially sanctioned for a search or an arrest, in order for such a warrant to be considered reasonable. Warrants must be supported by probable cause and be limited in scope according to specific information supplied by a person (usually a law enforcement officer) who has sworn by it and is therefore accountable to the issuing court.

The Fourth Amendment only applies to governmental actors. It does not guarantee a right to be free from unreasonable searches and seizures conducted by private citizens or organizations.^[13] The Bill of Rights originally only restricted the power of the federal government. However, in Mapp v. Ohio, 367 U.S. 643 (1961), the Supreme Court ruled that the Fourth Amendment is applicable to state governments by way of the Due Process Clause of the Fourteenth Amendment. Moreover, all state constitutions contain an analogous provision.^[14]

The Fourth Amendment applies to criminal law, but not civil law, as affirmed by the Supreme Court in 1855 in the Murray v. Hoboken Land.^[15] The jurisdiction of the federal government in the realm of criminal law was narrow, up until the late 19th century when the Interstate Commerce Act and Sherman Antitrust Act were passed. As criminal jurisdiction of the federal government expanded to include other areas such as narcotics, more questions about the Fourth Amendment came to the Supreme Court.^[16]

The Supreme Court ruled that some searches and seizures may violate the reasonableness requirement under the Fourth Amendment, even if a warrant is supported by probable cause and is limited in scope.^[17] Conversely, the Court has approved routine warrantless seizures, for example "where there is probable cause to believe that a criminal offense has been or is being committed."^[18] Thus, the reasonableness requirement and the warrant requirement are somewhat different.

The reasonableness requirement applies not just to a search in combination with a seizure, but also to a search without a seizure, as well as to a seizure without a search.^[19] Hence, the amendment is not limited to protecting elements of privacy or personal autonomy, but rather applies pervasively to virtually all aspects of criminal law. Nevertheless, the amendment does not replace other constitutional provisions, such as replacing the Eighth Amendment's ban on "cruel and unusual" punishment with a more sweeping ban on "unreasonable" punishment.

Searches

Not all actions by which governmental authorities obtain information from or about a person constitute a search. Therefore, government action triggers the amendment's protections only when the information or evidence at issue was obtained through a "search" within the meaning of the amendment. If no search occurs, no warrant is required. In general, authorities have searched when they have impeded upon a person's reasonable expectation of privacy.

Reasonable expectation of privacy

In Katz v. United States, 389 U.S. 347 (1967), the Supreme Court ruled that the amendment covered a person's "reasonable expectation of privacy", rather than solely on whether that person's property had been intruded upon.^[20]

Stop and frisk

However, in certain circumstances, authorities are permitted to conduct a limited warrantless search on a level of suspicion less than probable cause. In Terry v. Ohio 392 U.S. 1 (1968), the Supreme Court decided that when a policeman "observes unusual conduct" that leads him to reasonably believe "that criminal activity may be afoot" and that the suspicious person has a weapon and is presently dangerous to the policeman or others, he may conduct a "pat-down search" (or "frisk"), to determine whether the person is in fact carrying a weapon. To conduct a frisk, the policeman must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant his actions.^[21] A vague hunch will not do. Such a search must be temporary and questioning must be limited to the purpose of the stop (i.e., if the policeman stopped you because he had reasonable suspicion to believe that you were driving a stolen car, after confirming that it is not stolen, he cannot force you to answer questions about anything else, such as the possession of contraband).^[22]

Seizure

The Fourth Amendment proscribes unreasonable seizure of any person, person's home (including its curtilage) or personal property without a warrant. A seizure of property occurs when there is meaningful interference by the government with an individual's possessory interests,^[23] such as when police officers take personal property away from an owner to use as evidence. The Amendment also protects against unreasonable seizure of their persons, including a brief detention.^[24]

A seizure does not occur just because the government questions an individual in a public place. The exclusionary rule would not bar voluntary answers to such questions from being offered into evidence in a subsequent criminal prosecution. The person is not being seized if his freedom of movement is not restrained.^[25][26] The government may not detain an individual even momentarily without reasonable, objective grounds, with few exceptions. His refusal to listen or answer does not by itself furnish such grounds.^[27]

A person is seized within the meaning of the Fourth Amendment only when by means of physical force or show of authority his freedom of movement is restrained, and in the circumstances surrounding the incident, a reasonable person would believe that he was not free to leave.^[27] As long as the police do not convey a message that compliance with their requests is required, the courts will usually consider the police contact to be a "citizen encounter" which falls outside the protections of the Fourth Amendment.^[28] If a person remains free to disregard questioning by the government, there has been no intrusion upon the person's liberty or privacy under the Fourth Amendment — there has been no seizure.^[27]

Exceptions

The government may not detain an individual even momentarily without reasonable and articulable suspicion, with a few exceptions.

Where society's need is great and no other effective means of meeting the need is available, and intrusion on people's privacy is minimal, checkpoints toward that end may briefly detain motorists. In Michigan v. Sitz 496 U.S. 444 (1990), the Supreme Court allowed discretionless sobriety checkpoints. In United States v. Martinez-Fuerte 428 U.S. 543 (1976), the Supreme Court allowed discretionless immigration checkpoints. In Delaware v. Prouse 440 U.S. 648 (1979), the Supreme Court allowed discretionless checkpoints for driver's licenses and registration. In Illinois v. Lidster 540 U.S. 419 (2004), the Supreme Court allowed focused informational checkpoints. However, discretionary checkpoints or general crime-fighting checkpoints are not allowed.^[29]

Another exception is at borders and ports of entry.

Roadblocks may be used to capture a particular fleeing criminal or locate a bomb.^[30]

Arrest

Of course, when a person is arrested and taken into police custody, they have been seized (e.g., a reasonable person who is handcuffed and placed in the back of a police car would not think they were free to leave). A person subjected to a routine traffic stop on the other hand, has been seized, but is not "arrested" because traffic stops are a relatively brief encounter and are more analogous to a Terry stop than to a formal arrest.^[31] A police officer does not have the authority to arrest someone for refusing to identify himself when he is not suspected of committing a crime.^[32] A search incidental to an arrest that is not permissible under state law does not violate the Fourth Amendment, if the arresting officer has probable cause.^[33][34]

Arrest by a citizen

The Fourth Amendment does not apply to a seizure or an arrest by private citizens. However, many states have passed laws that regulate the specific circumstances in which a private citizen may arrest another. Typically, a private person can make an arrest when: (1) a misdemeanor amounting to a public nuisance is being committed; or (2) a felony has been committed, and the arresting citizen has reasonable cause to believe that the person arrested committed it.^[35] Furthermore, arresting citizens are not protected by qualified immunity, so if they are mistaken, they may face a civil lawsuit or charges of battery or false imprisonment.^{[citation needed]}

Warrant

Under the Fourth Amendment, law enforcement must receive written permission from a court of law, or otherwise qualified magistrate, to lawfully search and seize evidence while investigating criminal activity. A court grants permission by issuing a writ known as a warrant. A search or seizure is generally unreasonable and unconstitutional, if conducted without a valid warrant,^[36] and the police must obtain a warrant whenever practicable.^[37] Searches and seizures without a warrant are not considered unreasonable if one of the specifically established and well-delineated exceptions to the warrant requirement applies.^[38]

Probable cause

Main article: Probable cause

When police conduct a search, the amendment requires that the warrant establishes probable cause to believe that the search will uncover criminal activity or contraband. In other words, they must have legally sufficient reasons to believe a search is necessary. In Carroll v. United States 267 U.S. 132 (1925), the Supreme Court stated that probable cause to search is a flexible, common-sense standard. To that end, the Court ruled in Dumbra v. United States, 268 U.S. 435 (1925), that “the term probable cause...means less than evidence that would justify condemnation[,]” reiterating Carroll's assertion that it merely requires that the facts available to the officer would “warrant a man of reasonable caution in the belief,”^[39] that specific items may be contraband or stolen property or useful as evidence of a crime; it does not demand any showing that such a belief be correct or more likely true than false. A "practical, nontechnical" probability that incriminating evidence is involved is all that is required.^[40] In Illinois v. Gates, 462 U.S. 213 (1983), the Supreme Court ruled that the reliability of an informant is to be determined based on the "totality of the circumstances."

At common law, a police officer could arrest an individual if that individual committed a misdemeanor in the officer's presence or if the officer had probable cause to believe that the individual was committing a felony. For misdemeanors, probable cause to believe that a wrongdoer committed a misdemeanor is not sufficient for an arrest; the police officer has to actually witness the misdemeanor.^[31]

The standards of probable cause differ for an arrest and a search. The government has a probable cause to make an arrest when "the facts and circumstances within their knowledge and of which they had reasonably trustworthy information" would lead a prudent person to believe that the arrested person had committed or was committing a crime.^[41] Probable cause to arrest must exist before the arrest is made. Evidence obtained after the arrest may not apply retroactively to justify the arrest.^[42]

Exclusionary rule

Main article: Exclusionary rule

One way courts enforce the Fourth Amendment is with the exclusionary rule. The rule provides that evidence obtained through a violation of the Fourth Amendment is generally not admissible by the prosecution during the defendant's criminal trial.

The Court adopted the exclusionary rule in Weeks v. United States, 232 U.S. 383 (1914), prior to which all evidence, no matter how seized, could be admitted in court. Additionally, in Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920) and Nardone v. United States, 308 U.S. 338 (1939), the Court ruled that tips resulting from illegally obtained evidence are also inadmissible in trials as fruit of the poisonous tree. The rule serves primarily to deter police officers from willfully violating a suspect's Fourth Amendment rights. The rationale behind the exclusionary rule is that if the police know evidence obtained in violation of the Fourth Amendment cannot be used to convict someone of a crime, they will not violate it. In delivering the opinion of the Court, Justice Frankfurter, in Wolf v. Colorado, 338 U.S. 25 (1949), rejected incorporation of the Fourth Amendment by way of the Fourteenth Amendment. Later, in Mapp v. Ohio, 367 U.S. 643 (1961), the Supreme Court explicitly overruled Wolf and made the Fourth Amendment (including the exclusionary rule) applicable in state proceedings as an essential part of criminal procedure.

Exceptions

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In United States v. Calandra, 414 U.S. 338 (1974), the Supreme Court ruled that grand juries may use allegedly illegally obtained evidence in questioning witnesses because, to hold otherwise, would interfere with the independence of grand jury. The issue of illegality of search should be adjudged in a subsequent proceeding, after the defendant has been indicted. In United States v. Leon, 468 U.S. 897 (1984), the Supreme Court, applying the "good faith" rule, held that evidence seized by officers relying in good faith on a warrant was still admissible, although the warrant was later found to be defective. Evidence would be excluded, however, if an officer dishonestly or recklessly prepared an affidavit to seek a warrant, the issuing magistrate abandoned his neutrality, or the warrant lacks sufficient particularity.

The Leon case applies only to search warrants. It remains unclear whether the "good faith" exception applies to warrantless seizures in other contexts. However, the Supreme Court held in Arizona v. Evans, 514 U.S. 1 (1995) and Herring v. United States (2009), that the exclusionary rule does not apply to evidence found due to negligence regarding a government database, as long as the arresting police officer relied on that database in "good faith" and that the negligence was not pervasive.^[43][44][45]

The Supreme Court has held the rule does not apply in the following proceedings: probation or parole revocation hearings; tax hearings; deportation hearings; when government officials illegally seize evidence outside the United States; when a "private actor" (i.e., not a governmental employee) illegally seized the evidence; or when the illegally seized evidence is used to impeach the defendant's testimony. Furthermore, in Rakas v. Illinois, 439 U.S. 128 (1978), 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 another person's rights.

In Rakas, the Court ruled that a passenger in a car which he does not own has a standing to contest the stop of the car and a search of his person, but he usually lacks standing to contest a search of the car. He would have standing to challenge the search of the car, if he is the owner of that car.

In Segura v. United States, 468 U.S. 796 (1984), the Supreme court ruled that evidence illegally found without a search warrant is admissible if the evidence is later found and legally seized based on information independent of the illegal search.

In Nix v. Williams, 467 U.S. 431 (1984), the Supreme Court ruled that evidence illegally seized without a search warrant is admissible if the prosecution can prove the evidence would have been found and seized by legal means not based on evidence or information illegally seized.

Exceptions to the warrant requirement

Courts have developed a number of exceptions to the warrant requirement:

Plain view

Main article: Plain view doctrine

If an officer is lawfully present, he may seize objects that are in "plain view". However, the officer must have had probable cause to believe that the objects are contraband.^[46]

Open fields

Main article: Open fields doctrine

Similarly, "open fields" such as pastures, open water, and woods may be searched without a warrant, on the ground that conduct occurring therein would have no reasonable expectation of privacy.

The doctrine was first articulated by the Supreme Court in Hester v. United States, 265 U.S. 57 (1924), which stated that “the special protection accorded by the Fourth Amendment to the people in their ‘persons, houses, papers, and effects,’ is not extended to the open fields." The decision was rendered on the ground that "open fields are not a 'constitutionally protected area' because they cannot be construed as "persons, houses, papers, [or] effects."

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, because there was no privacy expectation regarding an open field:

…open fields do not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance. There is no societal interest in protecting the privacy of those activities, such as the cultivation of crops, that occur in open fields.^[47]

Curtilage

While open fields are not protected by the Fourth Amendment, the curtilage, or outdoor area immediately surrounding the home, is protected. Courts have treated this area as an extension of the house and as such subject to all the privacy protections afforded a person’s home (unlike a person's open fields) under the Fourth Amendment. However, courts have held aerial surveillance of curtilage not to be included in the protections from unwarranted search so long as the airspace above the curtilage is generally accessible by the public.

An area is curtilage if it "harbors the intimate activity associated with the sanctity of a man's home and the privacies of life."^[48] Courts make this determination by examining "whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by."^[49] Theoretically, many structures might extend the curtilage protection to the areas immediately surrounding them. The courts have gone so far as to treat a tent as a home for Fourth Amendment purposes in the past.^[50][51][52] It is possible that the area immediately surrounding a tent (or any structure used as a home) might be considered curtilage.

Despite this broad interpretation, the courts seem willing to find areas to be outside of the curtilage if they are in any way separate from the home (by a fence, great distance, other structures, even certain plants).^[53]

Exigent circumstance

Main article: Exigent circumstances

There are also "exigent circumstances" exceptions to the warrant requirement. Exigent circumstances arise when the law enforcement officers have reasonable grounds to believe that there is an immediate need to protect their lives, the lives of others, their property, or that of others, the search is not motivated by an intent to arrest and seize evidence, and there is some reasonable basis, to associate an emergency with the area or place to be searched.^[54]

Motor vehicle

Main article: Motor vehicle exception

The Supreme Court 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. However, they may not extend the search to the vehicle's passengers without probable cause to search those passengers or consent from the passenger(s) to search their persons or effects.

In Arizona v. Gant, 556 U.S. ___ (2009), the Supreme Court ruled that a law enforcement officer needs a warrant before searching a motor vehicle after an arrest of an occupant of that vehicle, unless at the time of the search the person being arrested is unsecured and within reaching distance of the passenger compartment of the vehicle or police officers have reason to believe that the evidence for the crime the person is being arrested will be found in the vehicle.^[55]

Searches incident to a lawful arrest

Main article: Searches incident to a lawful arrest

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.

Border search exception

Main article: Border search exception

Searches conducted at the United States border or the equivalent of the border (such as an international airport) may be conducted without a warrant or probable cause subject to the "border-search" exception.^[56] Most border searches may be conducted entirely at random, without any level of suspicion, pursuant to Customs' plenary search authority. However, searches that intrude upon traveler's personal dignity and privacy interests, including strip and body cavity searches must be supported by 'reasonable suspicion.'^[57] Two federal Courts of Appeals have ruled that information on a traveler's electronic materials, including personal files on a laptop computer, may be searched at random, without suspicion.^[58]

Other exceptions

In New Jersey v. T. L. O., 469 U.S. 325 (1985), the Supreme Court ruled that searches in public schools do not require warrants, as long as the searching officers have reasonable grounds for believing that the search will result in the finding of evidence of illegal activity. However, in Safford Unified School District v. Redding, 557 U.S. __ (2009), the Court ruled that school officials violated the Fourth Amendment when they strip searched a 13 year old girl based only on a student claiming to have received drugs from that student.^[59][60]

Similarly, in Samson v. California, 547 U.S. 843 (2006), the Court ruled that 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 or searches undertaken as a condition of parole.

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.

In a memo dated March 14, 2003, an official in the Bush administration stated "... our Office recently concluded that the Fourth Amendment had no application to domestic military operations". The administration believed that any search or surveillance conducted by the National Security Agency of US citizens communicating with foreign nationals abroad was immune to a Fourth Amendment challenge.^[61] To protect the telecommunication carriers cooperating with the US government from legal action, the Congress passed a bill updating the Foreign Intelligence Surveillance Act of 1978 to permit this type of surveillance.^[62]

In August 2008, the Foreign Intelligence Surveillance Court of Review ruled that the President and the Congress had the authority to wiretap international phone calls and intercept e-mail messages without a specific court order.^[63]

Computers and privacy

Over the last decade, courts adjudicated whether the government can access evidence of illegal activity stored on digital technology without violating the Fourth Amendment.

Many cases discuss whether incriminating evidence stored by an employee in workplace computers is protected under the reasonable expectation of privacy. In a majority of cases, employees do not have a reasonable expectation of privacy for electronic communications at work.^[64] However, one federal court held that employees can assert the attorney-client privilege with respect to certain communications on company laptops.^[65]

On January 30, 2007, the United States Court of Appeals for the Ninth Circuit in United States v. Ziegler reversed its earlier August 2006 decision upon a petition for rehearing. In contrast to the earlier decision, the Court acknowledged that an employee has a right to privacy in his workplace computer. The court also found that an employer can consent to searches and seizures that would otherwise be illegal.^[66]

In Ziegler, an employee had viewed at work websites of child pornography. His employer noticed the conduct, made copies of the hard drive, and gave the FBI the employee's computer. At his criminal trial, Ziegler filed a motion to suppress the evidence on the ground that the government violated the Fourth Amendment rights. The Ninth Circuit allowed the lower court to admit the evidence. After reviewing the relevant Supreme Court opinions on a reasonable expectation of privacy, the court acknowledged that Ziegler had a reasonable expectation of privacy at his office and on his computer. However, the court found that the employer could consent to a government search of the computer without infringing on the Ziegler's Fourth Amendment rights.

Important cases

Exclusionary Rule

• Weeks v. United States (1914)
• Mapp v. Ohio (1961)
• United States v. Leon (1984)
• Pennsylvania Board of Probation and Parole v. Scott (1998)
• Herring v. United States (2009)

Privacy

• Olmstead v. United States (1928)
• Katz v. United States (1967)
• Zurcher v. Stanford Daily (1978)
• United States v. Karo (1984)
• California v. Greenwood (1988)
• Florida v. Riley (1989)
• Kyllo v. United States (2001)
• United States v. White (2003)
• Hepting v. AT&T (2006)
• Hudson v. Michigan (2006)

Informants

• Illinois v. Gates (1983)

Search Warrants

• Franks v. Delaware (1979)
• Maryland v. Garrison (1987)
• Richards v. Wisconsin (1997)
• Groh v. Ramirez (2004)

Arrest and Search of a Person Without a Warrant

• United States v. Watson (1976)
• United States v. Robinson (1973)
• Tennessee v. Garner (1985)
• Whren v. United States (1996)
• Atwater v. City of Lago Vista (2001)

Search of and Seizure from a Residence Without a Warrant

• Chimel v. California (1969)
• Vale v. Louisiana (1970)
• Payton v. New York (1980)
• Steagald v. United States (1981)
• Illinois v. McArthur (2001)

Search and Seizure of Vehicles and Containers Without a Warrant

• Carroll v. United States (1925)
• South Dakota v. Opperman (1976)
• United States v. Chadwick (1977)
• Arkansas v. Sanders (1979)
• New York v. Belton (1981)
• United States v. Ross (1982)
• California v. Carney (1985)
• Colorado v. Bertine (1987)
• California v. Acevedo (1991)
• Knowles v. Iowa (1998)
• Wyoming v. Houghton (1999)
• Thornton v. United States (2004)
• Arizona v. Gant (2009)

Plain-view & Plain-feel

• Arizona v. Hicks (1987)
• Horton v. California (1990)
• Minnesota v. Dickerson (1993)

Stop and Frisk

• Terry v. Ohio (1968)
• Dunaway v. New York (1979)
• Florida v. Royer (1983)
• Michigan v. Long (1983)
• United States v. Place (1983)
• Florida v. J.L. (2000)
• Illinois v. Wardlow (2000)
• United States v. Drayton (2002)
• Hiibel v. Sixth Judicial District Court of Nevada (2004)
• Atwater v. Lago Vista (2001)

Border Searches

• United States v. Thirty-Seven Photographs (1971)
• United States v. Ramsey (1977)
• United States v. Montoya de Hernandez (1985)
• United States v. Flores-Montano (2004)

Deportation

• INS v. Delgado (1984)
• INS v. Lopez-Mendoza (1984)

See also

• Section Eight of the Canadian Charter of Rights and Freedoms
• subpoena ad testificandum
• subpoena duces tecum

References

1. ^ Coke's Rep. 91a, 77 Eng. Rep. 194 (K.B. 1604)
2. ^ ^{a b c d} *Kilman, Johnny and George Costello (Eds) (2006). "The Constitution of the United States of America: Analysis and Interpretation". GPO. http://www.gpoaccess.gov/constitution/browse.html.  pp. 1281-1282.
3. ^ W. Cuddihy, The Fourth Amendment: Origins and Original Meaning (1990) (Ph.D. Dissertation at Claremont Graduate School)
4. ^ Davies (1999)
5. ^ Kinvin Wroth and Hiller B. Zobel, eds, Legal Papers of Adams II, p. 113, fn 22 (1965) “The writs of assistance did not become an issue until news of King George II’s death arrived in Boston December 27, 1760.”
6. ^ Kinvin Wroth and Hiller B. Zobel, eds, Legal Papers of Adams II, p. 113, fn 23 (1965)
7. ^ Lasson (1937), pp. 57-61
8. ^ Lasson (1937), p. 66
9. ^ Adams, Charles Francis, and John Adams (1856). The Works of John Adams, Second President of the United States: With a Life of the Author. Volume: 1. Little, Brown. pp. 59. 
10. ^ Levy (1995), p. 161
11. ^ Article X of the Virginia Declaration of Rights, Levy (1995), p. 161
12. ^ Levy (1995), pp. 162-164
13. ^ United States v. Jacobsen, 466 U.S. 109 (1984): "This Court has ... consistently construed this protection as proscribing only governmental action; it is wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official." (punctuation omitted).
14. ^ For example, see Article 1, § 7 of the Tennessee Constitution.
15. ^ Lasson (1937), p. 107
16. ^ Lasson (1937), p. 106
17. ^ Warden v. Hayden, 387 U.S. 294 (1967) (speculating that there may be "items of evidential value whose very nature precludes them from being the object of a reasonable search and seizure")
18. ^ Devenpeck v. Alford, 543 U.S. 146 (2004)
19. ^ Tennessee v. Garner 471 U.S. 1 (1985)
20. ^ Friedman, Leon. The Justices of the United States Supreme Court: Their Lives and Major Opinions, Volume V. Chelsea House Publishers. 1978. Page 292.
21. ^ Terry v. Ohio, 392 U.S. 1 (1968)
22. ^ Florida v. Royer, 460 U.S. 491, 497-98, 103 S.Ct. 1319, 1324 (1983).
23. ^ Soldal v. Cook County, 506 U.S. 56, 61, 113 S.Ct. 538, 543 (1992)
24. ^ United States v. Mendenhall, 446 U.S. 544, 551, 64 L. Ed. 2d 497, 100 S. Ct. 1870 (1980)
25. ^ Florida v. Royer, 460 U.S. 491, 497-98, 75 L. Ed. 2d 229, 103 S. Ct. 1319 (1983)
26. ^ Dunaway v. New York, 442 U.S. 200, 210 n. 12, 99 S.Ct. 2248, 2255 n. 12, 60 L.Ed.2d 824 (1979)
27. ^ ^{a b c} United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870 (1980).
28. ^ Florida v. Bostick, 501 U.S. 429, 439, 115 L. Ed. 2d 389, 111 S. Ct. 2382 (1991)
29. ^ {{see Michigan v. Sitz, 496 U.S. 444 (1990) and Indianapolis v. Edmond, 531 U.S. 32 (2000)
30. ^ e.g., Edmond and Palmer v. Indianapolis (7th Cir., 1999)
31. ^ ^{a b} Knowles v. Iowa, 525 U.S. 113, 117, 119 S.Ct. 484, 488 (1998).
32. ^ Ruling about police requesting identification during a traffic stop.
33. ^ Virginia v. Moore
34. ^ AP article on the case.
35. ^ See, e.g., Tennessee Code Annotated § 40-7-109 (2003)
36. ^ Maryland v. Dyson, 527 U.S. 465 (1999)
37. ^ Andrews v. Fuoss, 417 F.3d 813 (8th Cir. 2005).
38. ^ Flippo v. West Virginia, 528 U.S. 11 (1999); California v. Acevedo, 500 U.S. 565 (1991)
39. ^ Carroll at 162
40. ^ Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 1543 (1983)
41. ^ Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225 (1964)
42. ^ Johnson v. United States, 333 U.S. 10, 92 L.Ed 436, 68 S.Ct 367 (1948)
43. ^ Stinger, C. Maureen (February 13, 1996). "Arizona v. Evans: Adapting the Exclusionary Rule to Advancing Computer Technology". The Richmond Journal of Law and Technology. http://law.richmond.edu/jolt/v2i1/stinger.html. Retrieved on 2009-01-16. 
44. ^ "Court says evidence is valid despite police error". http://fe11.story.media.ac4.yahoo.com/news/us/story/ap/20090114/ap_on_go_su_co/scotus_evidence. Retrieved on 2009-01-14. 
45. ^ Opinion of the Court and dissenting opinions in Herring v. United States
46. ^ Requirements of the plain view doctrine
47. ^ Oliver, 466 U.S. 170, 179 (1984)
48. ^ United States v. Dunn, 480 U.S. 294, 300 (1987)
49. ^ Dunn at 301
50. ^ United States v. Gooch, 6 F.3d 673 (9th Cir. 1993)
51. ^ LaDuke v. Nelson, 762 F.2d 1318 (9th Cir. 1985)
52. ^ LaDuke v. Castillo, 455 F.Supp. (E.D. Wash. 1978)
53. ^ United States v. Hatch, 931 F.2d 1478 (11th Cir.), cert. denied, 502 U.S. 883 (1991)
54. ^ United States v. Smith, 797 F.2d 836, 840 (10th Cir.1986)
55. ^ Moore, Kristina (April 21, 2009). "Limits on warrantless car searches, compensation to terrorism victims, veterans benefit disputes". SCOTUSblog. http://www.scotusblog.com/wp/a-new-rule-for-warrantless-car-searches/. Retrieved on 2009-04-22. 
56. ^ See United States v. Flores-Montano, 541 U.S. 149 (2004), United States v. Montoya de Hernandez, 473 U.S. 531 (1985), and United States v. Ramsey, 431 U.S. 606 (1977).
57. ^ See Flores-Montano, 541 U.S. at 152-53
58. ^ See United States v. Ickes, 393 F.3d 501 (4th Cir. 2005) and United States v. Arnold, (9th Cir. April 21, 2008)
59. ^ "Top court rules strip search of teen was illegal". Associated Press. June 25, 2009. http://www.msnbc.msn.com/id/31544930/ns/us_news-crime_and_courts/. Retrieved on 2009-06-25. 
60. ^ Denniston, Lyle (June 25, 2009). "Analysis: Some expansion of student privacy". SCOTUSblog. http://www.scotusblog.com/wp/analysis-some-expansion-of-student-privacy/. Retrieved on 2009-06-25. 
61. ^ "Administration Asserts No Fourth Amendment for Domestic Military Operations". http://www.eff.org/deeplinks/2008/04/administration-asserts-no-fourth-amendment-domestic-military-operations. Retrieved on 2008-04-03. 
62. ^ "U.S. Spy Bill Protecting Telecoms Heads To President Bush". http://www.informationweek.com/shared/printableArticle.jhtml?articleID=208808232. Retrieved on 2008-07-14. 
63. ^ "Intelligence Court Rules Wiretapping Power Legal". http://www.nytimes.com/2009/01/16/washington/16fisa.html?hp. 
64. ^ e.g., United States v. Simons, 206 F.3d 392, 398 (4th Cir., Feb. 28, 2000)
65. ^ See Curto v. Medical World Comm., No. 03CV6327, 2006 U.S. Dist. LEXIS 29387 (E.D.N.Y. May 15, 2006)
66. ^ See United States v. Ziegler, ___F.3d 1077 (9th Cir. Jan. 30, 2007, No. 05-30177) [1] Cf. United States v. Ziegler, 456 F.3d 1138 (9th Cir. 2006)

Further reading

• Amar, Akhil Reed (1994). "Fourth Amendment First Principles". Harvard Law Review 107: 757–819. doi:10.2307/1341994. 
• Amsterdam, Anthony G. (1974). "Perspectives on the Fourth Amendment". Minnesota Law Review 58: 349. 
• Davies, Thomas Y. (1999). "Recovering the Original Fourth Amendment" (^{[dead link]} – ^{Scholar search}). Michigan Law Review 98: 547. doi:10.2307/1290314. http://www.law.utk.edu/FACULTY/4thamend.pdf. 
• Ducat, Craig R. and Harold W. Chase (Eds) (1992). Constitutional Interpretation (5th ed.). West Publishing Company. pp. 797–818. 
• Kilman, Johnny and George Costello (Eds) (2006). "The Constitution of the United States of America: Analysis and Interpretation". GPO. http://www.gpoaccess.gov/constitution/browse.html. 
• Lasson, Nelson B. (1937). The History and Development of the Fourth Amendment to the United States Constitution. Johns Hopkins University Press. 
• Levy, Leonard Williams (1995). Seasoned Judgments: The American Constitution, Rights, and History. Transaction Publishers. 

External links

• CRS Annotated Constitution: Fourth Amendment, Cornell University
• Summaries of Recent U.S. Criminal Law Decisions

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