Fourth Amendment to the United States Constitution
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Amendment IV (the Fourth Amendment) to the United States Constitution is one of the provisions included in the Bill of Rights. The Amendment guards against unreasonable searches and seizures, and was originally designed as 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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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. |
[edit] Introduction
The Fourth Amendment to the United States Constitution requires that searches and seizures conducted under governmental authority be "reasonable". Toward that end, the amendment specifies that judicially sanctioned search and arrest warrants must be supported by probable cause and be limited in scope according to specific information supplied by a person (usually a peace officer) who has sworn by it and is therefore accountable to the issuing court.
The amendment only applies to the government; it does not guarantee to people the right to be free from unreasonable searches and seizures conducted by private citizens or organizations. More specifically, the Bill of Rights only restricts the power of the federal government, but the Supreme Court of the United Stateshas ruled that the Fourth Amendment is applicable to state governments by operation of the Fourteenth Amendment.[1] Moreover, all state constitutions contain an analogous provision. For an example, see Article 1, § 7 of the Tennessee Constitution.
The Supreme Court has said that some searches and seizures may violate the Fourth Amendment's reasonableness requirement even if a warrant is supported by probable cause and is limited in scope.[2] 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."[3] Thus, the reasonableness requirement and the warrant requirement are somewhat distinct.
Regarding the Fourth Amendment's reasonableness requirement, it applies not just to a search in combination with a seizure, but also applies to a search without a seizure, as well as to a seizure without a search.[4] 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 is not so broad as to 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.
The Fourth Amendment was needed because the writs of assistance had alarmed the country, and had inspired citizens to demand their rights. Congress recognized those demands, and so we have the Fourth Amendment today. But does the word "unreasonable" mean unreasonable according to the people of 1789, or according to people today, or according to judges, or according to juries? This question has not been definitively answered. However, to the extent that the Fourth Amendment is used for purposes of striking down statutes, the framers expected that the standard of review would be clear and irreconcilable variance with the Fourth Amendment.
[edit] Exclusionary rule
- See also: exclusionary rule
One way courts enforce the rights guaranteed by the 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.
Before the Court adopted the exclusionary rule in Weeks v. United States, 232 U.S. 383 (1914), all evidence, no matter how seized, could be admitted in court. The rule serves primarily to deter police officers from wilfully violating a suspect's Fourth Amendment rights. The rationale being 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. Some people argue that, without this rule, the Fourth Amendment would be essentially meaningless.
[edit] Exceptions to the exclusionary rule
Of course, as with most legal rules, there are 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.[5]
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.
In any event, whether a search or seizure is "unreasonable", and therefore unconstitutional, can entail complex analysis of common law precedent and the facts of the case. Additionally, as searches and seizures are distinct activities, the constitutionality of a search is analyzed differently than a seizure.
[edit] 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 impede upon a person's reasonable expectation of privacy.
[edit] Reasonable expectation of privacy
In Katz v. United States,[6] Justice Harlan issued a concurring opinion articulating the two-part test later adopted by the Court as the definition of a search for Fourth Amendment purposes: (1) governmental action must contravene an individual's actual, subjective expectation of privacy; (2) and that expectation of privacy must be reasonable, in the sense that society in general would recognize it as such.
In order to meet the first part of the test, the person from whom the information was obtained must demonstrate that they, in fact, had an actual, subjective expectation that the evidence obtained would not be available to the public. In other words, the person asserting that a search was conducted must show that they kept the evidence in a manner designed to ensure its privacy.
The second part of the test is analyzed objectively: would society at large deem a person's expectation of privacy to be reasonable? If it is plain that a person did not keep the evidence at issue in a private place, then no search is required to uncover the evidence. For example, there is generally no search when police officers look through garbage because a reasonable person would not expect that items placed in the garbage would necessarily remain private.[7] Similarly, there is no search where officers monitor what phone numbers an individual dials,[8] although Congress has enacted laws which restrict such monitoring. The Supreme Court has also ruled that there is no objectively reasonable expectation of privacy (and thus no search) when officers hovering in a helicopter 400 feet above a suspect's house conduct surveillance.[9]
[edit] Probable cause to search
When police do conduct a search, the amendment requires them to have 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. The Supreme Court has stated that probable cause to search
is a flexible, common-sense standard. It merely requires that the facts available to the officer would 'warrant a man of reasonable caution in the belief,'[10] 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.[11]
[edit] "Terry Frisk"
However, in certain circumstances, authorities are permitted to conduct a search on a level of suspicion less than probable cause. In Terry v. Ohio,[12] 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.[12] A vague hunch will not do.
[edit] Seizures
The amendment proscribes unreasonable seizures of private property as well as persons. A seizure of property occurs when there is some meaningful interference by the police with an individual's possessory interests in that property,[13] such as when police officers take an item away from a person and keep it to use as evidence of a crime.
Law enforcement officers have not seized a person by merely approaching the individual on the street or in another public place, and asking him if he is willing to answer some questions, or by asking him questions if he seems willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. The person approached, however, does not have to answer any questions under these circumstances; he can simply walk away.[14] He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds.[15]
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.[15] If the police are questioning someone, and they remain free to disregard the questions and walk away, there has been no intrusion upon the person's liberty or privacy, and for Fourth Amendment purposes--there has been no seizure.[15]
[edit] Arrests
Of course, when a person is arrested and taken into police custody, they have been seized (i.e., a reasonable person who is handcuffed and placed in the back of a squad car would not think she was 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 a Terry stop (see below) than to a formal arrest.[16]
[edit] Citizen's Arrest
As mentioned in the introduction, the Fourth Amendment does not apply to private citizens, so in the case of a citizen's arrest Fourth Amendment standards are not relevant. However, many states have passed laws that dictate the specific circumstances in which a private citizen may arrest another. Typically, a person can make a citizen's arrest when: (1) a misdemeanor amounting to a public nuisance is committed in the arresting citizen's presence; or (2) a felony has been committed, and the arresting citizen has reasonable cause to believe that the person arrested committed it.[17]
[edit] Probable Cause to Arrest
Under 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 (i.e., probable cause to believe that someone had committed a misdemeanor does not justify an arrest; the police officer has to actually witness the misdemeanor.)[16]
The probable cause required for an arrest is different than that required for a search. Police have 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.[18] Probable cause to arrest must exist before the arrest is made: evidence discovered after the arrest may not be retroactively used to justify the arrest.[19]
[edit] Investigatory Detentions, "Terry Stops"
Not all seizures of the person must be justified by the probable cause standard required for arrests. Certain seizures are justifiable under the Fourth Amendment if there is reasonable suspicion, supported by specific and articulable facts, that a person has committed or is about to commit a crime.[12] Note that this circumstance is different than the non-seizure police questioning discussed above, in these situations, the person stopped is not free to leave. A "Terry Stop" 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.)[20] In justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion
[edit] Warrant Requirement
Under the amendment, law enforcement must receive written permission from a court of law, or otherwise qualified magistrate, in order to lawfully search for 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, i.e., unconstitutional, if conducted without a valid warrant,[21] and the police must obtain a warrant whenever practicable.[22] Warrantless searches and seizures are automatically considered to be unreasonable, unless one of the specifically established and well-delineated exceptions to the warrant requirement is applicable.[23]
[edit] Exceptions to the Warrant Requirement
Courts have developed a number of exceptions to the warrant requirement:
[edit] Plain View
Officers may search and seize objects that are in "plain view". Before the seizure, however, the officers must have probable cause to believe that the objects are contraband.
[edit] Open Fields Doctrine
Similarly, "open fields"—pastures, open water, woods and other such areas—may be searched without a 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.
The open fields doctrine was first articulated by the U.S. Supreme Court in Hester v. United States[24], 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."[25] This opinion appears to be decided on the basis that "open fields are not a 'constitutionally protected area' because they cannot be construed as "persons, houses, papers, [or] effects."
This method of reasoning gave way with the arrival of the landmark case [6] which established a two-part test for what constitutes a search within the meaning of the Fourth Amendment. The relevant criteria are "first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as reasonable."[6] Under this “new” analysis of the Fourth Amendment, privacy expectations deemed unreasonable by society cannot be validated by any steps taken by the defendant to shield the area from view.
In Oliver v. United States[26], the Supreme Court held that a privacy expectation regarding an open field is unreasonable:
…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. [27]
Courts have continuously held that entry into an open field--whether trespass or not--is not a search within the meaning of the Fourth Amendment. No matter what steps a person takes, he or she cannot create a reasonable privacy expectation in an open field, because it is an area incapable of supporting an expectation of privacy as a matter of constitutional law.
[edit] Distinguishing open fields from curtilage
While open fields are not be protected by the Fourth Amendment, the curtilage, or outdoor area immediately surrounding the home, is. 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.
An area is curtilage if it "harbors the intimate activity associated with the sanctity of a man's home and the privacies of life."[28] 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."[29] 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. [30][31][32] It is possible that the area immediately surrounding a tent (or any structure used as a home) might be considered curtilage.
Despite this rather broad interpretation of curtilage, 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).[33]
[edit] Exigent Circumstances
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.
[edit] Automobile Exception
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.
[edit] Search Incident to 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.
[edit] Miscellaneous exceptions
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.
Similarly, 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 (the "border search exception") (see United States v. Ramsey, 431 U.S. 606 (1977); United States v. Montoya de Hernandez, 473 U.S. 531 (1985); United States v. Flores-Montano, 541 U.S. __ (2004)) or searches undertaken as a condition of parole (see Samson v. California, 546 U.S. __ (2006).
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.
[edit] Notes
- ^ Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).
- ^ 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")
- ^ Devenpeck v. Alford, 543 U.S. 146 (2004)
- ^ Tennessee v. Garner, 471 U.S. 1 (1985)
- ^ United States v. Calandra, Supreme Court Collection, Legal Information Institute, Cornell Law School
- ^ a b c Katz v. United States, 389 U.S. 347; 88 S. Ct. 507; 19 L. Ed. 2d 576 (1967)
- ^ California v. Greenwood, 486 U.S. 35; 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988).
- ^ Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979).
- ^ Florida v. Riley, 488 U.S. 445, 109 S.Ct. 693, 102 L.Ed.2d 835 (1989).
- ^ Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 288, 69 L.Ed. 543 (1925)
- ^ Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 1543 (1983)
- ^ a b c Terry v. Ohio, 392 U.S. 1; 88 S. Ct. 1868; 20 L. Ed. 2d 889 (1968)
- ^ Soldal v. Cook County, 506 U.S. 56, 61, 113 S.Ct. 538, 543 (1992).
- ^ Dunaway v. New York, 442 U.S. 200, 210 n. 12, 99 S.Ct. 2248, 2255 n. 12, 60 L.Ed.2d 824 (1979)
- ^ a b c United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870 (1980).
- ^ a b Knowles v. Iowa, 525 U.S. 113, 117, 119 S.Ct. 484, 488 (1998).
- ^ See, e.g., Tennessee Code Annotated § 40-7-109 (2003)
- ^ Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225 (1964).
- ^ Johnson v. United States, 333 U.S. 10, 92 L.Ed 436, 68 S.Ct 367 (1948).
- ^ Florida v. Royer, 460 U.S. 491, 497-98, 103 S.Ct. 1319, 1324 (1983).
- ^ Maryland v. Dyson, 527 U.S. 465, 119 S. Ct. 2013, 144 L. Ed. 2d 442 (1999)
- ^ Andrews v. Fuoss, 417 F.3d 813 (8th Cir. 2005).
- ^ Flippo v. West Virginia, 528 U.S. 11, 120 S. Ct. 7, 145 L. Ed. 2d 16 (1999); California v. Acevedo, 500 U.S. 565, 111 S. Ct. 1982, 114 L. Ed. 2d 619 (1991).
- ^ Hester v. U.S., 265 U.S. 57 (1924)
- ^ Hester v. U.S., 265 U.S. 57, 57 (1924)
- ^ Oliver v. U.S., 466 U.S. 170 (1984)
- ^ Oliver v. U.S., 466 U.S. 170, 179 (1984)
- ^ United States v. Dunn, 480 U.S. 294, 300 (1987)
- ^ United States v. Dunn, 480 U.S. 294, 301 (1987)
- ^ United States v. Gooch, 6 F.3d 673 (9th Cir. 1993)
- ^ LaDuke v. Nelson, 762 F.2d 1318 (9th Cir. 1985)
- ^ LaDuke v. Castillo, 455 F.Supp. (E.D. Wash. 1978)
- ^ U.S. v. Hatch, 931 F.2d 1478 (11th Cir.), cert. denied, 502 U.S. 883 (1991)
[edit] Important cases
Exclusionary Rule
- Weeks v. United States, 232 U.S. 383 (1914)
- Wolf v. Colorado (1949)
- Mapp v. Ohio, 367 U.S. 643 (1961)
- United States v. Leon (1984)
- Pennsylvania Board of Probation and Parole v. Scott (1998)
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)
- Hudson v. Michigan (2006)
Probable Cause
- Spinelli v. United States (1969)
- Illinois v. Gates (1983)
Search Warrants
- Franks v. Delaware (1979)
- Maryland v. Garrison (1987)
- Richards v. Wisconsin (1997)
Arrest and Search of a Person Without a Warrant
- United States v. Watson (1976)
- United States v. Robinson (1973)
- Whren v. United States (1996)
- Atwater v. City of Lago Vista (2001)
- Tennessee v. Garner (1985)
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
- 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, 525 U.S. 113 (1998)
- Wyoming v. Houghton (1999)
Stop and Frisk
- Terry v. Ohio (1968)
- 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)
[edit] References
- Kilman, Johnny and George Costello (Eds). (2000). The Constitution of the United States of America: Analyis and Interpretation.
- CRS Annotated Constitution: 4th Amendment
- Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547, 555 (1999)
