An overview of the Fourth Amendment to the United States Constitution

Introduction

The Bill of Rights refers to the first ten Amendments of the United States Constitution that were proposed on September 25, 1789, to the Senate and House of Representatives at the time of the Constitution’s adoption in order to clarify its provisions and prevent abuse of its powers. The Bill of Rights was drafted by James Madison in 1789, inspired by the 1776 Virginia Declaration of Rights of George Mason, the 1689 English Bill of Rights, and the Magna Carta. It came into effect when the U.S Congress ratified it on December 15, 1791. (“U.S. Constitution: Fourth Amendment”)

The Bill of Rights is as follows:

• Freedom of religion, press, and expression;
• Right to bear arms;
• Quartering of soldiers;
• Freedom from unreasonable searches and seizures;
• Right to due process;
• Right to a speedy trial and confrontation of witnesses;
• Right to a trial by jury in civil cases;
• Freedom from cruel and unusual punishment;
• Construction of the Constitution;
• Powers of the states and people (Mount).

This research will solely consider the Fourth Amendment, providing a comprehensive overview of its provisions and related cases. The Amendment is stated as follows:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” (“U.S. Constitution: Fourth Amendment”)

The people” mentioned above refers to persons covered under the Fourth Amendment. It includes citizens and permanent resident aliens who have developed ties within the country that go into the permanent residence status. They are considered as the category of persons protected by the Fourth Amendment as members of the national community or have established ties within the US to be accepted as part of the community. This also includes US citizens who are in a foreign country. The Fourth Amendment does not apply to the property of nonresident aliens. (“U.S. Constitution: Fourth Amendment”)

Provisions of the Amendment

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The Fourth Amendment is the provision against unreasonable search and seizure, which was a reaction to incidents occurring under colonial rule. During this time, the citizenry was subjected to invasions that seriously curtailed their personal security by law enforcement officers.

The term reasonable” has been a subject of debate ever since the ratification of the Fourth Amendment. While warrants are required for any search and seizure, the qualification of “probable cause” provides exceptions for such searches and seizures that have no warrants. Furthermore, the coverage of the Fourth Amendment as it applies to individuals and institutions is also subject to interpretation and rulings by the Supreme Court. (“U.S. Constitution: Fourth Amendment”)

The following sections will attempt to provide some instances to elucidate the finer points involved in the application of the Fourth Amendment on a case-by-case basis. Typically, search and seizure warrants are issued as part of a criminal investigation seeking material confirmation of a specific criminal act. The search warrant needs to indicate the nature and description of the material being sought and to be confiscated as evidence in order for it to be admissible as such. In the event that no warrant is issued and evidence, such as marijuana, is discovered on the premises, such evidence becomes inadmissible in court. The same applies for confessions or statements taken within the context of the illegal search and seizure. (U.S. Constitution: Fourth Amendment”)

The warrant is a means to protect against arbitrary intrusion by agents of the government, i.e., law enforcement officers unsubstantiated by any apparent cause or suspicion. In some cases, provided enough suspicion is present, the granting of a warrant by a neutral magistrate should be obtained prior to a search and seizure. (Fourth Amendment”)

Probable cause is established mainly by judicial determination. There is no objective construct for possible cause, depending largely on the information submitted before the magistrate. An application for a warrant must be accompanied by a substantiated belief of the applicant that a crime has been committed or is being committed. Applicants may be any person with competent character or with sufficient knowledge or intimacy of the act, such as eyewitness accounts, that would make the application credible. The establishment of probable cause will be decided by the magistrate based on the facts revealed in the course of the application and will later be upheld by the courts pending consideration of the grounds by which the magistrate acknowledged probable cause. (Fourth Amendment”)

A neutral magistrate or judicial officer is presumed to be an objective person with no personal agenda for the probable conclusion of an investigation. It is not required that the issuing official be a lawyer or a judge, but they must have enough knowledge of the law to determine what information may be used as a basis for a warrant. Such a person typically has no part in law enforcement activities. (U.S. Constitution: Fourth Amendment”)

A landmark case in the establishment of probable cause was the case of Draper versus United States in 1959. In this case, an informant who had previously established reliability provided enough detail about a crime that was about to be committed to law enforcement agents. This enabled the subsequent arrest of the alleged perpetrator in the act. The arrest, though warrantless, was upheld by the courts as justified. The case established grounds for probable cause based on information received from a reliable source. (“U.S. Constitution: Fourth Amendment”)

However, the reliability of informants must be firmly established in order for the warrant to hold up in court. An affidavit attesting to the reliability of the source of information, such as a civilian informant or a law enforcement officer, would detail the circumstances that led to the acquisition of the essential information that would lead to the issuing of the warrant itself. The absence of such an affidavit would open the case up to questions of arbitrariness. (U.S. Constitution: Fourth Amendment”)

In the gambling-related case of Spinelli v. Texas in 1969, the Court rejected the warrant issued because there was no basis of knowledge for the information that was received, nor was the police affidavit sufficient to establish criminality. The affidavit merely asserted that the alleged criminal was a known gambler. (U.S. Constitution: Fourth Amendment”)

For the case of United States versus Ventresca in 1965, the law officer who applied for the warrant stated in his affidavit that his assertion of suspected illegal activities in certain premises (in this case, an illegal distillery) was based on his personal observations as well as those of several of his fellow officers. He proceeded to recount details of the observed activities that substantiated his assertions. The court acknowledged that this established sufficient probable cause for the warrant. (U.S. Constitution: Fourth Amendment”)

Another issue of warrants is that of particularity, in which the warrant states what articles may be seized and specific areas for which the search may be legally conducted. This requirement in the Fourth Amendment is for the consideration of the First Amendment, which protects the citizen’s right to freedom of religion, press, and expression. The discretion of the officers enforcing the warrant in such matters is absolutely limited to the provisions of the warrant. Any transgression from the particulars of the warrant may void its legal basis and thus render whatever evidence culled from the search and seizure as inadmissible. (U.S. Constitution: Fourth Amendment”)

A recent case dealing with particularity was that of Groh versus Ramirez et al, decided on February 24, 2004. The warrant was found to be invalid because it failed in its particularity of the object to be seized, despite the fact that it established probable cause and an affidavit of reliability was supplied. However, the court ruled that despite the constitutional violation, the defendant was not entitled to immunity from prosecution because it was evident to the law enforcement agent that the defendant was engaged in unlawful conduct. (Case Highlights: 2003-2004 Term”)

Prior to 1967, the courts ruled that the property that may be seized is limited to contraband, instruments used in the execution of a crime, and fruits, and does not include other categories of property, whether or not they provide collaboration of probable cause, and are classed as “mere evidence.” This has been overturned since then, and evidence such as fingerprints, bodily fluids and exfoliations, voice and handwriting samples, conversations, and other evidence that corroborate the findings of the investigators may be obtained even without a warrant if justified by a show of “special needs” and may be used in a court of law as evidence. (“U.S. Constitution: Fourth Amendment”)

In taking fingerprints, however, one must distinguish between the acquisition of persons who have not yet been arrested to determine their guilt and that of persons who are in the lawful custody of the police for identification. In the first instance, unless voluntarily given, such gathering of evidence may be construed as a violation of the Fourth Amendment if no warrant is obtained, except perhaps in cases of drinking under the influence where preservation of the subject’s blood is time-sensitive. In the second instance, this is considered a routine part of the “booking” procedure and may be obtained arbitrarily. (“Fourth Amendment”)

However, forcible extraction of evidence by medical means, i.e. surgery, currently lodged in a person’s body, such as stomach contents or a lodged bullet, is impermissible in light of possible bodily harm to the person in question. (U.S. Constitution: Fourth Amendment”) Forcible extraction of blood, as exhibited by Schmerber versus California in 1966, is not permissible in the absence of a warrant because it is considered unreasonable physical intrusion. The court concurred that probable cause was required. (“Fourth Amendment”)

The Fourth Amendment has also been scrutinized as to the extent to which it involves the Fifth Amendment in terms of the seizure of papers and other documents that may pertain to the crime being investigated. The courts rule that warrants that detail such seizures do so under the presumption that there is no forcible requirement for the defendant to either authenticate the documents or submit such documents that may implicate the defendant. In the case of Andresen versus Maryland in 1976, the business records seized under warrant from the defendants that proved fraudulent sale of land were admitted as evidence, overriding claims of Fifth Amendment violations as the defendant had no occasion for self-incrimination. (“U.S. Constitution: Fourth Amendment”)

Warrants may constitute search and seizure, as well as the personal search and detention of named persons. In execution, the knock and announce” rule is normally used, although not in all circumstances when the agents executing the warrant have adequate reason to suppose that such an approach would result in harm to others or the destruction of evidence. In arrest warrants, however, a valid arrest warrant does not allow apprehension of a named person on the property of a third party unless the warrant details the likelihood of the named party being on the said premises. Moreover, personal search of a person on the prescribed premises but not named in the warrant is not permissible unless there is any intimation of harm to others from such a person, possible flight in the event of incriminating evidence of the premises, or to enable entry into the said premises. (“U.S. Constitution: Fourth Amendment”)

Case in point was that of United States versus Banks, decided on December 2, 2003. In this case, law enforcement officers were upheld by the court regarding the enforcement of a search warrant for cocaine. The officers broke into the premises 20 seconds after a knock-and-announcement. The court ruled that it was reasonable for the officers to assume that if they waited longer, the evidence would be destroyed. Thus, they were justified in forcing an entry. This is typical of cases where warrants are issued for easily disposable evidence. (Case Highlights: 2003-2004 Term”)

To justify a warrantless search and seizure as acceptable, the intrusion should be minimal and based on perceived probable cause or adequate suspicion of a criminal act in progress, such as in the cases of Michigan State Police Department v. Sitz in 1990 and Terry v. Ohio in 1968. (Fourth Amendment”)

While the Fourth Amendment states that warrantless searches are inherently unreasonable” and are only admissible under special circumstances, the actual number of searches, seizures, and arrests unaccompanied by a warrant has been growing.

In detentions that do not result in arrests, body searches are acceptable if a felony or misdemeanor apparently occurred in the presence of the searching officer. Based on experience and training, officers may conduct ‘on-the-street frisking’ for weapons or other paraphernalia suitable for the execution of a crime, such as robbery. In the case of Terry versus Ohio in 1968, the officer involved was required to give details which led to the warrantless search of the defendant. In light of the information offered, the court acknowledged the reasonableness of the officer’s actions. For similar cases, results of a frisk” that yields weapons or contraband evident to “plain touch,” such objects may be seized, but expansion of the search based on such discovery may not be permitted. (“U.S. Constitution: Fourth Amendment”)

The extent of the detention will be determined by the strength of defensible suspicions of criminal activity and the amount of cooperation by subjects of the stop-and-search. In cases where the subject attempts to flee even after the identification of the officer, pursuit and subsequent transport to an area for interrogation are considered permissible. However, a 48-hour detention without the revelation of probable cause is the limit of reasonable detention. More than that is considered a violation of the Fourth Amendment. For travelers detained for suspicion of criminal acts, such as smuggling of contraband, a 24-hour window is granted to establish grounds for further detention. Regarding the seizure of property, the same requirements for the establishment of probable cause prevail. (“U.S. Constitution: Fourth Amendment”)

Arrests following a warrantless but permissible search based on the discovery of objects that constitute a criminal act, i.e., the discovery of heroin in a vehicular search prompted by suspicious conduct of the driver, are considered lawful despite the fact that such discovery was not the original cause of the search. The courts concur that further justification is not needed for arrests based on such discoveries. (“U.S. Constitution: Fourth Amendment”) Such special needs cases, however, nearly always require individualized suspicion. Exemptions occur only in cases where there is a voluntary factor to the testing, as in promotion requirements or participation in school sports, as in the case of Vernonia School Dist. Versus Action in 1995. (“Fourth Amendment”)

Vehicular searches are exceptions to the warrant rule because of their mobility, provided probable cause is established. This has been approved by the Supreme Court on the basis that motorists have less expectation of privacy on public highways and checkpoints. At checkpoints where no suspicion is required to establish sobriety, testing is permissible within certain constraints. If reasonable cause for further sobriety testing is apparent, such measures may be carried out lawfully. (U.S. Constitution: Fourth Amendment”)

There are several cases for vehicular stops-and-searches that have been brought before the courts. In the case of Illinois versus Lidster, decided on January 13, 2004, the issue was the constitutionality of a highway checkpoint where law enforcement officers detained vehicles in order to solicit information regarding a hit-and-run incident. The court ruled that in this case, no suspicion of criminality was visited upon the motorists detained, and the detention was of a minimal nature, lasting only a few minutes at most.

In the case of Maryland versus Pringle, which was decided on December 15, 2003, the arrest of the vehicle’s occupants, who were found to be in possession of cocaine, was upheld as lawful because the culpability of the same occupants could be reasonably presumed. In Thornton versus United States, which was decided on May 24, 2004, the court ruled in favor of the law officer who initiated the search of a vehicle that had recently been vacated by a lawfully arrested person. It was ruled that identical concerns prevailed regarding the safety of the arresting officer and the destruction of evidence, even with the suspect outside the vehicle. (Case Highlights: 2003-2004 Term”)

In the event of an arrest warrant, the extent to which a search of the premises incidental to the arrest warrant may be carried out has been the subject of many arguments, especially if such searches reveal evidence indicative of another crime. However, the rule of thumb for many courts is that searches in the immediate vicinity of the lawful arrest, as well as areas within the control of the person being arrested, are considered permissible. (U.S. Constitution: Fourth Amendment”)

Of course, warrantless searches and seizures may also be justified even without probable cause if the owner of the premises, or one who has a common right to the premises such as the spouse, voluntarily consents to the search. However, the burden of proof establishing the voluntary nature of the consent is upon the searching officer in cases where claims of coercion are brought to bear. (U.S. Constitution: Fourth Amendment”)

One definite exemption to the Fourth Amendment rule of the warrant requirement, as established by the First Congress, is a search executed at borders, based on the inalienable right of a sovereign to protect itself against external threats. Border searches are not limited as to intrusiveness or length of the search, although detention of travelers to a limit of 24 hours is still in effect. Also exempt from the warrant requirement are open fields, open waters, and forests. (U.S. Constitution: Fourth Amendment”)

An example of the unassailability of border search is the case of United States versus Flores-Montano, decided on March 30, 2004. A search and seizure was executed on the fuel tank of the respondent’s car at an international border, in which marijuana was discovered, although no suspicion prior to the search was indicated. The court unanimously ruled that border law enforcement had every right to conduct arbitrary searches as part of the government’s authority with respect to borders.

Public schools and government offices are exempt from Fourth Amendment rules governing warrants, although school authorities must exhibit reasonableness for a search of effects on school premises. For government employees, searches based on reasonable suspicion of misconduct are justifiable. Prisons and jails are completely exempt from Fourth Amendment rules, not even requiring probable cause for searches by prison administrators.

For those on probation, administrative searches of the probationer’s residence are permissible as part of compliance requirements for probation. All of these scenarios constitute ‘special needs.’ Such special needs also apply to drug testing of railroad and other public employees whose occupation may require the carrying of weapons, involve the safety of the public, or provide substantial access to regulated substances. These tests are executed as routine requirements of the job and may not be construed as a targeted procedure towards an individual. (U.S. Constitution: Fourth Amendment”)

The case of Columbine High School was considered as a case in point in a comparative study of 236 court cases of the Supreme Court using critical search dimensions and outcomes. The results show that the judicial system is not reactive to extreme events with respect to the application of the Fourth Amendment to students (Torres and Chen).

A fairly recent development challenging the status quo of Fourth Amendment provisions is that of electronic innovations. The advent of electronic means of communication has required the passing of legislation that defines intrusion of a person’s privacy with the use of telephones and other electronic devices. In the Olmstead case, the courts ruled that no violation was committed because there was no physical trespass, and the evidence was admitted.

The Federal Communications Act, or the anti-wiretapping law, provides limitations on the extent to which wiretapping may be used to further a criminal investigation. A move to exempt the US President or the Attorney General from Fourth Amendment rules in issues of national security, which may require the use of electronic surveillance devices within the US, was rejected as unconstitutional. Only in cases where there is no involvement of US citizens but only of foreign subjects can such blanket authority be used (U.S. Constitution: Fourth Amendment”).

The ruling in the Katz versus United States case established that the interception of oral statements is covered under Fourth Amendment rules. However, since the September 11, 2001 bombing of the World Trade Center, federal and state authorities have stepped up electronic surveillance efforts to prevent terrorist acts, resulting in a 20% increase in authorized interceptions of mobile phones, pagers, email, and fax machines.

The Wire and Electronic Communications Interception and Interception of Oral Communications Act (Title III Wiretap Act) provides for the recording of electronic communications, provided that one party of the call is aware of the fact and consents to it. However, not all states follow the ‘one-party consent’ protocol; 16 states require ‘two-party’ consent.

Most states disallow eavesdropping and the use of track and trace instruments, while 21 states prohibit the use of hidden video recording devices in non-public areas. For mobile phones, the expanded Electronic Communications Privacy Act allows the one-party consent” protocol. In law enforcement, obtaining warrants and establishing probable cause applies to wiretapping and eavesdropping applications, as well as particularity requirements. The surveillance is typically limited to 30 days. (Goodwin, Boerner, and Frederick)

The USA PATRIOT Act broadens the reach of Title III wiretaps, which now includes surveillance of internet connections, such as email, provided the content of the communication is not used as evidence. The surveillance is designed to specifically keep track of suspected criminals on foreign soil. (Goodwin, Boerner, and Frederick)

There have been some adverse reactions to what is construed as a domestic spying program sanctioned by the US government. William Banks, from Syracuse University College of Law, states that spying on Americans in the interest of national security is illegal, especially as there are protocols in place that ensure the legality of such surveillance.

The Foreign Intelligence Surveillance Act (FISA) process, designed to provide judicial authority for National Security Agency (NSA) eavesdropping requirements, is not being utilized. Such apparent disregard for civil liberties has resulted in tensions felt in Congress, but the issue has yet to be resolved. In United States versus United States District Court, otherwise known as the Keith decision on the bombing of a CIA office in Michigan, it was revealed that a warrantless wiretap was the source of information that led to the arrests. The court did not uphold the government’s defense based on the 1968 Crime Control Act and ruled that the unchecked use by the executive branch of warrantless surveillance may lead to abuse and the undermining of the First and Fourth Amendments.

FISA was established to legitimize a reasonable need to acquire foreign intelligence, not to authorize surveillance of Americans in the US. The refusal of the NSA to avail itself of FISA is the claim that it is an unacceptable curtailment of executive powers that jeopardizes the effective pursuit of national security. The Administration further claims that the requirements of the government comply with the special needs clause of the Fourth Amendment, which does not require warrants provided probable cause can be established. However, special needs cases typically do not include wiretapping, which is inherently intrusive and arbitrary. (Banks)

In cases where surveillance is conducted in areas where there is no reasonable expectation of privacy, such as public places like parks, warrants are not necessary. It is also legal to record a defendant’s statements prior to arrest while in the presence of law enforcement officers or calls made from prison. (Colbridge)

The Supreme Court ruled in 1972 against then-President Richard Nixon’s claim of constitutional authority for warrantless wiretaps in the interest of national security. The Court unanimously ruled then that the authority was a violation of the Fourth Amendment. President Bush is pushing for the same authority in the war against terrorism, using the post-9/11 Congress resolution granting him the discretion to use force to stop terrorist acts as the basis for the authority. The 1972 ruling does not decisively cover this resolution, but general legal opinion maintains that the Nixon claim and Bush claim are essentially the same and just as illegal.

Conclusion

Much like any legal instrument, the Bill of Rights is always open to interpretations and clarifications because it has a significant impact on its citizenry in the execution of their daily lives. Of particular note at this time is the perceived unconstitutionality of the present US administration under President Bush regarding the surveillance of American citizens without judicial approval. This brings to the fore the impact of technological innovations on civil liberties and the deliberations of the judiciary in considering the implications of their ruling on the Constitution.

The Fourth Amendment, which is deeply implicated in the need for personal safety and security, as well as a reasonable expectation of privacy, has been the subject of debate for as long as it has been in existence. This is a sign of a healthy, dynamic community that is willing to challenge the status quo if it results in the perceived curtailment of their rights as free citizens.

References

1. “Independent body” to monitor spying program. Fourth Amendment Center.com. 2007. 25 February 2007.
2. Case highlights: 2003-2004 Term. Division for Public Education, 2007. 24 February 2007.
3. Fourth Amendment – Search and Seizure. United States Government Printing Office. 1996. 24 February 2007.
4. Fourth Amendment. The ‘Lectric Law Library. 2005. 24 February 2007.
5. “The 4th Amendment and related Supreme Court Decisions.” Erowid. 1999. 23 February 2007.
6. “U.S. Constitution: Fourth Amendment.” Findlaw. 2007. 23 February 2007.
   Banks, William. “NSA eavesdropping and the Fourth Amendment.” Jurist. 2006. 24 February 2007.
7. Colbridge, Thomas. “Electronic surveillance a matter of necessity.” FBI Law Enforcement Bulletin, 2000. 24 February 2007.
8. Egelko, Bob. “Spy powers.” San Francisco Chronicle. 2006. 24 February 2007.
9. Goodwin, Janice, Boerner, Robert, and Frederick, Susan. “Electronic Surveillance.” National Conference of State Legislatures. 2007. 25 February 2007.
10. Mount, Steve. “The United States Constitution.” The U.S. Constitution Online. 2007. 24 February 2007.
11. Mulligan, Deirdre and Lerner, Jack.  “Taking the “long view” on the Fourth Amendment: Stored Records and the Sanctity of the Home”. Stanford Technology Law Review. 2007. 23 February 2007.