The Bill of Rights refers to the first ten Amendments of the United States Constitution that was 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 are 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 witness;
- 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 consider solely the Fourth Amendment, providing a comprehensive overview of the provisions and cases of the same. The Amendment is stated thus:
“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 refer to persons covered under the Fourth Amendment. It includes citizens and permanent residence aliens who have developed ties within the country that goes 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
The Fourth Amendment is the provision against unreasonable search and seizure, a reaction from incidents occurring under colonial rule in which 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 are 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 application of the Fourth Amendment on a case to 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 i.e. 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 the arbitrary intrusion by agents of the government i.e. law enforcement officers unsubstantiated by any apparent cause or suspicion. In some cases, provided enough degree of 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 of a crime being committed or had been committed. Applicants may be any person with competent character or with sufficient knowledge or intimacy of the act i.e. eyewitness accounts that would make the application credible. The establishment of probable cause will be decided on 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 is 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 of the establishment of probable cause was in the case of Draper versus United States in 1959 in which an informant who had previously established reliability provided enough detail of a crime about to be committed to law enforcement agents to enable 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. 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 versus 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 affidavit of the police sufficient to establish criminality, merely asserting 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 is 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 that of several of his fellow officers and 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, 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 February 24, 2004. The warrant was found to be invalid 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 to 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 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 of fingerprints, however, one must distinguish between the acquisition of persons not yet arrested to determine their guilt, and that of persons 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 cases 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 Scmerber 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 it involves the Fifth Amendment in terms of 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 nor 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 proving 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 in December 2, 2003, in which law officers were upheld by the court regarding the enforcement of a search warrant for cocaine when, 20 seconds after a knock-and-announcement, the officers broke into the premises. The court ruled that it was reasonable for the officers to assume that if they wait longer the evidence will 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 a perceived probable cause or adequate suspicion of a criminal act in progress, such as in the case of Michigan State Police Department versus Sitz in 1990 and Terry versus 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 i.e. robbery. In the case of Terry versus Ohio in n1968, 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 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 would be determined by the strength of defensible suspicions of criminal activity and by the amount of cooperation by subjects of the stop-and-search. In cases where there is an attempt by the subject to flee even after the identification of the officer, pursuit and subsequent transport to an area for interrogation is considered permissible. However, a 48-hour detention without revelation of probable cause is the limit of reasonable detention. More than that is considered a violation of the Fourth Amendment. For travellers detained for suspicion of criminal acts i.e. smuggling of contraband, a 24-hour window is granted to establish grounds for further detention. With regards to seizure of property, the same requirements for 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. discovery of heroin in a vehicular search prompted by suspicious conduct of the driver is 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 requires 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, in fact, are exceptions to the warrant rule because of its mobility provided probable cause is established. (“U.S. Constitution: Fourth Amendment”) This has been approved by the Supreme Court on the basis that motorists have less expectation of privacy on public highways and checkpoints in which no suspicion is required at checkpoints to establish sobriety is permissible within certain constraints. If reasonable cause for further sobriety testing is apparent, such measures may be carried out lawfully. (“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, a few minutes at most.
In the case of Maryland versus Pringle decided on December 15, 2003, the arrest of the occupants of a vehicle found to contain cocaine was upheld as lawful because the culpability of the same occupants could be reasonably presumed. In Thornton versus United States decided May 24, 2004, the court ruled for the law officer who initiated the search of a vehicle recently vacated by a lawfully arrested person. It was ruled that identical concerns prevailed regarding the safety of the arresting officer and 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 has been the subject of many arguments, especially if such searches reveal evidence indicative of another crime. The rule of thumb for many courts, however, 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 estblishing the voluntary nature of the consent is upon the searching officer in cases that 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 the border search is the case of United States versus Flores-Montano, decided in 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 the border law enforcement had every right to conduct arbitrary searches as part of the government’s authority with respect to borders.
Public school 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 a probable cause for searches by prison administrators.
For those on probation, administrative searches of the probationer’s residence is permissible as part of compliance requirements of the probation. All 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 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 the 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 to challenge the status quo of the Fourth Amendment provisions is that of electronic innovations. The advent of electronic means of communication required the passing of legislation that defined 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-wire tapping law provided limitations to the extent in which wire tapping may be used to further a criminal investigation. A move to exempt the US President or the Attorney General to Fourth Amendment rules in issues of national security which may require the use of electronic surveillance devices within the US was rejected as unconstitutional, and 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. Since the September 11, 2001 bombing of the World Trade Center, however, federal and state authorities have stepped up electronic surveillance efforts to prevent terrorist acts, resulting an increase of 20% for authorized interceptions of mobile phones, pagers, E-mail and fax machines.
The Wire and Electronic Communications Interception and Interception of Oral Communications Act (Title III Wiretap Act) provides for the recording electronic communications provided one party of the call is cognizant of the fact and assents to it. Not all states subscribe to the ‘one-party consent’ protocol; 16 states require ‘two-party’ consent.
Most states disallow eavesdropping and track and trace instruments while 21 states prohibit the uses 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 establishment of probable cause applies for 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 E-mail, provided 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. Syracuse University College of Law’s William Banks 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 Intelligence Surveillance Act (FISA) process, designed to provide the 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 is 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, 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 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 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 when surveillance is conducted in areas in which there is no reasonable expectation of privacy i.e. public places such as 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 Courts 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 as the basis for the authority the post-9/11 Congress resolution granting him the discretion to use force to stop terrorist acts. 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.
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 of 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 on their ruling on the Constitution.
The Fourth Amendment, which is deeply implicated in the need for personal safety and security as well as 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.
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Banks, William. “NSA eavesdropping and the Fourth Amendment.” Jurist. 2006. 24 February 2007 <http://jurist.law.pitt.edu/forumy/2006/03/nsa-eavesdropping-and-fourth-amendment.php>
- Colbridge, Thomas. “Electronic surveillance a matter of necessity.” FBI Law Enforcement Bulletin, 2000. 24 February 2007 <http://www.findarticles.com/p/articles/mi_m2194/is_2_69/ai_60472111>
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- Goodwin, Janice, Boerner, Robert, and Frederick, Susan. “Electronic Surveillance.” National Conference of State Legislatures. 2007. 25 February 2007 <http://www.ncsl.org/programs/press/2002/issues/surveillance.htm>
- Mount, Steve. “The United States Constitution.” The U.S. Constitution Online. 2007. 24 February 2007 <http://www.usconstitution.net/const.html#Am4>
- 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 <http://stlr.stanford.edu/pdf/Mulligan-Lerner-abstract.pdf>