FOURTH AMENDMENT: AN OVERVIEW
I. INTERESTS PROTECTED
The Fourth Amendment of the U.S. Constitution provides, "[t]he 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 ultimate goal of this provision is to protect peoples right toprivacy and freedom from arbitrary governmentalintrusions. Private intrusions not acting in the color of governmental authority areexempted from theFourth Amendment.
To havestanding to claim protection under the Fourth Amendment, one mustfirst demonstrate an expectation of privacy, which is not merely a subjective expectation in mindbut an expectationthat society is prepared to recognized as reasonable under the circumstances. For instance, warrantless searches ofprivate premises are mostly prohibited unless there are justifiable exceptions; on the other hand,a warrantless seizure of abandoned property usually does not violate the Fourth Amendment. Moreover, the Fourth Amendment protection does not expand to governmental intrusion and information collection conducted upon open fields. AnExpectation of privacy in an open field is not considered reasonable. However, there are some exceptions where state authorities granted protection to open fields.
A bivens action can be filed against federal law enforcement officials for damages resulting from an unlawful search and seizure. States can always establish higher standards for searches and seizures than theFourth Amendmentrequires, but states cannot allow conduct that violates the Fourth Amendment.
The protection under the Fourth Amendment can be waived if one voluntarily consents to or does not object to evidence collected during a warrantless search or seizure.
II. SEARCHES AND SEIZURES UNDER FOURTH AMENDMENT
The courts must determine what constitutes asearchorseizureunder theFourth Amendment. If the conduct challenged does not fall within theFourth Amendment, the individualwill not enjoy protection under Fourth Amendment.
A. Search
A search under Fourth Amendment occurs when a governmental employee or agent of the government violates an individual's reasonableexpectation of privacy.
Strip searches and visual body cavity searches, including anal or genital inspections, constitute reasonable searches under theFourth Amendment when supported by probable cause and conducted in a reasonable manner.
Adog-sniff inspectionis invalid under theFourth Amendmentif the the inspection violates areasonable expectation of privacy. Electronic surveillance is also considered a search under theFourth Amendment.
B. Seizure of a Person
A seizure of a person, within the meaning of theFourth Amendment, occurs when the police's conduct would communicate to a reasonable person, taking into account the circumstances surrounding the encounter, that the person is notfree to ignore the police presence and leave at hiswill.
Two elements must be present to constitute a seizure of a person. First, there must be a show of authority by the police officer. Presence of handcuffs or weapons,the use of forceful language, andphysical contact are each strong indicators of authority. Second, the person being seized must submit to the authority. An individualwho ignores the officers request and walks away has not been seized for Fourth Amendment purposes.
An arrest warrant is preferred but not required to make alawful arrest under theFourth Amendment. A warrantless arrest may be justified whereprobable cause and urgent need are presentprior to the arrest. Probable cause is present when the police officer has a reasonable beliefin the guilt of the suspect based on the facts and information prior to the arrest. For instance, a warrantless arrest may be legitimate in situations where a police officer has a probable belief that a suspect has either committed a crime or is a threat to the public security. Also, apolice officer might arrest a suspect to prevent the suspects escape or to preserve evidence. A warrantless arrest may be invalidatedif the police officer failsto demonstrate exigent circumstances.
The ability to makewarrantless arrests are commonly limited by statutes subject to the due process guaranty of theU.S. Constitution. A suspect arrested without a warrant is entitled toprompt judicial determination, usually within 48 hours.
There are investigatory stops that fall shortof arrests, but nonetheless, theyfall within Fourth Amendmentprotection.For instance, police officers can perform aterry stop or a traffic stop. Usually, these stops provide officers with less dominion and controlling power and impose less of an infringement of personal liberty for individual stopped. Investigatory stops must be temporary questioning for limited purposes and conducted in a manner necessary to fulfill the purpose.
Anofficers reasonable suspicion is sufficient to justify brief stops and detentions. To determine if the officer has met the standard to justify the seizure, the court takes into account the totality of the circumstances and examines whether the officer has a particularized and reasonable belief for suspecting the wrongdoing. Probable cause gained during stops or detentions might effectuate a subsequent warrantless arrest.
C. Seizure of Property
A seizure of property, within the meaning of theFourth Amendment, occurs when there is some meaningful interference with anindividuals possessory interests in the property.
In some circumstances, warrantless seizures of objects in plain view do notconstitute seizures within the meaning of Fourth Amendment. When executing a search warrant, an officer might be able to seize an item observed in plain view even if it is not specified in the warrant.
III. WARRANT REQUIREMENT
A search or seizure is generally unreasonable and illegal without a warrant, subject to only a few exceptions.
To obtain a search warrant or arrest warrant, the law enforcement officer must demonstrate probable causethata search or seizure is justified. Anauthority, usually a magistrate, will consider the totality of circumstances and determine whether to issue the warrant.
The warrant requirement may be excused in exigent circumstances if an officer has probable cause and obtaining a warrant is impractical. For instance, in State v. Helmbright 990 N.E.2d 154, Ohiocourt held that awarrantless search of probationer's person or place of residence complies with the Fourth Amendment if the officer who conducts the search possesses reasonable grounds to believe that the probationer has failed to comply with the terms of hisprobation.
Other well-established exceptions to the warrant requirement include consensual searches, certain brief investigatory stops, searches incident to a valid arrest, and seizures of items in plain view.
There is no general exception to theFourth Amendment warrant requirement in national security cases. Warrantless searches are generally not permitted in exclusively domestic security cases. In foreign security cases, court opinions might differ on whether to accept the foreign security exception to warrant requirement generallyand, if accepted, whether the exception should include bothphysical searches and electronic surveillance.
IV. REASONABLENESS REQUIREMENT
All searches and seizures under Fourth Amendment must be reasonable. No excessive force shall be used. Reasonableness is the ultimate measure of the constitutionality of a search or seizure.
Searches and seizures with a warrant satisfy the reasonableness requirement. Warrantless searches and seizures are presumed to be unreasonable unless they fall within a few exceptions.
In cases of warrantless searches and seizures, the court will try to balance the degree of intrusion on the individuals right toprivacy and the need to promote government interests and special needs. The court will examine the totality of the circumstances to determine if the search or seizure was justified. When analyzingthe reasonableness standard, the court uses an objective assessment and considers factors including the degree of intrusion by the search or seizure andthe manner in which the search or seizure is conducted.
V. EXCLUSIONARY RULE
Under the exclusionary rule, any evidence obtained inviolation of theFourth Amendmentwill be excluded from criminal proceedings. There are a few exceptions to this rule.
VI. ELECTRONIC SURVEILLANCE
In recent years, the Fourth Amendment's applicability inelectronic searches and seizures has received much attention from the courts. With the advent of the internet and increased popularity of computers, there has been anincreasing amount of crime occurring electronically. Consequently, evidence of such crime can often be found on computers, hard drives, or other electronic devices. TheFourth Amendment applies to the search and seizure ofelectronic devices.
Many electronic search cases involvewhether law enforcement can search a company-owned computer that an employee uses to conduct business. Although the case law is split, the majority holds that employees do not have a legitimate expectationof privacy with regard to information stored on a company-owned computer. In the 2010 case ofCity of Ontario v. Quon (08-1332), the Supreme Court extended this lack of an expectation of privacy to text messages sent and received on an employer-owned pager.
Lately, electronic surveillance and wiretapping has also caused a significant amount of Fourth Amendment litigation.
VII.THE USA PATRIOT ACT
Following the September 11, 2001 attacks on the World Trade Center and the Pentagon, Congress and the President enacted legislation to strengthen the intelligence gathering communitys ability to combat domestic terrorism. Entitled the USA Patriot Act, the legislations provisions aimed to increase the ability of law enforcement to search email and telephonic communications in addition to medical, financial, and library records.
One provision permitslaw enforcement to obtain access to stored voicemails by obtaining a basic search warrant rather than a surveillance warrant. Obtaining a basic search warrantrequires a much lower evidentiary showing. A highlycontroversial provision of the Act includespermission for law enforcement to use sneak-and-peak warrants. A sneak-and-peak warrant is a warrant in which law enforcement can delay notifying the property owner about the warrants issuance. In an Oregon federal district court case that drew national attention, Judge Ann Aiken struck down the use of sneak-and-peak warrants as unconstitutional and inviolation of the Fourth Amendment. See 504 F.Supp.2d 1023 (D. Or. 2007).
The Patriot Act also expanded the practice of using National Security Letters (NSL). An NSL is an administrative subpoena that requires certain persons, groups, organizations, or companies to provide documents about certain persons. These documents typically involve telephone, email, and financial records. NSLs also carry a gag order, meaningthe person or persons responsible for complying cannot mention theexistence of the NSL. Under the Patriot Act provisions, law enforcement can use NSLs when investigating U.S. citizens, even when law enforcement does not think the individual under investigation has committed a crime. The Department of Homeland Security has used NSLs frequently since its inception. By using anNSL, an agency has no responsibility to first obtain a warrant or court order before conducting its search of records.
See constitutional amendment.
Read more from the original source:
Fourth Amendment | Wex Legal Dictionary / Encyclopedia | LII ...
- Protections for e-data clear Senate committee [Last Updated On: April 26th, 2014] [Originally Added On: April 26th, 2014]
- Quinn: Supreme Court should clarify Fourth Amendment rights in the digital age [Last Updated On: April 26th, 2014] [Originally Added On: April 26th, 2014]
- Fourth amendment | Wex Legal Dictionary / Encyclopedia ... [Last Updated On: April 26th, 2014] [Originally Added On: April 26th, 2014]
- Fourth Amendment to the United States Constitution ... [Last Updated On: April 26th, 2014] [Originally Added On: April 26th, 2014]
- The Fourth Amendment is destroyed by the Roberts led Supreme Court. - Video [Last Updated On: April 26th, 2014] [Originally Added On: April 26th, 2014]
- Court may let cops search smartphones [Last Updated On: April 28th, 2014] [Originally Added On: April 28th, 2014]
- Supreme Court to hear case on police searches of cellphones [Last Updated On: April 28th, 2014] [Originally Added On: April 28th, 2014]
- Fourth Amendment in the digital age: Supreme Court to decide if police can search cellphones without a warrant [Last Updated On: April 30th, 2014] [Originally Added On: April 30th, 2014]
- What Scalia knows about illegal searches [Last Updated On: April 30th, 2014] [Originally Added On: April 30th, 2014]
- Should police be allowed to search your smartphone - Video [Last Updated On: April 30th, 2014] [Originally Added On: April 30th, 2014]
- Fourth Amendment to the United States Constitution - Video [Last Updated On: May 1st, 2014] [Originally Added On: May 1st, 2014]
- Rand Paul Third Party Records Should Get Fourth Amendment Protection O'Reilly Factor 6 11 2013 - Video [Last Updated On: May 1st, 2014] [Originally Added On: May 1st, 2014]
- The Shaky Legal Foundation of NSA Surveillance on Americans [Last Updated On: May 2nd, 2014] [Originally Added On: May 2nd, 2014]
- Pennsylvania Supreme Court rules police don't need warrants to search cars [Last Updated On: May 3rd, 2014] [Originally Added On: May 3rd, 2014]
- Local police: Updated vehicle-search law still requires probable cause [Last Updated On: May 3rd, 2014] [Originally Added On: May 3rd, 2014]
- Liberal Supreme Court Justice Comes To The Defense Of Scalia [Last Updated On: May 3rd, 2014] [Originally Added On: May 3rd, 2014]
- Gerald Celente - Trends In The News - America's Spiritual Death - (1/20/14) - Video [Last Updated On: May 4th, 2014] [Originally Added On: May 4th, 2014]
- Smartphones and the Fourth Amendment - Video [Last Updated On: May 4th, 2014] [Originally Added On: May 4th, 2014]
- Fourth Amendment Searches And Seizures - Video [Last Updated On: May 5th, 2014] [Originally Added On: May 5th, 2014]
- Fourth Amendment Defined & Explained - Law [Last Updated On: May 6th, 2014] [Originally Added On: May 6th, 2014]
- Enforcement Techniques For Violations Of The Fourth Amendment - Video [Last Updated On: May 6th, 2014] [Originally Added On: May 6th, 2014]
- I-Team: Do police seek search warrant friendly judges? [Last Updated On: May 7th, 2014] [Originally Added On: May 7th, 2014]
- Is Big Brother Listening? Applying the Fourth Amendment in an Electronic Age - Video [Last Updated On: May 9th, 2014] [Originally Added On: May 9th, 2014]
- It Costs Less to Care [Last Updated On: May 10th, 2014] [Originally Added On: May 10th, 2014]
- The Fourth Amendment - Video [Last Updated On: May 10th, 2014] [Originally Added On: May 10th, 2014]
- Magistrate waxes poetic while rejecting Gmail search request [Last Updated On: May 11th, 2014] [Originally Added On: May 11th, 2014]
- License reader lawsuit can be heard, appeals court rules [Last Updated On: May 15th, 2014] [Originally Added On: May 15th, 2014]
- Seize the Rojo - Video [Last Updated On: May 16th, 2014] [Originally Added On: May 16th, 2014]
- NSA Spying Has a Disproportionate Effect on Immigrants [Last Updated On: May 17th, 2014] [Originally Added On: May 17th, 2014]
- Motorists sue Aurora, police in 2012 traffic stop after bank robbery [Last Updated On: May 17th, 2014] [Originally Added On: May 17th, 2014]
- Judge Says NSA Phone Surveillance Likely Unconstitutional - Video [Last Updated On: May 21st, 2014] [Originally Added On: May 21st, 2014]
- New York Attorney Heath D. Harte Releases a Statement on Fourth Amendment Rights [Last Updated On: May 22nd, 2014] [Originally Added On: May 22nd, 2014]
- Bangor Area School District teachers vote no to random drug [Last Updated On: May 24th, 2014] [Originally Added On: May 24th, 2014]
- The Fourth Amendment Rights - Video [Last Updated On: May 24th, 2014] [Originally Added On: May 24th, 2014]
- I Don't Care About The Contitution, Take Your Fourth Amendment And Shove It The Hills Hotel - Video [Last Updated On: May 27th, 2014] [Originally Added On: May 27th, 2014]
- Lonestar1776 at Illegal Checkpoint 80 Miles Inside Border - Standing UP & Pushing Back! pt 2/2 - Video [Last Updated On: September 1st, 2014] [Originally Added On: September 1st, 2014]
- Suit charges Daytona Beach's rental inspection program violates civil rights [Last Updated On: September 2nd, 2014] [Originally Added On: September 2nd, 2014]
- 4th Amendment - Laws.com [Last Updated On: September 6th, 2014] [Originally Added On: September 6th, 2014]
- YOU CAN ARREST ME NOW (cops refuse) - Video [Last Updated On: September 6th, 2014] [Originally Added On: September 6th, 2014]
- The Feds Explain How They Seized The Silk Road Servers [Last Updated On: September 8th, 2014] [Originally Added On: September 8th, 2014]
- Defence asks judge in NYC to toss out bulk of evidence in Silk Road case as illegally obtained [Last Updated On: September 9th, 2014] [Originally Added On: September 9th, 2014]
- Volokh Conspiracy: Does obtaining leaked data from a misconfigured website violate the CFAA? [Last Updated On: September 9th, 2014] [Originally Added On: September 9th, 2014]
- Family of a mentally ill woman files lawsuit against San Mateo Co. after deadly shooting [Last Updated On: September 10th, 2014] [Originally Added On: September 10th, 2014]
- Minnesota Supreme Court upholds airport drug case decision [Last Updated On: September 12th, 2014] [Originally Added On: September 12th, 2014]
- Law Talk - Obamacare Rollout; Fourth Amendment, NSA Spying Stop & Frisk DUI Check Points lta041 - Video [Last Updated On: September 12th, 2014] [Originally Added On: September 12th, 2014]
- Volokh Conspiracy: The posse comitatus case and changing views of the exclusionary rule [Last Updated On: September 15th, 2014] [Originally Added On: September 15th, 2014]
- Guest: Why the privacy of a public employees cellphone matters [Last Updated On: September 16th, 2014] [Originally Added On: September 16th, 2014]
- Volokh Conspiracy: Apples dangerous game [Last Updated On: September 19th, 2014] [Originally Added On: September 19th, 2014]
- Judge expounds on privacy rights [Last Updated On: September 20th, 2014] [Originally Added On: September 20th, 2014]
- Great privacy essay: Fourth Amendment Doctrine in the Era of Total Surveillance [Last Updated On: September 20th, 2014] [Originally Added On: September 20th, 2014]
- The Fourth Amendment By Maison Erdman - Video [Last Updated On: September 20th, 2014] [Originally Added On: September 20th, 2014]
- Volokh Conspiracy: When administrative inspections of businesses turn into massive armed police raids [Last Updated On: September 22nd, 2014] [Originally Added On: September 22nd, 2014]
- The chilling loophole that lets police stop, question and search you for no good reason [Last Updated On: September 23rd, 2014] [Originally Added On: September 23rd, 2014]
- E.O. 12333: End-Running the Fourth Amendment | The Dissenter [Last Updated On: September 25th, 2014] [Originally Added On: September 25th, 2014]
- Fourth Amendment: The History Behind "Unreasonable ... [Last Updated On: September 25th, 2014] [Originally Added On: September 25th, 2014]
- Pet Owners Look to Muzzle Police Who Shoot Dogs [Last Updated On: September 27th, 2014] [Originally Added On: September 27th, 2014]
- Volokh Conspiracy: A few thoughts on Heien v. North Carolina [Last Updated On: September 29th, 2014] [Originally Added On: September 29th, 2014]
- Volokh Conspiracy: Third Circuit on the mosaic theory and Smith v. Maryland [Last Updated On: October 1st, 2014] [Originally Added On: October 1st, 2014]
- Volokh Conspiracy: Third Circuit gives narrow reading to exclusionary rule [Last Updated On: October 2nd, 2014] [Originally Added On: October 2nd, 2014]
- Volokh Conspiracy: Supreme Court takes case on duration of traffic stops [Last Updated On: October 2nd, 2014] [Originally Added On: October 2nd, 2014]
- Search & Seizure, Racial Bias: The American Law Journal on the Philadelphia CNN-News Affiliate WFMZ Monday, October 6 ... [Last Updated On: October 4th, 2014] [Originally Added On: October 4th, 2014]
- Argument preview: How many brake lights need to be working on your car? [Last Updated On: October 4th, 2014] [Originally Added On: October 4th, 2014]
- The 'Barney Fife Loophole' to the Fourth Amendment [Last Updated On: October 4th, 2014] [Originally Added On: October 4th, 2014]
- Search & Seizure: A New Fourth Amendment for a New Generation? - Promo - Video [Last Updated On: October 4th, 2014] [Originally Added On: October 4th, 2014]
- Lubbock Liberty Workshop With Arnold Loewy On The Fourth Amendment - Video [Last Updated On: October 5th, 2014] [Originally Added On: October 5th, 2014]
- Ap Government Fourth Amendment Project - Video [Last Updated On: October 5th, 2014] [Originally Added On: October 5th, 2014]
- Volokh Conspiracy: Oral argument in Heien v. North Carolina [Last Updated On: October 6th, 2014] [Originally Added On: October 6th, 2014]
- Feds Hacked Silk Road Without a Warrant? Perfectly Legal, Prosecutors Argue [Last Updated On: October 7th, 2014] [Originally Added On: October 7th, 2014]
- Supreme Court Starts Term with Fourth Amendment Case [Last Updated On: October 7th, 2014] [Originally Added On: October 7th, 2014]
- Feds Say That Even If FBI Hacked The Silk Road, Ulbricht's Rights Weren't Violated [Last Updated On: October 8th, 2014] [Originally Added On: October 8th, 2014]
- Argument analysis: A simple answer to a deceptively simple Fourth Amendment question? [Last Updated On: October 8th, 2014] [Originally Added On: October 8th, 2014]
- Mass Collection of U.S. Phone Records Violates the Fourth Amendment - Video [Last Updated On: October 8th, 2014] [Originally Added On: October 8th, 2014]
- Leggett sides with civil liberties supporters [Last Updated On: October 10th, 2014] [Originally Added On: October 10th, 2014]
- Search & Seizure / Car Stops: A 'New' Fourth Amendment for a New Generation? - Video [Last Updated On: October 10th, 2014] [Originally Added On: October 10th, 2014]
- Broken Lights And The Fourth Amendment National Constitution Center - Video [Last Updated On: October 10th, 2014] [Originally Added On: October 10th, 2014]
- The Fourth Amendment- The Maininator Period 4 - Video [Last Updated On: October 10th, 2014] [Originally Added On: October 10th, 2014]
- Judge nukes Ulbricht's complaint about WARRANTLESS FBI Silk Road server raid [Last Updated On: October 11th, 2014] [Originally Added On: October 11th, 2014]
- Montgomery County will not hold immigrants without probable cause -- Gazette.Net [Last Updated On: October 13th, 2014] [Originally Added On: October 13th, 2014]
- Debate: Does Mass Phone Data Collection Violate The 4th Amendment? [Last Updated On: October 15th, 2014] [Originally Added On: October 15th, 2014]
- Does the mass collection of phone records violate the Fourth Amendment? [Last Updated On: October 18th, 2014] [Originally Added On: October 18th, 2014]