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The 4th Amendment to the United States Constitution

Written by Subject: Bill of Rights
The Fourth Amendment (Amendment IV) to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause. It was adopted as a response to the abuse of the writ of assistance, which is a type of general search warrant, in the American Revolution. Search and arrest should be limited in scope according to specific information supplied to the issuing court, usually by a law enforcement officer, who has sworn by it.
Fourth Amendment to the United States Constitution
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The Bill of Rights in the National Archives.

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

In Mapp v. Ohio, 367 U.S. 643 (1961), the Supreme Court ruled that the Fourth Amendment applies to the states by way of the Due Process Clause of the Fourteenth Amendment.

In Katz v. United States, 389 U.S. 347 (1967), the Supreme Court ruled that the amendment's protections do not apply when the searched party lacks a "reasonable expectation of privacy".

The Supreme Court has also ruled that certain searches and seizures violated the Fourth Amendment even when a warrant was properly granted.

Contents [hide]
1 Text 2 History of adoption 2.1 English law 2.2 Colonial America 3 Applicability 3.1 In general 3.2 Definition of "search" 3.3 Stop and frisk 3.4 Seizure 3.4.1 Exceptions 3.5 Arrest 3.5.1 Arrest by a citizen 3.6 Warrant 3.7 Probable cause 4 Exclusionary rule 4.1 Limitations 5 Exceptions to the warrant requirement 5.1 Consent 5.2 Plain view 5.3 Open fields 5.3.1 Curtilage 5.4 Exigent circumstance 5.5 Motor vehicle 5.6 Searches incident to a lawful arrest 5.7 Border search exception 5.8 Other exceptions 6 Computers and privacy 7 Important cases 7.1 Exclusionary Rule 7.2 Privacy 7.3 Informants 7.4 Search Warrants 7.5 Arrest and Search of a Person Without a Warrant 7.6 Search of and Seizure from a Residence Without a Warrant 7.7 Search and Seizure of Vehicles and Containers Without a Warrant 7.8 Plain-view & Plain-feel 7.9 Stop and Frisk 7.10 Border Searches 7.11 Deportation 8 See also 9 References 10 Further reading 11 External links
[edit] Text
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
[edit] History of adoption [edit] English law
John Wilkes authored pamphlets critical of the British government.

Like many other areas of American law, the Fourth Amendment finds its roots in English legal doctrine. Sir Edward Coke, in Semayne's case (1604), famously stated: "The house of every one is to him as his castle and fortress, as well for his defence against injury and violence as for his repose."[1] Semayne's Case acknowledged that the King did not have unbridled authority to intrude on his subjects' dwellings but recognized that government agents were permitted to conduct searches and seizures under certain conditions when their purpose was lawful and a warrant had been obtained.[2]

The 1760s saw a growth in the intensity of litigation against state officers, who, using general warrants, conducted raids in search of materials relating to John Wilkes' publications attacking both government policies and the King himself. The most famous of these cases involved John Entick, whose home was forcibly entered by the King's Messenger Nathan Carrington, along with others, pursuant to a warrant issued by George Montagu-Dunk, 2nd Earl of Halifax authorizing them “to make strict and diligent search for . . . the author, or one concerned in the writing of several weekly very seditious papers intitled, ‘The Monitor or British Freeholder, No 257, 357, 358, 360, 373, 376, 378, and 380,’″ and seized printed charts, pamphlets and other materials. In the resulting case, Entick v. Carrington (1765), Charles Pratt, 1st Earl Camden ruled that the search and seizure was unlawful as the warrant authorized the seizure of all of Entick's papers, not just the criminal ones and the warrant lacked probable cause to even justify the search. Entick established the English precedent that the executive is limited in intruding on private property by common law.[2]

[edit] Colonial America

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

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

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

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

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

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

Article XIV of the Massachusetts Declaration of the Rights written by John Adams and enacted in 1780 as part of Massachusetts Constitution added the requirement that all searches must be “reasonable” and served as the basis for the language of the Fourth Amendment:[citation needed]

Every subject has a right to be secure from all unreasonable searches, and seizures of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in cases, and with the formalities, prescribed by the laws.[13]
[edit] Applicability [edit] In general

The Fourth Amendment has been held to mean that generally a warrant must be judicially sanctioned for a search or an arrest. In order for such a warrant to be considered reasonable, it must be supported by probable cause and be limited in scope according to specific information supplied by a person (usually a law enforcement officer) who has sworn by it and is therefore accountable to the issuing court. However, a dissenting school of thought often found in the opinions of Justice Antonin Scalia is that searches must simply be "reasonable," and the warrant requirement has been overly emphasized.

The Fourth Amendment applies to governmental searches and seizures, but not those done by private citizens or organizations who are not acting on behalf of a government.[14] The Bill of Rights originally only restricted the power of the federal government. However, in Wolf v. Colorado, the Supreme Court ruled that the Fourth Amendment is applicable to state governments by way of the Due Process Clause of the Fourteenth Amendment. Moreover, all state constitutions contain an analogous provision.[15]

The jurisdiction of the federal government in the realm of criminal law was narrow, until the late 19th century when the Interstate Commerce Act and Sherman Antitrust Act were passed. As criminal jurisdiction of the federal government expanded to include other areas such as narcotics, more questions about the Fourth Amendment came to the Supreme Court.[16]

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

The reasonableness requirement applies not just to a search in combination with a seizure, but also to a search without a seizure, as well as to a seizure without a search.[19]

[edit] Definition of "search"

In Katz v. United States, 389 U.S. 347 (1967), the Supreme Court ruled that a search occurs only when 1) a person expects privacy in the thing searched and 2) society believes that expectation is reasonable.

In Katz, the Supreme Court ruled that a search had occurred when the government wiretapped a telephone booth.[20] The Court's reasoning was that 1) the defendant expected that his phonebooth conversation would not be broadcast to the wider world and 2) society believes that expectation is reasonable.

This is a threshold question in Fourth Amendment jurisprudence, since the Fourth Amendment only protects against unreasonable searches and seizures. If no search or seizure has occurred, the court ends its analysis.

[edit] Stop and frisk

Under Terry v. Ohio 392 U.S. 1 (1968), law enforcement officers are permitted to conduct a limited warrantless search on a level of suspicion less than probable cause under certain circumstances. In Terry, the Supreme Court ruled that when a police officer witnesses "unusual conduct" that leads that officer to reasonably believe "that criminal activity may be afoot", that the suspicious person has a weapon and that the person is presently dangerous to the officer or others, the officer may conduct a "pat-down search" (or "frisk") to determine whether the person is carrying a weapon. To conduct a frisk, officers must be able to point to specific and articulatory facts which, taken together with rational inferences from those facts, reasonably warrant their actions. A vague hunch will not do. Such a search must be temporary and questioning must be limited to the purpose of the stop (e.g., officers who stop a person because they have reasonable suspicion to believe that the person was driving a stolen car, cannot, after confirming that it is not stolen, compel the person to answer questions about anything else, such as the possession of contraband).[21]

[edit] Seizure

The Fourth Amendment proscribes unreasonable seizure of any person, person's home (including its curtilage) or personal property without a warrant. A seizure of property occurs when there is meaningful interference by the government with an individual's possessory interests,[22] such as when police officers take personal property away from an owner to use as evidence. The Amendment also protects against unreasonable seizure of their persons, including a brief detention.[23]

A seizure does not occur just because the government questions an individual in a public place. The exclusionary rule would not bar voluntary answers to such questions from being offered into evidence in a subsequent criminal prosecution. The person is not being seized if his freedom of movement is not restrained.[24][25] The government may not detain an individual even momentarily without reasonable, objective grounds, with few exceptions. His refusal to listen or answer does not by itself furnish such grounds.[26]

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.[26] As long as the police do not convey a message that compliance with their requests is required, the courts will usually consider the police contact to be a "citizen encounter" which falls outside the protections of the Fourth Amendment.[27] If a person remains free to disregard questioning by the government, there has been no intrusion upon the person's liberty or privacy under the Fourth Amendment — there has been no seizure.[26]

[edit] Exceptions

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

Where society's need is great and no other effective means of meeting the need is available, and intrusion on people's privacy is minimal, checkpoints toward that end may briefly detain motorists. In Michigan v. Sitz 496 U.S. 444 (1990), the Supreme Court allowed discretionless sobriety checkpoints. In United States v. Martinez-Fuerte 428 U.S. 543 (1976), the Supreme Court allowed discretionless immigration checkpoints. In Illinois v. Lidster 540 U.S. 419 (2004), the Supreme Court allowed focused informational checkpoints. However, discretionary checkpoints or general crime-fighting checkpoints are not allowed.[28] Further, in Delaware v. Prouse 440 U.S. 648 (1979), the Supreme Court stated that, absent articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable.

Another exception is at borders and ports of entry.

Roadblocks may be used to capture a particular fleeing criminal or locate a bomb.[29]

[edit] Arrest

When a person is arrested and taken into police custody, they have been seized (e.g., a reasonable person who is handcuffed and placed in the back of a police car would not think they were free to leave). A person subjected to a routine traffic stop on the other hand, has been seized, but is not "arrested" because traffic stops are a relatively brief encounter and are more analogous to a Terry stop than to a formal arrest.[30] A police officer does not have the authority to arrest someone for refusing to identify himself when he is not suspected of committing a crime.[31] A search incidental to an arrest that is not permissible under state law does not violate the Fourth Amendment, if the arresting officer has probable cause.[32][33]

[edit] Arrest by a citizen

The Fourth Amendment does not apply to a seizure or an arrest by private citizens. However, many states have passed laws that regulate the specific circumstances in which a private citizen may arrest another. Typically, a private person can make an arrest when: (1) a misdemeanor amounting to a public nuisance is being committed; or (2) a felony has been committed, and the arresting citizen has reasonable cause to believe that the person arrested committed it.[34]

[edit] Warrant

Under the Fourth Amendment, law enforcement must receive written permission from a court of law, or otherwise qualified magistrate, to lawfully search and seize evidence while investigating criminal activity. A court grants permission by issuing a writ known as a warrant. A search or seizure is generally unreasonable and unconstitutional, if conducted without a valid warrant,[35] and the police must obtain a warrant whenever practicable.[36] Searches and seizures without a warrant are not considered unreasonable if one of the specifically established and well-delineated exceptions to the warrant requirement applies.[37]

[edit] Probable cause

When police conduct a search, the amendment requires that the warrant establishes probable cause to believe that the search will uncover criminal activity or contraband. They must have legally sufficient reasons to believe a search is necessary. In Carroll v. United States, 267 U.S. 132 (1925), the Supreme Court stated that probable cause to search is a flexible, common-sense standard. To that end, the Court ruled in Dumbra v. United States, 268 U.S. 435 (1925), that “the term probable cause...means less than evidence that would justify condemnation[,]” reiterating Carroll's assertion that it merely requires that the facts available to the officer would “warrant a man of reasonable caution in the belief,”[38] 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.[39] In Illinois v. Gates, 462 U.S. 213 (1983), the Supreme Court ruled that the reliability of an informant is to be determined based on the "totality of the circumstances."

At common law, a police officer could arrest an individual if that individual committed a misdemeanor in the officer's presence or if the officer had probable cause to believe that the individual committed a felony. For misdemeanors, probable cause to believe that a wrongdoer committed a misdemeanor is not sufficient for an arrest; the police officer has to actually witness the misdemeanor.[30]

The standards of probable cause differ for an arrest and a search. The government has a probable cause to make an arrest when "the facts and circumstances within their knowledge and of which they had reasonably trustworthy information" would lead a prudent person to believe that the arrested person had committed or was committing a crime.[40] Probable cause to arrest must exist before the arrest is made. Evidence obtained after the arrest may not apply retroactively to justify the arrest.[41]

[edit] Exclusionary rule

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

The Court adopted the exclusionary rule in Weeks v. United States, 232 U.S. 383 (1914), prior to which all evidence, no matter how seized, could be admitted in court. Additionally, in Silverthorne Lumber Co. v. United States,

1 Comments in Response to

Comment by Dracula Tepish
Entered on:

Most probable cause are not legal since they violated the constitution in the first place and now they are trying to NULL VOID THE 4th amendment by dictate of a federal judge for one reason the judge does not have any rights either for in the constitution the so called dictates are null void all the time the seem to have got their authority from the 14th amendment and make us  all slaves indentured slaves 

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