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FOURTH AMENDMENT: OVERVIEW
The Fourth Amendment of the U.S. Constitution provides:
“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.”
The goal of this provision is to protect individual’s right to privacy and freedom from arbitrary governmental intrusions. Private intrusions not acting in the color of governmental authority are exempted from the Fourth Amendment.
To have standing to claim protection under the Fourth Amendment one must first demonstrate an expectation of privacy, which is not merely a subjective expectation in mind but an expectation that society is prepared to recognized as reasonable under the circumstances. For instance, warrantless searches of private 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. States can always establish higher standards for searches and seizures than the Fourth Amendment requires, 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.
A. SEARCHES AND SEIZURES UNDER FOURTH AMENDMENT
The courts must determine what constitutes a search or seizure under the Fourth Amendment. If the conduct challenged does not fall within the Fourth Amendment, the individual will not enjoy protection under Fourth Amendment.
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 cause that a search or seizure is justified. An authority, 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. 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.
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 individual’s right to privacy 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 analyzing the reasonableness standard, the court uses an objective assessment and considers factors including the degree of intrusion by the search or seizure and the manner in which the search or seizure is conducted.
A search under Fourth Amendment occurs when a governmental employee or agent of the government violates an individual’s reasonable expectation of privacy.
Strip searches and visual body cavity searches constitute reasonable searches under the Fourth Amendment when supported by probable cause and conducted in a reasonable manner.
A dog-sniff inspection is invalid under the Fourth Amendment if the the inspection violates a reasonable expectation of privacy.
Electronic surveillance is also considered a search under the Fourth Amendment.
ii. Seizure of a Person
A seizure of a person within the meaning of the Fourth 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 not free to ignore the police presence and leave at his will.
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, and physical contact are each strong indicators of authority. Second, the person being seized must submit to the authority. An individual who ignores the officer’s request and walks away has not been seized for Fourth Amendment purposes.
An arrest warrant is preferred but not required to make a lawful arrest under the Fourth Amendment. A warrantless arrest may be justified where probable cause and urgent need are present prior to the arrest. Probable cause is present when the police officer has a reasonable belief in 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 is a threat to the public security. Also, a police officer might arrest a suspect to prevent the suspect’s escape or to preserve evidence. A suspect arrested without a warrant is entitled to prompt judicial determination, usually within 48 hours.
There are investigatory stops that fall short of arrests, but nonetheless, they fall within Fourth Amendment protection. For instance, police officers can perform 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.
An officer’s 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.
iii. Seizure of Property
A seizure of property, within the meaning of the Fourth Amendment, occurs when there is some meaningful interference with an individual’s possessory interests in the property.
In some circumstances, warrantless seizures of objects in plain view do not constitute 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.
iv. Electronic Records
In recent years, the Fourth Amendment’s applicability in electronic searches and seizures has received much attention from the courts. With the advent of the internet and increased utilization of computers, there has been an increasing amount of crime occurring electronically. Consequently, evidence of such crime can often be found on computers, hard drives, or other electronic devices. The Fourth Amendment applies to the search and seizure of electronic devices.
B. THE EXCLUSIONARY RULE
The exclusionary rule prevents the government from using most evidence gathered in violation of the United States Constitution. The exclusionary rule applies to evidence gained from an unreasonable search or seizure in violation of the Fourth Amendment, (see Mapp v. Ohio, 367 U.S. 643 (1961)), to improperly elicited self-incriminatory statements gathered in violation of the Fifth Amendment, (see Miranda v. Arizona, 384 U.S. 439 (1966)), and to evidence gained in situations where the government violated defendants’ Sixth Amendment right to counsel.
If evidence that falls within the scope of the exclusionary rule led law enforcement to other evidence, which they would not otherwise have located, then the exclusionary rule applies to the related evidence found subsequent to the excluded evidence, subject to a few exceptions. Such subsequent evidence is called “fruit of the poisonous tree.”
The exclusionary rule is a court-created remedy and deterrent, not an independent constitutional right. The purpose of this rule is to deter law enforcement officers from conducting searches or seizures in violation of the Fourth Amendment and provide remedies to defendants whose rights have been infringed upon.
Courts have carved out several exceptions to the exclusionary rule where the costs of exclusion outweigh its deterrent or remedial benefits.
• Under the good-faith exception, evidence is not excluded if it is obtained by officers who reasonably rely on a search warrant that turns out to be invalid.
• Evidence initially obtained during an unlawful search or seizure may later be admissible if the evidence is later obtained through a constitutionally valid search or seizure.
• Under the inevitable discovery doctrine, evidence may be admissible if the evidence would have be discovered anyway, without the unlawful search or seizure.
• The exclusionary rule does not prevent the government from introducing illegally gathered evidence to “impeach,” or attack the credibility of, defendants’ testimony at trial. The Supreme Court recognized this exception to prevent perjury. Even when the government suspects perjury, however, it may only use tainted evidence for impeachment, and may not use it to show guilt.
1. Kyllo v. US: A reasonable expectation of privacy
2. Stanley v Georgia: A First/Fourteenth Amendment Case with “privacy” in the home as the value/right (a Fourth Amendment concept).
Facts of the case: Law enforcement officers, under the authority of a warrant, searched Stanley’s home pursuant to an investigation of his alleged bookmaking activities. During the search, the officers found three reels of eight-millimeter film. The officers viewed the films, concluded they were obscene, and seized them. Stanley was then tried and convicted under a Georgia law prohibiting the possession of obscene materials.
Question: Did the Georgia statute infringe upon the freedom of expression protected by the First Amendment?
Holding (9-0, T. Marshall): The Court held that the First and Fourteenth Amendments prohibited making private possession of obscene materials a crime. In his majority opinion, Justice Marshall noted that the rights to receive information and to personal privacy were fundamental to a free society. Marshall then found that “[i]f the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.” The Court distinguished between the mere private possession of obscene materials and the production and distribution of such materials. The latter, the Court held, could be regulated by the states.
Facts of the case: Dollree Mapp was convicted of possessing obscene materials after an admittedly illegal police search of her home for a fugitive. She appealed her conviction on the basis of freedom of expression.
Question: Were the confiscated materials protected by the First Amendment? (May evidence obtained through a search in violation of the Fourth Amendment be admitted in a state criminal proceeding?)
Conclusion: The Court brushed aside the First Amendment issue and declared that “all evidence obtained by searches and seizures in violation of the Constitution is, by [the Fourth Amendment], inadmissible in a state court.” Mapp had been convicted on the basis of illegally obtained evidence. This was an historic — and controversial — decision. It placed the requirement of excluding illegally obtained evidence from court at all levels of the government. The decision launched the Court on a troubled course of determining how and when to apply the exclusionary rule.