Fourth Amendment

Fourth Amendment While investigating crime, police detain or arrest persons, frisk for weapons, and search for incriminating evidence or contraband such as illegal drugs. Other government officials, ranging from regulators to school principals, conduct a wide variety of inspections. The Fourth Amendment to the federal Constitution is the principal legal limitation on government arrest, search, and inspection authority. It is enforced primarily by an exclusionary rule that sometimes prohibits the use as evidence of items or information obtained in violation of Fourth Amendment standards. At various points during the twentieth century it appeared that the Supreme Court might fashion the amendment into a comprehensive regulation of government intrusions into citizens' liberty and privacy, but decisions since the early 1970s have undercut that potential, and the protections afforded by the amendment are now rather limited.

History

The Fourth Amendment was prompted by a prerevolutionary controversy over the legality of “general warrants.” A warrant is a command from a judge ordering an officer to arrest a person or search a place for evidence or contraband. However, because a general warrant did not specify who was to be arrested or what place was to be searched it conferred discretionary search authority on peace officers. Because discretionary arrest or search authority conflicted with common‐law standards, in the 1760s English courts declared such warrants illegal. Nevertheless, in 1767 Parliament reauthorized customs officers in the American colonies to use a form of general warrant called a “writ of assistance.” However, American colonial courts generally refused to issue such writs, and sometimes denounced them as illegal. On independence, several states included bans against general warrants in state declarations of rights, and the Fourth Amendment was included in the federal Bill of Rights to prohibit Congress from ever authorizing general warrants.

For various reasons, the amendment was not construed by the Supreme Court until Boyd v. United States when, in 1886, the justices interpreted the reference to a right against “unreasonable searches and seizures” in the amendment as a broad “reasonableness” requirement for government searches and struck down a statute on that basis. There was still hardly any litigation regarding searches until after the 1914 decision in Weeks v. United States. In that decision, the Court held both that a warrantless search of a house by a federal marshal violated the amendment and that the items that were seized unconstitutionally would be inadmissible as evidence in legal proceedings—what became known as the exclusionary rule. Because exclusion gave defendants an incentive to challenge searches, search litigation increased dramatically after Weeks. During the early twentieth century, the Supreme Court developed the elements of modern search‐and‐seizure law while reviewing lower court decisions regarding admissibility of evidence seized in police searches.

Fourth Amendment Reasonableness

During the twentieth century, the justices continued to interpret the amendment as setting a broad “reasonableness” requirement for government intrusions. Although some historical treatments of the amendment assumed that this reading reflected the intended meaning of the text, it now appears that the amendment was actually intended only to ban general warrants. Instead, the Fifth Amendment was meant to regulate the initiation of criminal prosecutions and the common‐law standards for warrantless arrests and searches—standards more rigorous than “reasonableness”—were understood to be components of the “due process of law” required by that amendment. Thus “unreasonable searches and seizures” in the Fourth Amendment was simply a pejorative label for the gross illegality of general warrant searches. However, the original meanings of both amendments were lost during the nineteenth century as courts relaxed common‐law standards to make it easier for newly created police departments to maintain order in a rapidly urbanizing society.

The modern reasonableness standard necessarily involves balancing personal rights to liberty and privacy against the government's interest in effective law enforcement. Unsurprisingly, that balance has shifted as the justices' ideological commitments and social concerns have changed. When the Supreme Court initially applied the Fourth Amendment in the early twentieth century, it treated the amendment as applying only to searches and arrests by federal officers. Moreover, the justices were especially concerned with protecting business records. The justices interpreted the reasonableness standard to mean that it usually was unreasonable for police to search private property without previously obtaining a warrant. Searches pursuant to warrants were preferred because it was assumed magistrates were less likely to approve of poorly justified intrusions.

By the amendment's terms, a warrant must be supported by a sworn showing of “probable cause” and must particularly identify the place to be searched and the items or persons to be seized. Traditionally, “probable cause” meant that a person who asked a magistrate to issue a warrant had to swear to personal knowledge of facts sufficient to warrant a prudent man in the belief that the person to be arrested had committed a crime (for an arrest warrant) or that evidence of a crime or contraband would be found in the place to be searched (for a search warrant). The particularity requirement is usually satisfied if a search warrant states the address of a building to be searched and identifies the general nature of the contraband or evidence sought.

However, the warrant requirement was never absolute. Even at common law, peace officers could sometimes make warrantless arrests and they could also search the person arrested if there was reason to think that the arrestee had a weapon or that he might possess evidence of the crime for which they had been arrested. In addition, during Prohibition, the justices ruled in Carroll v. United States (1925) that, because a vehicle could be driven away while police were obtaining a warrant, the exigency involved made it reasonable for police to search a vehicle thoroughly without a warrant if they had probable cause to believe the vehicle contained contraband.

During the 1940s and 1950s, the warrant requirement was undercut when justices advanced a competing generalized‐reasonableness interpretation of the amendment. In cases such as United States v. Rabinowitz (1950), a divided Court sometimes permitted warrantless searches of even entire residences in which an arrest had been made. In addition, although some justices began to advocate applying the Fourth Amendment and the exclusionary rule to the states through the Fourteenth Amendment incorporation doctrine, a majority of the justices rejected that change, and the Fourth Amendment was still applied only to federal searches.

Warren Court

During the 1960s, the Warren Court reinvigorated and extended the amendment's protections in several respects. Most importantly, in 1961 in Mapp v. Ohio the Court incorporated the Fourth Amendment into the Fourteenth Amendment and thus, made state searches that did not comply with Fourth Amendment standards subject to the exclusionary rule. In addition, the Warren Court renewed the earlier emphasis on search warrants. Thus, when the justices expanded the scope of the amendment's protections beyond property concerns to cover private phone conversations in Katz v. United States (1967), they also required that police obtain warrants for wiretaps. However, by the 1960s, search warrants were often issued based upon police reports of hearsay information from unidentified informants. The Warren Court attempted to give the warrant requirement more substance by ruling, in Spinelli v. United States (1969), that police had to provide magistrates with certain information about the informants who provided information used for probable cause.

In addition, in an attempt to create a standard for police “stop and frisk” practices during street encounters, the Warren Court ruled that the Fourth Amendment applied to such police conduct in Terry v. Ohio (1968), but also ruled that such stops were valid if the police had “reasonable suspicion,” a less demanding standard than probable cause.

Shift toward Law Enforcement Interests

During the 1968 presidential election, Richard Nixon campaigned against the criminal procedure rulings of the Warren Court. During his first term as president, Nixon appointed four justices who were critical of Warren Court rulings, including Chief Justice Warren Burger and Justice William Rehnquist (who later became chief justice). Since the early 1970s, a majority of justices in the Burger and Rehnquist Courts have favored law enforcement interests over protection of citizens' liberty or privacy. Although those Courts have not overruled major Warren Court rulings, they have created numerous limitations and exceptions to the amendment's protections which, taken together, have drastically limited the amendment's protections.

Standing Requirement

Soon after Weeks, lower federal courts developed a “standing” requirement that prevented a defendant from challenging the admission of evidence seized by police unless a search had intruded upon his own premises or property, and the justices later acquiesed in that doctrine. Under that test, police are able to deliberately violate person A's privacy to obtain evidence against B, because B usually cannot challenge the search of A's property (United States v. Payner, 1980). Thus, the Burger Court ruled that passengers in automobiles may not challenge a search of the vehicle (Rakas v. Illinois, 1978); however, guests in a residence usually still may challenge a search of the residence (Minnesota v. Carter, 1998).

Scope of Protection

Not all police interactions with individuals involve searches or seizures. A person is not “seized” if police approach him or her in a public place and ask questions; rather, there is a seizure only if a reasonable person would not feel free to go on his or her way (Florida v. Bostick, 1991). Likewise, police investigation constitutes a “search” only if it intrudes upon a person's “reasonable expectation of privacy.” There cannot be an expectation of privacy in “open fields”—outside areas other than the “curtilage” immediately around a house (Oliver v. United States, 1984). In addition, the protection of the amendment is lost if a person exposes information or fails to adequately maintain privacy. Thus, the amendment does not protect bank records because that information has been exposed to the banker (United States v. Miller, 1976) or garbage set out for collection (California v. Greenwood, 1988). Likewise, if marijuana plants in a fenced yard can be seen from a helicopter, privacy is lost and the discovery is deemed to be “in plain view” (Florida v. Riley, 1989). Similarly, a sniff by a police dog trained to detect drugs is not deemed a search, so the government does not have to justify use of a drug dog (United States v. Place, 1983). In addition, like other constitutional rights, the protections afforded by the amendment can be waived if a person consents to a search. The justices do not require police to have suspicion prior to seeking consent or to inform the person that he or she can refuse to consent (Schneckloth v. Bustamonte, 1973). A large proportion of searches are conducted pursuant to consent.

Standards

The Court still requires police to obtain a warrant to enter a residence unless there is an emergency situation or consent has been given (Payton v. New York, 1980), and also limits technological surveilances of houses (Kyllo v. United States, 2001). However, warrants are now rarely required except for residences.

In the 1983 decision Illinois v. Gates, the justices also made it easier for police to obtain warrants by significantly relaxing the probable cause standard to a totality of the circumstances analysis of whether information indicated a “fair probability” of crime. That standard also makes it easier for police to justify warrantless arrests or searches of vehicles under the Carroll doctrine.

Police now also have broad authority to temporarily detain persons under the Terry reasonable suspicion standard (Alabama v. White, 1990). That standard also authorizes police to “frisk” a person for weapons if there is reasonable suspicion the person might be dangerous, and police also may frisk a car for weapons on the same basis (Michigan v. Long, 1983) as well as conduct a “protective sweep” of a house they have lawfully entered to locate persons who might pose a danger (Maryland v. Buie, 1990). If police come across evidence or contraband in the course of such frisks or sweeps, they may legally seize it as being in plain view.

In addition, police automatically may search a person who has been arrested for any offense (United States v. Robinson, 1973), and also may automatically search the passenger compartment of any vehicle that an arrested person has recently exited (Belton v. New York, 1981). This search incident to arrest authority is especially significant because the amendment does not bar custodial arrests for even the most minor traffic offenses (Atwater v. City of Lago Vista, 2001), and police are authorized to make pretextual stops or arrests for traffic violations in order to investigate other crimes (Whren v. United States, 1996). Hence, there is very little protection of privacy in a vehicle, and police engaged in criminal law enforcement often may bypass standards for detentions, arrests, or searches simply by following a car until the driver commits a traffic violation. In addition, police may make an inventory search of an arrested person's possessions or an impounded vehicle (Florida v. Wells, 1990).

Exclusion

In addition to relaxing search and arrest standards, the Burger and Rehnquist Courts have also limited the operation of the exclusionary rule. In 1974 in United States v. Calandra the Court repudiated the understanding that exclusion was a constitutional right of the victim of an unconstitutional search and redefined exclusion as only a policy aimed at deterring future police illegality. Because critics of the rule had asserted that exclusion was ineffective as a deterrent, that redefinition initially appeared to herald abolition of the rule. However, the justices did not go that far. Instead, subsequent decisions have limited the operation of the rule to the prosecutor's case‐in‐chief in a criminal trial, but permit use of unconstitutionally seized items for other purposes in criminal proceedings. For example, prosecutors can use unconstitutionally obtained evidence to impeach a defendant who testifies in his own defense (United States v. Havens, 1980). The justices have also created several exceptions that allow the government to freely use certain kinds of unconstitutionally obtained evidence even in the prosecutor's case‐in‐chief in a criminal trial. For example, the justices ruled in United States v. Leon (1984) that evidence seized under unconstitutionally issued warrants is almost always admissible under a “good‐faith mistake exception” (See Good Faith Exception) because the illegal warrant is the fault of the issuing magistrate rather than the police. Thus, the illegality of a search warrant usually no longer matters. However, the Court has not recognized any exception for misapplication of legal standards by police themselves in warrantless searches. The Court has also recognized an “inevitable discovery” doctrine that allows use of unconstitutionally discovered evidence if the government can show it is more likely than not that police would have found that evidence legally had they not already discovered it unconstitutionally (Murray v. United States, 1988). Taken collectively, these limitations on exclusion severely limit enforcement of Fourth Amendment protections, and unconstitutionally seized evidence is seldom excluded in serious prosecutions.

Moreover, alternative remedies for unconstitutional police intrusions are quite limited. Absent police brutality, the qualified‐official‐immunity doctrine usually protects police from civil damages lawsuits for illegal arrests or searches (Anderson v. Creighton, 1987). Likewise, the justices generally have not allowed use of injunctions against abusive police practices (Los Angeles v. Lyons, 1983). Hence, government violations of the Fourth Amendment now often have no legal consequence.

“Special Needs” Searches

Government officers or employees other than police sometimes conduct searches or inspections for purposes other than ordinary criminal law enforcement. Such searches usually are subject to the amendment, but the reasonableness of such searches is assessed according to the “special needs” of the particular context: for example, effective regulatory enforcement, public safety, or the preservation of discipline in educational institutions. Such searches usually do not require probable cause and in some instances special needs permit random searches not based on any individualized suspicion, such as vehicle checkpoints to identify inebriated drivers (Michigan Department of State Police v. Sitz, 1990) or drug testing of students (Board of Education v. Earls, 2002).

Conclusion

After three decades of decisions that have relaxed standards and curtailed enforcement, the Fourth Amendment now provides only marginal protection of individual privacy and liberty. Moreover, it seems unlikely that the Court will enhance the amendment's protection in the foreseeable future. Rather, attempts to prevent terrorism after the attacks of 11 September 2001 may result in further curtailments of those protections that still exist. For example, antiterrorism legislation has loosened restrictions on wiretaps and has authorized novel forms of searches such as “sneak‐and‐peak” warrants that permit police to surreptitiously enter and search a residence without giving notice to the residents that the search ever occurred. The Supreme Court has not yet addressed the constitutionality of these practices under the Fourth Amendment.

See also Search Warrant Rules, Exceptions to.

Bibliography

Thomas Y. Davies , Recovering the Original Fourth Amendment, Michigan Law Review 98 (1999): 547–750.
Thomas Y. Davies , The Fictional Character of Law‐and‐Order Originalism, Wake Forest Law Review 37 (2002): 239–437.
Joshua Dressler , Understanding Criminal Procedure, 3rd ed. (2002).
Wayne R. LaFave , Search and Seizure: A Treatise on the Fourth Amendment, 3rd ed. (1996).
Jacob Landynski , Search and Seizure and the Supreme Court (1966).

Thomas Y. Davies

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Jacob Landynski