Search and Seizure, Unreasonable

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SEARCH AND SEIZURE, UNREASONABLE. The Fourth Amendment to the Constitution of the United States prohibits "unreasonable searches and seizures." To circumvent this prohibition, the government must obtain a warrant to search and possibly seize one's person or property. The Fourth Amendment demands that such a warrant must be based on the sworn or affirmed testimony of a law enforcement official, must be specific as to the place to be searched and the person or thing to be seized, and will not be issued "but upon probable cause."

These strong protections against intrusion by the federal government into personal space have their origins in the hated writs of assistance that had been issued by Great Britain beginning more than a hundred years before America declared its independence. These writs were broad, general search warrants that the British Crown used to discourage colonial smugglers who were trying to evade various tax and trade restrictions. According to leading patriots such as James Otis and Samuel Adams, these writs of assistance were one of the prime reasons that anti-British feelings proliferated in the colonies. After American independence, most American state constitutions incorporated some form of protection against unreasonable searches and seizures, and the First Congress in which the Bill of Rights was debated and the conventions that ratified those amendments easily agreed to include in the Constitution of the United States protections against unreasonable searches and seizures.

The meaning of the Fourth Amendment was rarely at issue in the first century after it was adopted. Beginning in the early twentieth century, however, the Supreme Court began to grapple with the questions of what constitutes an "unreasonable" search and seizure, and what is encompassed in the notion of "probable cause." It has also made various exceptions to the general rule requiring a warrant. The Court has held that there are other kinds of searches that, despite the absence of a warrant, are still reasonable under the terms of the Fourth Amendment.

One of these exceptions is a search during a valid arrest. If a police officer arrests someone without a warrant, incident to that arrest, the law enforcement officer may search that suspect for a variety of reasons, including the protection of the personal safety of the officer and to prevent the arrested suspect from getting rid of important evidence. These so-called "stop and frisk" cases, beginning with Terry v. Ohio (1968), ruled that police officers, even if they do not have adequate grounds to arrest the person in question, may conduct a limited search of a person's outer layers of clothing by "patting them down."

More generally, police may act quickly to see that justice is done. For example, law enforcement officials may conduct a search to prevent the possible loss of evidence, even if they have not yet arrested someone. In the 1973 case of Cupp v. Murphy, the Supreme Court allowed the warrantless testing of a dark substance under the fingernails of the estranged husband of a woman who had just been murdered. The Court reasoned that there was sufficient probable cause to outweigh the absence of a warrant. When law enforcement officials are in hot pursuit of a suspect, they also need not take the time to appear before a judge and obtain a warrant. The same generally holds true when police enter a home using a valid search warrant to look for a weapon used in a crime and during the search find illegal drugs in plain view. The drugs can be reasonably used as evidence because they were not hidden and therefore did not require an additional warrant.

A more difficult set of issues and cases relates to those who are not suspects in criminal activity but who find themselves subjected to unwanted searches. A recent example is random testing for illegal drugs. Since those tested for illegal drugs are often not criminal suspects, are such searches and seizures of one's bodily fluids by state or federal agencies a violation of the Fourth Amendment? The Supreme Court has ruled that in certain circumstances drug testing is permissible, such as in the case of railroad employees involved in accidents or breaches of safety regulations. In the 2002 case of Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, the Court also allowed testing in the case of students participating in extracurricular activities in public schools.

The most controversial aspect of searches and seizures occurs when clearly damning evidence is excluded from use against a suspect because it was illegally obtained. In the 1914 case of Weeks v. United States, the "exclusionary rule" was created, which barred the use by federal officials and federal courts of evidence gathered in violation of the Fourth Amendment. In the 1961 case of Mapp v. Ohio, the Supreme Court, led by Chief Justice Earl W. Warren, issued the strong version of the exclusionary rule, which excludes the use of evidence obtained unconstitutionally by state and local governments. On occasion, the exclusionary rule has led to the release of guilty criminals. In the face of significant public opposition to the release of criminals on the basis of such "technicalities," the exclusionary rule has been weakened by the two subsequent, more conservative Courts, led by chief justices Warren E. Burger and William H. Rehnquist.


Amar, Akhil Ree. The Constitution and Criminal Procedure: First Principles. New Haven, Conn.: Yale University Press, 1997.

Bacigal, Ronald. Criminal Law and Procedure: An Introduction. Clifton Park, N.Y.: OnWord Press, 2001.

Israel, Jerold H., Yale Kamisar, and Wayne LaFave. Criminal Procedure and the Constitution: Leading Supreme Court Cases and Introductory Text. St. Paul, Minn.: West Wadsworth, 2001.

Akiba J.Covitz
Esa LianneSferra
Meredith L.Stewart

See alsoBill of Rights in U.S. Constitution .