The Fourth Amendment

Cops and criminal lawyers find themselves in the fourth amendment area on almost a daily basis. The press likes to talk about it, and civil libertarians potificate about the protections it provides. In deed, nothing is really more important to the liberties we enjoy as the protections provided in this amendment to the constitution.

The fourth amendment protects us against unreasonable searches and seizures. It provides that a person shall be secure in their person, houses, papers and effects against unreasonable searches and seizures. Big sentence but it only protects the four areas listed. What it does not do is protect citizens or non citizens in foreign countries. A famous case where several DEA agents went into Mexico and, without a warrant, searched a dope suspects house by breaking in and searching was upheld and the evidence admitted at the persons trial. But, it does protect foreign nationals within the country whether or not they are here legally or a citizen of this country.

The above is known as the "reasonableness clause" Now, as you might guess, each word within this clause has developed distinct legal meanings. What is a "house"? What constitutes a "seizure"? and, What is a "search"? If the conduct by the government does not fall within the legal meaning of the act or conduct, then the amendment does not apply. Further, if any of the conduct protected by the fourth amendment is performed by someone not connected to the government, then the protections of the amendment do not apply. So, your local security guard for Walmart can violate your fourth amendment rights, perform a search which if done by the police would be a violation, and then turn what he finds over to the cops and you will next see the evidence in court!. Now, that said, if the cops put him up to it or he is in any way an "agent" of the government, then his search would be just as much a violation as if performed by the cops.

Now the fourth amendment has what is known as the "warrant clause" This states "No warrant shall issue but upon probable cause, supported by oath or affirmation.
And then there is the "Particularly Clause, which states " particularly describing the places to be searched and the things to be seized".

But you might notice there is nothing in the fourth amendment which actually requires a search warrant. It only protects against "unreasonable" searches and seizures. While a number of supreme court cases have either said or implied that searches without a search warrant are presumptively unreasonable, that is a product of court decisions, not from the wording of the clause. legal writers have suggested that a so called "reasonable search" is not just one sanctioned by a warrant, but can include other types of searches without warrants. While the supreme court has yet to actually rule whether a search warrant is always required for the reasonableness standard to apply, they have carved out so many exceptions to the search warrant requirement, one could argue that a search warrant is not required to search most things. I will touch on these exceptions in the future and you may agree.

And, more to follow on the whole issue of the fourth amendment and its application to state officers. Remember, the Bill of Rights initially only applied to federal officers and courts and the states were free to fashion any rules or no rules. This led to the so called "silver platter" doctrine where state officers would dirty search a crook, and then turn the evidence over to the feds on a "silver platter" to now be used in a federal trial. The supreme court dealt with this in an interesting way and also came up with a penalty for violations which to this day, remains controversial. Stay tuned.