Fourth Amendment to the United States Constitution
Encyclopedia
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
is the part of the Bill of Rights
United States Bill of Rights
The Bill of Rights is the collective name for the first ten amendments to the United States Constitution. These limitations serve to protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and...
which guards against unreasonable searches and seizures
Search and seizure
Search and seizure is a legal procedure used in many civil law and common law legal systems whereby police or other authorities and their agents, who suspect that a crime has been committed, do a search of a person's property and confiscate any relevant evidence to the crime.Some countries have...
, along with requiring any warrant
Warrant (law)
Most often, the term warrant refers to a specific type of authorization; a writ issued by a competent officer, usually a judge or magistrate, which permits an otherwise illegal act that would violate individual rights and affords the person executing the writ protection from damages if the act is...
to be judicially
Judiciary
The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
sanctioned and supported by probable cause
Probable cause
In United States criminal law, probable cause is the standard by which an officer or agent of the law has the grounds to make an arrest, to conduct a personal or property search, or to obtain a warrant for arrest, etc. when criminal charges are being considered. It is also used to refer to the...
. It was adopted as a response to the abuse of the writ of assistance
Writ of Assistance
A writ of assistance is a written order issued by a court instructing a law enforcement official, such as a sheriff, to perform a certain task. Historically, several types of writs have been called "writs of assistance". Most often, a writ of assistance is "used to enforce an order for the...
, which is a type of general search warrant
Search warrant
A search warrant is a court order issued by a Magistrate, judge or Supreme Court Official that authorizes law enforcement officers to conduct a search of a person or location for evidence of a crime and to confiscate evidence if it is found....
, in the American Revolution
American Revolution
The American Revolution was the political upheaval during the last half of the 18th century in which thirteen colonies in North America joined together to break free from the British Empire, combining to become the United States of America...
. Search and arrest should be limited in scope according to specific information supplied to the issuing court
Perjury
Perjury, also known as forswearing, is the willful act of swearing a false oath or affirmation to tell the truth, whether spoken or in writing, concerning matters material to a judicial proceeding. That is, the witness falsely promises to tell the truth about matters which affect the outcome of the...
, usually by a law enforcement officer, who has sworn by it
Affidavit
An affidavit is a written sworn statement of fact voluntarily made by an affiant or deponent under an oath or affirmation administered by a person authorized to do so by law. Such statement is witnessed as to the authenticity of the affiant's signature by a taker of oaths, such as a notary public...
.
In Mapp v. Ohio
Mapp v. Ohio
Mapp v. Ohio, , was a landmark case in criminal procedure, in which the United States Supreme Court decided that evidence obtained in violation of the Fourth Amendment, which protects against "unreasonable searches and seizures," may not be used in criminal prosecutions in state courts, as well as...
, , the Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
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
Katz v. United States
Katz v. United States, , is a United States Supreme Court case discussing the nature of the "right to privacy" and the legal definition of a "search." The Court’s ruling adjusted previous interpretations of the unreasonable search and seizure clause of the Fourth Amendment to count immaterial...
, , the Supreme Court ruled that the amendment's protections apply only when the searched party has a "reasonable expectation of privacy
Expectation of privacy
In United States constitutional law the expectation of privacy is a legal test which is crucial in defining the scope of the applicability of the privacy protections of the Fourth Amendment to the United States Constitution...
".
The Supreme Court has also ruled that certain searches and seizures violated the Fourth Amendment even when a warrant was properly granted.
Text
English law
Semayne's case
Semayne's Case 77 Eng. Rep. 194 ; 5 Co. Rep. 91, is an English common law case reported by Sir Edward Coke, who was then the Attorney General of England. In the US, it is recognised as establishing the "knock and announce" rule....
(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." 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.
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
John Wilkes
John Wilkes was an English radical, journalist and politician.He was first elected Member of Parliament in 1757. In the Middlesex election dispute, he fought for the right of voters—rather than the House of Commons—to determine their representatives...
' publications attacking both government policies and the King himself. The most famous of these cases involved John Entick
John Entick
John Entick was an English schoolmaster and author. He was largely a hack writer, working for Edward Dilly, and he padded his credentials with a bogus M.A. and a portrait in clerical dress; some of his works had a more lasting value...
, 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
George Montagu-Dunk, 2nd Earl of Halifax
George Montagu-Dunk, 2nd Earl of Halifax, KG, PC was a British statesman of the Georgian era.-Early life:...
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
Charles Pratt, 1st Earl Camden
Charles Pratt, 1st Earl Camden was an English lawyer, judge and Whig politician who was first to hold the title of Earl of 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
Probable cause
In United States criminal law, probable cause is the standard by which an officer or agent of the law has the grounds to make an arrest, to conduct a personal or property search, or to obtain a warrant for arrest, etc. when criminal charges are being considered. It is also used to refer to the...
to even justify the search. Entick established the English precedent that the executive is limited in intruding on private property by common law.
Colonial America
In Colonial America, legislation was explicitly written to enforce English revenue gathering policies on customs. Until 1750, all handbooks for justices of the peace, the issuers of warrants, contained or described only general warrants. William Cuddihy, Ph.D.Doctor of Philosophy
Doctor of Philosophy, abbreviated as Ph.D., PhD, D.Phil., or DPhil , in English-speaking countries, is a postgraduate academic degree awarded by universities...
in his dissertation entitled The Fourth Amendment: Origins and Original Meaning, 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.
Writ of Assistance
A writ of assistance is a written order issued by a court instructing a law enforcement official, such as a sheriff, to perform a certain task. Historically, several types of writs have been called "writs of assistance". Most often, a writ of assistance is "used to enforce an order for the...
, allowing them to search the homes of colonists and seize “prohibited and uncustomed” goods.
A crisis erupted over the writs of assistance on December 27, 1760 when the news of King George II's
George II of Great Britain
George II was King of Great Britain and Ireland, Duke of Brunswick-Lüneburg and Archtreasurer and Prince-elector of the Holy Roman Empire from 11 June 1727 until his death.George was the last British monarch born outside Great Britain. He was born and brought up in Northern Germany...
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.
In mid-January 1761, a group of over 50 merchants represented by James Otis
James Otis, Jr.
James Otis, Jr. was a lawyer in colonial Massachusetts, a member of the Massachusetts provincial assembly, and an early advocate of the political views that led to the American Revolution. The phrase "Taxation without Representation is Tyranny" is usually attributed to him...
, 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. However, the court ruled against Otis. Because of the name he had made for himself in attacking the writs, he was elected to the Massachusetts colonial legislature
Massachusetts General Court
The Massachusetts General Court is the state legislature of the Commonwealth of Massachusetts. The name "General Court" is a hold-over from the Colonial Era, when this body also sat in judgment of judicial appeals cases...
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. John Adams
John Adams
John Adams was an American lawyer, statesman, diplomat and political theorist. A leading champion of independence in 1776, he was the second President of the United States...
, who was present in the courtroom when Otis spoke, viewed these events “as the spark in which originated the American Revolution.”
Seeing the danger general warrants presented, the Virginia Declaration of Rights
Virginia Declaration of Rights
The Virginia Declaration of Rights is a document drafted in 1776 to proclaim the inherent rights of men, including the right to rebel against "inadequate" government...
explicitly forbade the use of general warrants. This prohibition became precedent for the Fourth Amendment:
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:
In general
The Fourth Amendment has been held to mean that generally a warrant must be judiciallyJudiciary
The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
sanctioned for a search or an arrest
Arrest
An arrest is the act of depriving a person of his or her liberty usually in relation to the purported investigation and prevention of crime and presenting into the criminal justice system or harm to oneself or others...
. In order for such a warrant
Warrant (law)
Most often, the term warrant refers to a specific type of authorization; a writ issued by a competent officer, usually a judge or magistrate, which permits an otherwise illegal act that would violate individual rights and affords the person executing the writ protection from damages if the act is...
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
Affidavit
An affidavit is a written sworn statement of fact voluntarily made by an affiant or deponent under an oath or affirmation administered by a person authorized to do so by law. Such statement is witnessed as to the authenticity of the affiant's signature by a taker of oaths, such as a notary public...
and is therefore accountable to the issuing court
Perjury
Perjury, also known as forswearing, is the willful act of swearing a false oath or affirmation to tell the truth, whether spoken or in writing, concerning matters material to a judicial proceeding. That is, the witness falsely promises to tell the truth about matters which affect the outcome of the...
. 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
Private sector
In economics, the private sector is that part of the economy, sometimes referred to as the citizen sector, which is run by private individuals or groups, usually as a means of enterprise for profit, and is not controlled by the state...
who are not acting on behalf of a government. The Bill of Rights
United States Bill of Rights
The Bill of Rights is the collective name for the first ten amendments to the United States Constitution. These limitations serve to protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and...
originally only restricted the power
Political power
Political power is a type of power held by a group in a society which allows administration of some or all of public resources, including labour, and wealth. There are many ways to obtain possession of such power. At the nation-state level political legitimacy for political power is held by the...
of the federal government
Federal government of the United States
The federal government of the United States is the national government of the constitutional republic of fifty states that is the United States of America. The federal government comprises three distinct branches of government: a legislative, an executive and a judiciary. These branches and...
. However, in Wolf v. Colorado
Wolf v. Colorado
Wolf v. Colorado, 338 U.S. 25 was a United States Supreme Court case in which the Court held 6-3 that the Fourth Amendment was applicable to the States through the Due Process Clause of the Fourteenth Amendment, however, the exclusionary rule was not. The Court specified no redressive measures...
, the Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
ruled that the Fourth Amendment is applicable to state governments
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
by way of the Due Process Clause of the Fourteenth Amendment. Moreover, all state constitutions
State constitution (United States)
In the United States, each state has its own constitution.Usually, they are longer than the 7,500-word federal Constitution and are more detailed regarding the day-to-day relationships between government and the people. The shortest is the Constitution of Vermont, adopted in 1793 and currently...
contain an analogous provision.
The jurisdiction of the federal government
Federal government of the United States
The federal government of the United States is the national government of the constitutional republic of fifty states that is the United States of America. The federal government comprises three distinct branches of government: a legislative, an executive and a judiciary. These branches and...
in the realm of criminal law was narrow, until the late 19th century when the Interstate Commerce Act
Interstate Commerce Commission
The Interstate Commerce Commission was a regulatory body in the United States created by the Interstate Commerce Act of 1887. The agency's original purpose was to regulate railroads to ensure fair rates, to eliminate rate discrimination, and to regulate other aspects of common carriers, including...
and Sherman Antitrust Act
Sherman Antitrust Act
The Sherman Antitrust Act requires the United States federal government to investigate and pursue trusts, companies, and organizations suspected of violating the Act. It was the first Federal statute to limit cartels and monopolies, and today still forms the basis for most antitrust litigation by...
were passed. As criminal jurisdiction of the federal government expanded to include other areas such as narcotic
Narcotic
The term narcotic originally referred medically to any psychoactive compound with any sleep-inducing properties. In the United States of America it has since become associated with opioids, commonly morphine and heroin and their derivatives, such as hydrocodone. The term is, today, imprecisely...
s, more questions about the Fourth Amendment came to the Supreme Court.
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. 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." 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.
Definition of "search"
In Katz v. United StatesKatz v. United States
Katz v. United States, , is a United States Supreme Court case discussing the nature of the "right to privacy" and the legal definition of a "search." The Court’s ruling adjusted previous interpretations of the unreasonable search and seizure clause of the Fourth Amendment to count immaterial...
, , 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
Reasonable person
The reasonable person is a legal fiction of the common law that represents an objective standard against which any individual's conduct can be measured...
.
In Katz, the Supreme Court ruled that a search had occurred when the government wiretapped a telephone booth
Telephone booth
A telephone booth, telephone kiosk, telephone call box or telephone box is a small structure furnished with a payphone and designed for a telephone user's convenience. In the USA, Canada and Australia, "telephone booth" is used, while in the UK and the rest of the Commonwealth it is a "telephone...
. 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.
Stop and frisk
Under Terry v. OhioTerry v. Ohio
Terry v. Ohio, 392 U.S. 1 , was a decision by the United States Supreme Court which held that the Fourth Amendment prohibition on unreasonable searches and seizures is not violated when a police officer stops a suspect on the street and frisks him without probable cause to arrest, if the police...
, 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
Weapon
A weapon, arm, or armament is a tool or instrument used with the aim of causing damage or harm to living beings or artificial structures or systems...
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).
Seizure
The Fourth Amendment proscribes unreasonable seizure of any person, person's home (including its curtilageCurtilage
The curtilage is an important legal term to define the land immediately surrounding a house or dwelling, including any closely associated buildings and structures, but excluding any associated 'open fields beyond'. It defines the boundary within which a home owner can have a reasonable expectation...
) or personal property
Personal property
Personal property, roughly speaking, is private property that is moveable, as opposed to real property or real estate. In the common law systems personal property may also be called chattels or personalty. In the civil law systems personal property is often called movable property or movables - any...
without a warrant. A seizure of property occurs when there is meaningful interference by the government with an individual's possessory interests, 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.
A seizure does not occur just because the government questions an individual
Person
A person is a human being, or an entity that has certain capacities or attributes strongly associated with being human , for example in a particular moral or legal context...
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
Prosecutor
The prosecutor is the chief legal representative of the prosecution in countries with either the common law adversarial system, or the civil law inquisitorial system...
. The person is not being seized if his freedom of movement is not restrained. 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.
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. 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. If a person remains free to disregard questioning by the government, there has been no intrusion upon the person's liberty
Liberty
Liberty is a moral and political principle, or Right, that identifies the condition in which human beings are able to govern themselves, to behave according to their own free will, and take responsibility for their actions...
or privacy under the Fourth Amendment — there has been no seizure.
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
Michigan Dept. of State Police v. Sitz
Michigan Dept. of State Police v. Sitz, 496 U.S. 444 , was a United States Supreme Court case involving the constitutionality of police sobriety checkpoints...
, the Supreme Court allowed discretionless sobriety checkpoints. In United States v. Martinez-Fuerte
United States v. Martinez-Fuerte
United States v. Martinez-Fuerte, was a decision of the United States Supreme Court that allowed the United States Border Patrol to set up permanent or fixed checkpoints on public highways leading to or away from the Mexican border, and that these checkpoints are not a violation of the Fourth...
, the Supreme Court allowed discretionless immigration checkpoints. In Illinois v. Lidster
Illinois v. Lidster
Illinois v. Lidster, , was a case in which the Supreme Court of the United States ruled that the Fourth Amendment permits the police to use a roadblock to investigate a traffic accident.-Facts:...
, the Supreme Court allowed focused informational checkpoints. However, discretionary checkpoints or general crime-fighting checkpoints are not allowed. Further, in Delaware v. Prouse , 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
Border search exception
The border search exception is a doctrine of United States criminal law that exempts searches of travelers and their property from the Fourth Amendment warrant requirement....
.
Roadblock
Roadblock
A roadblock is a temporary installation set up to control or block traffic along a road. The reasons for one could be:*Roadworks*Temporary road closure during special events*Police chase*Robbery*Sobriety checkpoint...
s may be used to capture a particular fleeing criminal or locate a bomb.
Arrest
When a person is arrestArrest
An arrest is the act of depriving a person of his or her liberty usually in relation to the purported investigation and prevention of crime and presenting into the criminal justice system or harm to oneself or others...
ed and taken into police custody, they have been seized (e.g., a reasonable person who is handcuffed
Handcuffs
Handcuffs are restraint devices designed to secure an individual's wrists close together. They comprise two parts, linked together by a chain, a hinge, or rigid bar. Each half has a rotating arm which engages with a ratchet that prevents it from being opened once closed around a person's wrist...
and placed in the back of a police car
Police car
A police car is a ground vehicle used by police, to assist with their duties in patrolling and responding to incidents. Typical uses of a police car include transportation for officers to reach the scene of an incident quickly, to transport criminal suspects, or to patrol an area, while providing a...
would not think they were free to leave). A person subjected to a routine traffic stop
Traffic stop
A traffic stop, commonly called Being pulled over, is a temporary detention of a driver of a vehicle by police to investigate a possible crime or civil infraction. In constitutional law in the United States, a traffic stop is considered to be a subset of the Terry stop; the standard set by the...
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
Terry stop
In the United States, a Terry stop is a brief detention of a person bypoliceon reasonable suspicion of involvement in criminal activity but short of probable cause to arrest.The name derives from Terry v. Ohio, 392 U.S...
than to a formal arrest. 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. 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.
Arrest by a citizen
The Fourth Amendment does not apply to a seizure or an arrest by private citizensPrivate sector
In economics, the private sector is that part of the economy, sometimes referred to as the citizen sector, which is run by private individuals or groups, usually as a means of enterprise for profit, and is not controlled by the state...
. However, many states
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
have passed
Promulgation
Promulgation is the act of formally proclaiming or declaring a new statutory or administrative law after its enactment. In some jurisdictions this additional step is necessary before the law can take effect....
law
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
s 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
Misdemeanor
A misdemeanor is a "lesser" criminal act in many common law legal systems. Misdemeanors are generally punished much less severely than felonies, but theoretically more so than administrative infractions and regulatory offences...
amounting to a public nuisance
Public nuisance
In English criminal law, public nuisance is a class of common law offence in which the injury, loss or damage is suffered by the local community as a whole rather than by individual victims.-Discussion:...
is being committed; or (2) a felony
Felony
A felony is a serious crime in the common law countries. The term originates from English common law where felonies were originally crimes which involved the confiscation of a convicted person's land and goods; other crimes were called misdemeanors...
has been committed, and the arresting citizen has reasonable cause to believe that the person arrested committed it.
Warrant
Under the Fourth Amendment, law enforcementPolice
The police is a personification of the state designated to put in practice the enforced law, protect property and reduce civil disorder in civilian matters. Their powers include the legitimized use of force...
must receive written permission from a court of law
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
, or otherwise qualified magistrate
Magistrate
A magistrate is an officer of the state; in modern usage the term usually refers to a judge or prosecutor. This was not always the case; in ancient Rome, a magistratus was one of the highest government officers and possessed both judicial and executive powers. Today, in common law systems, a...
, to lawfully search and seize evidence
Evidence (law)
The law of evidence encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence can be considered by the trier of fact in reaching its decision and, sometimes, the weight that may be given to that evidence...
while investigating criminal activity
Crime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...
. A court grants permission by issuing a writ
Writ
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...
known as a warrant
Warrant (law)
Most often, the term warrant refers to a specific type of authorization; a writ issued by a competent officer, usually a judge or magistrate, which permits an otherwise illegal act that would violate individual rights and affords the person executing the writ protection from damages if the act is...
. A search or seizure is generally unreasonable and unconstitutional, if conducted without a valid warrant, and the police must obtain a warrant whenever practicable. 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.
Probable cause
When police conduct a search, the amendment requires that the warrant establishes probable causeProbable cause
In United States criminal law, probable cause is the standard by which an officer or agent of the law has the grounds to make an arrest, to conduct a personal or property search, or to obtain a warrant for arrest, etc. when criminal charges are being considered. It is also used to refer to the...
to believe that the search will uncover criminal activity or contraband
Contraband
The word contraband, reported in English since 1529, from Medieval French contrebande "a smuggling," denotes any item which, relating to its nature, is illegal to be possessed or sold....
. They must have legally sufficient reasons to believe a search is necessary. In Carroll v. United States
Carroll v. United States
Carroll v. United States, 267 U.S. 132 , was a decision by the United States Supreme Court which upheld that the warrantless search of an automobile is known as the automobile exception...
, , 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, , 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 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, non-technical" probability that incriminating evidence is involved is all that is required. In Illinois v. Gates
Illinois v. Gates
Illinois v. Gates, , is a Fourth Amendment case. Gates overruled Aguilar v. Texas, and Spinelli v. United States, , thereby replacing the Aguilar–Spinelli test for probable cause with the "totality of the circumstances" test....
, , 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
Misdemeanor
A misdemeanor is a "lesser" criminal act in many common law legal systems. Misdemeanors are generally punished much less severely than felonies, but theoretically more so than administrative infractions and regulatory offences...
in the officer's presence or if the officer had probable cause to believe that the individual committed a felony
Felony
A felony is a serious crime in the common law countries. The term originates from English common law where felonies were originally crimes which involved the confiscation of a convicted person's land and goods; other crimes were called misdemeanors...
. 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.
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. Probable cause to arrest must exist before the arrest is made. Evidence obtained after the arrest may not apply retroactively to justify the arrest.
Exclusionary rule
One way courts enforce the Fourth Amendment is through the use of the exclusionary rule. The rule provides that evidenceEvidence (law)
The law of evidence encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence can be considered by the trier of fact in reaching its decision and, sometimes, the weight that may be given to that evidence...
obtained through a violation of the Fourth Amendment is generally not admissible
Admissible evidence
Admissible evidence, in a court of law, is any testimonial, documentary, or tangible evidence that may be introduced to a factfinder—usually a judge or jury—in order to establish or to bolster a point put forth by a party to the proceeding...
by the prosecution
Prosecutor
The prosecutor is the chief legal representative of the prosecution in countries with either the common law adversarial system, or the civil law inquisitorial system...
during the defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
's criminal trial.
The Court adopted the exclusionary rule
Exclusionary rule
The exclusionary rule is a legal principle in the United States, under constitutional law, which holds that evidence collected or analyzed in violation of the defendant's constitutional rights is sometimes inadmissible for a criminal prosecution in a court of law...
in Weeks v. United States
Weeks v. United States
In Weeks v. United States, 232 U.S. 383 , the United States Supreme Court unanimously held that the warrantless seizure of items from a private residence constitutes a violation of the Fourth Amendment...
, , prior to which all evidence, no matter how seized, could be admitted in court. Additionally, in Silverthorne Lumber Co. v. United States
Silverthorne Lumber Co. v. United States
Silverthorne Lumber Co. v. United States, , was a U.S. Supreme Court Case in which Silverthorne attempted to evade paying taxes. Federal agents illegally seized tax books from Silverthorne and created copies of the records. The issue in this case is whether or not derivatives of illegal evidence...
, and Nardone v. United States, , the Court ruled that tips resulting from illegally obtained evidence are also inadmissible in trials as "fruit of the poisonous tree
Fruit of the poisonous tree
Fruit of the poisonous tree is a legal metaphor in the United States used to describe evidence that is obtained illegally. The logic of the terminology is that if the source of the evidence is tainted, then anything gained from it is as well.Such evidence is not generally admissible in court...
". The rule serves primarily to deter police officer
Police officer
A police officer is a warranted employee of a police force...
s from willfully violating a suspect's Fourth Amendment rights. The rationale behind the exclusionary rule is that if the police
Police
The police is a personification of the state designated to put in practice the enforced law, protect property and reduce civil disorder in civilian matters. Their powers include the legitimized use of force...
know evidence obtained in violation of the Fourth Amendment cannot be used to convict
Conviction
In law, a conviction is the verdict that results when a court of law finds a defendant guilty of a crime.The opposite of a conviction is an acquittal . In Scotland and in the Netherlands, there can also be a verdict of "not proven", which counts as an acquittal...
someone of a crime
Crime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...
, they will not violate it. In Wolf v. Colorado
Wolf v. Colorado
Wolf v. Colorado, 338 U.S. 25 was a United States Supreme Court case in which the Court held 6-3 that the Fourth Amendment was applicable to the States through the Due Process Clause of the Fourteenth Amendment, however, the exclusionary rule was not. The Court specified no redressive measures...
, , the Court rejected incorporation of the exclusionary rule by way of the Fourteenth Amendment. Later, in Mapp v. Ohio
Mapp v. Ohio
Mapp v. Ohio, , was a landmark case in criminal procedure, in which the United States Supreme Court decided that evidence obtained in violation of the Fourth Amendment, which protects against "unreasonable searches and seizures," may not be used in criminal prosecutions in state courts, as well as...
, , the Court explicitly overruled Wolf and made the Fourth Amendment (including the exclusionary rule) applicable in state proceedings as an essential part of criminal procedure
Criminal procedure
Criminal procedure refers to the legal process for adjudicating claims that someone has violated criminal law.-Basic rights:Currently, in many countries with a democratic system and the rule of law, criminal procedure puts the burden of proof on the prosecution – that is, it is up to the...
.
Limitations
In United States v. Calandra, , the Supreme Court ruled that grand juriesGrand jury
A grand jury is a type of jury that determines whether a criminal indictment will issue. Currently, only the United States retains grand juries, although some other common law jurisdictions formerly employed them, and most other jurisdictions employ some other type of preliminary hearing...
may use allegedly illegally obtained evidence in questioning witnesses because "the damage to that institution from the unprecedented extension of the exclusionary rule outweighs the benefit of any possible incremental deterrent effect." The issue of illegality of search should be adjudged in a subsequent proceeding, after the defendant has been indicted. In United States v. Leon
United States v. Leon
United States v. Leon, 468 U.S. 897 , was a search and seizure case in which the Supreme Court of the United States created the "good faith" exception to the exclusionary rule.-Background:...
, , the Supreme Court, applying the "good faith" rule, held that evidence seized by officers relying in good faith on a warrant was still admissible, even though the warrant was later found to be defective. Evidence would be excluded, however, if officer dishonestly or recklessly prepared an affidavit to seek a warrant, the issuing magistrate abandoned his neutrality, or the warrant lacked sufficient particularity.
The Leon case applies only to search warrants. The Supreme Court held in Arizona v. Evans
Arizona v. Evans
Arizona v. Evans, , instituted an exclusionary rule exception allowing evidence obtained through a warrant-less search to be valid when a police record erroneously indicates the existence of an outstanding warrant due to negligent conduct of a Clerk of Court.-Background:On December 13, 1990, a...
, and Herring v. United States
Herring v. United States
Herring v. United States, 555 U.S. 135 , was a case decided by the Supreme Court of the United States on January 14, 2009. The court, decided that the good-faith exception to the exclusionary rule applies when a police officer makes an arrest based on an outstanding warrant in another jurisdiction,...
(2009), that the exclusionary rule does not apply to evidence found due to negligence regarding a government database, as long as the arresting police officer relied on that database in "good faith" and that the negligence was not pervasive. To what extent the "good faith" exception applies to warrantless seizures in other contexts remains unclear.
The rule has been held not to apply in the following circumstances:
- probation or parole revocation hearings; tax hearings;
- deportation hearings;
- military discharge proceedings;child protective proceedings;
- sentencing hearings;
- evidence seized from a common carrier;
- evidence collected by U.S. Customs agents;
- evidence seized by probation or parole officers;
- evidence seized outside the United States;
- evidence illegally seized by a "private actor" (i.e., not a governmental employee); and
- illegally seized evidence used to impeach the defendant's testimony.
Under Rakas v. Illinois
Rakas v. Illinois
Rakas v. Illinois, , was a decision by the United States Supreme Court, in which The Court held that the "legitimately on the property" requirement of Jones v. United States, for challenging the legality of a police search, was too broad...
, , a defendant has standing
Standing (law)
In law, standing or locus standi is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case...
to object to the admission of unconstitutionally seized evidence only if such seizure violated that defendant's Fourth Amendment rights. In other words, a defendant may not assert another person's rights.
In Rakas, the Court ruled that a passenger in a car which he does not own has standing to contest the stop of the car and a search of *his* person, but he usually lacks standing to contest a search of the car. He would have standing to challenge the search of the car, if he is the owner of that car. However, that rule was modified by Brendlin v. California
Brendlin v. California
Brendlin v. California, 551 U.S. 249 , was a decision by the Supreme Court of the United States that held that all occupants of a car are "seized" for purposes of the Fourth Amendment during a traffic stop, not just the driver.-Facts:...
, , in which the Court ruled that all occupants of a car are "seized" for purposes of the Fourth Amendment during a traffic stop, not just the driver. Therefore, a passenger in a vehicle subject to a traffic stop is thereby "detained" for purposes of the Fourth Amendment, thus allowing the passenger to contest the legality of the traffic stop.
In Segura v. United States, , the Supreme court ruled that evidence illegally found without a search warrant is admissible if the evidence is later found and legally seized based on information independent of the illegal search.
In Nix v. Williams, , the Supreme Court ruled that evidence illegally seized without a search warrant is admissible if the prosecution can prove the evidence would have been found and seized by legal means not based on evidence or information illegally seized.
In Davis v. United States
Davis v. United States (2011)
Davis v. United States, No. 09-11328 , was a case in which the Supreme Court of the United States held that searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule....
, 131 S.Ct. 2419 (2011), the Supreme Court ruled the exclusionary rule to be inapplicable when the Fourth Amendment violation was the result of reasonable reliance on binding appellate precedent.
Exceptions to the warrant requirement
Courts have developed a number of exceptions to the warrant requirement:Consent
If a partyParty (law)
A party is a person or group of persons that compose a single entity which can be identified as one for the purposes of the law. Parties include: plaintiff , defendant , petitioner , respondent , cross-complainant A party is a person or group of persons that compose a single entity which can be...
gives consent to a search, a warrant is not required, even if the party is unaware of their right to refuse to cooperate. There are exceptions and complications to the rule, including the scope of the consent given, whether the consent is voluntarily given, and whether an individual has the right to consent to a search of another's property.
Plain view
If an officer is lawfully present, he may seize objects that are in "plain view". However, the officer must have had probable cause to believe that the objects are contraband.Open fields
Similarly, "open fields" such as pastures, open water, and woods may be searched without a warrant, on the ground that conduct occurring therein would have no reasonable expectation of privacy.The doctrine was first articulated by the Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
in Hester v. United States
Hester v. United States
Hester v. United States, 265 U.S. 57 , was a decision by the United States Supreme Court, which established the open fields doctrine. In an opinion written by Justice Oliver Wendell Holmes, the court held that "the special protection accorded by the Fourth Amendment to the people in their 'persons,...
, , which stated that “the special protection accorded by the Fourth Amendment to the people in their ‘persons, houses, papers, and effects,’ is not extended to the open fields." The decision was rendered on the ground that "open fields are not a 'constitutionally protected area' because they cannot be construed as "persons, houses, papers, [or] effects.
In Oliver v. United States
Oliver v. United States
Oliver v. United States, 466 U.S. 170 , is a United States Supreme Court decision relating to the open fields doctrine limiting the Fourth Amendment to the United States Constitution....
, , the police ignored a "no trespassing" sign and a fence, trespassed onto the suspect's land without a warrant, followed a path for hundreds of feet, and discovered a field of marijuana. The Supreme Court ruled that no search had taken place, because there was no privacy expectation regarding an open field:
Curtilage
While open fields are not protected by the Fourth Amendment, the curtilageCurtilage
The curtilage is an important legal term to define the land immediately surrounding a house or dwelling, including any closely associated buildings and structures, but excluding any associated 'open fields beyond'. It defines the boundary within which a home owner can have a reasonable expectation...
, or outdoor area immediately surrounding the home, is protected. Courts have treated this area as an extension of the house and as such subject to all the privacy protections afforded a person’s home (unlike a person's open fields) under the Fourth Amendment. However, courts have held aerial surveillance of curtilage not to be included in the protections from unwarranted search so long as the airspace above the curtilage is generally accessible by the public.
An area is curtilage if it "harbors the intimate activity associated with the sanctity of a man's home and the privacies of life." Courts make this determination by examining "whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by." Theoretically, many structures might extend the curtilage protection to the areas immediately surrounding them. The courts have gone so far as to treat a tent as a home for Fourth Amendment purposes in the past. It is possible that the area immediately surrounding a tent (or any structure used as a home) might be considered curtilage.
Despite this broad interpretation, the courts seem willing to find areas to be outside of the curtilage if they are in any way separate from the home (by a fence, great distance, other structures, even certain plants).
Exigent circumstance
There are also "exigent circumstances" exceptions to the warrant requirement. Exigent circumstances arise when the law enforcement officers have reasonable grounds to believe that there is an immediate need to protect their lives, the lives of others, their property, or that of others, the search is not motivated by an intent to arrest and seize evidence, and there is some reasonable basis, to associate an emergency with the area or place to be searched.Motor vehicle
The Supreme Court also held that individuals in automobiles have a reduced expectation of privacy, because vehicles generally do not serve as residences or repositories of personal effects. Vehicles may not be randomly stopped and searched; there must be probable cause or reasonable suspicion of criminal activity. Items in "plain viewPlain view doctrine
The plain view doctrine allows an officer to seize--without a warrant--evidence and contraband found in plain view during a lawful observation. This doctrine is also regularly used by TSA Federal Government Officers while screening persons and property at U.S...
" may be seized; areas that could potentially hide weapons may also be searched. With probable cause, police officers may search any area in the vehicle. However, they may not extend the search to the vehicle's passengers without probable cause to search those passengers or consent from the passenger(s) to search their persons or effects.
In Arizona v. Gant
Arizona v. Gant
Arizona v. Gant, 556 U.S. 332 , was a United States Supreme Court decision which held that the Fourth Amendment to the United States Constitution requires law enforcement officers to demonstrate an actual and continuing threat to their safety posed by an arrestee, or a need to preserve evidence...
, 556 U.S. ___ (2009), the Supreme Court ruled that a law enforcement officer needs a warrant before searching a motor vehicle after an arrest of an occupant of that vehicle, unless at the time of the search the person being arrested is unsecured and within reaching distance of the passenger compartment of the vehicle or police officers have reason to believe that the evidence for the crime for which the person is being arrested will be found in the vehicle.
Searches incident to a lawful arrest
Another common lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
rule—that permitting searches incident to an arrest without warrant—has been applied in American law. The rule permitting searches incident to a lawful arrest has a lengthy common law history. The justification for such a search is to prevent the arrested individual from destroying evidence or using a weapon against the arresting officer. In Trupiano v. United States, , the Supreme Court held that "a search or seizure without a warrant as an incident to a lawful arrest has always been considered to be a strictly limited right. It grows out of the inherent necessities of the situation at the time of the arrest. But there must be something more in the way of necessity than merely a lawful arrest." In United States v. Rabinowitz, , the Court reversed its previous ruling, holding that the officers' opportunity to obtain a warrant was not germane to the reasonableness of a search incident to an arrest. The decision suggested that any area within the "immediate control" of the arrestee could be searched, but it did not define the term. In deciding Chimel v. California
Chimel v. California
Chimel v. California, 395 U.S. 752 , is a Supreme Court of the United States case handed down in 1969. In the case, the Court held that police officers arresting a person in their home could not search the entire home without a search warrant, although they can search the area within immediate...
, , the Supreme Court elucidated its previous decisions. It held that when an arrest is made, it is reasonable for the officer to search the arrestee for weapons and evidence.
Similarly, it was held that it is reasonable for the officer to search the area within the arrestee's immediate control, which is the area from which the defendant may gain access to a weapon or evidence. A warrentless search of the room in which the arrest is made is therefore permissible. However, other rooms may not be searched absent a search warrant or other exigent circumstances, as the arrestee would be unlikely to access weapons or evidence in those rooms at the time of arrest.
Border search exception
Searches conducted at the United States border or the equivalent of the border (such as an international airport) may be conducted without a warrant or probable cause subject to the "border-search" exception. Most border searches may be conducted entirely at random, without any level of suspicion, pursuant to U.S. Customs and Border ProtectionU.S. Customs and Border Protection
U.S. Customs and Border Protection is a federal law enforcement agency of the United States Department of Homeland Security charged with regulating and facilitating international trade, collecting import duties, and enforcing U.S. regulations, including trade, customs and immigration. CBP is the...
plenary search authority. However, searches that intrude upon a traveler's personal dignity and privacy interests, such as strip and body cavity searches, must be supported by "reasonable suspicion." The U.S. Courts of Appeals
United States courts of appeals
The United States courts of appeals are the intermediate appellate courts of the United States federal court system...
for the Fourth
United States Court of Appeals for the Fourth Circuit
The United States Court of Appeals for the Fourth Circuit is a federal court located in Richmond, Virginia, with appellate jurisdiction over the district courts in the following districts:*District of Maryland*Eastern District of North Carolina...
and Ninth
United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
circuits have ruled that information on a traveler's electronic materials, including personal files on a laptop computer, may be searched at random, without suspicion.
Other exceptions
In New Jersey v. T. L. O.New Jersey v. T. L. O.
New Jersey v. T.L.O., 469 U.S. 325 is a decision by the Supreme Court of the United States addressing the constitutionality of a search of a public high school student for contraband after she was caught smoking. A subsequent search of her purse revealed drug paraphernalia, marijuana, and...
, , the Supreme Court ruled that searches in public schools
Public education
State schools, also known in the United States and Canada as public schools,In much of the Commonwealth, including Australia, New Zealand, South Africa, and the United Kingdom, the terms 'public education', 'public school' and 'independent school' are used for private schools, that is, schools...
do not require warrants, as long as the searching officers have reasonable grounds for believing that the search will result in the finding of evidence of illegal activity. However, in Safford Unified School District v. Redding
Safford Unified School District v. Redding
Safford Unified School District v. Redding, 557 U.S. __ , was a case decided by the Supreme Court of the United States. It held that a strip search of a middle schooler violated the Fourth Amendment where the school lacked reasons to suspect either that the drugs presented a danger or that they...
, 557 U.S. __ (2009), the Court ruled that school officials violated the Fourth Amendment when they strip search
Strip search
A strip search is the stripping of a person to check for weapons or other contraband.-Legality of strip searches:...
ed a 13 year old girl based only on a student claiming to have received drugs from that student.
Similarly, in Samson v. California
Samson v. California
Samson v. California, 547 U.S. 843 , was a case in which the Supreme Court of the United States affirmed the decision of the California Court of Appeal; which held that suspicionless searches of parolees are lawful under California law and that the search in this case was reasonable under the...
, , the Court ruled that government offices may be searched for evidence of work-related misconduct by government employees on similar grounds. Searches of prison cells are subject to no restraints relating to reasonableness or probable cause or searches undertaken as a condition of parole.
In a memo
Authority for Use of Military Force to Combat Terrorist Activities Within the United States
"Authority for Use of Military Force to Combat Terrorist Activities Within the United States" is the name of a 37-page classified United States Department of Justice memorandum dated March 13, 2003. Its existence is known because it was referred to in another Department of Justice memo...
dated March 14, 2003, an official in the Bush administration stated "... our Office recently concluded that the Fourth Amendment had no application to domestic military operations". The administration believed that any search or surveillance conducted by the National Security Agency
National Security Agency
The National Security Agency/Central Security Service is a cryptologic intelligence agency of the United States Department of Defense responsible for the collection and analysis of foreign communications and foreign signals intelligence, as well as protecting U.S...
of US citizens communicating with foreign national
Foreign national
Foreign national is a term used to describe a person who is not a citizen of the host country in which he or she is residing or temporarily sojourning. In Canada, a foreign national is defined as someone who is not a Canadian citizen nor a permanent resident of Canada...
s abroad was immune to a Fourth Amendment challenge.
To protect the telecommunication
Telecommunication
Telecommunication is the transmission of information over significant distances to communicate. In earlier times, telecommunications involved the use of visual signals, such as beacons, smoke signals, semaphore telegraphs, signal flags, and optical heliographs, or audio messages via coded...
carriers cooperating with the US government from legal action, the Congress passed a bill updating the Foreign Intelligence Surveillance Act of 1978 to permit this type of surveillance.
In August 2008, the Foreign Intelligence Surveillance Court of Review ruled that the President and the Congress had the authority to wiretap international phone calls and intercept e-mail messages without a specific court order.
The Supreme Court has not ruled on post-9/11 airport security procedures, but the Ninth Circuit
United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
ruled in United States. v. Aukai that "airport screening searches, like the one at issue here, are constitutionally reasonable administrative searches because they are conducted as part of a general regulatory scheme in furtherance of an administrative purpose, namely, to prevent the carrying of weapons or explosives aboard aircraft, and thereby to prevent hijackings."
Computers and privacy
Over the last decade, courts adjudicated whether the government can access evidence of illegal activity stored on digital technology without violating the Fourth Amendment.Many cases discuss whether incriminating evidence stored by an employee in workplace computers is protected under the reasonable expectation of privacy. In a majority of cases, employees do not have a reasonable expectation of privacy for electronic communications
Telecommunication
Telecommunication is the transmission of information over significant distances to communicate. In earlier times, telecommunications involved the use of visual signals, such as beacons, smoke signals, semaphore telegraphs, signal flags, and optical heliographs, or audio messages via coded...
at work. However, one federal court held that employees can assert the attorney-client privilege with respect to certain communications on company laptops.
On January 30, 2007, the United States Court of Appeals for the Ninth Circuit
United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
in United States v. Ziegler, reversed its earlier August 2006 decision upon a petition for rehearing. In contrast to the earlier decision, the Court acknowledged that an employee has a right to privacy in his workplace computer. The court also found that an employer can consent to searches and seizures that would otherwise be illegal.
In Ziegler, an employee had viewed at work websites of child pornography
Child pornography
Child pornography refers to images or films and, in some cases, writings depicting sexually explicit activities involving a child...
. His employer noticed the conduct, made copies of the hard drive, and gave the FBI
Federal Bureau of Investigation
The Federal Bureau of Investigation is an agency of the United States Department of Justice that serves as both a federal criminal investigative body and an internal intelligence agency . The FBI has investigative jurisdiction over violations of more than 200 categories of federal crime...
the employee's computer. At his criminal trial, Ziegler filed a motion to suppress
Motion to suppress
In common law legal systems, a motion to suppress is a formal, written request to a judge for an order that certain evidence be excluded from consideration by the judge or jury at trial...
the evidence on the ground that the government violated the Fourth Amendment rights. The Ninth Circuit allowed the lower court to admit the evidence. After reviewing the relevant Supreme Court opinions on a reasonable expectation of privacy, the court acknowledged that Ziegler had a reasonable expectation of privacy at his office and on his computer. However, the court found that the employer could consent to a government search of the computer without infringing on the Ziegler's Fourth Amendment rights.
On March 11, 2010, the United States Court of Appeals for the Eleventh Circuit
United States Court of Appeals for the Eleventh Circuit
The United States Court of Appeals for the Eleventh Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Middle District of Alabama...
ruled, in Rehberg v. Paulk, , that a person does not have a reasonable expectation of privacy
Expectation of privacy
In United States constitutional law the expectation of privacy is a legal test which is crucial in defining the scope of the applicability of the privacy protections of the Fourth Amendment to the United States Constitution...
in an e-mail once any copy of the communication is delivered to a third party.
On December 14, 2010, in United States v. Warshak
United States v. Warshak
United States v. Warshak is a criminal case decided by the United States Court of Appeals for the Sixth Circuit holding that government agents violated the defendant's Fourth Amendment rights by compelling his Internet Service Provider to turn over his emails without first obtaining a search...
, the United States Court of Appeals for the Sixth Circuit
United States Court of Appeals for the Sixth Circuit
The United States Court of Appeals for the Sixth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Eastern District of Kentucky* Western District of Kentucky...
ruled that a person has a reasonable expectation of privacy in his emails and that the government violated Warshak's Fourth Amendment rights by compelling his internet service provider
Internet service provider
An Internet service provider is a company that provides access to the Internet. Access ISPs directly connect customers to the Internet using copper wires, wireless or fiber-optic connections. Hosting ISPs lease server space for smaller businesses and host other people servers...
to turn over his emails without first obtaining a warrant based upon probable cause
Probable cause
In United States criminal law, probable cause is the standard by which an officer or agent of the law has the grounds to make an arrest, to conduct a personal or property search, or to obtain a warrant for arrest, etc. when criminal charges are being considered. It is also used to refer to the...
.
On January 3, 2011, in The People v. Gregory Diaz, the Supreme Court of California
Supreme Court of California
The Supreme Court of California is the highest state court in California. It is headquartered in San Francisco and regularly holds sessions in Los Angeles and Sacramento. Its decisions are binding on all other California state courts.-Composition:...
ruled for allowing warrantless search by the police of suspects' cell phones at the time of the arrest, on the grounds of preventing destruction of evidence such as text messages:
Exclusionary Rule
- Weeks v. United StatesWeeks v. United StatesIn Weeks v. United States, 232 U.S. 383 , the United States Supreme Court unanimously held that the warrantless seizure of items from a private residence constitutes a violation of the Fourth Amendment...
(1914) - Mapp v. OhioMapp v. OhioMapp v. Ohio, , was a landmark case in criminal procedure, in which the United States Supreme Court decided that evidence obtained in violation of the Fourth Amendment, which protects against "unreasonable searches and seizures," may not be used in criminal prosecutions in state courts, as well as...
(1961) - United States v. LeonUnited States v. LeonUnited States v. Leon, 468 U.S. 897 , was a search and seizure case in which the Supreme Court of the United States created the "good faith" exception to the exclusionary rule.-Background:...
(1984) - Herring v. United StatesHerring v. United StatesHerring v. United States, 555 U.S. 135 , was a case decided by the Supreme Court of the United States on January 14, 2009. The court, decided that the good-faith exception to the exclusionary rule applies when a police officer makes an arrest based on an outstanding warrant in another jurisdiction,...
(2009)
Privacy
- Katz v. United StatesKatz v. United StatesKatz v. United States, , is a United States Supreme Court case discussing the nature of the "right to privacy" and the legal definition of a "search." The Court’s ruling adjusted previous interpretations of the unreasonable search and seizure clause of the Fourth Amendment to count immaterial...
(1967) - Zurcher v. Stanford DailyZurcher v. Stanford DailyZurcher v. Stanford Daily 436 U.S. 547 is a United States Supreme Court case from 1978 in which The Stanford Daily, a student newspaper at Stanford University, was searched by police after they suspected the paper to be in possession of photographs of a demonstration that took place at the campus'...
(1978) - United States v. KaroUnited States v. KaroUnited States v. Karo, 468 U.S. 705 , was a United States Supreme Court decision related to the Fourth Amendment protection from unreasonable search and seizure. It held that use of an electronic beeper device to monitor a can of ether without a warrant constituted an unlawful search...
(1984) - California v. GreenwoodCalifornia v. GreenwoodCalifornia v. Greenwood, 486 U.S. 35 , was a case in which the Supreme Court of the United States held that the Fourth Amendment does not prohibit the warrantless search and seizure of garbage left for collection outside the curtilage of a home....
(1988) - Florida v. RileyFlorida v. RileyFlorida v. Riley, 488 U.S. 445 , was a United States Supreme Court decision which held that police officials do not need a warrant to observe an individual's property from public airspace.-Facts:...
(1989) - Kyllo v. United StatesKyllo v. United StatesKyllo v. United States, , held that the use of a thermal imaging device from a public vantage point to monitor the radiation of heat from a person's home was a "search" within the meaning of the Fourth Amendment, and thus required a warrant...
(2001) - United States v. WhiteUnited States v. WhiteUnited States v. White, 401 U.S. 745 , was a United States Supreme Court decision which held that recording conversations using concealed radio transmitters worn by informants does not violate the Fourth Amendment protection against unreasonable searches and seizures, and thus does not require a...
(2003) - Hepting v. AT&THepting v. AT&THepting v. AT&T is a United States class action lawsuit filed in January 2006 by the Electronic Frontier Foundation against the telecommunications company AT&T, in which the EFF alleges that AT&T permitted and assisted the National Security Agency in unlawfully monitoring the communications of...
(2006) - Hudson v. MichiganHudson v. MichiganHudson v. Michigan, 547 U. S. 586 , is a decision of the United States Supreme Court holding that a violation of the Fourth Amendment requirement that police officers knock, announce their presence, and wait a reasonable amount of time before entering a private residence does not require...
(2006)
Search warrants
- Franks v. DelawareFranks v. DelawareFranks v. Delaware, , is a United States Supreme Court case dealing with defendants' rights to challenge evidence collected on the basis of a warrant granted on the basis of a false statement...
(1979) - Maryland v. GarrisonMaryland v. GarrisonMaryland v. Garrison, , is a United States Supreme Court case dealing with the Fourth Amendment of the United States Constitution and the extent of discretion given to police officers acting in good faith...
(1987) - Richards v. Wisconsin (1997)
- Groh v. Ramirez (2004)
Arrest and search of a person without a warrant
- United States v. RobinsonUnited States v. RobinsonUnited States v. Robinson, 414 U.S. 218 , was a case in which the United States Supreme Court held that "in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the 4th Amendment, but is also a reasonable search under that...
(1973) - Torres v. Puerto RicoTorres v. Puerto RicoTorres v. Puerto Rico, , was a United States Supreme Court case holding that the Fourth Amendment guarantee against unreasonable search and seizure applies to Puerto Rico.-Facts:...
(1979) - Tennessee v. GarnerTennessee v. GarnerTennessee v. Garner, 471 U.S. 1 , was a case in which the Supreme Court of the United States held that under the Fourth Amendment, when a law enforcement officer is pursuing a fleeing suspect, he or she may use deadly force only to prevent escape if the officer has probable cause to believe that...
(1985) - California v. Hodari D. (1991)
- Whren v. United StatesWhren v. United StatesWhren v. United States, 517 U.S. 806 , was a United States Supreme Court decision which "declared that any traffic offense committed by a driver was a legitimate legal basis for a stop."...
(1996) - Atwater v. City of Lago VistaAtwater v. City of Lago VistaAtwater v. Lago Vista, , was a United States Supreme Court decision which held that a person's Fourth Amendment rights are not violated when the subject is arrested for driving without a seatbelt...
(2001) - Scott v. HarrisScott v. HarrisScott v. Harris, 550 U.S. 372 was a decision by the United States Supreme Court involving a lawsuit against a sheriff's deputy brought by a motorist who was paralyzed after the officer ran his eluding vehicle off the road during a high-speed car chase. The driver contended that this action was an...
(2007)
Search of and seizure from a residence without a warrant
- Chimel v. CaliforniaChimel v. CaliforniaChimel v. California, 395 U.S. 752 , is a Supreme Court of the United States case handed down in 1969. In the case, the Court held that police officers arresting a person in their home could not search the entire home without a search warrant, although they can search the area within immediate...
(1969) - Vale v. Louisiana (1970)
- Payton v. New York (1980)
- Steagald v. United States (1981)
- Illinois v. McArthurIllinois v. McArthurIllinois v. McArthur, , was a United States Supreme Court case decided in 2001. The case concerned the extent of the government’s power to limit an individual’s possessory interest in his or her home pending the arrival of a search warrant....
(2001) - Georgia v. RandolphGeorgia v. RandolphGeorgia v. Randolph, 547 U.S. 103 , is a case wherein the U.S. Supreme Court held that without a search warrant, police had no constitutional right to search a house where one resident consents to the search while another resident objects. The Court distinguished this case from the "co-occupant...
(2006) - Barnes v. Indiana (2011)
Search and seizure of vehicles and containers without a warrant
- Carroll v. United StatesCarroll v. United StatesCarroll v. United States, 267 U.S. 132 , was a decision by the United States Supreme Court which upheld that the warrantless search of an automobile is known as the automobile exception...
(1925) - South Dakota v. OppermanSouth Dakota v. OppermanSouth Dakota v. Opperman, , elaborated on the community caretaking doctrine. Under the Fourth Amendment, "unreasonable" searches and seizures are forbidden...
(1976) - United States v. ChadwickUnited States v. ChadwickUnited States v. Chadwick, 433 U.S. 1 , was a decision by the United States Supreme Court, which held that, absent exigency, the warrantless search of double-locked luggage just placed in the trunk of a parked vehicle is a violation of the Fourth Amendment and not justified under the automobile...
(1977) - New York v. BeltonNew York v. BeltonIn New York v. Belton, 453 U.S. 454 , the United States Supreme Court held that when a police officer has made a lawful custodial arrest of the occupant of an automobile, the officer may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile...
(1981) - United States v. RossUnited States v. RossUnited States v. Ross, 456 U.S. 798 , was a search and seizure case argued before the Supreme Court of the United States. The high court was asked to decide if a legal warrantless search of an automobile allows closed containers found in the vehicle to be searched as well...
(1982) - California v. CarneyCalifornia v. CarneyIn California v. Carney , the United States Supreme Court held that a motor home was subject to the automobile exception to the warrant requirement because it was readily movable.-Background:...
(1985) - Colorado v. Bertine (1987)
- California v. AcevedoCalifornia v. AcevedoCalifornia v. Acevedo, 500 U.S. 565 , was a decision made by the United States Supreme Court, which interpreted the Carroll doctrine to provide one rule to govern all automobile searches...
(1991) - Knowles v. IowaKnowles v. IowaKnowles v. Iowa, 525 U.S. 113 , was a decision by the United States Supreme Court which ruled that the Fourth Amendment prohibits a police officer from further searching a vehicle which was stopped for a minor traffic offense once the officer has written a citation for the offense.-Case:Patrick...
(1998) - Wyoming v. HoughtonWyoming v. HoughtonWyoming v. Houghton, 526 U.S. 295 , was a decision by the United States Supreme Court, which held that, absent exigency, the warrantless search of a passenger's container capable of holding the object of a search for which there is probable cause is a violation of the Fourth Amendment, but...
(1999) - Thornton v. United StatesThornton v. United StatesThornton v. United States, 541 U.S. 615 , was a decision by the United States Supreme Court, which held that when a police officer makes a lawful custodial arrest of an automobile's occupant, the Fourth Amendment to the United States Constitution allows the officer to search the vehicle's passenger...
(2004) - Brendlin v. CaliforniaBrendlin v. CaliforniaBrendlin v. California, 551 U.S. 249 , was a decision by the Supreme Court of the United States that held that all occupants of a car are "seized" for purposes of the Fourth Amendment during a traffic stop, not just the driver.-Facts:...
(2007) - Arizona v. GantArizona v. GantArizona v. Gant, 556 U.S. 332 , was a United States Supreme Court decision which held that the Fourth Amendment to the United States Constitution requires law enforcement officers to demonstrate an actual and continuing threat to their safety posed by an arrestee, or a need to preserve evidence...
(2009)
Plain-view & Plain-feel
- Arizona v. HicksArizona v. HicksArizona v. Hicks, , held that the Fourth Amendment requires the police to have probable cause to seize items in plain view.-Facts:On April 18, 1984, a bullet was fired through the floor of Hicks' apartment, striking and injuring a man in the apartment below. The police arrived and entered Hicks'...
(1987) - Horton v. CaliforniaHorton v. CaliforniaHorton v. California, 496 U.S. 128 , was a United States Supreme Court case that developed the plain view doctrine under the Fourth Amendment to the United States Constitution. The Supreme Court had already recognized the doctrine in Coolidge v. New Hampshire and in Arizona v. Hicks , but expanded...
(1990) - Minnesota v. DickersonMinnesota v. DickersonMinnesota v. Dickerson, 508 U.S. 366 , was a 1993 Supreme Court of the United States case. Decided June 7, 1993, the Court unanimously held that, when a police officer who is conducting a lawful patdown search for weapons feels something that plainly is contraband, the object may be seized even...
(1993)
Stop and Frisk
- Terry v. OhioTerry v. OhioTerry v. Ohio, 392 U.S. 1 , was a decision by the United States Supreme Court which held that the Fourth Amendment prohibition on unreasonable searches and seizures is not violated when a police officer stops a suspect on the street and frisks him without probable cause to arrest, if the police...
(1968) - Dunaway v. New York (1979)
- Florida v. Royer (1983)
- Michigan v. LongMichigan v. LongMichigan v. Long, 463 U.S. 1032 , was a decision by the United States Supreme Court that extended Terry v. Ohio, 392 U.S. 1 to allow searches of car compartments during a stop with reasonable suspicion. The case also clarified and narrowed the extent of adequate and independent state ground,...
(1983) - United States v. PlaceUnited States v. PlaceUnited States v. Place, was a decision by the Supreme Court of the United States, which held that a sniff by a police dog specially trained to detect the presence of narcotics is not a "search" under the meaning of the Fourth Amendment to the United States Constitution...
(1983) - Florida v. J.L.Florida v. J.L.Florida v. J.L., 529 U.S. 266 , held that a police officer may not legally stop and frisk anyone based solely on an anonymous tip that simply described that person's location and what he or she might look like but that did not furnish information as to any illegal conduct that the person might be...
(2000) - Illinois v. WardlowIllinois v. WardlowIllinois v. Wardlow, 528 U.S. 119 , is a case decided before the United States Supreme Court involving U.S. criminal procedure regarding searches and seizures.- Facts :...
(2000) - United States v. Drayton (2002)
- Hiibel v. Sixth Judicial District Court of NevadaHiibel v. Sixth Judicial District Court of NevadaHiibel v. Sixth Judicial District Court of Nevada, , held that statutes requiring suspects to identify themselves during police investigations did not violate the Fourth Amendment. Under the rubric of Terry v...
(2004) - Atwater v. Lago Vista (2001)
Border searches
- United States v. Thirty-Seven PhotographsUnited States v. Thirty-seven PhotographsUnited States v. Thirty-seven Photographs, , is a 1971 United States Supreme Court decision in an in rem case on procedures following the seizure of imported obscene material...
(1971) - United States v. Ramsey (1977)
- United States v. Montoya de HernandezUnited States v. Montoya De HernandezUnited States v. Montoya De Hernandez, 473 U.S. 531 , was a case appealed from the Ninth Circuit to the Supreme Court of the United States regarding balloon swallowing....
(1985) - United States v. Flores-MontanoUnited States v. Flores-MontanoIn United States v. Flores-Montano, , the United States Supreme Court held that customs agents may remove the gas tank from a vehicle crossing the international border in an effort to look for contraband.-Facts:...
(2004)
Deportation
- INS v. Delgado (1984)
- INS v. Lopez-Mendoza (1984)
See also
- Section Eight of the Canadian Charter of Rights and FreedomsSection Eight of the Canadian Charter of Rights and FreedomsSection Eight of the Canadian Charter of Rights and Freedoms provides everyone in Canada with protection against unreasonable search and seizure. This Charter right provides Canadians with their primary source of constitutionally enforced privacy rights against unreasonable intrusion from the state...
- Article 8 of the European Convention on Human Rights
- subpoena ad testificandumSubpoena ad testificandumA subpoena ad testificandum is a court summons to appear and give oral testimony for use at a hearing or trial. The use of a writ for purposes of compelling testimony originated in the Ecclesiastical Courts of the High Middle Ages, especially in England...
- subpoena duces tecumSubpoena duces tecumA subpoena duces tecum is a court summons ordering a named party to appear before the court and produce documents or other tangible evidence for use at a hearing or trial....
External links
- CRS Annotated Constitution: Fourth Amendment, Cornell UniversityCornell UniversityCornell University is an Ivy League university located in Ithaca, New York, United States. It is a private land-grant university, receiving annual funding from the State of New York for certain educational missions...
- Summaries of Recent U.S. Criminal Law Decisions