Fourth Amendment

Abstract

This paper will introduce the fourth amendment to The United States Constitution. A reading, definition, and discussion about the fourth amendment will be given. Particular emphasis will be given as to how the fourth amendment affects the average US citizen.

Fourth Amendment

“The poorest man may in his cottage bid defiance to all the force of the crown. It may be frail–its roof may shake—the wind may blow through it–the storm may enter, the rain may enter—but the King of England cannot enter–all his force dares not cross the threshold of the ruined tenement.” (Pitt)[1] When this was said by Sir William Pitt in front of English Parliament in 1763, a war for the rights of the people had already been raging in the English courts for over 100 years. While many new laws and liberties were granted English citizens during the 1600’s and 1700’s, these laws often did not carry across the pond to the colonists of the Americas. During the late 1700’s while British citizens living in England were enjoying their civil liberties, colonists in the Americas were still being persecuted by warrants in the kings name that gave the bearer almost unlimited power to do as he pleased. In the trials which occurred in the name of civil liberty in the American court rooms, a still unfounded country found its future leaders and began to establish its future laws. John Adams later kindly spoke of these trials and talked about it was how at a trial in the Massachusetts colonial legislature where “the spark in which originated the American Revolution” was born. This paper will look at the Fourth Amendment to the US constitution. The fourth amendment will be defined, a look at the history behind the fourth amendment both in the US and England will be given. Relevant case law which has impacted both the use and scope of the fourth amendment will be looked at. Finally a discussion will be given as to where the fourth amendment is today.

Semayne’s Case in 1604 is one of the first English common law cases that dealt specifically with the rights of the citizenry in respect to both the crown and to the King himself (Court Record of King’s Bench)[2]. Nearly one hundred years before the French revolution, the people of England had begun to stand up for their rights. After the end of the middle Ages around the death of Good King Richard in 1485, the people of England had begun to look toward both colonization abroad and industrialization. This change in focus lead to the mass migration of people into towns during the beginning of the industrial revolution and changed England from an agrarian society, to an urban society where people were less spread out in the country. Because of this change and a lack of a police force lawlessness abounded throughout Brittan and the crown did its best through its network of Knights and Sherriff’s to collect taxes from the people while providing little in the way of real services. Changes began in Brittan however that were not seen anywhere else on the continent starting with the Semayne’s Case. In Semayne, the “knock and announce” rule was established in England. (Renee Lettow Lerner)[3] This case was argued in front of the Kings bench in 1604 and was argued because the Sheriff of London, with a valid writ, had entered Semayne’s home by breaking down the doors without even bothering to knock first. This case found that while the Sheriff had both the right and duty to enter the home, before he breaks into a place, he should knock on the door and make a request for the doors to be opened. This knock an announce rule was one of the first victories that the English people enjoyed in the realm of civil liberties, it is interesting to note however that it was not till 1995 and our Supreme Court’s decision in Wilson v. Arkansas that the knock and announce rule became a part of law in the United States.

Nearly one hundred years after the Semayne decision the people of England were still fighting the crown for more civil liberties. Since newspapers were the method for disseminating thought to the masses at the time, the King had his agents look for the publisher of a paper called “The Monitor or British Freeholder” because much like the rebel newspapers in colonial America, this paper was saying things the King of England did not like. (“Entick v Carrington”)[4] Agents of the King “with force and arms” broke into the home of the papers printer, and seized not only research for his newspaper, but his private papers as well. During the search, the Kings agents broke into locked desks and boxes, and seized many printed charts and pamphlets. The rebel newspaper printer named John Entick sought judgment against the kings men and won. The presiding judge of the Entick v Carrington trial ruled in the favor of Entick and said that “the individual may do anything but that which is forbidden by law, yet the state may do nothing but that which is expressly authorized by law.” (Court Record of King’s Bench)[5] In addition the court said that the warrant itself was “contrary to the genius of the law of Enland.” One of the reasons that was given as to why the warrant itself was bad is that it was “not issued on a showing of probable cause and no record was required to be made of what had been seized.”

In the late 1700’s the American colonies were having issues with searches and civil liberties. Most of the problems in the Americas came from illegal smuggling by the colonists to avoid taxation. In order to get their taxes, English authorities made use of writs of assistance. (Pitt) These writs were general warrants which authorized the bearer to enter any house or other private place in search for and to seize “prohibited and uncustomed goods.” These writs were issued in the name of The King of England and once issued were good for the life of the issuing king plus six months after his death. In 1760 King George II died and the authorities who had been using his writs to search and seize smuggled goods in the colonies were required to obtain new writs within six months of his death. An American colonist and merchant named James Otis, led the call to protest the issuing of new writs and asserted that any such writ would be invalid because they conflicted with English law. (“US History Online”)[6] Otis filed and lost a case in English court and he brought his complaint before parliament about the new writs, how they were issued and how they would be utilized.  Otis lost all of his cases that he brought before the English, so he ran for legislature in Massachusetts and was overwhelmingly elected due to his popularity for standing up against the writs of assistance. In 1756 the Massachusetts legislature, where Otis had been elected, enacted legislation that barred the use of general warrants. Other states such as Virginia soon followed suit. The Massachusetts law was important, because it was the first law ever passed in America that dealt with illegal searches or search powers of authorities. One of the reasons that Massachusetts followed Otis’s call and passed this law was the public was outraged over England’s passing of the Excise Act of 1754. This act gave tax collectors unlimited power to seize un-customed imported goods as well as any goods that the tax collector believed should be prohibited of a colonist owning, using a writ of assistance   Eventually all legislation making the writs illegal in Massachusetts were overturned by the Governor on grounds that they defied parliamentary law and British sovereignty, however by this time our nation’s founding fathers were already hard at work on the revolution. The argument that these writs were illegitimate and against English law were held by many Americans living in the colonies and people such as John Adams and other revolutionaries list these illegal searches as a chief catalyst in The American Revolution.

The Fourth Amendment to our constitution was ratified in 1791 as part of The Bill of Rights. The Bill of Rights are the first ten amendments to our constitution and were introduced by James Madison to the First United States Congress in 1789. The fourth amendment states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” It was almost 100 years after the ratification of the Fourth Amendment that the first Supreme Court case that would interpret it was heard. In 1886 Boyd v United States was a decided and said that “a search and seizure was equivalent to a compulsory production of a man’s private papers.” This decision gave quite a bit of consideration to the relationship between the Fourth and Fifth Amendments. Though today this decision has been softened considerably, this landmark case still developed on the nature of the right to privacy, and is important historically since it was the first time the Supreme Court interpreted the Fourth Amendment.

One of the first cases that has changed the nature of the fourth amendment in modern times is that of Weeks v. United States. This Supreme Court case from 1914 held that the warrantless seizure of items from a private residence constitute a violation of the Fourth Amendment. It also gives us the exclusionary rule that prohibits admission of illegally obtained evidence in court. Prior to the decision in Weeks v. United States, the law in The United States followed English law and allowed for evidence, even though it may have been collected illegally to be used against the accused. Weeks established the exclusionary rule and the fruit of the poisonous tree doctrine because Mr. Weeks had his house illegally searched by US Marshals and then the prosecuting attorney used this illegally obtained evidence to convict Mr. Weeks. When the Marshals searched the Weeks house, they busted in with no warrant and took possession of papers and other property illegally. In a unanimous decision the Supreme Court held that the illegally obtained evidence was not admissible in court against Mr. Weeks.

Wolf v Colorado was a strange 1949 abortion case In which the United States Supreme Court said that the Fourth Amendment and the Fourteenth Amendment did not always apply to the states. This was not only a strange case, but had a rather weak 6-3 decision. Both parts of this case were later overturned as Mapp v Ohio overturned the parts about states not having to abide by the Fourth Amendment. And Brown v Board of Education overturned that states did not have to abide by the Fourteenth Amendment.

In the 1961 case Mapp v. Ohio the Supreme Court decided that evidence obtained in violation of the Fourth Amenment could not be used by the state in a criminal prosecution. (Michael Ross Fowler, 1998, p. 183)[7] What started the case is that The Cleveland Police Department received a tip that Dollree Mapp and her daughter were hiding a bombing suspect. The police went to Mrs. Mapps home and demanded entrance; Mapp called her attorney and was advised to not let the police enter, so she told them to go away. The police then forced their way into her home while waving a piece of paper that they claimed was a warrant, Mrs. Mapp grabbed the paper and stuffed it down her shirt after realizing that it was not a warrant after all. No bombing suspect was found by the police, however they did find a trunk with obscene matierials in the basement of the Mapp home. At her trial, Mrs. Mapps attorney argued that the trunk was found during an illegal search and according to the fruit of the poisonous tree doctrine should not be allowed as evidence against Mrs. Mapp. Mrs. Mapp was convicted by her county court, the Ohio Court of Appeals affirmed the lower courts decision, but the Supreme Court decided to hear her case and overturned the decision. Just as in Boyd v United States and Weeks v United States before this, the Supreme court ruled that the government may not use any evidence that has been tainted due to the exclusionary rule.

Six years after Mapp v. Ohio, the US Supreme Court heard a case that would define what a search is. Katz v. United States was a 1967 case that extended Fourth Amendment protection. (Oyez)[8] Katz had been using a pay phone to place illegally place bets in Miami and Boston. The FBI had recorded these conversations by placing a listening device in the phone booth but did not have a warrant to place the device. The Supreme Court decided that the evidence was obtained illegally, and this was important because this case established that the Fourth Amendment protects people and not just places such as a private residence. The Katz case is the first time that the Supreme Court held that a person had a reasonable expectation of privacy outside of their personal property.

A year later, Terry v. Ohio defined the difference in reasonable and unreasonable searches and seizures. Terry and two friends were casing a store in Cleveland and were walking back and forth on the sidewalk acting suspiciously. When an undercover police officer showed up he patted down Terry and his fellow suspects to make sure that they did not have weapons. Terry and one of his friends had concealed handguns hidden in their coats which were found during the police pat down. What the Supreme Court decided is that there was no violation of either search or seizure. Terry and his friends were seized by the cops and ordered inside of the store so that the officer could make his investigation. On pat down, for officer safety, the undercover cop felt the guns through the suspect’s clothes. They were charged with carrying concealed weapons and attempted to fight the charges on grounds of unreasonable search through the fourth amendment. The officer’s search and seizure were upheld by The Supreme Court who said that the search and seizure of Terry and his friends were reasonable as they were acting suspicious by casing the store in order to commit a robbery. In their decision the Supreme court said that it would not tolerate the invasion on private citizens because of a “hunch” had by the police, but Terry and his friends were acting suspicious and this gave the undercover officer the right to frisk them for his own protection.

There are times where a warrant to search is not needed by the police. One such instance is when the party being searched gives consent. Though it can be argued whether a person voluntarily gave consent or whether a person has the right to give consent for the search of another’s property, usually when a person gives consent there is no need for a warrant. The plain view doctrine also gives an exception as to when a warrant is needed for a search. This doctrine gives the police the power to take evidence which they find in plain view. The Horton test is a three part requirement that is needed by the police when deciding if an object meets the plain view doctrine. The first part of the Horton test requires that the officer be lawfully present at the place where the evidence can be plainly viewed. The second part of the Horton test says that the officer must have a lawful right of access to the object. And the third and final part of the Horton test requires that the incriminating character of the object must be immediately apparent. Also it has been determined by Arizona v. Hicks (“US History Online”) in 1987 that the cops may not move objects to get a better view. The Hicks case involved Hicks discharging a firearm through the floor of his apartment. When the police came to check out why the firearm had been discharged they noticed that Hicks had some nice stereo equipment but the rest of his apartment looked like he was poor. Because the equipment stood out so much the police moved the equipment to write down the serial numbers and by doing so they made an wrongful search and the stereo equipment, which was indeed stolen, was inadmissible as evidence.  Another example of when the police do not need a warrant for a search is given by the open fields doctrine. The courts have continuously ruled that a person has no expectation of privacy if they are in an open field. This however does not mean that just because a person is outside that they are necessarily in an open field. The yard of your home is considered curtilage which is treated and afforded the same protection as if you were in your home. Being in a tent or in the camp surrounding your tent would also be considered curtilage.

The police have been able to get around the need for a search warrant during other times. One exception is when we cross the boarders of the United States either at an airport or at US Customs. Searches in public schools do not require warrants as long as the searching officers have reasonable suspicion of illegal activity. Government offices are similarly not protected from warrantless search. Prisoners and their cells have no reasonable expectation of privacy and may therefore be searched.

The motor vehicle exception was established in 1925 by Carrol v. United States. This exception allows the search of a vehicle without a warrant providing that the officer has probable cause to believe that evidence or contraband is located in the vehicle. The reasons cited for this lowered expectation of privacy is due to both regulations of automobiles and the fact that their very mobility creates an environment where evidence can easily be removed or destroyed. Mobile homes and RV’s usually fall under the limited expectation of privacy unless they are not able to be driven and are being used as a residence. A car which is not working however is usually not exempt from the lowered expectation of privacy.

Searches that take place because of a lawful arrest are exempt from needing a warrant. This was established in 1969 by Chimel v. California. During or immediately after a lawful arrest, the officer is permitted to perform a warrantless search which is limited to only the person arrested and the area immediately surrounding the person. This area may be anywhere the person may gain possession of a weapon, in some way escape, destroy or hide evidence.

In conclusion our rights to not being unreasonably searched have come a long way from the times in England where Sherriff’s were able to kick open any door they pleased. The Fourth Amendment has helped define law in The United States and has added much to our quality of life and the freedom that we enjoy every day. It is important to remember that the police do not always need a warrant to effect a search and that the fight to keep police powers in check will be one that we will always have to make.

References

Arizona v. Hicks. US History Online. 4 law notes dot com. Retrieved from http://www.4lawnotes.com/showthread.php?t=1143

Court Record of King’s Bench. Semayne’s Case. Retrieved from http://groups.csail.mit.edu/mac/classes/6.805/admin/admin-fall-2005/weeks/semayne.html

Court Record of King’s Bench. Entick v Carrington and Three Others (Michaelmas Term, 6 George III 1765 ed.). Retrieved from http://www.bailii.org/ew/cases/EWHC/KB/1765/J98.html

Entick v Carrinton. Retrieved from http://www.bookrags.com//wiki/Entick_v._Carrington

US History Online. In James Otis (Politics and Public Sercice, 1725-1783 ed.). New Jersey: Prentice Hall.

Michael Ross Fowler. (1998). The Police. In With Justice for All? The Nature of the American Legal System (p. 183). New Jersey: Prentice Hall.

Oyez. US History Online. In US Supreme Court Media. Retrieved from http://www.oyez.org/cases/1960-1969/1967/1967_35/

Pitt, W. Fourth Ammendment Search and Seizure. U.S. Government Printing Office. Retrieved from http://www.gpoaccess.gov/constitution/html/amdt4.html

Renee Lettow Lerner. Semayne’s Case: Liberty of the house. Retrieved from http://unenumerated.blogspot.com/2006/09/semaynes-case-liberty-of-house.html


[1] Pitt, W. Fourth Ammendment Search and Seizure. U.S. Government Printing Office. Retrieved from http://www.gpoaccess.gov/constitution/html/amdt4.html

[2] Court Record of King’s Bech. Semayne’s Case. Retrieved from http://groups.csail.mit.edu/mac/classes/6.805/admin/admin-fall-2005/weeks/semayne.html

[3] Renee Lettow Lerner. Semayne’s Case: Liberty of the house. Retrieved from http://unenumerated.blogspot.com/2006/09/semaynes-case-liberty-of-house.html

[4] Entick v Carrinton. Retrieved from http://www.bookrags.com//wiki/Entick_v._Carrington

[5] Court Record of King’s Bench. Entick v Carrington and Three Others (Michaelmas Term, 6 George III 1765 ed.). Retrieved from http://www.bailii.org/ew/cases/EWHC/KB/1765/J98.html

[6] US History Online. In James Otis (Politics and Public Sercice, 1725-1783 ed.). New Jersey: Prentice Hall.

[7] Michael Ross Fowler. (1998). The Police. In With Justice for All? The Nature of the American Legal System (p. 183). New Jersey: Prentice Hall.

[8] Oyez. US History Online. In US Supreme Court Media. Retrieved from http://www.oyez.org/cases/1960-1969/1967/1967_35/

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About criminality

Hello my name is Brandon Stacker and I am a graduate student at Wayland Baptist University studying Criminology and Business Administration. This blog deals with Criminal Justice topics that affect both society as well as the law enforcement professional.
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