SEARCHES AND
SEIZURES/
RIGHT TO PRIVACY
Stephanie Trawick and Sarah
Hannah
4th Amendment:
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.
Meaning of the Amendment
Originally:
It was adopted as a response to the abuse of the
writ of assistance, which is a type of general search
warrant, in the American Revolution. Search and
arrest should be limited in scope according to specific
information supplied to the issuing court, usually by a
law enforcement officer, who has sworn by it.
The Bill of Rights originally only restricted the power
of the federal government.
Current Interpretation:
The Fourth Amendment specifies that any warrant must be judicially sanctioned for a search or
an arrest, in order for such a warrant to be considered reasonable. Warrants 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 and is therefore accountable to the issuing court. The
Fourth Amendment applies to governmental searches and seizures, but not those done by private
citizens or organizations who are not acting on behalf of a government.
Searches: Not all actions by which governmental authorities obtain information from or about a
person constitute a search. Therefore, government action triggers the amendment's protections only
when the information or evidence at issue was obtained through a "search" within the meaning of the
amendment. If no search occurs, no warrant is required. Generally, authorities have searched when
they have impeded upon a person's reasonable expectation of privacy
Seizures: The Fourth Amendment proscribes unreasonable seizure of any person, person's home
(including its curtilage) or personal property 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 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. The person is not being seized if his freedom of movement is not restrained
By 1992, it was no longer the case that the ''warrants-with- narrow-exceptions'' standard normally
prevails over a ''reasonableness'' approach. Exceptions to the warrant requirement have multiplied,
tending to confine application of the requirement to cases that are exclusively ''criminal'' in nature.
And even within that core area of ''criminal'' cases, some exceptions have been broadened. The most
important category of exception is that of administrative searches justified by ''special needs beyond
the normal need for law enforcement.'' Under this general rubric the Court has upheld warrantless
searches by administrative authorities in public schools, government offices, and prisons, and has
upheld drug testing of public and transportation employees.
Another matter of scope recently addressed by the Court is the category of persons protected by
the Fourth Amendment--who constitutes ''the people.'' This phrase, the Court determined, ''refers to a
class of persons who are part of a national community or who have otherwise developed sufficient
connection with [the United States] to be considered part of that community.'' The Fourth
Amendment therefore does not apply to the search and seizure by United States agents of property
that is owned by a nonresident alien and located in a foreign country.
WOLF V. COLORADO
Facts of the Case:
The Colorado Supreme Court upheld a number of convictions in which
evidence was admitted that would have been inadmissible in a prosecution
for violation of a federal law in a federal court.
Question:
Were the states required to exclude illegally seized evidence from trial under
the Fourth and Fourteenth Amendments?
Conclusion:
In a 6-to-3 decision, the Court held that the Fourteenth Amendment did not
subject criminal justice in the states to specific limitations and that illegally
obtained evidence did not have to be excluded from trials in all cases. The
Court reasoned that while the exclusion of evidence may have been an
effective way to deter unreasonable searches, other methods could be equally
effective and would not fall below the minimal standards assured by the Due
Process Clause. Civil remedies, such as "the internal discipline of the police,
under the eyes of an alert public opinion," were sufficient.
MAPP V. OHIO
Facts of the Case:
Dolree Mapp was convicted of possessing obscene materials after an
admittedly illegal police search of her home for a fugitive. She
appealed her conviction on the basis of freedom of expression.
Question:
Were the confiscated materials protected by the First Amendment?
(May evidence obtained through a search in violation of the Fourth
Amendment be admitted in a state criminal proceeding?)
Conclusion:
The Court brushed aside the First Amendment issue and declared
that "all evidence obtained by searches and seizures in violation of
the Constitution is, by [the Fourth Amendment], inadmissible in a
state court." Mapp had been convicted on the basis of illegally
obtained evidence. This was an historic -- and controversial -decision. It placed the requirement of excluding illegally obtained
evidence from court at all levels of the government. The decision
launched the Court on a troubled course of determining how and
when to apply the exclusionary rule.
TERRY V. OHIO
Facts of the Case:
Terry and two other men were observed by a plain clothes policeman in
what the officer believed to be "casing a job, a stick-up." The officer stopped
and frisked the three men, and found weapons on two of them. Terry was
convicted of carrying a concealed weapon and sentenced to three years in jail.
Question:
Was the search and seizure of Terry and the other men in violation of the
Fourth Amendment?
Conclusion:
In an 8-to-1 decision, the Court held that the search undertaken by the officer
was reasonable under the Fourth Amendment and that the weapons seized
could be introduced into evidence against Terry. Attempting to focus
narrowly on the facts of this particular case, the Court found that the officer
acted on more than a "hunch" and that "a reasonably prudent man would
have been warranted in believing [Terry] was armed and thus presented a
threat to the officer's safety while he was investigating his suspicious
behavior." The Court found that the searches undertaken were limited in
scope and designed to protect the officer's safety incident to the investigation.
DOW CHEMICAL CO. V. UNITED
STATES
Facts of the Case:
Dow Chemical Company denied the Environmental Protection Agency a follow-up on-site inspection
of its facilities in Midland, Michigan. In response, EPA conducted an unannounced aerial inspection.
When Dow became aware EPA had taken aerial photographs of its facilities, it filed suit in District
Court alleging that EPA conducted a warrantless search in violation of the Fourth Amendment. The
District Court ruled that the aerial inspection violated Dow's "expectation of privacy" from searches.
The United States Court of Appeals for the Sixth Circuit reversed the ruling on the ground that Dow
only expected pivacy with respect to its indoor property.
Question:
Does the Fourth Amendment require government inspectors to obtain warrants before conducting
aerial searches of outdoor business facilities?
Conclusion:
No. Justice Warren Burger delivered the opinion for a 5-4 court. The Court maintained that the
EPA's statutory jurisdiction "carries with it all the modes of inquiry and investigation traditionally
employed or useful to execute the authority granted." Fourth Amendment protection involves the
invasion of areas where intimate activities occur, whereas "the open areas of an industrial complex
are more comparable to an 'open field' in which an individual may not legitimately demand privacy."
The fact that EPA could take aerial photographs of the facilities from public airspace with the
standard photographic equipment employed by mapmakers confirmed that the area was not subject
to strict protection from observation
ROE V. WADE
Facts of the Case:
Roe, a Texas resident, sought to terminate her pregnancy by abortion. Texas law
prohibited abortions except to save the pregnant woman's life. After granting certiorari,
the Court heard arguments twice. The first time, Roe's attorney -- Sarah Weddington -could not locate the constitutional hook of her argument for Justice Potter Stewart. Her
opponent -- Jay Floyd -- misfired from the start. Weddington sharpened her
constitutional argument in the second round. Her new opponent -- Robert Flowers -came under strong questioning from Justices Potter Stewart and Thurgood Marshall.
Question:
Does the Constitution embrace a woman's right to terminate her pregnancy by
abortion?
Conclusion:
The Court held that a woman's right to an abortion fell within the right to privacy
(recognized in Griswold v. Connecticut) protected by the Fourteenth Amendment. The
decision gave a woman total autonomy over the pregnancy during the first trimester
and defined different levels of state interest for the second and third trimesters. As a
result, the laws of 46 states were affected by the Court's ruling.
HERRING V. UNITED STATES
Facts of the Case:
The Coffee County, Alabama Sheriff's Department apprehended Bennie Herring in July of 2004.
Upon searching Herring's vehicle, officers discovered methamphetamine in Herring's pocket and a
gun under the seat of his truck. However, the situation was complicated by the fact that the initial
search had been made on a faulty arrest warrant. The warrant, still active in the neighboring Dale
County Sheriff's Office, was supposed to have been recalled five months prior, however someone had
accidentally failed to remove it from the computer system. Herring filed a motion to suppress the
allegedly "illegally obtained" evidence, however the U.S. District Court for the Middle District of
Alabama denied Herring's motion and sentenced him to 27 months in prison.
The U.S. Court of Appeals for the Eleventh Circuit affirmed the conviction, stating that illegally
obtained evidence should only be suppressed when doing so could “result in appreciable deterrence”
of future police misconduct. In his petition for certiorari, Herring pointed to an Arkansas case with
nearly identical facts that had come out the other way, noting that “as policing becomes ever more
reliant on computerized systems, the number of illegal arrests and searches based on negligent
recordkeeping is poised to multiply." The Court granted certiorari on February 19, 2008.
Question:
Does a court violate the Fourth Amendment rights of a criminal defendant by introducing evidence
obtained through a police search based on an arrest warrant that should have been recalled, but was
negligently allowed to remain active, at the time of the search?
Conclusion:
No. In a 5-4 decision with Chief Justice John G. Roberts writing for the majority and joined by
Justice Antonin G. Scalia, Justice Anthony M. Kennedy, Justice Clarence Thomas and Justice
Samuel A. Alito Jr., the Supreme Court affirmed the U.S. Court of Appeals for the Eleventh Circuit.
It held that a criminal defendant's Fourth Amendment rights are not violated when police mistakes
that lead to unlawful searches are merely the result of isolated negligence and "not systematic error
or reckless disregard of constitutional requirements." Evidence obtained under these circumstances is
admissible and not subject to the exclusionary rule.
Justice Ginsburg argued that an intact exclusionary rule provides a strong incentive for police
compliance with respect to the Fourth Amendment and its erosion in this case was not warranted.
Justice Breyer also filed a separate dissenting opinion and was joined by Justice Souter. He argued
that the Court should move away from its reliance on analyzing the degree of police culpability when
determining whether the exclusionary rule applies, but rather draw a bright line between errors
made by record keepers and those made by police officers.
“Search and Seizure”
http://www.truthdig.com/images/avboothuploads/dp_privacy_5
00.gif
“NSA Eaves Dropped”
http://www.politicalcartoons.com/cartoon/15ec0bc3-fa80-4d94-b5360059c6435965.html
Explanation of the Evolution of Constitutional Interpretation
The meaning of the Fourth Amendment can change over time as the staffing of police departments
and public interest law offices changes. Another development over the past half-century that deters
civil-rights violations is the increasing professionalism of police forces, including a new emphasis on
internal police discipline. Even as long ago as 1980 we felt it proper to “assume” that unlawful police
behavior would “be dealt with appropriately” by the authorities (United States v. Payner), but we now
have increasing evidence that police forces across the United States take the constitutional rights of
citizens seriously. For years after Mapp, “very few lawyers would even consider representation of
persons who had civil rights claims against the police,” but now much has changed. Citizens and
lawyers are much more willing to seek relief in the courts for police misconduct.
The language of the provision which became the Fourth Amendment underwent some modest changes
on its passage through the Congress, and it is possible that the changes reflected more than a modest
significance in the interpretation of the relationship of the two clauses. The noteworthy disputes over
search and seizure in England and the colonies revolved about the character of warrants. There were,
however, lawful warrantless searches, primarily searches incident to arrest, and these apparently gave
rise to no disputes. Thus, the question arises whether the Fourth Amendment's two clauses must be
read together to mean that the only searches and seizures which are ''reasonable'' are those which meet
the requirements of the second clause, that is, are pursuant to warrants issued under the prescribed
safeguards, or whether the two clauses are independent, so that searches under warrant must comply
with the second clause but that there are ''reasonable'' searches under the first clause which need not
comply with the second clause. This issue has divided the Court for some time, has seen several
reversals of precedents, and is important for the resolution of many cases.
Timeline
1961:
Mapp v. Ohio
4th
Amendment
standards to
be upheld in
states as well
as nationally
1791:
Amendment
Ratified
1789:
Amendment
proposed
1949:
Wolf v.
Colorado
4th
Amendme
nt upheld
1973:
Roe v. Wade
A woman’s right
to abortion falls
under rights of
privacy
1968:
Terry v.
Ohio
Searches
and
seizures
done when
there is
reasonable
suspicion
are legal
1986:
Dow Chemical
Co. v. U.S.
4th Amendment
protection
involves intimate
areas, not an
“open field”
2009:
Herring v. U.S.
Unlawful searches
made by police are
not in violation of
the criminal
defendant’s 4th
Amendment rights,
just human error
Impact and Application of
Interpretation



Textual approaches are not inevitably more progressive than originalist approaches. Sometimes the text can be a
straitjacket, confining the judge within language that would have been different had its drafters foreseen later events.
Is twentieth‐century wiretapping prohibited by the Fourth Amendment, which guarantees “[t]he right of the people
to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures”? Chief Justice
William Howard Taft engaged in textual argument in a case where federal prohibition officers obtained incriminating
information by intercepting telephone conversations of defendants: The amendment itself shows that the search is to
be of material things—the person, the house, his papers or his effects. The amendment does not forbid what was done
here for there was no seizure. The evidence was secured by the sense of hearing and that only. The language of the
amendment cannot be extended and expanded.
Since the Supreme Court decided Mapp v. Ohio in 1961, the exclusionary rule has been the primary method of enforcing
against state and local law enforcement officers the Fourth Amendment's right to be free from unreasonable searches
and seizures. The objections to the exclusionary rule, which are based on the high price it imposes on the government by
prohibiting the use in court of evidence obtained in violation of the Fourth Amendment.
Based on changes in police practices that followed the Court's decision in Mapp, moreover, it has become apparent that
the exclusionary rule is an essential means of ensuring that law enforcement officers respect the limits the Fourth
Amendment imposes on their power. It also points out that the Mapp Court itself reasoned that the government should
neither profit from its own illegal activity nor model disrespect for the law through its own actions. Nevertheless, the
Roberts Court has issued decisions that have weakened the exclusionary rule and even suggested that is it obsolete and
no longer needed.


There are a few exceptions to the warrant requirement, namely the plain view doctrine and the open fields doctrine. The
plain view doctrine says that if an officer is somewhere that he/she is allowed to be and observes something illegal, the
probable cause argument permits the officer to proceed with a search/seizure without a warrant. The open fields
doctrine says that happenings in an “open field” type area (field, lake, forest, public park, etc.) do not occur with a
reasonable expectation of privacy; an agent needs no warrant to search or seize.
With the advent of the telephone—and the ability to tap it—the Supreme Court recognized that the old property-centric
reading that wedded "search and seizure" to physical trespass was no longer tenable. Technology had made it too easy
to intrude upon people's personal lives without intruding on their property. Hence the new doctrine that the Fourth
Amendment "protects people, not places," and the substitution of "reasonable expectations" for property rights as the
http://www.howcast.com/videos/192108-How-To-Refuse-a-Police-Search