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The Bill of Rights in the
The Fourth Amendment (Amendment IV) to the
is the part of the
that prohibits unreasonable
and requires any
to be judicially sanctioned and supported by . It was adopted in response to the abuse of the , a type of general
issued by the
and a major source of tension in . The Fourth Amendment was introduced in Congress in 1789 by , along with the other amendments in the Bill of Rights, in response to
objections to the new Constitution. Congress
the amendment to the states on September 28, 1789. By December 15, 1791, the necessary three-quarters of the states had
it. On March 1, 1792, Secretary of State
announced the adoption of the amendment.
Because the Bill of Rights did not initially apply to the states, and federal criminal investigations were less common in the first century of the nation's history, there is little significant case law for the Fourth Amendment before the 20th century. The amendment was held to
Under the Fourth Amendment, search and seizure (including arrest) should be limited in scope according to specific information supplied to the issuing court, usually by a
who has . Fourth Amendment case law deals with three central questions: what government activities constitute "search" and "seizure"; what constitutes probable cau and how violations of Fourth Amendment rights should be addressed. Early court decisions limited the amendment's scope to a law enforcement officer's physical intrusion onto private property, but with
(1967), the
held that its protections, such as the warrant requirement, extend to the privacy of individuals as well as physical locations. Law enforcement officers need a warrant for most search and seizure activities, but the Court has defined a series of exceptions for , , , , , and other situations.
is one way the amendment is enforced. Established in
(1914), this rule holds that
obtained through a Fourth Amendment violation is generally
at criminal trials. Evidence discovered as a later result of an illegal search may also be inadmissible as "," unless it inevitably would have been discovered by legal means.
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.
established the English common law precedent against general search warrants.
Like many other areas of American law, the Fourth Amendment finds its roots in English legal doctrine. , in
(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 's publications attacking both government policies and the King himself. The most famous of these cases involved , whose home was forcibly entered by the
Nathan Carrington, along with others, pursuant to a warrant issued by
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. Entick filed suit in , argued before the
ruled that both the search and the seizure was unlawful, as the warrant authorized the seizure of all of Entick's papers—not just the criminal ones—and as the warrant lacked
to even justify the search. By holding that "[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour's close without his leave", Entick established the English precedent that the executive is limited in intruding on private property by .
Colonial America
Homes in , on the other hand, did not enjoy the same sanctity as their British counterparts, because legislation had been explicitly written so as to enable enforcement of British revenue-gathering until 1750, in fact, the only type of warrant defined in the handbooks for justices of the peace was the general warrant. During what scholar William Cuddihy called the "colonial epidemic of general searches", the authorities possessed almost unlimited power to search for anything at any time, with very little oversight.
Massachusetts lawyer
protested British use of general warrants in the American colonies.
In 1756, the colony of Massachusetts enacted legislation that barred the use of general warrants. This represented the first law in American history curtailing the use of seizure power. Its creation largely stemmed from the great public outcry over the Excise Act of 1754, which gave tax collectors unlimited powers to interrogate colonists concerning their use of goods subject to customs. The act also permitted the use of a general warrant known as a , allowing tax collectors 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 's death on October 23 arrived in Boston. All writs automatically expired six months after the death of the King and would have had to be re-issued by , the new king, to remain valid.
In mid-January 1761, a group of over 50 merchants represented by
petitioned the court to have hearings on the issue. During the five-hour hearing on February 23, 1761, Otis vehemently denounced British colonial policies, including their sanction of general warrants and writs of assistance. Future US President , who was present in the courtroom when Otis spoke, viewed these events as "the spark in which originated the American Revolution." However, the court ruled against Otis.
Because of the name he had made for himself in attacking the writs, Otis was elected to the
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 English law and parliamentary sovereignty.
Seeing the danger general warrants presented, the
(1776) explicitly forbade the use of general warrants. This prohibition became a precedent for the Fourth Amendment:
That general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive and ought not to be granted.
Article XIV of the Massachusetts Declaration of Rights, written by John Adams and enacted in 1780 as part of the Massachusetts Constitution, added the requirement that all searches must be "reasonable" and served as another basis for the language of the Fourth Amendment:
Every subject has a right to be secure from all unreasonable searches, and seizures of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in cases, and with the formalities, prescribed by the laws.
By 1784, eight state constitutions contained a provision against general warrants.
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After several years of comparatively weak government under the , a
in Philadelphia proposed a new constitution on September 17, 1787, featuring a stronger chief executive and other changes. , a Constitutional Convention delegate and the drafter of Virginia's Declaration of Rights, proposed that a bill of rights listing and guaranteeing
be included. Other delegates—including future Bill of Rights drafter —disagreed, arguing that existing state guarantees of civil liberties were sufficient and that any attempt to enumerate individual rights risked the implication that other, unnamed rights were unprotected. After a brief debate, Mason's proposal was defeated by a unanimous vote of the state delegations.
For the constitution to be ratified, however, nine of the thirteen states were required to approve it in state conventions. Opposition to ratification ("Anti-Federalism") was partly based on the Constitution's lack of adequate guarantees for civil liberties. Supporters of the Constitution in states where popular sentiment was against ratification (including Virginia, Massachusetts, and New York) successfully proposed that their state conventions both ratify the Constitution and call for the addition of a bill of rights. Four state conventions proposed some form of restriction on the authority of the new federal government to conduct searches.
, drafter of the Bill of Rights
In the , following the state legislatures' request, James Madison proposed twenty constitutional amendments based on state bills of rights and English sources such as the , including an amendment requiring probable cause for government searches. Congress reduced Madison's proposed twenty amendments to twelve, and these were submitted to the states for ratification on September 25, 1789.
By the time the Bill of Rights was submitted to the states for ratification, opinions had shifted in both parties. Many Federalists, who had previously opposed a Bill of Rights, now supported the Bill as a means of silencing the Anti-Federalists' most effective criticism. Many Anti-Federalists, in contrast, now opposed it, realizing that the Bill's adoption would greatly lessen the chances of a second constitutional convention, which they desired. Anti-Federalists such as
also argued that the Bill left the most objectionable portions of the Constitution, such as the federal judiciary and direct taxation, intact.
On November 20, 1789, New Jersey ratified eleven of the twelve amendments, including the Fourth. On December 19, 1789, December 22, 1789, and January 19, 1790, respectively, Maryland, North Carolina, and South Carolina ratified all twelve amendments. On January 25 and 28, 1790, respectively, New Hampshire and Delaware ratified eleven of the Bill's twelve amendments, including the Fourth. This brought the total of ratifying states to six of the required ten, but the process stalled in other states: Connecticut and Georgia found a Bill of Rights unnecessary and so refused to ratify, while Massachusetts ratified most of the amendments, but failed to send official notice to the Secretary of State that it had done so. (All three states would later ratify the Bill of Rights for sesquicentennial celebrations in 1939.)
In February through June of 1790, New York, Pennsylvania, and Rhode Island each ratified eleven of the amendments, including the Fourth. Virginia initially postponed its debate, but after Vermont was admitted to the Union in 1791, the total number of states needed for ratification rose to eleven. Vermont ratified on November 3, 1791, approving all twelve amendments, and Virginia finally followed on December 15, 1791. Secretary of State
announced the adoption of the ten successfully ratified amendments on March 1, 1792.
The Bill of Rights originally only restricted the , and went through a long initial phase of "judicial dormancy"; in the words of historian , "After ratification, most Americans promptly forgot about the first ten amendments to the Constitution." Federal jurisdiction regarding criminal law was narrow until the late 19th century when the
were passed. As federal criminal jurisdiction expanded to include other areas such as , more questions about the Fourth Amendment came to the Supreme Court. The U.S. Supreme Court responded to these questions by outlining the fundamental purpose of the amendment as guaranteeing "the privacy, dignity and security of persons against certain arbitrary and invasive acts by officers of the Government, without regard to whether the government actor is investigating crime or performing another function." In
(1961), the
ruled that the Fourth Amendment
by way of the
Fourth Amendment case law deals with three central issues: what government activities constitute "search" and "seizure"; what constitute how violations of Fourth Amendment rights should be addressed.
The Fourth Amendment typically requires "a neutral and detached authority interposed between the police and the public," and it is offended by "general warrants" and laws that allows searches to be conducted "indiscriminately and without regard to their connection with [a] crime under investigation.", for the "basic purpose of the Fourth Amendment, which is enforceable against the States through the Fourteenth, through its prohibition of "unreasonable" searches and seizures is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials."
The Fourth Amendment has been held to mean that a search or an arrest generally requires a judicially sanctioned , because the basic rule under the Fourth Amendment is that arrests and "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable." In order for such a warrant 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
and is therefore . The Supreme Court further held in
(1997): "To be reasonable under the Fourth Amendment, a search ordinarily must be based on individualized suspicion of wrongdoing. But particularized exceptions to the main rule are sometimes warranted based on 'special needs, beyond the normal need for law enforcement.' ... When such 'special needs' are alleged, courts must undertake a context-specific inquiry, examining closely the competing private and public interests advanced by the parties." The 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. In
(2010), the Court held the amendment to also apply to the government when acting as an employer, ruling that a government could search a police officer's text messages that were sent over that government's pager.
wrote the majority decision in , which expanded Fourth Amendment protections to electronic surveillance.
One threshold question in the Fourth Amendment jurisprudence is whether a "search" has occurred. Initial Fourth Amendment case law hinged on a citizen's —that is, when the government physically intrudes on "persons, houses, papers, or effects" for the purpose of obtaining information, a "search" within the original meaning of the Fourth Amendment has occurred. Early 20th-century Court decisions, such as
(1928), held that Fourth Amendment rights applied in cases of physical intrusion, but not to other forms of police surveillance (e.g., wiretaps). In
(1961), the Court stated of the amendment that "at the very core stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion."
Fourth Amendment protections expanded significantly with
(1967). In Katz, the Supreme Court expanded that focus to embrace an individual's , and ruled that a search had occurred when the government wiretapped a
using a microphone attached to the outside of the glass. While there was no physical intrusion into the booth, the Court reasoned that: 1) Katz, by entering the booth and shutting the door behind him, had exhibited his expectation that "the words he utters into the mouthpiece will not be broadcast to the world"; and 2) society believes that his expectation was . Justice
wrote in the majority opinion that "the Fourth Amendment protects people, not places". A "search" occurs for purposes of the Fourth Amendment when the government violates a person's "reasonable expectation of privacy." Katz's reasonable
thus provided the basis to rule that the government's intrusion, though electronic rather than physical, was a search covered by the Fourth Amendment, and thus necessitated a warrant. The Court said that it was not recognizing any general right to privacy in the Fourth Amendment, and that this wiretap could have been authorized if proper procedures had been followed.
This decision in Katz was later developed into the now commonly used two-prong test, adopted in
(1979), for determining whether the Fourth Amendment is applicable in a given circumstance:
a person "has exhibited an actual (subjective) expectation of privacy"; and
society is prepared to recognize that this expectation is (objectively) reasonable.
An individual has no legitimate expectation of privacy in information provided to third parties. In Smith, the Supreme Court held individuals have no "legitimate expectation of privacy" regarding the telephone numbers they dial because they knowingly give that information to telephone companies when they dial a number.
Following Katz, the vast majority of Fourth Amendment search cases have turned on the right to privacy, but in
(2012), the Court ruled that the Katz standard did not replace earlier case law, but rather, has supplemented it. In Jones, law enforcement officers had attached a
device on a car's exterior without Jones' knowledge or consent. The Court concluded that Jones was a
to the car, and so had a property interest in the car. Therefore, since the intrusion on the vehicle—a common law —was for the purpose of obtaining information, the Court ruled that it was a search under the Fourth Amendment. The Court used similar "trespass" reasoning in
(2013), to rule that bringing a drug
to sniff at the front door of a home was a search.
In certain situations, law enforcement may perform a search when they have a reasonable suspicion of criminal activity, even if it falls short of probable cause necessary for an arrest. Under
(1968), 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 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. This detention and search is known as a . To conduct a frisk, officers must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant their actions. As established in
(1983), 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).
The Fourth Amendment proscribes unreasonable seizure of any person, person's home (including its ) or
without a warrant. A seizure of property occurs when there is "some meaningful interference with an individual's possessory interests in that property", such as when police officers take personal property away from an owner to use as evidence, or when they participate in an eviction. The amendment also protects against unreasonable seizure of 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. 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.
(1980), 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. In
(1991), the Court ruled that as long as the police do not convey a message that compliance with their requests is required, the police contact is a "citizen encounter" that falls outside the protections of the Fourth Amendment. If a person remains free to disregard questioning by the government, there has been no seizure and therefore no intrusion upon the person's privacy under the Fourth Amendment.
When a person is arrested and taken into police custody, he has been seized (i.e., a reasonable person who is handcuffed and placed in the back of a police car would not think they were free to leave). A person subjected to a routine
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
than to a formal arrest. If a person is not under suspicion of illegal behavior, a law enforcement official is not allowed to place an individual under arrest simply because this person does not wish to state his identity, provided specific state regulations do not specify this to be the case. A search incidental to an arrest that is not permissible under state law does not violate the Fourth Amendment, so long as the arresting officer has probable cause. In
(2013), the Court upheld the constitutionality of police swabbing for DNA upon arrests for serious crimes, along the same reasoning that allows police to take fingerprints or photographs of those they arrest and detain.
The government may not detain an individual even momentarily without reasonable and articulable suspicion, with a few exceptions. In
(1979), the Court ruled an officer has made an illegal seizure when he stops an automobile and detains the driver in order to check his driver's license and the registration of the automobile, unless the officer has articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or either the vehicle or an occupant is otherwise subject to seizure for violation of law.
Where society's need is great, no other effective means of meeting the need is available, and intrusion on people's privacy is minimal, certain discretionless checkpoints toward that end may briefly detain motorists. In
(1976), the Supreme Court allowed discretionless immigration checkpoints. In
(1990), the Supreme Court allowed discretionless sobriety checkpoints. In
(2004), the Supreme Court allowed focused informational checkpoints. However, in
(2000), the Supreme Court ruled that discretionary checkpoints or general crime-fighting checkpoints are not allowed.
Under the Fourth Amendment, law enforcement must receive written permission from a court of law, or otherwise qualified , to lawfully search and seize evidence while investigating criminal activity. A court grants permission by issuing a
known as a warrant. 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. These exceptions apply "[o]nly in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirement impracticable."
In these situations where the warrant requirement doesn't apply a search or seizure nonetheless must be justified by some individualized suspicion of wrongdoing. However, the U.S. Supreme Court carved out an exception to the requirement of individualized suspicion. It ruled that, "In limited circumstances, where the privacy interests implicated by the search are minimal and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of individualized suspicion" a search [or seizure] would still be reasonable.
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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.
When police conduct a search, the amendment requires that the warrant establish probable cause to believe that the search will uncover criminal activity or contraband. They must have legally sufficient reasons to believe a search is necessary. In
(1925), the Supreme Court stated that probable cause to search is a flexible, common-sense standard. To that end, the Court ruled in
(1925) 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
(1983), the Court ruled that the reliability of an informant is to be determined based on the "totality of the circumstances."
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gives consent to a search, a warrant is not required. 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. In
(1973), the Court ruled that a consent search is still valid even if the police do not inform a suspect of his right to refuse the search. This contrasts with , which cannot be relinquished without an explicit
from police.
The Court stated in
(1974) that a third party co-occupant could give consent for a search without violating a suspect's Fourth Amendment rights. Per the Court's ruling in
(1990), a consent search is still considered valid if police accept in good faith the consent of an "apparent authority", even if that party is later discovered to not have authority over the property in question.
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According to the plain view doctrine as defined in
(1971), 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.
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 Court in
(1924), 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."
(1984), 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:
open fields do not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance. There is no societal interest in protecting the privacy of those activities, such as the cultivation of crops, that occur in open fields.
While open fields are not protected by the Fourth Amendment, the , 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. The curtilage is "intimately linked to the home, both physically and psychologically," and is where "privacy expectations are most heightened." 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." The Court has acknowledged that a doorbell or knocker is typically treated as an invitation, or license, to the public to approach the front door of the home to deliver mail, sell goods, solicit for charities, etc. This license extends to the police, who have the right to try engaging a home's occupant in a "" for the purpose of gathering evidence without a warrant. However, they cannot bring a drug detection dog to sniff at the front door of a home without either a warrant or consent of the homeowner or resident.
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Law enforcement officers may also conduct warrantless searches in several types of exigent circumstances where obtaining a warrant is dangerous or impractical. One example is the , which allows police to frisk suspects for weapons. The Court also allowed a search of arrested persons in Weeks v. United States (1914) to preserve evidence that might otherwise be destroyed and to ensure suspects were disarmed. In Carroll v. United States (1925), the Court ruled that law enforcement officers could search a vehicle that they suspected of carrying contraband without a warrant. The Court allowed blood to be drawn without a warrant from drunk-driving suspects in
(1966) on the grounds that the time to obtain a warrant would allow a suspect's
to reduce.
(1967) provided an exception to the warrant requirement if officers were in "hot pursuit" of a suspect.
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The Supreme Court has 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
there must be probable cause or reasonable suspicion of criminal activity. Items in plai areas that could potentially hide weapons may also be searched. With probable cause to believe evidence is present, 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 passengers.
(2009), the 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 1) at the time of the search the person being arrested is unsecured and within reaching distance of the passenger compartment of the vehicle or 2) police officers have reason to believe that evidence for the crime for which the person is being arrested will be found in the vehicle.
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rule from Great Britain permits searches incident to an arrest without a warrant. This rule has been applied in American law, and has a lengthy common law history. The justification for such a search is to prevent the arrested individual 1.) from destroying evidence or 2.) using a weapon against the arresting officer by disarming the suspect. The U.S. Supreme Court ruled that "both justifications for the search-incident-to-arrest exception are absent and the rule does not apply", when "there is no possibility" that the suspect could gain access to a weapon or destroy evidence. In
(1948), 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
(1950), the Court reversed Trupiano, holding instead that the officers' opportunity to obtain a warrant was not germane to the reasonableness of a search incident to an arrest. Rabinowitz suggested that any area within the "immediate control" of the arrestee could be searched, but it did not define the term. In deciding
(1969), 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. However, in
(2014), the Supreme Court ruled unanimously that police must obtain a warrant to search an arrestee's cellular phone. The Court said that earlier Supreme Court decisions permitting searches incident to an arrest without a warrant do not apply to "modern cellphones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy," and noted that US citizens' cellphones today typically contain "a digital record of nearly every aspect of their lives — from the mundane to the intimate."
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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
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
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.
The Supreme Court decision in
(1972) left open the possibility for a foreign intelligence surveillance exception to the warrant clause. Three United States Courts of Appeals have recognized a foreign intelligence surveillance exception to the warrant clause, but tied it to certain requirements. The exception to the Fourth Amendment was formally recognized by the
in its 2008
decision. The lower court held that, "a foreign intelligence exception to the Fourth Amendment's warrant requirement exists when surveillance is conducted to obtain foreign intelligence for national security purposes and is directed against foreign powers or agents of foreign powers reasonably believed to be located outside the United States." Despite the foregoing citation the Fourth Amendment prohibitions against unreasonable searches and seizures nonetheless apply to the contents of all communications, whatever the means, because, "a person's private communications are akin to personal papers." To protect the
carriers cooperating with the US government from legal action, the Congress passed
updating the
of 1978 to permit this type of surveillance.
(1985), the Supreme Court ruled that searches in
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
(2009), the Court ruled that school officials violated the Fourth Amendment when they
a 13-year-old girl based only on a student claiming to have received drugs from that student. Similarly, in
(2006), 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.
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One way courts enforce the Fourth Amendment is through the use of the exclusionary rule. The rule provides that evidence obtained through a violation of the Fourth Amendment is generally not
by the prosecution during the defendant's criminal trial. The Court stated in
(1960) that the rule's function "is to deter—to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it."
The Court adopted the exclusionary rule in
(1914), prior to which all evidence, no matter how seized, could be admitted in court. In
(1920) and
(1939), the Court ruled that leads or other evidence resulting from illegally obtained evidence are also inadmissible in trials. Justice
described this secondary evidence in the Nardone decision as the "". The Supreme Court rejected incorporating the exclusionary rule by way of the Fourteenth Amendment in
(1949), but explicitly overruled this decision in Mapp v. Ohio (1961), making the Fourth Amendment (including the exclusionary rule) applicable in state proceedings.
The exclusionary rule and its effectiveness have often been controversial, particularly since its 1961 application to state proceedings. Critics charge that the rule hampers police investigation and can result in freeing guilty parties convicted
other critics state that the rule has not been successful in deterring illegal police searches. Proponents argue that the number of criminal convictions overturned under the rule has been minimal and that no other effective mechanism exists to enforce the Fourth Amendment. In 1982,
passed a "" containing a provision to repeal t though the bill could not affect federally mandated rights under the Fourth Amendment, it blocked the state courts from expanding these protections further.
Responding to criticisms of the exclusionary rule, the Supreme Court has instituted numerous limitations to the rule. In
(1974), the Court ruled that in questioning witnesses,
may use evidence that allegedly was illegally obtained because, "the damage to that institution from the unprecedented extension of the exclusionary rule outweighs the benefit of any possible incremental deterrent effect."
Several cases in 1984 further restricted the exclusionary rule:
In , the Court, applying the "good faith" rule, ruled 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 an officer dishonestly or recklessly prepared an affidavit to seek a warrant, the issuing magistrate abandoned his neutrality, or the warrant lacked sufficient particularity.
The Court determined in
that "fruit of the poisonous tree" evidence could still be introduced if a prosecutor could demonstrate that it would have been an "inevitable discovery" of legitimate investigation.
In , the 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.
(1995) and
(2009), the Court ruled 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 the negligence was not pervasive. In
(2011), the Court ruled that the exclusionary rule does not apply to a Fourth Amendment violation resulting from a reasonable reliance on binding appellate precedent.
The rule has also been held not to apply in the following circumstances:
evidence illegally seized by a "private actor" (i.e., not a governmental employee)
evidence seized from a common carrier
tax hearings
evidence collected by U.S. Customs agents
deportation hearings
military discharge proceedings
evidence seized by probation or parole officers
child protective proceedings
probation or parole revocation hearings
Effects are items of property.
Denniston, Lyle (April 25, 2014). . SCOTUSblog 2014.
Coke's Rep. 91a, 77 Eng. Rep. 194 (K.B. 1604)
, 2 Wils. K. B. 275, 291; 95 Eng. Rep. 807, 817 (K. B. 1765)
Roots, Roger (January 13, 2010). . Gonzaga Law Review. p. 20 (fn. 118) 2012.
Cuddihy, William (1986). . Encyclopedia of the American Constitution.  – via  (subscription required) 2013.
. National Archives.
from the original on April 4, .
Levy, Leonard W. (1986). . Encyclopedia of the American Constitution.  – via  (subscription required) 2013.
, 130 S.Ct. 2619, No. , 560
Landynski, Jacob W. (1986). . Encyclopedia of the American Constitution.  – via  (subscription required) 2013.
Arenella, Peter (1992). . Encyclopedia of the American Constitution.  – via  (subscription required) 2013.
(2009), at page 338.
(1984): "This Court has ... consistently construed this protection as proscribing only it is wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official." (punctuation omitted).
Schwartz, Herman (1986). . Encyclopedia of the American Constitution.  – via  (subscription required) 2013.
Katz, 389 U.S. at 351.
Katz, 389 U.S. at 351; at 360-61 (Harlan, J., concurring)
Schroeder, Steve (2012). . Cengage Learning. p. 127.  .
Morgan, Candace. "" in Intellectual Freedom Manual, pp. 41–42 (American Library Association, Office for Intellectual Freedom, 2010).
Freiwald, Susan (2007). . Stanford Technlogy Law Review (3).
Sorosky, Schuyler. "", Loyola of Los Angeles Law Review, Vol. 41, p.
. The Oyez Project at IIT Chicago-Kent College of Law. The Oyez Project at IIT Chicago-Kent College of Law 2014. Because the Fourth Amendment does not apply to information that is voluntarily given to third parties, the telephone numbers that are regularly and voluntarily provided to telephone companies by their customers do not gain Fourth Amendment protections.
Smith, 442 U.S. at 742.
, No. , 565
___ (2012).
Denniston, Lyle (January 23, 2012). .
, No. , 569
___ (2013).
Landynski, Jacob W. (1986). . Encyclopedia of the American Constitution.  – via  (subscription required) 2013.
Jacobsen, 466 U.S. at 113.
(1992). "The right against unreasonable seizures would be no less transgressed if the seizure of the house was undertaken to collect evidence, verify compliance with a housing regulation, effect an eviction by the police, or on a whim, for no reason at all."
, 442 U.S. 200, 210 n. 12, 99 S.Ct.
n. 12, 60 L.Ed.2d 824 (1979).
Moritz, Rob (April 5, 2008). . Arkansas News Bureau. Archived from
, No. , 553
. . April 23, .
, No. , 569
___ (2013).
June, Daniel. (June 3, 2013). JDJournal. Accessed August 2, 2013.
Landynski, Jacob W. (1986). . Encyclopedia of the American Constitution.  – via  (subscription required) 2013.
Andrews v. Fuoss,
(8th Cir. 2005).
Flippo v. West Virginia, 528
(1999); , 500
(1985). "[W]arrantless searches are per se unreasonable, subject only to a few specifically delineated and well-recognized exceptions. ... full-scale searches – whether conducted in accordance with the warrant requirement or pursuant to one of its exceptions – are "reasonable" in Fourth Amendment terms only on a showing of probable cause to believe that a crime has been committed and that evidence of the crime will be found in the place to be searched."
T. L. O., 469 U.S., , concurring.
Keeley III., Charles J. (2006). . Fordham Law Review 74 (6): .
Landynski, Jacob W. (1986). . Encyclopedia of the American Constitution.  – via  (subscription required) 2013.
Carroll, 267 U.S. at 162.
Holcomb, J. W. (March 2003).. FBI Law Enforcement Bulletin
Landynski, Jacob W. (1986). . Encyclopedia of the American Constitution.  – via  (subscription required) 2013.
Crawford, Kimberly A. (August 1, 1996). . The FBI Law Enforcement Bulletin.  – via  (subscription required) 2013.
Landynski, Jacob W. (1986). . Encyclopedia of the American Constitution.  – via  (subscription required) 2013.
Oliver, 466 U.S. at 179.
Dunn, 480 U.S. at 301.
Jardines, 569 U. S. (slip op., at 6). "This implicit license typically permits the visitor to approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave. Complying with the terms of that traditional invitation does not require fine-gra it is generally managed without incident by the Nation's Girl Scouts and trick-or-treaters."
Landynski, Jacob W. (1986). . Encyclopedia of the American Constitution.  – via  (subscription required) 2013.
Hendrie, Edward (August 1, 2005). . The FBI Law Enforcement Bulletin.  – via  (subscription required) 2013.
, No. , 556
___ (2009)
Moore, Kristina (April 21, 2009). .
. Electronic Privacy Information Center 2014.
___ (2014).
Liptak, Adam (June 25, 2014). . The New York Times 2014.
Charlie Savage, Hannah Fairfield and Josh Williams (June 25, 2014). . The New York Times 2014.
(9th Cir. 1967).
United States v. Guadalupe-Garza,
(9th Cir. 1970).
Upright, Scott J. (October 1, 2009). . William and Mary Law Review.  – via  (subscription required) 2013.
(2004), , 473
(1985), and , 431
Flores-Montano, 541 U.S. at 152–53.
United States v. Ickes,
(4th Cir. 2005).
(9th Cir. 2008).
Vladeck, Steve (23 May 2013). . Lawfare Blog - Hard National Security Choices 2013.
(August 22, 2008). .
(via the ) 2013.
Vladeck, Steve (22 May 2013). . Lawfare Blog - Hard National Security Choices 2013.
John D Bates (3 October 2011). . United States Foreign Intelligence Surveillance Court. pp. 73–74.
, No. , 557
___ (2009).
Denniston, Lyle (June 25, 2009). .
Goring, Darlene C. (1984). . Journal of Criminal Law and Criminology 75 (3): 609. :.   2013.
Levy, Leonard W. (1986). . Encyclopedia of the American Constitution.  – via  (subscription required) 2013.
Landynski, Jacob W. (1986). . Encyclopedia of the American Constitution.  – via  (subscription required) 2013.
Landynski, Jacob W. (1986). . Encyclopedia of the American Constitution.  – via  (subscription required) 2013.
. Supreme Court Drama: Cases That Changed America.  – via  (subscription required). .
. The New York Times. June 21, .
Calandra, 414 U.S. at 354.
Leon, 468 U.S. at 926.
Levy, Leonard W. (1986). . Encyclopedia of the American Constitution.  – via  (subscription required) 2013.
Hendrie, Edward M. (September 1, 1997). . The FBI Law Enforcement Bulletin.  – via  (subscription required) 2013.
Stinger, C. Maureen (February 13, 1996). . The Richmond Journal of Law and Technology 2009.
, 131 S.Ct. 2419, No. , 564
___ (2011).
Denniston, Lyle (June 25, 2011). .
United States v. Pryba, , 399–400 (Dist. of Columbia Cir. 1974).
Garrett v. Lehman, 751 F.2d 997 (9th. Cir. 1985).
(1987); , 534
State in re A.R. & C.P., 937 P.2d , 1044 (Utah Ct. App. 1997); In re Antoine, 2007 Conn. Super. LEXIS 1688.
Adams, Charles F Adams, John (1856). The Works of John Adams, Second President of the United States: With a Life of the Author. Vol. 1 publisher=Little, Brown.
Beeman, Richard (2009). Plain, Honest Men: The Making of the American Constitution. Random House.
Crisera, Maria Lisa (1990). "Reevaluation of the California Corpus Delicti Rule: A Response to the Invitation of Proposition 8". California Law Review 78 (6).
Davies, Thomas Y. (1999). "Recovering the Original Fourth Amendment".
98 (3): 547–750. :.  .
Kilman, J Costello, George, eds. (2006). The Constitution of the United States of America: Analysis and Interpretation. GPO.
Labunski, Richard E. (2006). James Madison and the struggle for the Bill of Rights. Oxford University Press.
Lasson, Nelson B. (1937). The History and Development of the Fourth Amendment to the United States Constitution. Johns Hopkins University Press.
Levy, Leonard Williams (1995). Seasoned Judgments: The American Constitution, Rights, and History. Transaction Publishers.
Maier, Pauline (2010). Ratification: The People Debate the Constitution, . Simon and Schuster.
Wood, Gordon S. (2009). Empire of Liberty: A History of the Early Republic, . Oxford University Press.
Wroth, K Zobel, Hiller B., eds. (1965). Legal Papers of John Adams. Vol. 2. Belknap Press.
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