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The Fourth Amendment (Amendment IV) to the United States Constitution prohibits unreasonable searches and seizures and requires any search warrant to be judicially sanctioned and supported by probable cause. It is part of the Bill of Rights. The Fourth amendment was adopted in response to the abuse of the writ of assistance, a type of general search warrant issued by the British government. It was a major source of tension in pre-Revolutionary America. The Fourth Amendment was introduced in Congress in 1789 by James Madison, along with the other amendments in the Bill of Rights.[1] They were proposed in response to Anti-Federalist objections to the new Constitution.[2]

Congress sent 12 amendments to the states in August of 1789.[3] Of these, 10 were approved by the states. The last state, Virginia ratified the amendments (including the fourth amendment) on December 15, 1791.[3] On March 1, 1792, Secretary of State Thomas Jefferson announced the adoption of the amendment.

The Bill of Rights did initially apply to the states. Also, federal criminal investigations were less common in the first century of the nation's history. For these reasons there is little case law for the Fourth Amendment before the 20th century. The amendment was held to apply to the states in Mapp v. Ohio (1961).

Under the Fourth Amendment, search and seizure (including arrest) should be limited in scope to specific information supplied to the issuing court. This is usually by a law enforcement officer who has sworn by it. Fourth Amendment case law deals with three central questions. What government activities constitute "search" and "seizure"? What constitutes probable cause for these actions? How should violations of Fourth Amendment rights be addressed? Early court decisions limited the amendment's scope to a law enforcement officer's physical intrusion onto private property. But with Katz v. United States (1967), the Supreme Court 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 consent searches, motor vehicle searches, evidence in plain view, exigent circumstances, border searches, and other situations.

The exclusionary rule is one way the amendment is enforced. Established in Weeks v. United States (1914), this rule holds that evidence obtained through a Fourth Amendment violation is generally inadmissible at criminal trials. Evidence discovered as a later result of an illegal search may also be inadmissible as "fruit of the poisonous tree," unless it inevitably would have been discovered by legal means.

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Fourth Amendment to the United States Constitution - Simple ...

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.

Annotations

Vehicular Searches.In the early days of the automobile, the Court created an exception for searches of vehicles, holding in Carroll v. United States281 that vehicles may be searched without warrants if the officer undertaking the search has probable cause to believe that the vehicle contains contraband. The Court explained that the mobility of vehicles would allow them to be quickly moved from the jurisdiction if time were taken to obtain a warrant.282

Initially, the Court limited Carrolls reach, holding impermissible the warrantless seizure of a parked automobile merely because it is movable, and indicating that vehicles may be stopped only while moving or reasonably contemporaneously with movement.283 The Court also ruled that the search must be reasonably contemporaneous with the stop, so that it was not permissible to remove the vehicle to the station house for a warrantless search at the convenience of the police.284

The Court next developed a reduced privacy rationale to supplement the mobility rationale, explaining that the configuration, use, and regulation of automobiles often may dilute the reasonable expectation of privacy that exists with respect to differently situated property.285 One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as ones residence or as the repository of personal effects. . . . It travels public thoroughfares where both its occupants and its contents are in plain view.286 Although motor homes serve as residences and as repositories for personal effects, and their contents are often shielded from public view, the Court extended the automobile exception to them as well, holding that there is a diminished expectation of privacy in a mobile home parked in a parking lot and licensed for vehicular travel, hence readily mobile.287

The reduced expectancy concept has broadened police powers to conduct automobile searches without warrants, but they still must have probable cause to search a vehicle288 and they may not make random stops of vehicles on the roads, but instead must base stops of individual vehicles on probable cause or some articulable and reasonable suspicion289 of traffic or safety violation or some other criminal activity.290 If police stop a vehicle, then the vehicles passengers as well as its driver are deemed to have been seized from the moment the car comes to a halt, and the passengers as well as the driver may challenge the constitutionality of the stop.291 Likewise, a police officer may frisk (patdown for weapons) both the driver and any passengers whom he reasonably concludes might be armed and presently dangerous.292

By contrast, fixed-checkpoint stops in the absence of any individualized suspicion have been upheld for purposes of promoting highway safety293 or policing the international border,294 but not for more generalized law enforcement purposes.295 Once police have validly stopped a vehicle, they may also, based on articulable facts warranting a reasonable belief that weapons may be present, conduct a Terry-type protective search of those portions of the passenger compartment in which a weapon could be placed or hidden.296 And, in the absence of such reasonable suspicion as to weapons, police may seize contraband and suspicious items in plain view inside the passenger compartment.297

Although officers who have stopped a car to issue a routine traffic citation may conduct a Terry-type search, even including a pat-down of driver and passengers if there is reasonable suspicion that they are armed and dangerous, they may not conduct a full-blown search of the car298 unless they exercise their discretion to arrest the driver instead of issuing a citation.299 And once police have probable cause to believe there is contraband in a vehicle, they may remove the vehicle from the scene to the station house in order to conduct a search, without thereby being required to obtain a warrant.300 [T]he justification to conduct such a warrantless search does not vanish once the car has been immobilized; nor does it depend upon a reviewing courts assessment of the likelihood in each particular case that the car would have been driven away, or that its contents would have been tampered with, during the period required for the police to obtain a warrant.301 Because of the lessened expectation of privacy, inventory searches of impounded automobiles are justifiable in order to protect public safety and the owners property, and any evidence of criminal activity discovered in the course of the inventories is admissible in court.302 The Justices were evenly divided, however, on the propriety of warrantless seizure of an arrestees automobile from a public parking lot several hours after his arrest, its transportation to a police impoundment lot, and the taking of tire casts and exterior paint scrapings.303

Police in undertaking a warrantless search of an automobile may not extend the search to the persons of the passengers therein304 unless there is a reasonable suspicion that the passengers are armed and dangerous, in which case a Terry patdown is permissible,305 or unless there is individualized suspicion of criminal activity by the passengers.306 But because passengers in an automobile have no reasonable expectation of privacy in the interior area of the car, a warrantless search of the glove compartment and the spaces under the seats, which turned up evidence implicating the passengers, invaded no Fourth Amendment interest of the passengers.307 Luggage and other closed containers found in automobiles may also be subjected to warrantless searches based on probable cause, regardless of whether the luggage or containers belong to the driver or to a passenger, and regardless of whether it is the driver or a passenger who is under suspicion.308 The same rule now applies whether the police have probable cause to search only the containers309 or whether they have probable cause to search the automobile for something capable of being held in the container.310

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Vehicular Searches :: Fourth Amendment - Justia Law

The meaning of the 4th Amendment comes from unlawful searches and seizures. For example, the 4th Amendment protects people from the unlawful search and seizure by police of their persons, their homes, and their belongings. If an officer violates the 4th Amendment, the victim can sue for wrongful arrest, among other things. To explore this concept, consider the following 4th Amendment definition.

Noun

Origin

September 25, 1789

The 4th Amendment is the amendment to the U.S. Constitution that protects American citizens from unlawful searches and seizures. What this means is that the police cannot arrest an individual without a warrant or probable cause, and they cannot take a persons home or property either without valid reason. Unfortunately, 4th Amendment examples of violations happen every day in the U.S. In many of these cases, the victim will sue the police upon his release from prison, and/or to reclaim his property.

There is a lot of debate regarding the proper requirements of the 4th Amendment, and it has to do with the definition of reasonable, and probable cause. In most cases, there is a strict requirement that law enforcement have a search warrant before searching, though in some specific instances, probable cause to believe a suspect is doing or hiding something illegal is enough.

Probable cause that allows police to search a persons belongings or person includes such things as the strong smell of marijuana emanating from a car a police officer has just stopped. This would give the officer reasonable belief that there is an illegal drug in the vehicle, and therefore probable cause to search the vehicle and the drivers person as well.

Ultimately, the 4th Amendment is in the Constitution to protect Americans rights. It is there to protect people from the governments intrusion upon their lives unless the government has a good reason to intrude.

An unreasonable search and seizure is a search and seizure that invades a persons privacy. For instance, searches of peoples garbage are not 4th Amendment examples of unreasonable search and seizure because the individual put the bags at the curb. Once the garbage bags are on the side of a public road, they are accessible to everyone from animals and children, to scavengers and snoops. So, if the police go through a persons garbage and find incriminating evidence, this is not an instance of an unreasonable search and seizure.

This is also the reason why a person who consents to a search or voluntarily provides evidence to the police should not have a reasonable expectation of privacy. He is inviting others to explore what he has to offer. Therefore, it is not unreasonable for those people to dig deeper and potentially uncover more information.

The 4th Amendment states that one way in which the police can conduct a reasonable search is to obtain a legitimate warrant. The warrant must describe the place the police wish to search, as well as the people they intend to arrest and the property they intend to seize. Another way they can conduct a reasonable search is to require that the search meets the parameters of an exception to the rule requiring warrants.

Essentially, the way to define a reasonable search is to compare the governments interests with a persons reasonable expectation of privacy. For instance, examples of 4th Amendment violations are less likely if a person is guilty of a violent crime. If someone commits a serious crime, he should not expect to enjoy his privacy for very long before the authorities catch up with him.

The term probable cause refers to a legitimate belief that a person has committed a crime or will commit a crime in the future. For a police officer to have probable cause, he must possess enough information about the situation to support his belief that the person he suspects is actually committing, or will commit, a crime. It is not enough to simply suspect someone of a crime. For probable cause to exist, the officer must have factual proof.

Courts rely on probable cause to determine whether a defendant committed a crime. To do this, they measure whether an average person with a reasonable level of intelligence would believe that the evidence provided is enough to prove that the defendant is guilty of the charges against him. The ways in which an individual can come to such a conclusion include:

The phrase fruit of the poisonous tree refers, in the legal sense, to evidence the police obtain illegally, and then try to use against a defendant to build their case. For example, 4th Amendment examples of violations may include officers coercing, or forcing, a suspect to confess to a crime he did not commit, simply to stop the officers from grilling him for hours on end. The phrase fruit of the poisonous tree can refer to any evidence the police obtain illegally, including through illegal wiretaps or after arresting someone without a warrant.

There are exceptions to the fruit of the poisonous tree rule, and these exceptions have a name: inevitable discovery. Inevitable discovery refers to evidence the police obtained illegally but that the prosecution can still use to strengthen their case.

In these cases, the court determines the police could have found the information legally, given enough time, even if they initially came upon the information illegally. Therefore, this evidence becomes inevitable discovery because it is inevitable that the police would have found it anyway, even if they had done so legally, which is why courts may permit its use.

An example of a 4th Amendment violation occurred in Terry v. Ohio (1968). Here, a police officer noticed a group of men, one of which was John Terry, loitering in front of a jewelry store. This caused him to suspect they were casing the joint with the intent of robbing the store. He approached the men, told them he was a police officer, and frisked them. During the frisk, the officer found illegal, concealed weapons. He arrested the men, and after their trial, the court found them guilty. Terry received a sentence of three years in prison on the charge of illegal carrying a concealed weapon.

The defendant appealed the case all the way up to the U.S. Supreme Court. Unfortunately for him, however, the Court ultimately sided with the lower court. The Court held that an officer may pat down a suspect to look for weapons if he has reasonable grounds for suspecting that individual of possessing a weapon. According to the Court, the officer conducted a reasonable search with probable cause.

Said the Court:

We conclude that the revolver seized from Terry was properly admitted in evidence against him. At the time he seized petitioner and searched him for weapons, Officer McFadden had reasonable grounds to believe that petitioner was armed and dangerous, and it was necessary for the protection of himself and others to take swift measures to discover the true facts and neutralize the threat of harm if it materialized. The policeman carefully restricted his search to what was appropriate to the discovery of the particular items which he sought.

Each case of this sort will, of course, have to be decided on its own facts. We merely hold today that, where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where, in the course of investigating this behavior, he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken.

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4th Amendment - Definition, Examples, Cases, Processes

Still, it came as a little bit of a surprise last summer, when the Supreme Court ruled in Carpenter v. United States that a weeks worth of cellphone location data records were protected by the Fourth Amendment, despite being stored by a third-party cellphone provider, because an individual maintains a legitimate expectation of privacy in the record of his physical movements. (The court did leave open the possibility that it might be legal for the government to see location data for a shorter period than a week).

In many ways, the Carpenter ruling was a victory for privacy advocates and signaled the Supreme Courts willingness to rein in third-party doctrine a little bit in an era when almost all of our communications are handled by intermediary companies. But it was also a stark reminder of how much our Fourth Amendment protections depend on what we and, more important, what our judges legitimately expect in terms of privacy.

Some Supreme Court justices have been roundly (and often deservedly) mocked for their ignorance about basic everyday technologies, such as text messages and email. But one advantage to having an older, less tech-savvy judiciary is that their ideas about privacy were formed during an earlier era when it might well have been reasonable to expect that the police would not be able to obtain a weeks worth of detailed location information about you.

In United States v. Jones, decided in 2012, the court ruled that a warrant was required to collect someones location data using a GPS device attached to his car. The majority ruling held that the Fourth Amendment applied because it protected the car from being tampered with, but in a concurring opinion Justice Samuel Alito argued that it was actually the location data not the car that deserved Fourth Amendment protection. By way of explanation, he wrote, Societys expectation has been that law enforcement agents and others would not and indeed, in the main, simply could not secretly monitor and catalog movement of an individuals car for a very long period.

For many people, especially those of us who grew up with ubiquitous location-tracking devices, to say nothing of ubiquitous large-scale data breaches, that is no longer our expectation. Does that mean we lose our Fourth Amendment protections for the information we no longer expect to be secret?

In March, the Senate confirmed Allison Rushings nomination as a judge on the Court of Appeals for the Fourth Circuit. At 36, she became the youngest federal judge in the country. In many ways, a younger and presumably more tech-savvy judiciary is a good thing for deciding cases that revolve around modern technologies. But at the same time, the Supreme Court and other courts have been reluctant to erode the Fourth Amendments protections for data like location information because it seems reasonable to them that people would expect that material to be private. They themselves expect it to be private. As that expectation shifts with a younger judiciary, then so too may those protections.

Today, our ideas about what is and what should be private are changing fast. As we routinely hand over more and more information about ourselves, our communications, our locations and our activities to tech companies, predicating our legal privacy protections on what we expect, rather than what we think people deserve or have a right to, is deeply problematic.

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by John Wesley Hall Criminal Defense Lawyer and Search and seizure law consultant Little Rock, Arkansas Contact: forhall @ aol.com / The Book http://www.johnwesleyhall.com

2003-19,online since Feb. 24, 2003

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Fourth Amendment cases, citations, and links

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Congressional Research Service: --Electronic Communications Privacy Act (2012) --Overview of the Electronic Communications Privacy Act (2012) --Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012) --Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012) --Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012) ACLU on privacy Privacy FoundationElectronic Frontier Foundation NACDLs Domestic Drone Information Center Electronic Privacy Information Center Criminal Appeal (post-conviction) (9th Cir.) Section 1983 Blog

"If it was easy, everybody would be doing it. It isn't, and they don't." Me

I am still learning.Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).

"Love work; hate mastery over others; and avoid intimacy with the government." Shemaya, in the Thalmud

"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced." Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).

"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence."Mapp v. Ohio, 367 U.S. 643, 659 (1961).

"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).

"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today." Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).

"The great end, for which men entered into society, was to secure their property." Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)

"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment." United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)

"The course of true law pertaining to searches and seizures, as enunciated here, has notto put it mildlyrun smooth." Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

"A search is a search, even if it happens to disclose nothing but the bottom of a turntable." Arizona v. Hicks, 480 U.S. 321, 325 (1987)

"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." Katz v. United States, 389 U.S. 347, 351 (1967)

Experience should teach us to be most on guard to protect liberty when the Governments purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding. United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)

Libertythe freedom from unwarranted intrusion by governmentis as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark. United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)

"You can't always get what you want / But if you try sometimes / You just might find / You get what you need." Mick Jagger & Keith Richards

"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for meand by that time there was nobody left to speak up." Martin Niemller (1945) [he served seven years in a concentration camp]

You know, most men would get discouraged by now. Fortunately for you, I am not most men!---Pep Le Pew

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