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SEARCH AND SEIZUREFOURTH 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.

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History.Few provisions of the Bill of Rights grew so directly out of the experience of the colonials as the Fourth Amendment, embodying as it did the protection against the use of the writs of assistance. But though the insistence on freedom from unreasonable searches and seizures as a fundamental right gained expression in the colonies late and as a result of experience,1 there was also a rich English experience to draw on. Every mans house is his castle was a maxim much celebrated in England, as Samans Case demonstrated in 1603.2 A civil case of execution of process, Samans Case nonetheless recognized the right of the homeowner to defend his house against unlawful entry even by the Kings agents, but at the same time recognized the authority of the appropriate officers to break and enter upon notice in order to arrest or to execute the Kings process. Most famous of the English cases was Entick v. Carrington,3 one of a series of civil actions against state officers who, pursuant to general warrants, had raided many homes and other places in search of materials connected with John Wilkes polemical pamphlets attacking not only governmental policies but the King himself.4

Entick, an associate of Wilkes, sued because agents had forcibly broken into his house, broken into locked desks and boxes, and seized many printed charts, pamphlets, and the like. In an opinion sweeping in terms, the court declared the warrant and the behavior it authorized subversive of all the comforts of society, and the issuance of a warrant for the seizure of all of a persons papers rather than only those alleged to be criminal in nature contrary to the genius of the law of England.5 Besides its general character, the court said, the warrant was bad because it was not issued on a showing of probable cause and no record was required to be made of what had been seized. Entick v. Carrington, the Supreme Court has said, is a great judgment, one of the landmarks of English liberty, one of the permanent monuments of the British Constitution, and a guide to an understanding of what the Framers meant in writing the Fourth Amendment.6

In the colonies, smuggling rather than seditious libel afforded the leading examples of the necessity for protection against unreasonable searches and seizures. In order to enforce the revenue laws, English authorities made use of writs of assistance, which were general warrants authorizing the bearer to enter any house or other place to search for and seize prohibited and uncustomed goods, and commanding all subjects to assist in these endeavors. Once issued, the writs remained in force throughout the lifetime of the sovereign and six months thereafter. When, upon the death of George II in 1760, the authorities were required to obtain the issuance of new writs, opposition was led by James Otis, who attacked such writs on libertarian grounds and who asserted the invalidity of the authorizing statutes because they conicted with English constitutionalism.7 Otis lost and the writs were issued and used, but his arguments were much cited in the colonies not only on the immediate subject but also with regard to judicial review.

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History and Scope of the Amendment :: Fourth Amendment ...

A traffic enforcement officer chalks tires in Arvada, Colo., in 2014. Physically marking a tire without a warrant is a violation of the Fourth Amendment, a federal appeals court ruled. Kent Nishimura/Denver Post via Getty Images hide caption

A traffic enforcement officer chalks tires in Arvada, Colo., in 2014. Physically marking a tire without a warrant is a violation of the Fourth Amendment, a federal appeals court ruled.

The next time parking enforcement officers use chalk to mark your tires, they might be acting unconstitutionally.

A federal appeals court ruled Monday that "chalking" is a violation of the Fourth Amendment.

The case was brought by Alison Taylor, a Michigan woman whom the court describes as a "frequent recipient of parking tickets." The city of Saginaw, Mich., like countless other cities around the country, uses chalk to mark the tires of cars to enforce time limits on parking.

By the time Taylor received her 15th citation in just a few years, she decided to go after the city and specifically after parking enforcement officer Tabitha Hoskins.

Hoskins, Taylor alleged in her lawsuit, was a "prolific" chalker. Every single one of Taylor's 15 tickets was issued by Hoskins after she marked a tire with chalk, and then circled back to see if Taylor's car had moved. That chalking, Taylor argued, was unconstitutional.

"Trespassing upon a privately-owned vehicle parked on a public street to place a chalk mark to begin gathering information to ultimately impose a government sanction is unconstitutional under the Fourth Amendment," Taylor's lawyer, Philip Ellison, wrote in a court filing.

A three-judge panel of the U.S. Court of Appeals for the 6th Circuit unanimously agreed. Chalking tires is a kind of trespass, Judge Bernice Donald wrote for the panel, and it requires a warrant. The decision affects the 6th Circuit, which includes Michigan, Ohio, Kentucky and Tennessee.

The Fourth Amendment protects people from "unreasonable searches and seizures." To determine whether a violation has occurred, the court first asks whether the government's conduct counts as a search; if so, it asks whether the search was reasonable.

The court found that chalking is indeed a "search" for purposes of the Fourth Amendment, because government officials physically trespass upon a constitutionally protected area to obtain information. Just as the Supreme Court ruled in 2012 that sticking a GPS tracker to a car counted as a "search," so is marking a tire with chalk to figure out how long it has been parked, the court wrote.

And that search wasn't reasonable, the court said. The city searches vehicles "that are parked legally, without probable cause, or even so much as 'individualized suspicion of wrongdoing' the touchstone of the reasonableness standard," the court wrote.

"We don't think everyone deserves free parking," Ellison, the attorney who brought the case, told The Associated Press. "But the process Saginaw selected is unconstitutional. ... I'm very glad the three judges who got this case took it seriously. It affects so many people."

Law professor Orin Kerr, noting that he had never seen a chalking case before, said parking enforcement officers could sidestep the constitutional issue altogether by simply taking a photo of the car rather than using chalk. "That way parking enforcement can learn the placement of the car [without] physically marking it," Kerr wrote.

On her Facebook page, Taylor the recipient of frequent parking tickets delighted in the fact that future law students would get to read about her case while studying the Fourth Amendment. "That's definitely the most exciting part!" she wrote. "I've helped change the law."

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Parking Enforcers Who Chalk Tires Violate The Constitution ...

The Text

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.

Protection against Unreasonable Search and Seizure: The Fourth Amendment protects people against unreasonable searches and seizures by government officials. A search can mean everything from a frisking by a police officer to a blood test to a search of an individuals home or car. A seizure occurs when the government takes control of an individual or something in his or her possession. Items that are seized often are used as evidence when the individual is charged with a crime.

The Fourth Amendment imposes certain limitations on police investigating a crime and prevents the use of illegally obtained evidence at trial. But it does not restrict all searches. For example, courts have ruled that school officials may search school lockers and require that students who participate in extracurricular activities undergo random drug testing.

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Fourth Amendment Annenberg Classroom

The following is a video transcript.

We have all heard of it, but what does it mean and how does it affect you?

The language of the Fourth Amendment reads:

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.

Simply put, the Fourth Amendment stops government agents (usually the police) from searching or seizing a person without first establishing probable cause and securing a warrant from a judge.

Before the Fourth Amendment came into being, Great Britain would use a legal instrument called a Writ of Assistance in the American colonies. These writs functioned as general search and seizure warrants. They had no requirement of what was or who was to be searched or seized. To make matters worse, they never expired and could be transferred from person to person.

These writs allowed the British government broad and general permission to interfere with the private lives of the colonists with no real restrictions. The British government could come and search whoever or whatever they wanted, whenever they wanted to.

The goal of the Fourth Amendment was to restrict government and provide security to Americans against this abuse. This is part of the right of privacy we as Americans enjoy. Today, in order for the government to search or seize something or someone, the general rule is, they must first obtain a warrant based upon probable cause from a neutral magistrate.

In Mapp v. Ohiothe Supreme Court held that any evidence obtained in violation of the Fourth Amendment would not be admissible in court.

However, over the years courts have been granting more and more leniency on the admissibility of evidence, even if it could be argued that it is in violation of the Fourth Amendment. This is because the exceptions to the warrant requirement have almost completely swallowed the rule.

This is due in part to advancements in technology. The interpretation of the Fourth Amendment has been stretched to its limit for scenarios the Founders probably could not have imagined such as automobiles, computers, electronic mail, and phone metadata.

We have talked about the nearly endless list of ways police can search your car in the past, with theinventory and automobile exceptions, but it is important to know about other types of government encroachment on your right to privacy.

We see a recurring theme when it comes to this kind of governmental interference. A new technology emerges, law enforcement uses this technology, pushing the limits of the Fourth Amendment, and then the courts (sometimes) reign them in.

For example, there have been many cases dealing with cell phone searches. Up until very recently, the police would just search through someones cell phone without a warrant to see what they could find. The courts have now held that to search through someones cell phone, the police must first obtain a warrant.

Another example is the use of infrared. Essentially, police were using thermal imaging to look directly into a persons house and could see people, fixtures within the home, or anything else that puts off a heat signature. Based upon what the police would see during that thermal search, they would then obtain a warrant for a physical search.

However, in Kyllo v. The United States, the Supreme Court held that the use of thermal image devices from a public vantage point to monitor a persons home constituted a search under the Fourth Amendment and required a warrant. This is a fast-changing area of the law, and the courts will have to make decisions relating to the use of new technologies as they advance and whether they implicate the Fourth Amendment.

What you need to know: do not give up your Fourth Amendment rights. If an officer says he is going to conduct a search, invoke your rights and do not consent. They may search anyway, but at least now your attorney may be able to get that evidence thrown out in court.

If you have any questions about the Fourth Amendment, call U.S. LawShield and ask to speak with your Independent Program Attorney.

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The Fourth Amendment Search & Seizure - U.S. & Texas ...

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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

2003-18,online since Feb. 24, 2003

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Fourth Amendment cases, citations, and links

Latest Slip Opinions: U.S. Supreme Court (Home) Federal Appellate Courts Opinions First Circuit Second Circuit Third Circuit Fourth Circuit Fifth Circuit Sixth Circuit Seventh Circuit Eighth Circuit Ninth Circuit Tenth Circuit EleventhCircuit D.C. CircuitFederal CircuitForeign Intell.Surv.Ct.FDsys, many district courts, other federal courtsMilitary Courts: C.A.A.F., Army, AF, N-M, CG, SF State courts (and some USDC opinions)

Google Scholar Advanced Google Scholar Google search tips LexisWeb LII State Appellate Courts LexisONE free caselaw Findlaw Free Opinions To search Search and Seizure on Lexis.com $

Research Links: Supreme Court: SCOTUSBlog S. Ct. Docket Solicitor General's site SCOTUSreport Briefs online (but no amicus briefs) Oyez Project (NWU) "On the Docket"Medill S.Ct. Monitor: Law.com S.Ct. Com't'ry: Law.com

General (many free): LexisWeb Google Scholar | Google LexisOne Legal Website Directory Crimelynx Lexis.com $ Lexis.com (criminal law/ 4th Amd) $ Findlaw.com Findlaw.com (4th Amd) Westlaw.com $ F.R.Crim.P. 41 http://www.fd.org Federal Law Enforcement Training Center Resources FBI Domestic Investigations and Operations Guide (2008) (pdf) DEA Agents Manual (2002) (download) DOJ Computer Search Manual (2009) (pdf)Stringrays (ACLU No. Cal.) (pdf)

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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