THE FOURTH AMENDMENT
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.
UNRESTRICTED SEARCH AND SEIZURE
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.
FOURTH AMENDMENT GOALS
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. Ohio the Supreme Court held that any evidence obtained in violation of the Fourth Amendment would not be admissible in court.
THE FOURTH AMENDMENT TODAY
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 the inventory 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 someone’s cell phone without a warrant to see what they could find. The courts have now held that to search through someone’s 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 person’s 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 person’s 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.
YOUR RIGHTS
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.
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