The Bill of Rights in the National Archives
The Fourth Amendment (Amendment IV) to the United States Constitution is part of the Bill of Rights. It prohibits unreasonable searches and seizures. In addition, it sets requirements for issuing warrants: warrants must be issued by a judge or magistrate, justified by probable cause,
supported by oath or affirmation, and must particularly describe the
place to be searched and the persons or things to be seized.
Fourth Amendment case law deals with three main issues: what
government activities are "searches" and "seizures," what constitutes
probable cause to conduct searches and seizures, and how violations of
Fourth Amendment rights should be addressed. Early court decisions
limited the amendment's scope to physical intrusion of property or
persons, but with Katz v. United States (1967), the Supreme Court
held that its protections extend to intrusions on the privacy of
individuals as well as to physical locations. A warrant is needed for
most search and seizure activities, but the Court has carved out 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 as a result of 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.
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, and 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, in response to Anti-Federalist objections to the new Constitution. Congress submitted the amendment to the states on September 28, 1789. By December 15, 1791, the necessary three-fourths of the states had ratified it. On March 1, 1792, Secretary of State Thomas Jefferson announced that it was officially part of the Constitution.
Because the Bill of Rights did not initially apply to state or
local governments, 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 apply to state and local governments in Mapp v. Ohio (1961) via the Due Process Clause of the Fourteenth Amendment.
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.
Background
English law
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Charles Pratt, 1st Earl Camden 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 Semayne's case (1604), Sir Edward Coke
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 John Wilkes's publications attacking both government policies and the King himself. The most famous of these cases involved John Entick, whose home was forcibly entered by the King's Messenger Nathan Carrington, along with others, pursuant to a warrant issued by George Montagu-Dunk, 2nd Earl of Halifax
authorizing them "to make strict and diligent search for ... the
author, or one concerned in the writing of several weekly very seditious
papers entitled, '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 Entick v Carrington, argued before the Court of King's Bench in 1765. Charles Pratt, 1st Earl Camden ruled that both the search and the seizure were unlawful, as the warrant authorized the seizure of all of Entick's papers—not just the criminal ones—and as the warrant lacked probable cause
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 common law.
Colonial America
Homes in Colonial America,
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 policies on customs;
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 James Otis protested British use of general warrants in the American colonies.
In 1756, the colony of Massachusetts 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 writ of assistance, 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 King George II'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 George III, the new king, to remain valid.
In mid-January 1761, a group of over 50 merchants represented by James Otis
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. However, the court ruled against Otis. Future US President John Adams,
who was present in the courtroom when Otis spoke, viewed these events
as "the spark in which originated the American Revolution."
Because of the name he had made for himself in attacking the writs, Otis was elected to the Massachusetts colonial legislature
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 Virginia Declaration of Rights (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 oath or affirmation; 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.
Proposal and ratification
After several years of comparatively weak government under the Articles of Confederation, a Constitutional Convention in Philadelphia proposed a new constitution on September 17, 1787, featuring a stronger chief executive and other changes. George Mason,
a Constitutional Convention delegate and the drafter of Virginia's
Declaration of Rights, proposed that a bill of rights listing and
guaranteeing civil liberties be included. Other delegates—including future Bill of Rights drafter James Madison—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.
James Madison, drafter of the Bill of Rights
In the 1st United States Congress,
following the state legislatures' request, James Madison proposed
twenty constitutional amendments based on state bills of rights and
English sources such as the Bill of Rights 1689,
including an amendment requiring probable cause for government
searches. Congress reduced Madison's proposed twenty amendments to
twelve, with modifications to Madison's language about searches and
seizures. The final language was 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 Richard Henry Lee
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 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 Thomas Jefferson announced the adoption of the ten successfully ratified amendments on March 1, 1792.
Applicability
The Bill of Rights originally only restricted the federal government, and went through a long initial phase of "judicial dormancy"; in the words of historian Gordon S. Wood, "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 Interstate Commerce Act and Sherman Antitrust Act were passed. As federal criminal jurisdiction expanded to include other areas such as narcotics, 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 Mapp v. Ohio (1961), the U.S. Supreme Court ruled that the Fourth Amendment applies to the states by way of the Due Process Clause of the Fourteenth Amendment.
Fourth Amendment case law deals with three central issues: what
government activities constitute "search" and "seizure"; what
constitutes probable cause for these actions; 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 warrant,
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 sworn by it and is therefore accountable to the issuing court. The Supreme Court further held in Chandler v. Miller
(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.[38] In Ontario v. Quon
(2010), the Court applied the amendment to a municipal government in
its capacity as an employer, ruling that the City of Ontario had not
violated the Fourth Amendment rights of city police officers by
obtaining from the communications company and reviewing transcripts of
text messages sent using government-provided pagers.
Search
Potter Stewart wrote the majority decision in Katz v. United States, 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 property rights—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 Olmstead v. United States
(1928), held that Fourth Amendment rights applied in cases of physical
intrusion, but not to other forms of police surveillance (e.g.,
wiretaps). In Silverman v. United States
(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 Katz v. United States (1967). In Katz, the Supreme Court expanded that focus to embrace an individual's right to privacy, and ruled that a search had occurred when the government wiretapped a telephone booth
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 reasonable. Justice Potter Stewart 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 expectation of privacy
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 Smith v. Maryland (1979), for determining whether a search has occurred for purposes of the Fourth Amendment:
- a person "has exhibited an actual (subjective) expectation of privacy"; and
- society is prepared to recognize that this expectation is (objectively) reasonable.
The Supreme Court has held that the Fourth Amendment does not apply
to information that is voluntarily shared with third parties. In Smith,
the 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. However, under Carpenter v. United States
(2018), individuals do have a reasonable expectation of privacy
regarding cell phone records that would reveal where that person had
traveled over many months and so law enforcement must get a search
warrant before obtaining such records.
Following Katz, the vast majority of Fourth Amendment search cases have turned on the right to privacy, but in United States v. Jones (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 GPS device on a car's exterior without Jones' knowledge or consent. The Court concluded that Jones was a bailee to the car, and so had a property interest in the car. Therefore, since the intrusion on the vehicle—a common law trespass—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 Florida v. Jardines (2013), to rule that bringing a drug detection dog 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 Terry v. Ohio
(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 Terry stop.
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 Florida v. Royer
(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).
Seizure
The Fourth Amendment proscribes unreasonable seizure of any person, person's home (including its curtilage) or personal property
without a warrant. A seizure of property occurs when there is "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.
In United States v. Mendenhall (1980), the Court held that a person is seized 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 Florida v. Bostick
(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 traffic stop
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 Terry stop 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 Maryland v. King
(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.
Exceptions
The
government may not detain an individual even momentarily without
reasonable and articulable suspicion, with a few exceptions. In Delaware v. Prouse
(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 United States v. Martinez-Fuerte (1976), the Supreme Court allowed discretionless immigration checkpoints. In Michigan Dept. of State Police v. Sitz (1990), the Supreme Court allowed discretionless sobriety checkpoints. In Illinois v. Lidster (2004), the Supreme Court allowed focused informational checkpoints. However, in City of Indianapolis v. Edmond (2000), the Supreme Court ruled that discretionary checkpoints or general crime-fighting checkpoints are not allowed.
Warrant
Under the Fourth Amendment, law enforcement must receive written permission from a court of law, or otherwise qualified magistrate, to lawfully search and seize evidence while investigating criminal activity. A court grants permission by issuing a writ 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.
Probable cause
The standards of probable cause differ for an arrest and a search.
The government has 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 Carroll v. United States (1925), the Supreme Court stated that probable cause to search is a flexible, common-sense standard. To that end, the Court ruled in Dumbra v. United States (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 Illinois v. Gates (1983), the Court ruled that the reliability of an informant is to be determined based on the "totality of the circumstances".
Exceptions to the warrant requirement
Consent
If a party
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 Schneckloth v. Bustamonte
(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 Fifth Amendment rights, which cannot be relinquished without an explicit Miranda warning from police.
The Court stated in United States v. Matlock (1974) that a third party co-occupant could give consent for a search without violating a suspect's Fourth Amendment rights. However, in Georgia v. Randolph
(2006), the Supreme Court ruled that when two co-occupants are both
present, one consenting and the other rejecting the search of a shared
residence, the police may not make a search of that residence within the
consent exception to the warrant requirement. Per the Court's ruling in Illinois v. Rodriguez (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. A telling case on this subject is Stoner v. California,
in which the Court held that police officers could not rely in good
faith upon the apparent authority of a hotel clerk to consent to the
search of a guest's room.
Plain view and open fields
According to the plain view doctrine as defined in Coolidge v. New Hampshire (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. What's more, the criminality of the object in plain view must be obvious by its very nature. In Arizona v. Hicks,
the Supreme Court held that an officer stepped beyond the plain view
doctrine when he moved a turntable in order to view its serial number to
confirm that the turntable was stolen. "A search is a search", proclaimed the Court, "even if it happens to disclose nothing but the bottom of a turntable."
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 Hester v. United States
(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."
In Oliver v. United States (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 curtilage,
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 "knock and talk"
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.
Exigent circumstance
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 Terry stop, 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 Schmerber v. California (1966) on the grounds that the time to obtain a warrant would allow a suspect's blood alcohol content to reduce, although this was later modified by Missouri v. McNeely (2013). Warden v. Hayden (1967) provided an exception to the warrant requirement if officers were in "hot pursuit" of a suspect.
A subset of exigent circumstances is the debated community caretaking exception.
Motor vehicle
The Supreme Court has held that individuals in automobiles have a
reduced expectation of privacy, because (1) vehicles generally do not
serve as residences or repositories of personal effects, and (2)
vehicles "can be quickly moved out of the locality or jurisdiction in
which the warrant must be sought."
Vehicles may not be randomly stopped and searched; there must be
probable cause or reasonable suspicion of criminal activity. Items in
plain view may be seized; 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. In Collins v. Virginia (2018), the Court ruled that the motor vehicle exception did not apply to searches of vehicles parked within a residence's curtilage.
In Arizona v. Gant (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.
Searches incident to a lawful arrest
A common law
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 Trupiano v. United States
(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 United States v. Rabinowitz (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 Chimel v. California
(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 Riley v. California (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."
Border search exception
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 U.S. Customs and Border Protection
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 U.S. Courts of Appeals for the Fourth and Ninth
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.
Foreign intelligence surveillance
The Supreme Court decision in United States v. U.S. District Court (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 United States Foreign Intelligence Surveillance Court of Review in its 2008 In re Directives 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 telecommunication carriers cooperating with the US government from legal action, the Congress passed a bill updating the Foreign Intelligence Surveillance Act of 1978 to permit this type of surveillance.
Other exceptions
In New Jersey v. T. L. O. (1985), the Supreme Court ruled that searches in public schools
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 Safford Unified School District v. Redding (2009), the Court ruled that school officials violated the Fourth Amendment when they strip searched a 13-year-old girl based only on a student claiming to have received drugs from that student. Similarly, in Samson v. California
(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.
Exclusionary rule
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 admissible by the prosecution during the defendant's criminal trial. The Court stated in Elkins v. United States (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 Weeks v. United States (1914), prior to which all evidence, no matter how seized, could be admitted in court. In Silverthorne Lumber Co. v. United States (1920) and Nardone v. United States (1939),
the Court ruled that leads or other evidence resulting from illegally
obtained evidence are also inadmissible in trials. Justice Felix Frankfurter described this secondary evidence in the Nardone decision as the "fruit of the poisonous tree". The Supreme Court rejected incorporating the exclusionary rule by way of the Fourteenth Amendment in Wolf v. Colorado (1949), but Wolf was explicitly overruled 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 on reliable evidence;
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, California passed a "Victim's Bill of Rights"
containing a provision to repeal the exclusionary rule; though the bill
could not affect federally mandated rights under the Fourth Amendment,
it blocked the state courts from expanding these protections further.
Limitations
Since United States v. Calandra (1974), the Supreme Court has repeatedly limited the exclusionary rule. The Court in Calandra ruled that grand juries
may use illegally obtained evidence when questioning witnesses, because
"the damage to that institution from the unprecedented extension of the
exclusionary rule outweighs the benefit of any possible incremental
deterrent effect."
Explaining the purpose of the rule, the Court said that the rule "is a
judicially created remedy designed to safeguard Fourth Amendment rights
generally through its deterrent effect, rather than a personal
constitutional right of the party aggrieved."
Several cases in 1984 further restricted the exclusionary rule:
- In United States v. Leon (1984), the Court established the "good faith" exception to the rule, ruling that evidence seized by officers reasonably relying on a warrant was still admissible, even though the warrant was later found to be defective, unless 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 Nix v. Williams (1984) 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 Segura v. United States (1984), 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.
In Arizona v. Evans (1995) and Herring v. United States (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 Davis v. United States (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. In Utah v. Strieff (2016),
the Court ruled that evidence obtained from an unlawful police stop
would not be excluded from court when the link between the stop and the
evidence's discovery was "attenuated" by the discovery of an outstanding
warrant during the stop.
The Supreme Court has also held the exclusionary rule to not apply in the following circumstances:
- Evidence illegally seized by a "private actor" (i.e., not a governmental employee)
- Tax hearings
- Evidence collected by U.S. Customs agents
- Deportation hearings
- Evidence seized by probation or parole officers
- Probation or parole revocation hearings
Metadata
On December 16, 2013, in Klayman v. Obama, a United States district court ruled that the mass collection of metadata of Americans' telephone records by the National Security Agency probably violates the Fourth Amendment. The court granted a preliminary injunction, blocking the collection of phone data for two private plaintiffs
and ordered the government to destroy any of their records that have
been gathered. The court stayed the ruling pending a government appeal,
recognizing the "significant national security interests at stake in
this case and the novelty of the constitutional issues".
However, in ACLU v. Clapper,
a United States district court ruled that the U.S. government's global
telephone data-gathering system is needed to thwart potential terrorist
attacks, and that it can only work if everyone's calls are included.
The court also ruled that Congress legally set up the program and that
it does not violate anyone's constitutional rights. The court concluded
that the telephone data being swept up by NSA did not belong to
telephone users, but to the telephone companies. Also, the court held
that when NSA obtains such data from the telephone companies, and then
probes into it to find links between callers and potential terrorists,
this further use of the data was not even a search under the Fourth
Amendment, concluding that the controlling precedent is Smith v. Maryland,
saying "Smith's bedrock holding is that an individual has no legitimate
expectation of privacy in information provided to third parties." The American Civil Liberties Union
declared on January 2, 2014, that it will appeal the ruling that NSA
bulk phone record collection is legal. "The government has a legitimate
interest in tracking the associations of suspected terrorists, but
tracking those associations does not require the government to subject
every citizen to permanent surveillance," deputy ACLU legal director
Jameel Jaffer said in a statement.
