THE FOURTH AMENDMENT

Constitutional Law

Fourth Amendment

• The fourth amendment of the constitution provides protection against unreasonable intrusions by government

• Regarded as the Search and Seizure Amendment

• Main emphasis ‘probable cause’ is noted language

Fourth Amendment

• Rules of search and seizure not found in amendment

• result from judicial interpretations • Protections extended to:• houses• persons• papers • effects

Fourth Amendment

• U.S. Supreme Court set standards for search and seizure across all states

• States can establish higher standards

• this makes 4th amendment standards complex and tough to follow

• Areas of focus for the 4th amendment: probable cause and reasonable expectation of privacy

Fourth Amendment

• The fourth amendment can be difficult to interpret because of language such as unreasonable

• Courts have a hard time determining what constitutes unreasonable

• Separate rules for each situation• Reasonable-prudent test

Events not Protected

• There are events that the fourth amendment does not protect:

• searches and seizures by private persons

• searches and seizures of abandoned property

• matters exposed to public view• canine inspections to detect

narcotics

Events not Protected

• If the activity does not involve violating an expectation of privacy or the police, it is not regarded as a search

• The fourth amendment was designed to protect people from government, not from each other

• The fourth amendment protects people, not places

Remedy for Violating the Amendment

• Remedy designed by the courts is to make the results of the search inadmissible

• Exclusionary Rule• pertains to all information or

property• Defining cases: Weeks vs. United

States (1914)and Mapp vs. Ohio (1961)

Warrants and Probable Cause

• Fourth amendment covers several activities other than search and seizure

• detentions• investigative stops• arrests• Activities covered are:• searching persons for evidence• searching places and things for

evidence• seizing evidence

Warrants and Probable Cause

• Understanding of search and of seizure are required

• Search: if the police intrude on a person’s reasonable expectation of privacy

• Seizure: if the police interfere with a person’s possessory rights in property

Warrants and Probable Cause

• An event involving search and seizure is evaluated based on the level of invasiveness

• Items that can be seized:• fruits of the crime• instruments used to commit the

crime• contraband• mere evidence-items that ‘link’

Warrants and Probable Cause

• Warrants are generally always required unless an exception exists

• consent• search incident to an arrest

(Chimel)• exigent circumstances

(emergency)

Warrants and Probable Cause

• Items that are discovered in plain view during a lawful search are admissible. Plain view items do not constitute search

• A warrant cannot be issued “but upon probable cause”

• requires a neutral party make the determination

Warrants and Probable Cause

• Probable cause can be a vague and flexible concept

• determined by type of case-urgency• Judges use their own judgment to

determine if a warrant is justified• Information must be “fresh”

Warrants and Probable Cause

• Judges are put into place between the individual and police to assure the police are acting properly.

• Considered a neutral decision maker• makes determination of probable

cause, what can or cannot be searched, what should or should not be seized

Warrants and Probable Cause

• Warrant requirement can be avoided • stop and frisk (Terry vs. Ohio)• Search incident to arrest (Chimel

vs. California• Special needs of law enforcement

(border searches, airports, schools)

• Exigent circumstances (emergency)

Warrants and Probable Cause

• Exceptions• Consent (must have authority)• Motor vehicles (mobile)• inventory search (requires dept.

policy)

Warrants and Probable Cause

• Warrants have three components• Warrant• Affidavit• Return to warrant• Must be served and returned

within ten (10) days of judges signature

• daytime service 6am to 10pm

Seizure

• Search and seizure are generally terms used together but they are very different events

• You can have a search without a seizure and a seizure without a search

• four reasons to seize:• evidence• determine ownership or content• prevent movement• safekeeping

Things to Know

• parts of a search warrant• daytime service requirements• Knock and announce• search• seizure• exceptions to warrant requirement• what can be seized• why search