Fourth Amendment Search and Seizure Requirements: What is the Truth?
June 9, 2017 US Supreme Court update:
The U.S. Supreme Court has accept review of a case wherein the government obtained a robbery suspect's cell phone data that included location data without a warrant. Using law established in the 1970s regarding landline phone use, the government argues that the suspect basically consented to the search because a cell phone carrier is a third party. The defendant argues that so much private information is held on cell phones that no reasonable person would consent to a government search that included precise locations, such as medical facilities where he may have obtained treatment, what churches he may have prayed at, what political rallies he may have attended, or which libraries he may have frequented. This will be a landmark case in 4th Amendment law.
One place where people learn about search and seizure is from watching TV. “Law and Order”has educated millions as to the appropriateness of warrants and warrantless searches. However, the Fourth Amendment has been obfuscated with made-for-television drama.
Understanding how the Fourth Amendment developed and how its history has shaped its application to our society illustrates an expanding and perhaps more intrusive governmental role.
Prior to understanding the text of the Fourth Amendment, one must understand where it came from first.
Like the First, Second, Fifth, Sixth, and Eighth Amendments, the Fourth Amendment developed from pre-existing common law from Great Britain and the colonies. Two famous cases in Britain confined the government from making unreasonable or expansive searched. They were Wilkes v. Wood (1763) and Entick v. Carrington. Both cases concerned pamphleteers who are critical of the King. In each of those cases, agents of the Kroll executed their own warrants, without the use of a magistrate or judge, and ransacked and confiscated all of the suspects’ books and papers. From this flowed the Fourth 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.
This text can be broken into two distinct requirements.
First, a person has a right to be secure against unreasonable searches and seizures. Second, a warrant shall be supported by probable cause, and it must be specific as to the place and things or persons to be seized. The Fourth Amendment does not require the use of warrants, but it does place limits upon when those warrants are issued.
Additionally, the Bill of Rights only protected against federal intrusions into a citizen’s rights, not state police official. That changed when the Supreme Court in Wolf v. Colorado (1949) held that the fourth amendment was protected from state or local interference through the 14th amendment's process clause, i.e. it was “incorporated” into the states. Thus, the Supreme Court drew a line in the sand that neither state nor federal officials could lawfully cross, and if they did, the evidence gained from an illegal search or seizure would be excluded or suppressed at trial.
Exceptions to the warrant requirement of the Fourth Amendment
Since 1961, the Supreme Court has developed a variety of exceptions to the warrant requirement of the Fourth Amendment. Police could search for and seize evidence without a warrant when the evidence was in plain sight, when the search was incident to a lawful arrest, or when exigent circumstances existed, such as hot pursuit or destruction of evidence. When exigent circumstances are raised, probable cause for the search must still be present.
Requirements for warrants and searches
A series hotly contested legal battles throughout the 1970s and ‘80s further refined the Fourth Amendment's requirements for warrants and searches. Police are allowed to stop a vehicle or investigate suspicious behavior using a lower standard than probable cause, called “reasonable articulable suspicion” because a person has a lower expectation of privacy in a motor vehicle.
However, the truck of a car is not openly visible to the public, so the police must first get a search warrant, supported by probable cause, to open the truck. Thus, the broad principles of the Fourth Amendment have been narrowed down to some bright line rules to assist police officers in the execution of their duties. Whether or not this was intended by the Founding Fathers is arguable, but nonetheless, it is what the law is today.
Have you, or someone you know, recently been subjected to search and seizure? Contact our office today for a free legal consultation: 218-749-3047
Note: Minnesota Practicing Attorneys
Article originally published in Hometown Focus.
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