THE 4TH AMENDMENT: AN OVERVIEW
OF CONSTITUTIONAL SEARCHES &
SEIZURES
Chapter 8

Introduction



The 1st Amendment is the cornerstone of
American freedom
The 4th Amendment is unique because it
speaks not only to that desire, but also to a
need
Abraham Maslow had a theory on human
behavior & motivation

In his hierarchy of needs, the need for security
came after the basic needs of food, clothing and
shelter

Introduction

The essence of being an American to many
means the right to be left alone by the
government and to be secure in their persons,
homes, papers and effects


Many take this for granted
An argument in this country is whether we
have too much government

Introduction

Government controls remain important to
Americans


It ensures that citizens can drive to and from their
destination without the fear of being pulled over
by an overly zealous police officer who simply
does not like the color of their car or skin
This security does not mean the government
is barred from carrying out its responsibility

Introduction
Limited government power is necessary
for the laws of the country to be enforced
and the government’s business to be
carried out
 A balance is required for democracy
 Terms fundamental to understanding the
4th Amendment



Search- an examination of a person, place or
vehicle for contraband or evidence of a crime
Seizure- a taking by law enforcement of other
government agent of contraband, evidence of a
crime or even a person into custody

The Importance of the 4th Amendment
to Law Enforcement


The 4th Amendment governs much of what
police officers are legally allowed to do as they
serve and protect
The 4th Amendment has continued to evolve
constitutionally, substantively and procedurally
through common and statutory law

The Importance of the 4th Amendment
to Law Enforcement

The 4th Amendment’s prohibition against
unreasonable searches and seizures by the
police is perhaps the most vital component of
criminal procedure because of ample
opportunities the U.S. Supreme Court has had
to set forth when any government agent may
or may not act, as well as when they have an
expectation, or duty, to do so

Who is Regulated by the 4th
Amendment?



When the Constitution was originally drafted,
the 4th Amendment only applied to the federal
government
Because of the 14th Amendment, it is now
equally applied to state government
Wo lf v. Co lo ra d o (1949)

Established that any government agent (federal,
state or local) is regulated by the 14th Amendment

Who is Regulated by the 4th
Amendment?

Private individuals or agencies are not
regulated by the 4th Amendment


Store detectives are not controlled by the 4th
Amendment
Why?

They are not government agents, and the
Constitution was established to limit the power of
government and its agents

Who is Regulated by the 4th
Amendment?

United S
tates v. P
arker (1994)
 When a customer insured a packaged for more than
$1,000, the United Parcel Service could open their
packages without a warrant and inspect its contents

United S
tates v. Cleaveland (1994)
 Held permissible a warrantless search by a private electric
company employee acting on a tip that a customer was
bypassing the electric meter

United S
tates v. R (1982)
oss
 An airline employee who inspected the defendant’s
luggage according to the FAA regulations was acting in a
government capacity and, was governed by the 4th
Amendment

Who is Regulated by the 4th
Amendment?

Sometimes a private party can be considered
to be a government agent


If a private party agrees to go in to get an item
from a house or a private security guard agrees to
search someone for the police, this person can be
considered an agent of the government
The Fourth Amendment would then apply

The Clauses of the 4
Amendment

th
There are two clauses that are important to
the 4th Amendment in regards to search and
seizure:


Reasonableness Clause
The Warrant Clause

Reasonableness Clause

“The right of the people to be secure in their
persons, houses, papers and effects, against
unreasonable searches and seizures shall not
be violated”

The Warrant Clause

“…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”

Two Interpretations


These two clauses have been viewed
differently by the Supreme Court
In the 1960’s the Court used the conventional
4th Amendment approach


It combines the two clauses together
It holds that all searches not conducted with both
a warrant and probable cause are unreasonable,
and, therefore, unlawful

Two Interpretations

Since the 1960’s the Court has broadened
government’s power by adopting the
reasonableness 4th Amendment approach

It sees the two clauses as separate, distinct and
addressing two separate situations
 This
clause makes warrantless searches and seizures
valid and constitutional when they are sensible

Two Interpretations

There are critical concepts to
understanding the 4th Amendment which
are:



Reasonableness
Reasonable expectation of privacy
Probable cause

Reasonableness


This term was one the framers of the
Constitution used to require interpretation and
application of a law intended to meet the
needs of the people, rather than providing
such rigidity that a commonsense application
could not be made.
There are two approaches to Reasonableness


Bright-line approach
Case-by-Case approach

Reasonableness

Reasonable


Bright-line approach


Reasonableness is determined by a specific rule
applying to all cases
Case-by-case approach


Sensible, rational, and justifiable
Reasonableness is determined by considering the
totality of circumstances in each individual case. It is
the most commonly used method in the U.S.
The Constitution doesn’t provide an absolute
right to be free from government intrusion, only
unreasonable interference.

Probable Cause

Exists when the facts and circumstances
within the officers’ knowledge and of which
they had reasonable trustworthy information
are sufficient in themselves to warrant a man
of reasonable caution in the belief that an
offense has been or is being committed.

Probable Cause

Sm ith v. Unite d Sta te s (1949)


Defined probable cause as, “The sum total of
layers of information and the synthesis of what
the police have heard, what they know, and what
they observe as trained officers. We weigh not
individual layers but the laminated total.”
Laminated total= totality of circumstances

Probable Cause

Totality of circumstances is the principle upon
which a number of legal assessments are
made, including probable cause.



Not a mathematical formula
It is looking at what does exist to assess whether
the sum total would lead a reasonable person to
believe what the officers concluded.
The more factors present, the more likely a
finding of probable cause.

Probable Cause


Probable cause is stronger than reasonable
suspicion.
It can legally justify searches and arrests with
or without a warrant and requires the question:

Would a reasonable person believe that a crime
was committed, and that the individual committed
the offense, or that the contraband or evidence is
where it is believed to be?

Probable Cause



It must be established before a lawful search
or arrest can be made.
Facts and evidence obtained after a search or
arrest can not be used to establish probable
cause.
They can be used to strengthen the case if
probable cause was established before the
arrest, making the arrest legal.

Probable Cause



If probable cause is not present, the
police can not act.
Without probable cause, seized evidence
may be inadmissible in court.
Arrests are determined illegal and officer
can be held liable for such illegality.

Sources of Probable Cause

There are two basic categories of
probable cause:


Observational probable cause
Informational probable cause

Observational Probable Cause


What the officers perceive through their
own senses of sight, hearing, smell, touch
and taste.
Experience, training and expertise may
also lend additional creditability in
justifying probable cause.

Observational Probable Cause

Factors that will raise suspicion and contribute
to establishing probable cause are:






Fleeing from the police
Physical evidence may establish probable cause
Admission made to police officers
Presence at a crime scene or in a high crime area
Association with other known criminals
Furtive conduct
Questionable, suspicious, or secretive behavior
 Will raise an officer’s suspicion
 A person’s level of nervousness can not be used by
itself, but can play a part in the totality of circumstances


Informational Probable Cause




Most of the time officers do not personally
witness criminal activity and they rely on
information.
Includes official sources such as roll calls,
dispatch, police bulletins and wanted notices.
Unofficial sources such as witnesses, victims
and informants.
Dra p e r v. Unite d Sta te s (1959)

Supreme Court at that time held that information
from a reliable informant, corroborated by the
police, upheld a determination of probable cause.

Informational Probable Cause

A uila r v. Te x a s (1964)
g

Established a two prong test for informants
 1st
prong- tested the informants creditability
 2nd prong- tested the informants basis of knowledge
and reliability of the information provided

I is v. G a te s (1983)
llino

Abandoned the two prong test and replaced it
with the totality of the circumstances.
 Made
the establishment of probable cause by use of
informants easier for police.

Search and Arrest Warrants


Government agents that have probable cause must
go before a magistrate (judge) and swear under
oath who and what they are looking for and where
they think it can be found.
In determining whether probable cause for a
warrant exists, the judge must consider the totality
of the circumstances.




Whether a reasonable person would believe what the
officers claim.
Not every judge will sign a warrant.
The officer may be told to come back with additional
information.
Judges today will grant telephone warrants.

Search and Arrest Warrants


Because a judge determines whether probable
cause exists, it removed the discretionary
decision from the officers involved.
A valid warrant not only shifts the granting of
suppression of evidence to the defendant, but
also provides a shield against officer liability.

Knock and Announce Rule

Knock and Announce Rule



The general rule is that officers must first knock
and announce their authority before breaking into
a dwelling to execute a warrant
The intent is to prevent the occupant from
responding with force against unknown intruders
How long must officers wait after knocking and
announcing?
 Unite

d Sta te s v. Ba nks (2003)
15 to 20 second after knocking was sufficient to satisfy the
4th Amendment requirement

Special Conditions


Officers can ask for special conditions to be
attached to a warrant
Exigent circumstances may justice an entry by
police without announcing their presence

May request a no-knock warrant
 Afraid
evidence may be destroyed
 Officer safety requires it
 Hostages or victims

Can also ask a judge to execute a warrant at
night

Nightcap warrant

The Continuum of Contracts

Continuum of Contracts- the almost limitless
variations of contracts between the public and
the police illustrating how justification for
police action increases as their reasons for
thinking criminal activity is afoot build.

The Continuum of Contracts

At one end of the continuum, the contract
consists of nothing more than an individual
and a police officer crossing paths.


The police are unjustified for taking any action.
At the extreme end of the continuum, an
individual’s conduct leads to sufficient
probable cause.

The police are justified to arrest the person; by
force is necessary.

The Continuum of Contracts


The intent of the Constitution is to prevent the
government from intruding on people’s lives
when they have done nothing wrong, however,
it is not absolute.
When the police have lawful reason to act,
they have the right to do so.

The Continuum of Contracts



The U.S. Supreme Court has stated that
the police have a responsibility to act to
prevent crimes and apprehend criminals.
A police officer’s job is to decide where a
particular interaction with a suspect falls
along the continuum.
Police must make a knowledgeable
decision in accordance with the
Constitution.

The Continuum of Contracts


When probable cause exists, the police
will be justified in arresting the person.
When a person is under lawful arrest, they
may be searched and questioned.

However, in a custodial interrogation, it requires
them to be advised of their Miranda rights.

The Law of Stop and Frisk


The law of stop and frisk is the first point
on the continuum of contracts where
police have constitutional authority to
interfere with a person’s freedom.
Police officers should neither be expected
to ignore their reasonable suspicious nor
be denied the right to ensure their own
safety by checking for weapons.

Basic Definitions

Stop- a brief detention of a person based on
specific and articulable facts for the purpose of
investigating suspicious activity



No Miranda warning is required
Articulable facts- actions described in clear,
distinct statements
Frisk- a reasonable, limited pat down search
for weapons for the protection of a
government agent and others

The Law of Stop and Frisk



During a stop, the suspect is not free to
go just then, but will be able to shortly.
A stop differs from an arrest, in which a
person is not free to go.
Because this detention is not an arrest (it
is a stop), no Miranda warning need to be
given.

The Law of Stop and Frisk

The law of stop and frisk deals with that
time frame during which officers follow up
on their suspicions but before the time
that the requisite probable cause is
established to justify an arrest (Te rry v.
O hio - 1968).

The Law of Stop and Frisk

What can a government agent do in
response to such suspicions?

The law of stop and risk permits officers to act
on their suspicions rather than to turn away,
awaiting the infrequent, obvious crime to be
committed before their eyes.

Te rry v. O hio (1968)

The landmark case on stop and frisk.



The case established that an officer with articulable
reasonable suspicion may conduct a brief
investigatory stop, including a pat down for weapons if
the officer has reason to suspect the person is armed
and dangerous.
Reasonable suspicion- an experienced officer’s
hunch or intuition.
This search is reasonable under the 4th
Amendment and any weapons seized may
properly be introduced in evidence against the
person from whom they were seized.

Consequences of 4th Amendment
Violations

An unlawful search or seizure can have
two serious consequences:
1.
2.
The evidence may be excluded from court.
Internal sanctions as well as civil and
criminal liability may be incurred.

The Exclusionary Rule


Is judge-made case law promulgated by the
Supreme Court to prevent police or
government misconduct.
It prevents evidence seized in violation of a
person’s constitutional rights from being
admitted into court.



An officer who has violated someone’s rights may
sued, or
Prosecuted criminally.
The exclusionary rule is by far the most
frequently used means to address
constitutional infractions by the government in

The Exclusionary Rule

The exclusionary rule also helps:

Preserve judicial integrity by preventing
judicial agreement in denying a person’s 4 th
Amendment rights.

Deters police misconduct by making
improperly obtained evidence inadmissible in
court .

Protects citizen’s constitutional right to
privacy.

The Exclusionary Rule




This rule reflects an insistence of American
law that the ends do not justify the means.
If they did, any means of eliciting evidence
would be permissible, including torture.
America is being pushed to its limits with
respect to terrorism, new debate over the
means of obtaining information has arisen.
The Supreme Court has stood firm that
unreasonable search and seizure will not be
tolerated.

The Exclusionary Rule

We e ks v. Unite d Sta te s (1914)



Supreme Court held that illegally obtain evidence
is not admissible in court and the right to be free
from unreasonable searches and seizures under
the 4th Amendment applies to all invasions on the
part of the government and its employees.
Applied to federal prosecutions
M p p v. O hio (1961)
a

Made the exclusionary rule applicable at the state
level.

The Exclusionary Rule

Ro c hin v. Ca lifo rnia (1952)


Searches that “shock the conscience” are a
violation of due process, and any evidence so
obtained, will be inadmissible.
Silve rtho rne Lum be r Co . v. Unite d Sta te s
(1920)

Established the fruit of the poisonous tree
doctrine.
 Evidence
obtained as a result of an earlier illegality
must be excluded from trial.

Once the primary source (the tree) is proven to have
been obtained unlawfully, any secondary evidence

Exceptions to the Exclusionary
Rule
The exclusionary rule applies only in
criminal trials in which a constitutional
right has been violated.
 There are four exceptions to the
exclusionary rule:

1.
2.
3.
4.
Inevitable discovery doctrine
Valid independent source
Harmless error
Good faith

The Inevitable Discovery
Doctrine

Is the exception to the exclusionary rule
deeming evidence admissible even if
seized in violation of the 4th Amendment
when it can be shown that the evidence
would have inevitably been discovered
through lawful means.

N v. Willia m s (1984)
ix
 The
court allowed evidence because an
independent search party would have eventually
discovered it.

Valid Independent Source
If evidence that might otherwise fall victim
to the exclusionary rule, is obtained from
a valid, independent source, that evidence
can be admitted.
 M
urra y v. Unite d Sta te s (1988)


The Court held that evidence initially seen during
an illegal search, but later recovered under a valid
warrant would be admissible.

Exceptions to the Exclusionary
Rule

Harmless error

An exception to the exclusionary rule involving
the admissibility of involuntary confessions
and referring to instances in which the
preponderance of evidence suggests the
defendant’s guilt and the illegal evidence is
not critical to proving the case against the
defendant.

Exceptions to the Exclusionary
Rule

Good faith

Officers are unaware that they are acting in
violation of a suspect’s constitutional rights.
 For
example: when the government is executing
arrest or search warrants.

If the warrants are later found to be invalid, because of a
typographical error citing the wrong address or apartment
number, the evidence obtained while the warrants are
executed are still admissible because the officers were
acting in good faith.

Internal Sanctions, Civil Liability and
Criminal Liability

Government misconduct could result in:



Departmental discipline against the officer
Civil lawsuits
Criminal charges

Internal Sanctions, Civil Liability
and Criminal Liability

America is litigious


A tendency toward suing
Police are an attractive target

They have a lot of power

They are public employees