Fourth Amendment (2024)

Interests Protected

TheFourth Amendmentof theU.S. Constitutionprovides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, againstunreasonable searches and seizures, shall not be violated, and nowarrantsshall issue, but uponprobable cause, supported by oath or affirmation, and particularly describing the place to besearched, and the persons or things to beseized."

The ultimate goal of this provision is to protect people’sright to privacyand freedom from unreasonable intrusions by the government. However, the Fourth Amendment does not guarantee protection from all searches and seizures, but only those done by the government and deemed unreasonable under the law.

To claim a violation of Fourth Amendment rights as the basis for suppressing relevant evidence, courts have long required that the claimant must prove that they were the victim of an invasion of privacy to have a validstanding.However, the Supreme Court has departed from such requirements, an issue of exclusion is to be determined solely upon a resolution of the substantive question whether the claimant's Fourth Amendment rights have been violated, which in turn requires that the claimant demonstrates a justifiableexpectation of privacy, which was arbitrarily violated by the government.

In general, most warrantless searches of private premises are prohibited under the Fourth Amendment, unless a specific exception applies. For instance, a warrantless search may be lawful, if an officer has asked and is given consent to search; if the search is incident to a lawful arrest; if there is probable cause to search, and there is exigent circ*mstance calling for the warrantless search.

Exigent circ*mstances exist in situations where a situation where people are in imminent danger, whereevidencefaces imminent destruction, or prior to asuspect's imminent escape.

On the other hand, warrantless search and seizure of properties are not illegal, if the objects being searched are in plain view. Further, warrantless seizure of abandoned property, or of properties on an open field do not violate Fourth Amendment, because it is considered that having expectation of privacy right to an abandoned property or to properties on an open field is not reasonable.

In some states, there are some exceptions to this limitation, where some state authorities have granted protection to open fields. States can always establish higher standards for protection ofsearches and seizures than what is required by the Fourth Amendment, but states cannot allow conduct that violate the Fourth Amendment.

Where there was a violation of one’s Fourth Amendment rights by federal officials, ABivens actioncan be filed against federal law enforcement officials for damages, resulting from an unlawfulsearch and seizure. Under aBivens action, the claimant needs to prove that there has been a constitutional violation of the Fourth Amendment rights by federal officials acting under the color of law. This differs from a §1983 claim, which is filed against State/local officials for deprivation of rights. See also: Vega v. Tekoh (2022) and qualified immunity

The protection under the Fourth Amendment can be waived if one voluntarilyconsentsto, or does not object to evidence collected during awarrantlesssearch or seizure.

Searches and Seizures Under the Fourth Amendment

Courts must determine what constitutes asearch or seizureunder the Fourth Amendment. If the conduct challenged does not fall within the Fourth Amendment, then the individual will not enjoy protection under the Fourth Amendment.

Search

Asearchunder Fourth Amendment occurs when a governmental employee or agent of the government violates an individual's reasonableexpectation of privacy.

Strip searchesand visual body cavity searches, including anal or genital inspections, constitutereasonablesearches under the Fourth Amendment when supported byprobable causeand conducted in areasonablemanner.

Adog-sniff inspectionis invalid under the Fourth Amendment if the the inspection violates a reasonableexpectation of privacy.Electronic surveillanceis also considered asearchunder the Fourth Amendment.

Seizure of a Person

Aseizureof a person, within the context of the Fourth Amendment, occurs when the police's conduct would communicate to areasonable person, taking into account the circ*mstances surrounding the encounter, that the person is not free to ignore the police presence and leave at their will.

Two elements must be present to constitute aseizureof a person:

• First, there must be a show of authority by the police officer.
  • The presence of handcuffs or weapons, the use of forceful language, and physical contact are each strong indicators of authority.
• Second, the person beingseizedmust submit to the authority.
  • An individual who ignores the officer’s request and walks away has not beenseizedfor Fourth Amendment purposes.

An arrest warrant is preferred but not required to make a lawfularrestunder the Fourth Amendment. Awarrantlessarrest may be justified whereprobable causeand urgent need are present prior to the arrest.Probable causeis present when the police officer has areasonable beliefin the guilt of the suspect based on the facts and information prior to thearrest.

• For instance, awarrantlessarrestmay be legitimate in situations where a police officer has a probable belief that a suspect has either committed a crime or is a threat to the public safety.
• Also, a police officer might arrest a suspect to prevent the suspect’s escape or to preserve evidence.

Awarrantlessarrest may be invalidated if the police officer fails to demonstrateexigent circ*mstances.

The ability to make warrantless arrests are commonly limited bystatutessubject to the due process clause of the U.S. Constitution. A suspect arrested without a warrant is entitled toprompt judicial determination, usually within 48 hours.

There areinvestigatory stopsthat fall short ofarrests, but nonetheless, they fall within Fourth Amendment protection.

• For example, police officers can perform aTerry stopor atraffic stop.
  • Usually, these stops provide officers with less dominion and controlling power and impose less of an infringement of personal liberty for the individual stopped.

Investigatory stopsmust be temporary questioning for limited purposes and conducted in a manner necessary to fulfill the purpose.

An officer’sreasonable suspicionis sufficient to justify brief stops and detentions. To determine if the officer has met the standard to justify theseizure, the court takes into account the totality of the circ*mstances and examines whether the officer has a particularized andreasonable belieffor suspecting the wrongdoing.Probable causegained during stops or detentions might effectuate a subsequentwarrantlessarrest.

Seizure of Property

Aseizureofproperty, within the meaning of the Fourth Amendment, occurs when there is some meaningful interference with an individual’spossessory interestsin the property.

In some circ*mstances,warrantlessseizuresof objects inplain viewdo not constituteseizureswithin the meaning of Fourth Amendment. When executing asearch warrant, an officer might be able toseizean item observed inplain vieweven if it is not specified in thewarrant.

Warrant Requirement

Asearch or seizureis generally considered to beunreasonablewithout awarrant, subject to only a few exceptions.

To obtain asearch warrantorarrest warrant, the law enforcement officer must demonstrateprobable causethat asearch or seizureis justified. A court-authority, usually amagistrate, will consider the totality of circ*mstances to determine whether to issue thewarrant.

Thewarrantrequirement may be excused inexigent circ*mstancesif an officer hasprobable causeand obtaining awarrantis impractical in the particular situation. For instance, in State v. Helmbright, 990 N.E.2d 154, the Ohio court held that awarrantlesssearchof probationer's person or place of residence is not violation of the Fourth Amendment, if the officer who conducts thesearchpossesses “reasonablegrounds” to believe that the probationer has failed to comply with the terms of theirprobation.

Other well-established exceptions to thewarrantrequirement include consensual searches, certain briefinvestigatory stops, searches incident to a validarrest, and seizures of items inplain view.

There is no general exception to the Fourth Amendmentwarrantrequirement in national security cases. Warrantless searches are generally not permitted in exclusively domestic security cases. In foreign security cases, court opinions might differ on whether to accept the foreign security exception to the warrant requirement generally and, if accepted, whether the exception should extend to both physical searches and to electronic surveillance.

Reasonableness Requirement

Allsearches and seizuresunderthe Fourth Amendmentmust bereasonable and noexcessive forceshall be used.Reasonablenessis the ultimate measure of the constitutionality of asearch or seizure.Searches and seizureswith thewarrantmust also satisfy thereasonablenessrequirement.

Warrantlesssearches and seizuresarepresumedto beunreasonable, unless they fall within the few exceptions.

In cases ofwarrantlesssearches and seizures, the court will try to balance the degree of intrusion on the individual’sright to privacyand the need to promote government interests and special needs in exigent circ*mstances. The court will examine the totality of the circ*mstances to determine if thesearch or seizurewas justified. When analyzing thereasonablenessstandard, the court uses an objective assessment and considers factors including the degree of intrusion by thesearch or seizureand the manner in which thesearch or seizureis conducted.

Exclusionary Rule

Under theexclusionary rule, any evidence obtained in violation of the Fourth Amendment will be excluded from criminal proceedings. There are a few exceptions to this rule.

Electronic Surveillance

In recent years, the Fourth Amendment's applicability inelectronic searchesand seizures has received much attention from the courts. With the advent of the internet and increased popularity of computers, there has been an increasing amount of crime occurring electronically. Consequently, evidence of such crime can often be found on computers, hard drives, or other electronic devices. The Fourth Amendment applies to thesearchand seizureof electronic devices.

Manyelectronic searchcases involve whether law enforcement cansearcha company-owned computer that an employee uses to conduct business. Although the case law is split, the majority holds that employees do not have a legitimateexpectation of privacywith regard to information stored on a company-owned computer. In the 2010 case ofCity of Ontario v. Quon(08-1332), theSupreme Courtextended this lack of anexpectation of privacyto text messages sent and received on an employer-owned pager.

Lately,electronic surveillance and wiretappinghas also caused a significant amount of Fourth Amendment litigation.

The USA Patriot Act

Following the September 11, 2001 attacks on the World Trade Centers and the Pentagon, Congress and the President enacted legislation to strengthen the intelligence gathering community’s ability to combat domestic terrorism. Titled theUSA Patriot Act, the legislation’s provisions aimed to increase the ability of law enforcement tosearchemail and telephonic communications in addition to medical, financial, and library records.

One provision permits law enforcement to obtain access to stored voicemails by obtaining a basicsearch warrantrather than a surveillancewarrant. Obtaining a basicsearch warrantrequires a much lower evidentiary showing. A highly controversial provision of the Act includes permission for law enforcement to use sneak-and-peek warrants. A sneak-and-peek warrant is a warrant in which law enforcement can delay notifying the property owner about the warrant’s issuance. In an Oregon federal district court case that drew national attention, Judge Ann Aiken struck down the use of sneak-and-peek warrants as unconstitutional and in violation of the Fourth Amendment. See 504 F.Supp.2d 1023 (D. Or. 2007).

The Patriot Act also expanded the practice of usingNational Security Letters (NSL). An NSL is an administrativesubpoenathat requires certain persons, groups, organizations, or companies to provide documents about certain persons. These documents typically involve telephone, email, and financial records. NSLs also carry agag order, meaning the person or persons responsible for complying cannot mention the existence of the NSL. Under thePatriot Actprovisions, law enforcement can use NSLs when investigating U.S. citizens, even when law enforcement does not think the individual under investigation has committed a crime. TheDepartment of Homeland Securityhas used NSLs frequently since its inception. By using anNSL, an agency has no responsibility to first obtain awarrantorcourt orderbefore conducting itssearchof records.

Another aspect of the Patriot Act, which has been highly confidential was the Telephone Metadata program, which under §215 of the Patriot Act, had allowed the NSA to collect data about Americans’ telephone calls in bulk, was reviewed by the Second Circuit inACLU v. Clapper, in which the Court held the telephone metadata program illegal under the Congress’ original intent under §215.

The Patriot Act expired in mid-2015, and since June 2nd 2015 has been repackaged under the USA Freedom Act. Although it remains to be seen how the Freedom Act will be interpreted, with respect to the Fourth Amendment protections, the new Act selectively re-authorized the Patriot Act, while banning the bulk collection of data of American’s telephone records and internet metadata and limited the government’s data collection to the “greatest extent reasonably practical” meaning the government now cannot collect all data pertaining to a particular service provider or broad geographic region.

Fourth Amendment and Supervised Release/Parole

Probationers (convicted criminal offenders who are released into the community under supervision of a probation officer in lieu of incarceration) or parolees (convicts who have served a portion of their judicially imposed sentence in penal institutions, and are released for the remainder of the sentence under supervision of a parole officer for good behavior) can also assert Fourth Amendment rights, creating a potential confrontation between fundamental constitutional guarantee and the society’s legitimate interest in correctional programs to prevent offenders from lapsing back into a crime (recidivism).

Traditionally, courts have struggled with various theories of parole and probation to justify the complete denial of Fourth Amendment rights to offenders onsupervised releaseor probation. The most prevalent of the theories was the “Custody Theory,” under which an offender was said to be entitled to no more liberty than they would have enjoyed had they been incarcerated. Recently, however, this rationale was rejected byMorrissey v. Brewer, which emphasized that the parolee’s status more closely resembles that of an ordinary citizen than a prisoner. While the Court noted that since parole revocation only changed the type of penalty imposed on an already-convicted criminal, the Court need not afford the parolees “the full panoply of rights” available under the fourteenth amendment to a free man facing criminal prosecution, the Court held that certain procedural protections must be guaranteed to the parolees facing revocation of the parole. In general, the released offenders now have been afforded full Fourth Amendment protection with respect to searches performed by the law enforcement officials, and warrantless searches conducted by correctional officers at the request of the police have also been declared unlawful.

However, in reviewing the searches undertaken by the correctional officers on their own initiative, some courts have modified the traditional Fourth Amendment protections to accommodate the correctional officers’ informational needs, developing a modified “reasonable belief” standard, under which the correctional officer is permitted to make a showing of less than probable cause in order to justify the intrusion of privacy into the released offender.

[Last updated in May of 2023 by the Wex Definitions Team]

Federal Material

U.S. Constitution and Federal Statutes

• U.S. Constitution
• U.S. Code:18 U.S.C.- Crimes and Criminal Procedure
• CRS Annotated Constitution

Federal Court Rules

• Federal Rules of Criminal Procedure
• Federal Rules of Evidence

Federal Judicial Decisions

• U.S. Supreme Court:
  • Recent Criminal Procedure Decisions
    • Brendlin v. California,551 U.S. ___ (2007)
    • Brigham City v. Stuart, 547 U.S. 398
    • Georgia v. Randolph, 547 U.S. 103 (2006)
    • Hudson v. Michigan, 547 U.S. 586 (2006)
    • United States v. Grubbs, 547 U.S. 90 (2006)
    • Important Criminal Procedure Decisions

State Statutes

• State criminal procedure statutes

International Material

Conventions and Treaties

• Dealing with Human Rights(Including in the Criminal Justice Context)

Other References

• Rights of Suspects and Defendants
• ABA Criminal Justice Section, Committee on Criminal Procedure, Evidence and Police Practices Committee
• Litigator's Internet Resource Guide: rules of court
• Federal Judicial Center Publications
• Senate Judiciary Committee
• House Judiciary Committee
• Vera Institute of Justice

Other Topics

• Category: Courts and Procedure
• Criminal Justice
• Criminal Law
• Criminal Procedure
• Fourth Amendment
• Sentencing