Order #109801765 Fourth Amendment to the U.S. Constitution.doc

Running Head: FOURTH AMMENDEMENT 1

Explain and contrast the three major interpretations of the Fourth Amendment to the U.S.

Constitution

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FOURTH AMMENDEMENT 2

The three major interpretations of the Fourth Amendment

Introduction to The Fourth Amendment

All Americans have the privilege of enjoying their fundamental human rights and

freedoms that many people around the world do not. Millions of people begrudge these rights

and freedoms and as such make Americans are resented and made enemies. The cornerstone

of the freedoms enjoyed by us, the Americans was positioned ages back by the founding

fathers. This group of heroic citizens met immediately after independence from the English

rule and established the United States Constitution.

From the history taught in many years of school, it was taught that in 1789, the first

United States Congress drafted the outstanding ‘Bill of Rights’ in New York. The current Bill

of Rights constitutes ten amendments made to the originally drafted constitution. Of great

importance to this paper, is the Fourth Amendment, which will be the main area of

discussion. It is as below in its original form without editing it as below (The Bill of Rights,

2015). (Please don’t consider plagiarism for this quote only).

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”

(Schmalleger, 2012).

Apart from putting into place the Constitution of the United States, our founding

fathers also were far-sighted. They used the excellent forethought and prudence in setting up

the current government. They set up the government to have three branches with entirely

different roles. They included the Legislative branch, Judicial branch, and the Executive

branch. A very critical role of the executive branch entails enforcement of the law. Law


enforcement takes place at the local level, the state level and the federal level of government

where men and women take up this task called police officers. The job of the police officer is

very significant in the attainment of the fourth amendment and is crucial to our livelihood as

they protect us and protect our rights as citizens.

As such the police officers deal with the Fourth Amendment on a daily basis. Simply

put, the Fourth Amendment protects citizens from searches that are not authorized or

permitted, called warrantless searches. The Amendment protects and guarantees the safety of

all people, places and things (property) from being subjected to search and seizure. It applies

to a police officer because the police officers are in continuous hard contact with the society,

in all places including private and public. Each and every one of the contacts the police

officers make is governed and regulated by the Fourth Amendment. Any time an officer stops

a vehicle on the street or stops a person going on with his/her business, or enters a house in

response to a service call, the police officer is controlled and must work under the confines of

the Fourth Amendment.

When the Fourth Amendment Applies

Before delving into the three major interpretations of the Fourth Amendment, it is

important to understand the scenarios under which the Fourth Amendment is applicable. Just

like the other components of the Bills of Rights (excluding the Amendments), the Fourth

Amendment was initially only applicable to cases at the Federal Court level. In 1949,

however, the United States Supreme Court made a significant ruling in the Wolf v. Colorado

case that the rights that the Fourth Amendment guarantees apply by the same token to the

state courts. The decision was as a result of the Fourteenth Amendment, which gives all

citizens of each state the entitlement to the requisite processes and equal protection through

the doctrine of incorporation (LaFave, 2004).


Notwithstanding, some searches, and seizures sanctioned in the federal courts and

state courts are not Fourth Amendment issues. It is important to note and realize that this

amendment protects only the searches and seizures carried out by the government or done in

pursuit of governmental business. All investigative actions and surveillances performed

strictly by the private persons are not regulated by the Fourth Amendment. They include

actions taken by nosey neighbors, private investigators and suspicious spouses to mention but

a few. However, concerns about the Fourth Amendment seem to arise whenever the same

actions are used by agents of law enforcement (police) or private citizens working with the

police bodies.

The Fourth Amendment does not apply to all things or items that a person knowingly

shows off to the public at any place such as the home or the office. It does apply for all that a

person will try to keep as private even though the are accessible to everyone (Katz v. the

United States, 1967). For instance, the Supreme Court has made quite some rulings that

people preserve a reasonable expectancy of privacy in their bodies and personal possessions

such as clothing. In the Hester v.United States case, it was ruled that homeowners have the

right to privacy that goes inside their homes and in the area or space used for family activities

surrounding the homes. However, space does not extend to the open playfields and wooded

areas (Hester v. the United States, 1924). Unlike the homeowner, a business owner is

afforded a far less privacy interest and is further weakened when it comes to commercial

property used in all industries that are closely regulated for example airports, liquor

businesses, and restaurants. It is because the enterprise premises are in many cases exposed to

routine administrative searches by the governmental agencies because of the need to ensure

compliance with any applicable regulations such as the health and safety regulations.

Fourth Amendment Warrant Approach


When the Fourth Amendment is proved adequate to enable a search or seizure, the

next pertinent issue is under what situations the warrant is needed. The Supreme Court made

a decision that the Constitution expressed a predilection for any requisite searches, seizures

and any arrests that are carried out in enforcing warrants by the law (Mincey v. Arizona,

1978). A warrant means a written instruction that must be signed by the court sanctioning a

law-enforcement agent to carry out a search, seizure and or arrest. Any searches or

confiscations done without an authorized or valid warrant are presumed invalid, and any

evidence obtained using such warrants cannot be utilized by the court unless proved to the

tribunal that the search was done under reasonable situations (Davies, 2010).

Furthermore, the Fourth Amendment requires that the warrant should be propped up

by an under-oath, detailed statement made by a police officer or law enforcement agent in the

presence of a neutral magistrate or judge. The Supreme Court further added that existence of

probable cause occurs when the actualities and the scenarios within the law enforcement

officer’s knowledge give rise to a reasonably ethical foundation or starting point. It is on this

basis that a man of reasonable and sound mind should believe that a breach of law

constituting a criminal act took place or is about to take place (Carroll v. the United States,

1925). As such probable cause can be determined even by out of court declarations and

proclamations made by competent police informants, regardless of whether the judge or

magistrate can prove them or not. However, the probable cause is not sufficient in instances

where the only evidence of a criminal act is the officer’s belief or suspicion (Aguilar v.

Texas, 1964). In contrast, probable cause applies if the officer’s subjective justification for

arresting a suspect is criminal offenses that are different from the act at hand as long as the

facts indicate that (Devenpeck v. Alford, 2004) and (Search and Seizure Laws, 2015).

Also, for probable cause to hold, the police officer’s or law enforcement agent’s

statement or affidavit must be taken under oath as true with no falsehoods or exaggerations to


the best of his or her knowledge. The oath can be written or spoken, or both, but the officer

must explicitly state in the affidavit that he lacks any knowledge or intention of biasing the

statement hence falsifying it in the support of the warrant. Erroneousness in the declaration

due to innocent omission or negligence on the officer’s side do not lead to invalidity of the

warrant. The warrant, also, should describe or state the particular person and or place that is

to be searched or seized.

The warrant needs to be detailed and adequate in content to enable an officer carrying

it to ascertain fully with the effort that is reasonable the individual persons and places as

stipulated in the warrant. For instance, the warrant should bear a street address for residences

at least. Most warrants designate the apartment name, hotel or building structure and as

required the sub-unit number or exact name to be searched. The persons in the warrant should

be described with vivid illustrations and specifics to enable an office of assumed average

intelligence to separate these people from others in the given community or setting.

Finally, in the warrant approach, the judge or magistrate issuing the warrant must be

neutral and detached from the case, and should bear no bias whatsoever that can alter the

case. This particular requirement implies that the individual judge or magistrate needs to

exercise impartiality and shouldn’t be an affiliate, delegate, supporter or participant in the

competitive enterprise of law enforcement. It implies that attorney generals, prosecutors and

police officers can not serve as judges (California v. Acevedo, 1991).

4th Amendment Reasonableness Approach

The Reasonableness approach states that not all the searches, confiscations or arrests

must be made using a valid and lawfully implemented warrant. The U.S. Supreme Court

ruled that as long as the search, confiscation or arrest is reasonable under the prevailing

circumstances, and then a warrantless police search is deemed ok by the Fourth Amendment.


These exceptions applied to the Fourth Amendment with regards to warrant requirements

indicate the reluctance of the court to hinder or slow down the responsibilities of all law

enforcement agents such as police officers. In doing this, the court tried to establish stability

by striking a balance between the privacy and rights of the public and the realistic

experiences of the work of the law enforcement officers. Destruction or concealment of

evidence and disappearance of witnesses, suspects can result from always requiring the police

officers to attribute some of the time to fill an application form for a warrant, locate a judge

and then appear before the magistrate (LaFave, 2004).

Some of the circumstances deemed reasonable fall into seven groupings for which a

warrantless search, confiscation or arrest can take place. They include;

Felony arrest in a public place.

Any criminal act that is taking place in the open and is visible by the general public

entails a felony, and the arrest of persons involved doesn’t require a warrant regardless of

having enough time to procure one. However, felony arrests in private locations or places not

open to the public occasionally require warrants unless the law enforcement agent is in hot

pursuit or chase of a fleeing felon (Warden v. Hayden, 387 U.S. 294 1967)

Searches incident to lawful arrest.

In cases where an officer makes a lawful arrest without a warrant, the Fourth

Amendment allows a thorough search of suspect’s possessions and all areas that the suspect

can access or reach. Such types of searches aim at protecting the officers from hidden

weapons that may be used against them unknowingly. Hence, they can confiscate items in

that area.

Cars violating traffic law.


Officers have the right to stop cars that they perceive as violating laws of traffic. Once

the car moves to the sides of the road, the Fourth Amendment immediately allows the officer

to check the interiors of the car.

Possible criminal acts in public.

Whenever a police officer anticipates a breach of the law to take place in a public

place, then the Fourth Amendment permits the officer to stop any suspicious person. The

officer is allowed to conduct a thorough search limited to only the suspect’s outside for any

weapons such as guns that may be used for the criminal act. The officer may further be

propelled to ask the suspect for the identification, but the suspect is under no obligation to

give it to the officer. The officer, depending on prevailing scenarios and suspects refusal to

produce the identification, may get probable cause to permit an arrest (People v. Loudermilk,

1987).

Exigent or Urgent circumstances.

The prevailing conditions at the time of the search, detention or confiscation must be

equivalent to emergency situations. Such situations include screams heard, shots fired, or fire

coming out of a building is sufficient to fulfill the Fourth Amendment's warrant approach.

Undocumented migrants and drunk drivers.

Specific events that can not be addressed effectively through the stipulated procedures

call upon warrantless searches, arrests or confiscations. For instance, the Supreme Court

upheld the roadside checkpoints that aimed to intercept undocumented migrants in the United

States v. Martinez-Fuerte case, and that were aimed at drunk drivers in the Michigan v. Sitz

case. However, in the case of Indianapolis v. Edmond, the Supreme Court found such

roadside checkpoints illegal and violative as they were meant to detect criminal activity.

The good faith of officer.


When an officer uses a defective warrant that is later declared invalid, then the

searches, confiscations, and arrests may be justified, if the officer was acting in good faith.

Implying, the defect of the warrant was either by the judge but not due to the police officer,

and this exception aimed at preventing punishment of honest officers who were acting

apparently by the law.

Fourth Amendment & the Special Needs Approach

For a very long period, the Fourth Amendment did not help the criminal respondents

as the evidence obtained in violation of the two approaches above was still permissible in the

prosecution of the suspects. In the case of Weeks v. the United States, 1914, a respondent had

been convicted using evidence that had been obtained by a federal agent who had no arrest

warrant, but the Supreme Court reversed the conviction, hence creating the exclusionary rule.

In some cases, police behavior was detestable and unethical. As such this rule was

designed to discourage officers from misconduct, and enabled the court to exclude such

evidence from the application during trials upon proving the contravention of a provision of

the constitution. Defendants as such have the right to challenge the use of proof by invoking a

pre-trial motion to quash the evidence. In cases where the pre-trial motion is refused and the

defendant is convicted, and then he/she can appeal. In cases where the defendant succeeds on

appeal, double jeopardy principles do not stop retrial of the accused as the errors did not

address the guilt or innocence (Lockhart v. Nelson, 1988).

Other Examples of court cases

North Carolina

In the State v. Stanley case, 2005, an informer had been engaging in informing the

police for over 14 years and had resulted in the arrest of over 100 arrests. As such, the


reliability of the informer was beyond doubt. The tip he gave was consequently enough

ground to provide probable cause (Storrow, 2005).

Ohio

In the State v. Mesa case, 1999, an inventory search was carried out by the police.

The search was as a result of the established routine and was in line with the police

procedures. As such the search of the impounded vehicle was administered in good faith

hence evidence was used in the court case (Karmel, 2002).

South Carolina

In the State v. Baccus 2005, a warrant was issued to give a blood sample. In the

appeal, it was established that the defendant’s rights as enshrined in the Fourth Amendment

of privacy were violated. Nevertheless, the majority of the rest of the evidence was in support

of the conviction of the defendant. The defendant was guilty of first-degree murder and

burglary. The error in the warrant was not sufficient to change the belief. As a result, the

ruling was upheld (Search and Seizure Laws, 2015)

Constitutional concept of reasonableness in respect to the three interpretations

The implication of the Fourth Amendment is that police or any other law enforcement

body cannot just surge into one’s home, office, business and so on without the proper

permission and authorization. Such an act must be sanctioned and should have a reason for

the search. Otherwise, the search is ‘unreasonable.’ Consequently, the agents tasked with law

enforcement must first and foremost seek a warrant. A search warrant can only be sanctioned

by the Supreme Court, a magistrate of a judge. A judge or magistrate can only issue a search

warrant if the law enforcement agent seeking the warrant has confirmed by a legal instrument

called the “affidavit” that a probable reason exists that a criminal act has occurred. The legal

document (sworn statement) should list all the information as stated and indicate all the


evidence that the police officer or agent has prior knowledge of at the time of the request for

the warrant (Davies, 2010).

Furthermore, a search warrant can be issued when the judge has a good feel about the

fact that enough or adequate evidence exists to establish probable cause that is just sufficient

to substantiate and support the issuance of the warrant. The warrant must be detailed and list

all the particulars with regards to the specific breach of law. It should detail all the items or

properties to be seized or searched, should give the names of the people or locations to be

searched and in case not, it should give the applicable law that permits the act. The

exceptional cases include the urgent and exigent circumstances where a warrant is not

required. These circumstances must be such that the search will prevent the following;

physical harm, getaway of a suspect, or the destruction and concealment of evidence, and

finally lack of sufficient time to acquire the search warrant ahead of time (Dix & Dawson,

2001).


References

Davies, T. Y. (2010). The Supreme Court Giveth and the Supreme Court Taketh Away: The

Century of Fourth Amendment" Search and Seizure" Doctrine. The Journal of

Criminal Law and Criminology, 933-1042.

Dix, G. E., & Dawson, R. O. (2001). Criminal Practice and Procedure. West Group.

Karmel, R. S. (2002). Reconciling Federal and State Interests in Securities Regulation in the

United States and Europe. Brook. J. Int'l L., 28, 495.

LaFave, W. R. (2004). Search and seizure: a treatise on the Fourth Amendment (Vol. 4).

West Group Publishing.

Search and Seizure Laws From Westlaw Books Dot Com. (2015, August 1). Retrieved

November 22, 2015, from http://www.valentinesdayontrial.com/305412.html

Storrow, R. F. (2005). Judicial Discretion and the Disappearing Distinction Between Will

Interpretation and Construction. Case Western Reserve Law Review, 56(65).

Terry v. Ohio, 392 U.S. 1, 1968, Certiorari, to the Supreme Court of Ohio, No. 67, argued

December 12, 1967, decided June 10, 1968, by the United States Supreme Court,

retrieved April 10, 2009. http://laws.findlaw.com/us/392/1.html

The Bill of Rights: A Transcription. (2015). Retrieved November 22, 2015, from

http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html

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