This article is written by Monesh Mehndiratta, a law student at Graphic Era Hill University, Dehradun. The article explains the Fourth Amendment in the US Constitution and gives its overview. It also provides the history of the amendment along with relevant case laws.
It has been published by Rachit Garg.
Search and seizure play an important role in criminal law jurisprudence as these are means to enforce the law, which helps in the collection of necessary documents and evidence in a particular case. To conduct a search, the court officers or other law officers go to the premises of a witness or any other person involved in a particular case and search for relevant documents or other evidence. On the other hand, seizure requires that if such officers search the premises of any person involved in the case and find any suspicious document or material, they can take it into their custody.
Every criminal justice system makes provisions for search and seizure along with other related rules and requirements for its application. The Fourth Amendment to the Bill of Rights in the US Constitution envisages provisions for search and seizure. It provides that people’s right against unreasonable search and seizure will be protected, but if there is the sufficient reason or probable cause to do a search, a warrant will be issued in this regard. This has been further explained in the article, along with all the requirements.
The Bill of Rights are made of the first ten amendments to the US Constitution and they provide different fundamental rights to its citizens. The Fourth Amendment is one that was introduced in 1791. The Fourth Amendment is founded on the principle that “every person’s house is considered his castle.” This is one of the famous maxims in England, which was also mentioned in Semayne’s Case (1604). This case further recognized the right of a person to prevent any person, even the authorities, from making an unlawful entry into his/her house.
The constitutionality of warrants issued for search and seizure was further challenged in the cases of Wilkes v. Wood (1763) and Entick v. Carrington (1765), where the court held that the issued warrant was not correct because there was no probable cause and it was against the law. These case laws also established the need for the Fourth Amendment, which clearly defines the requirements and essentials of search and seizure. This was done to protect the fundamental rights of liberty and privacy.
In its colonies, England used the writs of assistance to enforce revenue laws, which directed the officers to enter the premises of any person and seize prohibited goods. In this way, the practice of search and seizure came into being in the colonies of England. In this regard, the Fourth Amendment, which underwent changes by the Congress, was initially introduced by James Madison. The courts have tried to expand its scope to include arrest and other detentions without a warrant under its ambit in order to protect the citizens from arbitrary and unreasonable actions of the state.
Overview of the amendment
The US Constitution’s Fourth Amendment can be classified into two parts. The first part protects the citizens against unreasonable and arbitrary physical intrusion into their premises in search of documents and evidence to obtain information, while the second part authorizes the officers to do so upon the issuance of warrants if there is probable cause. The presence of probable cause and application of the test of expectation of privacy determine whether the warrants issued are reasonable or not. The aim of this amendment is to protect the privacy of every person and to protect them against arbitrary searches.
What constitutes a search?
Before delving into discussions on the protection given under the Fourth Amendment, it is necessary to say what constitutes a search. For a search to fall under the ambit of the amendment, there must be a violation of a reasonable expectation of privacy. If there is no violation, then the search is valid. For example, a strip search is only valid if there is probable cause to do so, while a dog sniff inspection discovering suspicious objects is invalid if it violates privacy and reasonable expectation.
In the case of Minnesota v. Carter (1998), the court held that the protection under the amendment depends on the location or premises that have to be searched. For example, school teachers do not require a warrant to search a student as he/she is already under their authority. Whether a particular type of search is valid or not is decided on two factors:
- Rights protected under the amendment,
- Interests of the government, like public safety, etc.
Generally, there must be a warrant for conducting a search. But vehicle searches are an exception to this general rule. The court, in the case of Caroll v. United States (1925), held that law enforcement officers or police might search a vehicle without a warrant if there is sufficient and probable cause. The reason for this exception is that if police or law enforcement officers wait for the issuance of a warrant, then until that time, the vehicle will be out of their jurisdiction. Further, in the case of Arizona v. Gant (2009), it was held that a law officer could search a vehicle if there is probable cause for the occurrence of criminal activity or the presence of evidence of such kind in the vehicle.
This is one of the common types of searches where a place of residence or house is searched. Issuance of a warrant of search and seizure is one of the essentials for conducting a search in a house. It must be obtained by showing that there is probable cause for doing so. Any search and seizure in the place of residence without a warrant is held to be unreasonable and is not permitted (Payton v. New York, 1980).
The police in the United States are permitted to detain a person and search him if they have a reasonable suspicion of his involvement in criminal activity or there is a probability of the presence of dangerous objects with him. The concept originated from the case of Terry v. Ohio (1968), where three men were detained by police and, on search, were found to have a revolver. This was done on the reasonable suspicion that they were preparing for an armed robbery. They challenged the search on the ground that it violated the Fourth Amendment. The court upheld the validity of the search because there was a reasonable suspicion that they had a dangerous weapon that could be used for criminal activity. The court also provided certain essentials for a search, which makes it valid, and if a weapon is found, it could be introduced as evidence:
- There must be unusual conduct or reasonable suspicion against a person.
- The reasonable suspicion leads the officer to believe that there is an apprehension of criminal activity.
- A police officer or an officer legally entitled to conduct a search must do so.
- Officers must conduct a reasonable search and inquiry.
In the case of Illinois v. Caballes (2005), the defendant’s car was stopped for a violation of speeding rules. When the warning ticket was prepared, meanwhile, a dog was moved by another officer around his car, who alerted the officers, and as a result, his car was searched based on reasonable suspicion and drugs were found. The court held that such a search is permissible as the time taken by the dog to alert the officers did not prolong his stay, and there is no need for warrants in such situations. However, in United States v. Zavala (2008), the court held that no police officer could examine the phone during a Terry stop. They cannot investigate the contents of a phone, and where the Terry stop lasted for 90 minutes, it was held to be a de facto arrest without any probable cause.
It is commonly known as being pulled over. In this, the driver of an automobile is detained by police in order to investigate a crime. It must be done on the basis of reasonable and articulate suspicion. In the case of United States v. Arvizu (2002), the court held that an officer can conduct a traffic stop if there is a reasonable suspicion of any criminal activity. After the aim of a traffic stop has been fulfilled, the officer can ask for consent to search the vehicle from the driver without telling him/her to leave (Ohio v. Robinette, 1996).
Where the defendant was stopped for violating the traffic rules and police inquired about his schedule and drugs rather than the violation, it was observed that police must act diligently on a legal basis, and detention, in this case, was held to be improper even though they had reasonable suspicion (United States v. Digiovanni, 2011).
Electronic surveillance, or wiretapping, is now included within the ambit of the amendment. In order to do so, it is necessary to have a warrant issued on probable cause. In the case of Olmstead v. U.S. (1928), the US Supreme Court held that wiretaps will not come under the Fourth Amendment as such information is intangible and is collected by the government remotely, without entering the premises of any person.
However, the decision was overruled in the case of Katz v. U.S. (1967), wherein it was held that any place that maintains the expectation of privacy of any person is covered under the Fourth Amendment, whether it is wiretapping or bugging. Further, it was observed that physically entering the premises of any person is not essential to avail of the protection under the amendment (Kyllo v. U.S., 2011).
Reasonable expectation of privacy
This is a test to determine whether there is a violation of privacy by a search without a warrant. The object of the amendment is to protect citizens from warrantless searches in places where there is an expectation of privacy. This test was formulated in the case of Katz v. United States (1967). Justice Harlan devised the test of reasonable expectation of privacy in this case. The test elucidates the following conditions that must be fulfilled in order to seek protection under the Fourth Amendment:
- There must be an expectation of privacy by the individual.
- The expectation must be reasonable according to society.
On the application of the test in Rakas v. Illinois (1978), the Supreme Court held that the source of the expectation of privacy must be outside the amendment and must refer to the personal property of an individual or to something that is recognized by society. For example, houses are mainly covered under the amendment and fulfil both conditions of the test; thus, there is a reasonable expectation of privacy.
However, it has some exceptions as well. The protection of a reasonable expectation of privacy does not extend to open fields, and any search by the government on such fields does not violate privacy.
Presence of probable cause to issue a warrant for search and seizure
Probable cause is one of the essentials for the issuance of warrants for search and seizure. It means there is a reasonable belief that a crime has been committed or evidence is present at a place that is to be searched. The term ‘probable cause’ has not been defined under the amendment, but the courts have tried to give it meaning depending upon the facts and circumstances of each case. In the case of Illinois v. Gates (1983), the court took a flexible approach to understand the meaning of probable cause, which is considered a practical and non-technical factual consideration by a reasonable and prudent man.
In case of search warrants, there exists probable cause where there is a possibility of discovering evidence of the commission of a crime at a particular place, while in the case of arrests, it depends largely on the circumstances. In the case of Riley v. California (2014), the court held that police officers are not allowed to search through the cell phone of any person without a warrant, even if the person has been arrested.
Requirement of a warrant for search
A warrant for search and seizure can be issued only if probable cause exists. However, the warrant issued for this purpose must contain the following particulars:
- Address of the place to be searched.
- Particulars of documents or things to be seized during the such search.
- Affidavit giving an oath or affirmation in this regard.
If any search and seizure is done without a warrant or in contravention of the above particulars, it is illegal and unreasonable. But before the issuance of such warrants, courts must take into consideration the facts and circumstances of the case and whether a warrant for search and seizure is required.
However, in case of exigent circumstances or situations where there is an urgent need for search and seizure, a warrantless search can be permitted and the officers can search the premises. In the case of Missouri v. McNeely (2013), the US Supreme court observed that if a case falls under such exigent circumstances, the warrantless search can be permitted and is justified. One such circumstance could be a fire in the house where it becomes necessary for the officials to enter the premises in order to save lives of people trapped in fire. In such a situation there is no need to obtain any permission from the court or issue any warrant.
The meaning of the term ‘exigent circumstances’ was interpreted by the court in the case of United States v. MCconney (1984). Any circumstance where the situation is unavoidable and police officers are required to enter the premises of any building or house to protect the evidence from destruction or save lives by preventing any physical injury to any person or prevent a suspected person from absconding, is termed exigent circumstances. A similar situation was faced by police officers in the case of Kentucky v. King (2011) where they followed a person and smelled marijuana outside the apartment in which he lived. They decided to break down the door and search the premises. In doing so they discovered drugs and other materials. However, the Kentucky Court ruled that the search was illegal because it was conducted without any warrant. While the Supreme Court on the same issue held that the conduct of police officers was lawful and did not contravene the provisions of the Fourth Amendment. This is because the facts and circumstances of the case fall under the category of exigent circumstances.
Arrest under the amendment
The Fourth Amendment not only provides protection against unreasonable search and seizure but also against any arrest or detention done arbitrarily without any reasonable cause. If a person is arrested without any reasonable grounds, the court will decide whether it was lawful or arbitrary after analysing the probable cause for such arrest or detention. However, a warrantless arrest is valid only if there is sufficient probable cause. In the case of Aschroft v. al-Kidd (2011), the US Supreme Court held that any arrest made on reasonable grounds after the issuance of a warrant cannot be challenged on the grounds that the authorities making such an arrest had malicious intention or motive.
In another case Atwater v. City of Lago Vista (2001), the court held that police officers have the authority to make an arrest without a warrant if there is probable cause for doing so. In this case, Gail Atwater was arrested for driving without a seatbelt. However, after an hour of arrest, she was released on bond. A suit was filed by her along with her husband against the officer who arrested her alleging that the arrest for such a petty and minor offence was unreasonable. Also that the said arrest was made without a warrant. But the allegations were denied and the court observed that if there exists probable cause reason then the police officer can make an arrest and it would be valid even if it is made without a warrant.
Maryland v. King (2013)
Facts of the case
In this case, a person was arrested for attacking and assaulting a group of people. After the arrest, the authorities collected his DNA samples according to the provisions of the Maryland DNA Collection Act. The collected sample of the accused in the present case matched the DNA sample which was taken from a rape victim as a result of which he was convicted for the offense of rape. He challenged his conviction on the ground that the above-mentioned Act was unconstitutional.
Whether the Act under which the DNA sample of the arrested person was collected, violated his rights guaranteed by the Fourth Amendment in the US Constitution.
Judgment of the court
The Supreme Court in this case held that no rights given under the Fourth Amendment had been violated. It was further observed that the procedures of DNA collection, fingerprinting, photographing, etc., fall within the ambit of a reasonable search. The samples are collected in cases where an arrest is made on reasonable grounds and probable cause i.e. in cases of serious offenses. Moreover, this can be done only when the arrested person is in police custody.
Florida v. Harris (2013)
Facts of the case
In this case, a person named Harris was pulled over for a traffic stop. On the basis of circumstances like an open beer can and the nervousness on Harris’s face, the officer asked for his consent to search the car, which he refused. He then did a sniff test by bringing a dog near the car. The alert given by the dog made the officer think that there was probable cause for a search. After the search, no harmful substances were found other than those that Harris used to make methamphetamine. The dog again gave an alert, but nothing was found in the case. The Florida court observed that wide-ranging evidence must be taken into consideration, along with the performance of the dog and how many times false alerts were given, to conclude there is probable cause.
Whether the ruling of the Florida court is correct or not?
Judgment of the court
The United States Supreme Court reversed the decision of the Florida Court on the grounds that Harris did not challenge the training and performance of the dog. Also, evidence of its performance was given by way of certification, though it had expired, but the officer exercised the dog daily in order to keep the skills. Harris used the substance regularly, and the car had its smell, to which the dog reacted.
Florida v. Jardines (2013)
Facts of the case
In this case, police officers entered the premises owned by a person that was connected to his house in the hope of discovering evidence of the presence of drugs. This was done without any warrant. They also used a trained dog in this regard. The area inspected by them fell under the ambit of a protected area, and so the Florida court held that there was no probable cause for a search as provided under the Fourth Amendment. It further allowed the suppression of evidence collected in the search.
Whether the inspection done by the police officers with the help of a trained dog comes within the meaning of search under the Fourth Amendment?
Judgment of the court
The Supreme Court of the US observed that, in the absence of a warrant, a police officer could enter the premises from the front door by knocking on it like a normal citizen. But using trained dogs to investigate and inspect the area in hopes of finding evidence to incriminate a person comes within the scope of search under the amendment. The officers, in this case, entered the premises of a person without a warrant and violated the right to privacy.
Bailey v. United States (2013)
Facts of the case
In this case, when the police officers were trying to get a warrant for a search issued for searching a basement in the apartment, the detectives followed two men who came out of the apartment. On searching for one of those two men, keys were found, and he alleged that he resided in that apartment. They were brought back to the apartment, where the police officers found guns and drugs. During the trial, the court refused to suppress the keys found from them and their statements stating that Bailey’s detention was justified. The court relied on the case of Michigan v. Summers (1981), where it was held that any detention incidental to the execution of a search warrant is justified.
Whether the rule applied by the court to justify the detention, in this case, was correct?
Judgment of the court
The Supreme Court held that the rule devised in the Summers case was only applicable in the case where a person was in the immediate vicinity of the premises that were searched, and there were three reasons for doing so:
- Safety of officers
- Completion of search
- Prevention of flight
It was observed that the situation in the present is different from that in the Summers case, as the person was detained beyond a reasonable distance and was not in the close vicinity of the apartment. Thus, the detention was not justified.
It is clear that the Fourth Amendment in the US Constitution gives its citizens the right to be secured against unreasonable search and seizure and arbitrary arrest. However, this right is not absolute in nature which means that if there exists a probable cause then the police officers upon issuance of a warrant, can make an arrest or conduct a search in the premises of any building or house and seize things. The term ‘probable cause’ has not been defined by the legislature in the amendment but the courts have interpreted its meaning in different cases faced by them.
The amendment clearly provides that one of the major requirements for conducting search and seizure in the premises of any building or house is a warrant. Any search or arrest done without a warrant renders it illegal and unreasonable. However, there exists an exception where a search without a warrant is permissible. This can be done only in cases of exigent or unavoidable circumstances. Further, any evidence seized in a lawful search is admitted in court. But such evidence cannot be admitted if it is obtained from an illegal search. This is also known as the rule of exclusion. Another interesting fact about the Fourth Amendment is that the words do not expressly mention the right of people to be secured against arbitrary arrest. Over the years, it has been observed and interpreted by the courts that arbitrary arrests fall within its ambit and thus, the people have a right to be secured and protected against such arbitrary arrests.
Frequently Asked Questions (FAQs)
What do you understand about the doctrine of hot pursuit?
According to this doctrine, a warrantless arrest is permissible in cases where there is a suspicion that the accused can abscond. The police are allowed to make an arrest without a warrant in this situation. This can also be called an exception to the general rule provided under the Fourth Amendment that the issuance of a warrant is necessary in order to make an arrest.
Explain the rule of exclusion in cases of search and seizure.
According to the rule of exclusion, any evidence collected in contravention of the provisions of the US Constitution is not admissible. This means that if any evidence is collected from an illegal search, it cannot be admitted in court. This application of the rule was also mentioned in the case of Mapp v. Ohio (1961).
Is there an exception of good faith in case of a search warrant?
Yes, there exists an exception of good faith in the case of a search warrant which makes it valid even if there is a mistake in such warrant. This means that if the officers act in good faith then a warrant with a mistake is considered to be valid. However, the applicability of this exception has to be decided on the basis of mistakes in the warrant and manner of its execution.
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