Amendment to the U.S. Constitution and part of the Bill of Rights that protects people against unreasonable searches and seizures.
The Framers of the Bill of Rights were concerned with the old English practice of issuing general warrants and writs of assistance. These two legal tools authorized searches with few stipulations on searching agents, allowing searches day or night on bare suspicion. Authorized by the monarch, they were valid for the duration of his or her lifetime. They were not required to name a specific person or place but could be stated in more general terms. No oath before a magistrate was necessary to secure a warrant, and probable cause was not required. Everything was left to the discretion of the holder of the warrant. The result was harassment. The colonists were victims of these general warrants and writs of assistance and purposely set out to outlaw them.
James Madison revised his initial draft of the Fourth Amendment, changing the word “secured” to “secure” and adding the clause “against unreasonable searches and seizures.” Although Madison’s goal was to eliminate general warrants and writs of assistance, scholars believe these alterations made the meaning of the amendment ambiguous. The Fourth Amendment outlaws only unreasonable searches and seizures, logically allowing those deemed reasonable. The Framers envisioned that searches conducted with a warrant, which required specifics such as who is to be searched, what is to be seized, and when, were constitutionally permissible. The warrant clause stipulated what was expected of police when conducting searches. However, left unanswered were the questions of whether there are times when it is reasonable to search without a warrant, what constitutes probable cause, and whether the amendment restricts only police or other governmental agents with searching authority.
The Court in Wolf v. Colorado
The Court created a number of exceptions to the search warrant requirement
When an individual is arrested on probable cause, a police officer is permitted to conduct a warrantless search of the person. This exception to the warrant requirement, search incident to arrest, rests on the understanding that the arresting officer must have the power to disarm the accused and preserve any evidence. Protecting the officer’s safety and retaining probative evidence is reasonable. The officer may search not only the person but the areas of immediate control. In Chimel v. California
If in the course of a valid search, an officer comes on stolen or illegal items in plain view, they may be seized and used as evidence. This inadvertent windfall is permissible and reasonable under the Fourth Amendment as long as the officer happens on the evidence in the course of conducting a legal search. Related is the plain feel exception. In Minnesota v. Dickerson
In Terry v. Ohio
The Court has applied the Fourth Amendment to the increasing problems arising in a mobile society. Planes, buses, trains, and boats all raise exigency concerns because of the highly mobile nature of the place to be searched and the futility of the police in executing search warrants on moving objects. The most common exigent circumstance is created by the automobile
Employees of other governmental agencies, such as housing, fire, health, welfare, and safety inspectors, also have searching capabilities. These agents have a lesser standard than probable cause and often invoke an element of surprise, such as unannounced inspections of restaurants. Related to these types of searches are those to ensure safety in the workplace or school by drug-testing employees and students. In National Treasury Employees Union v. Von Raab
The courts have long recognized that individuals and items entering the United States may be searched at the international border without warrant or probable cause. The Court has placed some limits on these searches, such as the level of intrusion. Strip searches, for example, must be justified by real suspicion. In an attempt to stop the influx of illegal drugs, law enforcement developed the drug courier profile, a composite of variables that indicates the likelihood an individual is trafficking drugs. In United States v. Sokolow
In Schneckloth v. Bustamonte
The Fourth Amendment also applies to wiretapping and other forms of police surveillance. The Court in Katz v. United States
The Fourth Amendment describes the right to be secure against unreasonable searches and seizures without mentioning a remedy. The common-law remedy for search and seizure violations was a suit of trespass. This was used until Weeks v. United States
Mapp’s scope was limited by the Court. In Linkletter v. Walker
Otis H. Stephens and Richard A. Glenn’s Unreasonable Searches and Seizures: Rights and Liberties Under the Law (Santa Barbara, Calif.: ABC-Clio, 2004) covers the subject of Fourth Amendment jurisprudence through two centuries of American history. Samuel Dash’s The Intruders: Unreasonable Searches and Seizures from King John to John Ashcroft (New Brunswick, N.J.: Rutgers University Press, 2004) takes an even deeper historical approach, tracing protection against unreasonable searches back to early English history. Paula Franklin’s The Fourth Amendment (New York: Silver Burdett Press, 2001) describes the origins of the Fourth Amendment as a check on police abuses. William W. Greenhalgh’s The Fourth Amendment Handbook: A Chronological Survey of Supreme Court Decisions (2d ed. Chicago: Criminal Justice Section, American Bar Association, 2003) is a professional handbook for lawyers. Another good historical treatment of the Fourth Amendment is Nelson B. Lasson’s The History and Development of the Fourth Amendment to the United States Constitution (Baltimore, Md.: Johns Hopkins University Press, 1937). Several classic and often cited works about the Fourth Amendment are Jacob W. Landynski’s Search and Seizure and the Supreme Court (Baltimore, Md.: Johns Hopkins University Press, 1966), Wayne LaFave’s Search and Seizure: A Treatise on the Fourth Amendment (Mineola, N.Y.: Foundation Press, 1978), Erwin N. Griswold’s Search and Seizure: A Dilemma of the Supreme Court (Lincoln: University of Nebraska Press, 1975), and Telford Taylor’s Two Studies in Constitutional Interpretation (Columbus: Ohio State University Press, 1969). A general treatment of Fourth Amendment rights can be found in David M. O’Brien’s Constitutional Law and Politics: Civil Rights and Liberties (6th ed. 2 vols. New York: W. W. Norton, 2005). Some law review articles debating the policy implications of the Fourth Amendment and its remedy are Anthony Amsterdam’s “The Supreme Court and the Rights of Suspects in Criminal Cases,” New York University Law Review 45 (1970): 785, Yale Kamisar’s “Is the Exclusionary Rule an‘Illogical’ or ‘Unnatural’ Interpretation of the Fourth Amendment?” Judicature 62 (1978): 67, and Malcolm Wiley’s “Constitutional Alternatives to the Exclusionary Rule,” South Texas Law Journal 23 (1982): 531. Warren E. Burger expressed his views on the Fourth Amendment in “Who Will Watch the Watchman?” American University Law Review 14 (1964): 1.
Bill of Rights
Carroll v. United States
Chimel v. California
Leon, United States v.
Mapp v. Ohio
Search warrant requirement
Stop and frisk rule
Weeks v. United States
Wolf v. Colorado