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Fourth amendment; search and seizure

The fourth amendment of the United States of America constitution reads as follows; 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 ( )

It took effect on December 15th 1791. It forms section of the bill of rights that guards against unreasonable and/illegal searches and seizures. Its predecessor was the writ of assurance which was adversely abused and over-used in the American Revolution. The legal protests in the young nation after these events necessitated a legal assurance to the people that the government was going to respect and guard their right to privacy.


Similar to most other American laws, the Fourth Amendment has its roots deep in the heart of English common law. In Seymane (1604), the court recognized that the King did not have unlimited authority to enter his subjects homes but that under certain legal processes where such intrusions were necessary, the agents had to follow due course. The English citizenry faced an unprecedented rise in searches and seizures using general warrants. In one such case, Entick v. Carrington, Charles Pratt, and 1st Earl Camden came to the legal conclusion that a search carried out by the defendant in the name of the king was unlawful. The general warrant authorized the seizure of the Plaintiff's papers and not particular ones, and that the warrant lacked probable cause. This case became the precedent upon which all other criminal and civil cases under common law are determined. The United States Congress recognized the need to assure citizens that their right to privacy would not be violated.

The State of Massachusetts was the first colony to make laws that protected the privacy of the citizenry. The 1756 laws outlawed the use of general warrants which had posed a serious problem especially after attempts to enact the Excise Act of 1754. James Otis represented a group of merchants who petitioned the court to examine the issues of general warrants and writs of assistance. Although the court ruled in favor of the law, Otis won the election to the Massachusetts Colonial Legislature where he played a significant role in passing legislation that required writs of assistance to be issued by judges or justices.

John Adams, George Washington's Vice President termed Otis' bright attack of the English general Warrants as ''the beginning of the American Revolution' (Adams, Charles). Virginia released the Virginia Declaration of Rights which became the template for the Fourth Amendment.

Elements of the amendment

Search-The Supreme Court in Katz v. United States, 389 U.S 347(1967) ruled that the definition of search as when '1) a person's privacy in the search or items searched and 2) society or common sense believes that expectation is reasonable.'(Kulman, Johnny and Costello, George) The facts of the ruling were that as per the definition, a search did occur when the government wire-tapped a telephone booth. This became the threshold for jurisprudence of this Amendment, because the court analysis ends if no search and seizure occurs.

Seizure: The fourth Amendment prohibits unreasonable seizure of any person or personal property without proper authorization i.e. a warrant. In legal terms, seizure of property is when there is significant interference by the government with an individual's possessions. The exception to this rule is that a seizure does not happen when the government questions an individual in a public place. The person is said to be seized if his freedom of movement is infringed.

Stop and frisk-In Terry v. Ohio (1968), police can conduct a warrant less stop and frisk where there is probable cause. The court ruled that an officer can conduct a stop and frisk if he or she has reason to believe that an individual might be armed or that 'criminal activity may be happening.' It forms the most basic of exceptions to the Fourth Amendment, as it defines the situations when a person's right to personal privacy may be breached. It insists on the need for probable cause, and the omission of vague hunches or premonitions. It also recognizes the time frame between suspicion and frisking as a factor of the possibility of malice or a weak defense. (Kilman, Johnny and George Costello 1282-1286)

Warrant-Under the Amendment, police and government agents cannot search and seize evidence without proper and written authorization from a court of law. This authorization must state the reasons why the search is necessary, and the items to be seized. The exceptions of this are if the object or item is in clear view, or using the open fields doctrine, exigent or reaction circumstances, motor vehicle exception and searches incident or related to a lawful arrest. It is not applicable where consent is given by the individual.

Probable cause- The subject of many legal arguments, the extent of probable cause is not easy to define because it is dynamic. It is relative and mostly a case of common sense and logic. It can only be decided according to the facts of the case. In the Supreme Court ruling, Dumbra v. United States where the court ruled that if circumstances would 'warrant a man of reasonable restraint in the belief' (Hirsch, Akhil) that the law is being broken, probable cause has thus been determined.

Exclusionary rule- To ensure that law enforcement officers do not violate this law, the court has adopted the exclusionary rule. It merely seeks to ensure that any and all evidence obtained by breaching the Fourth amendment is tainted evidence and is not admissible in court (Amar, 230). The court frees the suspect without delay because his rights have been infringed and the integrity of the case compromised. It was first discussed in Weeks v. United States (1914) and strengthened in subsequent rulings such as Nardone v. United States and (1939) and Silverthorne Lumber Co. v. United States (1920), and Map v. Ohio (1961).

In Map v. Ohio, the Supreme Court ruled that the ruling in Wolf v. Colorado (1949) where the court admitted illegally obtained evidence was faulty and went against the law. This reinforced the exclusionary rule, and its application to this day is key deterrent for the infringing of the rights of the Fourth Amendment by police and other law enforcement officers.

The Fourth Amendment also has several exceptions;

I) Borders and points of entry

II) Roadblocks with reasonable and legal cause

III) Stop and Frisk

IV) Where it is reasonably proven that no other effective means were applicable. In Michigan v. Sitz (1990), United States v. Martinez-Fuerte (1976) and Illinois v. Lidster (2004).

The Fourth Amendment is only applied where the search is by government officials. It does not apply to situations where a private citizen searches another person or personal property.

In United States v. Leon, the exception of acting in 'good faith' (Akhil, Hirsch) was added to the exclusionary rule. The action of the police in reliance with an invalid search warrant due to lack of probable cause.It was, however, determined to be a situation where they acted in true faith. This was also applied in Herring v. United States (2009) Supreme Court decision. These two cases were a positive for criminal justice because blanket application of the Fourth Amendment would paralyze criminal justice.

The Fourth Amendment reinstated the right of the people to privacy. The actions of the Supreme Court in the last two centuries have solidified the right of the people to privacy and protection from illegal searches and seizures. The process of obtaining search and arrest warrants has also been modified to fit current situations, but the Amendment has not undergone any further change. This is a clear sign that the protection of the citizenry should be a crucial part of its aims. Any government that tries to infringe the rights of the people in the pretext of protecting the state is not democratic.

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