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The Fourth Amendment: Unconstitutional Searches


The authority to arrest or search an individual or property by the police in the US is guided by how the courts interpret the Constitution’s fourth amendment. These regulations apply directly to federal officers and sometimes indirectly to state officers via the incorporation doctrine. It should be noted that, “State constitutional standards are also applied when necessary by the state courts” (Search & seizure, n.d, p. 1). Search and seizures are sensitive issues and therefore, is usually handled with an aim of balancing between the rights of citizens to privacy and liberty, and the interest of the government to enforce the law effectively. This has therefore, made this amendment vulnerable to fluctuations in the way ideological justices are balanced in the courts. For instance, in the 1960s, the courts prioritized the protection of citizens from excessive intrusion from government, but in recent years aggressive enforcement has been preferred especially in the fight against terrorism and drugs. This paper will analyze the use of the Fourth Amendment in the enforcement of law in the US.

The Fourth Amendment

The amendment is as follows

The right of the people to be secure in their persons, house, 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. (Abernathy & Perry, 1993, p. 41).

This amendment is meant to prevent the policy from having absolute power in carrying out their duties. If the police are left to do as they wish, then the citizenry will be exposed to arbitrary searches and arrests. Conversely, crime control is important government policy that should be carried out carefully, expectations of individuals on how they should be legally protected should not be left to deter enforcing the law. The judicial system should therefore find a way of interpreting the law to balance between protection of individual rights and crime control (Abernathy & Perry, 1993, p. 41).

This amendment posses the question, how will an officer know that the actions he or she will carry out in the course of duty may violate the laws that protect the rights of individuals? This question has led to police officers on many occasions to make their own decisions which may or may not violate individual rights. To limit their level of discretionary, the amendment does not allow the police to engage in “Unreasonable searches and seizures” (Search & seizure, n.d, p. 1). Searches are defined by the Supreme Court as actions, which may intrude on a person’s reasonable expectations of privacy carried out by law enforcement officers. For instance, a drug peddler who hides cocaine in a locked drawer in his bedroom will have shown a reasonable expectation and therefore law enforcers can not just enter his home and open the drawer to take the cocaine. This reasonable expectation plays a very important role in court rulings regarding the legal guidelines that police should follow in their investigations.

When it comes to the definition of seizures, the Supreme Court looks at the nature and extent of the interference by an officer on the liberty and freedom of movement of the people. Officers are free to speak to the people on the streets as long as they do not intrude on their liberty and freedom of movement. If a person stops voluntarily to speak to a law enforcement officer, the person has not been seized, because he or she is free to move whenever he or she feels like. A seizure occurs when a law enforcement officer halts an individual’s movement. The Fourth Amendment requires that such a seizure be reasonable. Arrest is not mentioned specifically in the Amendment, but arrest is just one form of seizures. An illegal arrest is therefore unconstitutional under the Fourth Amendment. This came out more clearly in “Henry v. United States, 361, U.S. 98 (1959)” (Abernathy & Perry, 1993, p. 41). In this case, it was made clear that seizure and arrest are not synonymous, but what is an arrest? It is the taking of an individual into custody with the aim of taking him to court, or to make sure that justice is administered. If an officer arrests an individual with no intention of taking him to court, then the officer will be violating the Fourth Amendment. An individual’s property can also be seized especially if it is to be used as evidence against some criminal case (Abernathy & Perry, 1993, p. 41).

When a law enforcement officer stops an individual, the officer will be briefly interfering with the freedom of that individual. A stop should therefore last for a few minutes. An interference that lasts for a long duration will be violating an individual’s rights to freedom of movement and will need further justification. In order for stops to justify under the Fourth Amendment, they need reasonable suspicion. Legally, law enforcers can not make stops based on intuitions, they must have reasonable suspicion that led them arrive at the conclusion that the person should be stopped. The police however, have been allowed by the courts to make stops on many occasions without necessarily having reasonable suspicion. This mostly occurs in areas such as border points to prevent illegal activities like human trafficking. This therefore, means that there are occasions when people can be stopped even if there is no particular basis of suspicion for wrong doing (Cole & Smith, 2007, p. 179).

Furthermore it has been argued that

Whether an action by the police is a “search” subject to Fourth Amendment standards usually depends upon whether the police have intruded upon premises or information in which a person has a “reasonable expectation of privacy” ( Katz v. United States ( 1967 ). A reasonable expectation of privacy can exist in a house or other building not open to the public and in an auto or other personal property. (Searches & seizures, n.d, p. 1)

For instance, if an individual shares information of a financial nature with a banker, then the particular information ceases to be under the protection of the Fourth Amendment. It is also worth noting that privacy is lost in case areas considered to be private can be viewed from vantage points. If the police plainly observe something from a place where they can lawfully be found, then that is not regarded as a police search that is subject to the Fourth amendment. This was clearly explained in the Florida v. Riley (1989) case (Searches & seizures, n.d, p. 1).

A person gives up his protection by the Fourth Amendment if he or she consents to a search. In this case, the consent must be voluntary. The police will be violating the Fourth Amendment if they use their authority to force individuals to consent to searches. However, the police are not under any obligation to inform individuals of their right to refuse consent to a search, whether on themselves or on their property. This appeared in Schneckloth v. Bustamonte (1973) case. This is where the use of warrants, comes in. The Amendment protects the citizens from police harassment especially on their privacy. This requirement is very broad especially when understood in terms of the modern doctrine of search and seizure. Initially, people understood this as an obligation on law enforcers to obtain written judicial warrants before undertaking any search. All warrants should be based on probable cause. This means that any officer with a probable case that an individual is involved in a crime, or that evidence to crime can be found in a particular location, must appear before a magistrate who is neutral and detached from the case and swear under oath that they are sure of what they are about to do (Search & seizure, n.d, p. 1).

Judges or magistrates, on the other hand, should consider the totality of the circumstances in making decisions on whether there is probable cause for the warrant. The warrant should therefore, show the reasons for requesting it, names of officers who requested it any other person with information about the case, the name of the person being sought and the signature of the issuing judge. This shows that it is not easy to obtain a warrant because an officer has to furnish sufficient data to a judge showing a probable cause before getting one. Back in the 1960s, police officers were expected to swear that there was probable cause basing on hearsay from informants whom they saw as reliable. This requirement was lowered by a court decision in 1983, “Illinois v. Gates changed the definition of probable cause to mean a substantial chance, or a fair probability that criminal activity exists” (Searches & seizures, n.d, p. 1). This means that the reviewing magistrate or judge only makes a common sense decision as to whether there is a fair probability for criminality. Furthermore, probable cause is not made invalid by a factual error made by the police so long as the error was reasonable under the circumstances. This has reduced the threshold needed in determining probable cause when arrests and searches are justified (Search & seizure, n.d, 1).

There are instances where warrantless searches and arrests can be done. Theoretically, this can be seen as unreasonable unless the conduct of the police falls within the exceptions to the warrant requirements recognized by the law. In the US, many searches are carried out without warrants. There are six types of searches that the law allows to be carried out without a warrant. These include, searches under special needs that may be beyond the normal reason of enforcing law, searches involving stop and frisk instances on the streets, a search that is incident to a legal arrest, searches under exigent circumstances, searches by consent, and finally, searches done on automobiles. Searches under special needs can involver people other than the police who may be required to conduct searches that have nothing to do with the ordinary enforcement of law. These include government officers and or employees. These searches are also subject to the Fourth Amendment, but are treated under the special needs that arise from a particular situation. This is mostly done to preserve disciplines in institutions of learning, for public safety, and to effectively enforce regulations. Searches under special needs are not subjected to strict principles like those in the “probable cause” (Search & seizure, n.d, p. 1).

Under exigent circumstances, law enforcers can intrude on a person’s rights without a warrant. This happens in situations such as when the police are pursuing an escaping suspect, when there is looming danger that can cause bodily harm or injury, or when the police suspects that evidence may be destroyed. Arrests in public places also fall under exigent circumstances; police do not require a warrant to arrest anyone in a public place. This was seen in United States v. Watson (1976) case. Exigent circumstances also allow law enforcers carrying out lawful arrests to conduct warrantless incident searches on the arrested person. They are also allowed to search the area where the arrested person was found and the immediate surrounding such as the passenger area if the arrest was made in a vehicle. Inventory search on the person and his belongings can be done without a warrant. For example, the police are allowed to carry out “an inventory search of an impounded car as it happened in Florida v. Wells (1990)” (Search & seizure, n.d, p. 1).

The issues of automobile searches first came up in Carroll v. United States 91925), where federal law enforcers searched an auto for illegal alcohol. The justification made when approving this warrantless search was that, because of the mobility of cars, they can not be likened to houses and other buildings because they can be driven away any time. This means that officers will have no time to go through the process of acquiring an arrest warrant. Hence, law enforcers are allowed on these grounds to search automobiles and also command those using them. For instance, officers at a traffic stop can command a driver and passenger to alight from a vehicle even if the officers have no basis for suspecting them as it happened in the Maryland v. Wilson, 1997 case (Cole & Smith, 2007, p. 188).

Officers conducting a search under the consent of an individual do not need a warrant for the search. They also do not need to have probable cause or any suspicion whatsoever, to justify their search. Consent clears them from any risk that evidence will be thrown out of the case in violation of the Fourth Amendment. Many police departments train officers to ask for the consent of persons to a search. Many criminal evidences are usually uncovered in consent searches raising the issue that perhaps many people do not know that they have the option of saying no, or they simply say yes to avoid appearing suspicious to the police. Reacting to these assumptions, the Supreme Court in United Sates v. Drayton (2002) ruled that law enforcers are not under any obligation to inform suspects of their right to say no if asked to consent to a search. However, the court sated that the consent should be voluntary, meaning that no threat or coercion from the police should be used. Furthermore, the consent should be from a person with authority over it, it can not be for instance, that a person consents to a search on a neighbor’s property (Cole & Smith, 2007, p. 188).

Warrantless searches can also be done under the stop and frisk circumstances. Fourth Amendments provides that persons can only be arrested or searched if there is probable cause. But as it appeared in Terry v. Ohio 1968 case, police can go ahead and stop and detain persons even without probable cause for arrest. They can also question individual provided they have reasonable suspicion that the person may be involved in a criminal activity. The police can also frisk a suspect on suspicion that the suspect may be armed or dangerous. If the person is from a car, the car may also be inspected for weapons. A frisk however, is only allowed “for weapons, full searches are not allowed unless there is probable cause” (Searches & seizures, n.d, p. 1). The police are required under these circumstances, to first make careful observations, come to conclusions that are reasonable, identify themselves to the suspects, inquire about their behavior before carrying out the stop and frisk process. Officers are also allowed to decide whether a stop and frisk is needed. A person who takes off at the sight of police especially in a neighborhood where criminal activities are rife will generate enough suspicion for a stop and frisk search. This happened in the Illinois v. Wardlour, 2000 case. This means that law enforcers do not require evidence or an interaction with a suspect before they conduct a stop and frisk search (Search & seizure, n.d, p. 1).

We have seen the requirements of the Fourth Amendment, what happens now if the provisions of the amendment are violated? To answer this question, one has to look at the consequences of unlawful searches and seizures. The nineteenth century legislation did not uphold this law. Evidence obtained unlawfully was allowed to be used in court. The Fourth Amendment was therefore, meaningless. This changed in 1914 in Weeks v. United States, a case where an officer carried out a “warrantless search at Fremont Weeks’ place for gambling evidence” (Fourth Amendment, n.d, p. 1). This evidence was used in the conviction of Weeks, but later on an appeal saw the Supreme Court reverse the conviction on the grounds that the evidence used obtained from a warrantless search and seizure under the Fourth Amendment. This led to the birth of the exclusionary rule (Fourth Amendment, n.d, p. 1).

The exclusionary rule was specifically established to prevent misconduct of law enforcers in their efforts to obtain evidence. Under this rule, “any evidence that is obtained through an illegal search and seizure is inadmissible in a court of law” (Fourth Amendment, n.d, p. 1). Officers who violate an individual’s rights may also be sued or criminally prosecuted. This rule is used mostly to deal with infractions to the constitution by law enforcers. The use of this rule preserves the integrity of the judicial system by barring any possibility of judicial agreement to deny an individual his rights as provided by the Fourth Amendment. This has made the Exclusionary rule be one of the highly debated rules under the US laws. This should not come as a surprise because the rule enforces the prohibition of the constitution from unreasonable searches and seizures. Many people will therefore, see it as a role that safeguards personal security and privacy against the brutality and arbitrariness of the police. It is also a rule on which judges base their decisions when declaring some evidence unconstitutional. Those against the rule see it as misguided maneuver to let criminals evade justice (Fourth Amendment, n.d, p. 1).

This rule is a perfect example that shows that the ends can not justify the means. Without the rule, law enforcers would use any means of getting evidence including torturing suspects. Statistics have often showed that forced confessions are never reliable. However, the emergence security threats through acts like terrorism, has put this rule under new perspectives. This has not swayed the stand taken by Supreme Court concerning unreasonable search and seizure especially with regard to enforcing law domestically. There are those who have proposed for alternative ways of deterring police misconduct. The exception of Good Faith was created by the “Supreme Court in United States v. Leon (1984) limits the use of the exclusionary rule” (Search & seizure, n.d, p. 1). Under this exception, evidence is admissible in a court of law even if it was secured in violation of an individual rights provided under the Fourth Amendment, so long as the officer acts reasonably. It has been shown that information collected in good faith is valid in a court of law:

If an officer reasonably conducts a search relying on information that is later proved to be false, any evidence seized in the search will not be excluded if the officer acted in good faith, with a reasonable reliance on the information. (Search & seizure, n.d, p. 1)

Another rule that is used together with the exclusionary principle is the “the fruit of the poisonous tree doctrine” (Harr & Hess, 2007, p. 193). This doctrine was established in Nardone v. United States, 1939 by the Supreme Court. A court may, under this doctrine, declare inadmissible in court any evidence secured during an illegal search. For instance, an illegal search by law enforcers can discover evidence of drugs in a person’s home; the officers can then proceed to use this evidence to get a warrant of search of that particular home. The evidence that was used in securing an arrest warrant is excluded by the exclusionary rule. The fruit of the poisonous tree on the other hand will exclude the evidence secured while searching the home (Harr & Hess, 2007, p. 193).

It is clear that the Fourth Amendment was established by persons with a clear conscience with the sole aim of protecting the people. The amendment should therefore not change. There are not people in this world that will not want to feel safe and protected always by the law. Americans are not an exception and the law should allow all Americans to live the way they like in their homes. No one should be afraid that he or she is being watched because of his or her race, religion, or sex. It is quite evident that brutality and unauthorized searches from law enforcers intrude on the rights of persons as stipulated in the Fourth Amendment. People are protected from searches and seizures by all officials from the government. Many will disagree with this amendment especially the conservative, but from a liberal point of view, I think the amendment is necessary for the well being of all Americans. Many people have also been advocating for the abolishment of the exclusionary rule because they argue that the rule is not enshrined in the US constitution, they feel that the rule does not deter the misconduct of law enforcers, and not promote the search for truth.

As much as the temptation to dismiss the exclusionary rule is there, these people should look on the brighter side of the justice system. When viewed from a constitutional point of view, you realize that the rule is very crucial especially when separation of powers is concerned. If the law is disregarded, for example when law enforcers bypass the process of getting warrants for arrest, the judicial system checks their conduct using the rule. This also applies in situations where illegally acquired evidence penetrates in the court; the judges sue the rule to exclude the evidence. There is no doubt therefore, that the Fourth Amendment with support from the exclusionary rule is the best constitutional thing that has ever happened to the American justice system.


In this paper, we have seen that the Fourth Amendment protects Americans from searches and seizures that are unconstitutional. It is evident also that not all conducts by the police justifies a search or seizure and therefore, citizens need protection from such possible conducts by law enforcers. We have also seen that a search is illegal if the person being searched had a reasonable expectation of privacy so long as t it is in a house or building, but not in an open field. Privacy is also expected if a person does not expose information or place trio the public; otherwise the exposed place or information ceases to be under the protection of the Fourth Amendment. In cases where the Fourth Amendment is violated, then the exclusionary rule comes in. This is meant to deter any misconduct from the law enforcers by excluding evidence secured in contravention of the Fourth Amendment from being used in a court.


Abernathy, M &Perry, B. (1993). Civil liberties under the Constitution. South Carolina: Univ of South Carolina Press.

Cole, G & Smith, C. (2007). Criminal Justice in America. New York, NY: Cengage Learning.

Fourth Amendment. (n.d). Fourth Amendment–Search and Seizure. Global Security. Web.

Harr, S & Hess, K. (2007). Constitutional Law and the Criminal Justice System. New York, NY: Cengage Learning.

Searches & seizures (n.d. (a)). Scope of Fourth Amendment Protection. Use of Warrants. Warrantless Arrests and Searches. Law Jrank. Web.

Search & seizure (n.d). Search and Seizure – The Exclusionary Rule and the Fruit of the Poisonous Tree Doctrine. Law Jrank. Web.

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