Constitution 101 - Fourth Amendment

August 3, 4:23 PMHouston Law and Politics ExaminerDustin Sachs

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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.”

                                                                                Fourth Amendment, United States Constitution

Many people may not be able to recite from memory the words of the Tenth Amendment or have any idea what the Ninth Amendment guarantees. However, most Americans when presented with the text above would be able to identify it as the Fourth Amendment. The protection against “unreasonable search and seizure,” is as highly held in the hearts and minds of Americans as the First and Second Amendments. 

The Fourth Amendment grew out of a need to protect citizens from the tyranny of the British, who would routinely detain people or break into their homes and arrest them. As British colonists, the Revolutionary generation was not afforded the rights to privacy that were believed to be part of natural (god-given) law or that 21st Century Americans take for granted. While not creating a new right, the Fourth Amendment codifies protection against similar tyranny by the new national government.

Boyd v. United States 116 U.S. 616 (1886)

This case began the development of right to privacy protections. The U.S. Supreme Court held, in overturning a statute, that the forced production of, in this case, business records violated the Fourth Amendment protection against unreasonable searches and seizures and the Fifth Amendment protection against forced self incrimination.

Weeks v. United States 232 U.S. 383 (1914)

In this case, the exclusionary rule was born. The exclusionary rule forbids the use of illegally obtained evidence in a criminal trial.

Carroll v. United States 267 U.S. 132 (1925)

This case made a distinction between a person's dwelling and a moving vehicle, holding that such a distinction was consistent with Fourth Amendment guarantees.

The Court has continued this distinction between a private dwelling and an automobile due to it's mobility, affording it less protection and exempting it from more traditional warrant requirements.

United States v. Rabinowitz 339 U.S. 56 (1950)

The Court held that the Fourth Amendment permits a warrantless search incident to a lawful arrest. The person arrested and the premises may be searched. In this case the search was reasonable because it was incident to his arrest, the business was open to the public and the agents were lawfully there, the one room business was under the immediate control of Rabinowitz, only the one room was searched, and because possession of the forged stamp was a crime.

Mapp v. Ohio 367 U.S. 643 (1961)

In this very important case, Fourth Amendment protections were incorporated into the Due Process Clause of the Fourteenth Amendment. This incorporation resulted in requiring state and local police to comply with Fourth Amendment standards in regards to searches and extended the exclusionary rule to trials in state courts.

Katz v. United States 389 U.S. 347 (1967)

In this case, a reasonable expectation of privacy test was created. Federal agents had attached a listening device to the outside of a phone booth that was know to be often used by Mr. Katz. Evidence of his end of the conversations obtained by the listening device was admitted in his trial in which he was accused of transmitting wagering information by telephone. The lower court held that this was not a search because the wall of the phone booth had not been physically penetrated. Their ruling was based on Olmstead v. United States (1928) in which the Supreme Court had ruled that a tap of a telephone did not constitute a search.

In Katz, the Supreme Court ruled that the electronic "listening to" and recording of Mr. Katz's conversation violated the privacy upon which he justifiably relied and thus constituted a search and seizure under the Fourth Amendment. Justice John M. Harlan, in a concurring opinion, established a two part test for this right of privacy. First, a person must exhibit an actual expectation of privacy. Second, this expectation must be one that society recognizes as "reasonable".

Terry v. Ohio 392 U.S. 1 (1968)

This case was the first in a long line of Supreme Court cases that recognized the police practice known as "stop and frisk" as a legitimate law enforcement tool. Stop and frisk is a stopping and interrogation or brief investigation which may be accompanied by the patting down of outer clothing to make sure the suspect is not armed.

The Supreme Court ruled that, for the protection of an officer, stop and frisk was not a violation of the Fourth Amendment when a police officer's experience tells him that criminal activity may be occurring and that the suspected criminal may be armed and dangerous.

Kyllo v. United States 533 U.S. 27 (2001) 

In 1992, Federal Agents William Elliott and Dan Haas used a thermal imaging device to scan a triplex in which Danny Kyllo lived. The agents suspected that Kyllo was growing marijuana plants inside the home. Growing marijuana indoors typically requires the use of grow lamps that put off a large amount of heat.

The thermal imaging test was conducted from the passenger seat of Agent Elliott's car. The test showed that an area over a garage and a side wall were substantially warmer than the rest of the house and substantially warmer than other houses in the neighborhood. Based on the results of the test, electricity bills that were higher than the norm for his area, and informant's tips, a Federal Magistrate issued a warrant authorizing a search of Kyllo's residence. The search revealed over 100 marijuana plants growing inside the home. Kyllo was indicted on one count of manufacturing marijuana.

Justice Scalia delivered the opinion of the Supreme Court. He reversed the ruling of the Court of Appeals, holding that the imaging test revealed details of a private home that could not have been previously known without physically entering the house. Therefore, the test constituted a search under the Fourth Amendment and was "presumptively unreasonable without a warrant".

Board of Education v. Earls 536 U.S. 822 (2002)

The Tecumseh, Oklahoma School District has a drug testing policy that requires all middle and high school students who wish to participate in extracurricular activities to undergo a urinalysis that tests for the presence of illegal drugs. At the time of this case, this policy had only been applied to activities sanctioned by the Oklahoma Secondary Schools Activities Association. The school district was sued by some students and parents in an attempt to have this policy vacated on Fourth Amendment grounds.

Justice Clarence Thomas wrote the opinion for the Supreme Court. In reversing the decision of the Appeals Court, he held that "a probable cause finding is unnecessary in the public school context because it would unduly interfere with maintenance of the swift and informal disciplinary procedures that are needed." He ruled that there need not be suspicion of an individual or individuals for a search of students to be deemed reasonable. He noted the the "special needs" of public schools are beyond the needs of law enforcement.

In summarizing the decision, Thomas wrote "Within the limits of the Fourth Amendment, local school boards must assess the desirability of drug testing schoolchildren. In upholding the constitutionality of the Policy, we express no opinion as to its wisdom. Rather, we hold only that Tecumseh's Policy is a reasonable means of furthering the School District's important interest in preventing and deterring drug use among its schoolchildren."

THESE CASES ARE BY NO MEANS THE FULL BREADTH OF CASES ON THE FOURTH AMENDMENT. THIS IS MERELY AN ATTEMPT TO PROVIDE SOME GUIDANCE ON THE ISSUE.

Please check out www.findlaw.com for more information and cases on the subject.