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A Basic Fourth Amendment Principle

The correct application of the Fourth Amendment to the Constitution of the United States is germane in criminal proceedings. Like other areas of Constitutional Law, the volume of cases expounding upon it is tremendous, while the text is brief upon its face.  In its entirety it 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.”


Courts have traditionally textually viewed this amendment as existing with two distinct and somewhat independent provisions separated by the word “and” appearing in the middle of the amendment.  The first provision protects the people from “unreasonable searches and seizures” the second sets an independent standard for all warrants, specifically that the only be issued “upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”  That is to say that when a warrant is issued, it must pass constitutional muster regarding the standard of probable cause, supported by Oath or Affirmation, and particularity regarding its scope.


Today we will briefly discuss the provision regarding unreasonable searches and seizures. Under a plain textual interpretation, it appears that government officials may engage in warrantless searches and seizures, so long as they are not unreasonable. Regarding searches, generally, courts have determined that what constitutes a search for Fourth Amendment purposes are governmental activities which infringe upon a person’s “reasonable expectation of privacy”.  There are voluminous court opinions and law review articles exploring what that standard means in varying contexts.  Suffice to say, it is a fact intensive analysis.


Unless there is a case on point, all warrantless searches are presumptively unconstitutional under the Fourth Amendment, thus putting the burden on the State to show its constitutionality.  However, it is equally important to consider the kinds of government activities which may, or may not, constitute searches within the meaning of the Fourth Amendment. Each individual case is fact specific, and the details matter.  Ultimately, Fourth Amendment protections against unreasonable searches and seizures, along with warrant requirements must be carefully evaluated in light of the specific facts and circumstances under the law.


Consider that there are many things that some people may feel they have a reasonable expectation of privacy to, which courts may not recognize as “searches” within the meaning of the Fourth Amendment. Just one such example regards the contents of a person’s garbage.  Many people feel that they have an expectation that government officials and the public at large will not go through their trash, ought not go through their trash, and therefore expect the contents of their trash will remain private; however, our courts tend to disagree.


Generally, a person has no Constitutional expectation of privacy to the contents of their garbage when it is placed outside the curtilage of their home. This means that government agents can go through a person’s trash without invoking any of the Fourth Amendment constitutional protections.  That is to say there would be no standard of reasonableness and no warrant requirement.  It may be difficult to appreciate how much personal, and once private, information can be easily obtained through sifting and analyzing rubbish.  In addition to indicia of nefarious activity, everything from a person’s current state of heath, list of medications, dietary habits, status of interpersonal relationships, financial situation, and even sexual activity can often be deduced from the contents of their trash.


A common example where the expectation of privacy is diminished is known as the automobile exception.  In very generic terms, courts have determined the expectation of privacy in a motor vehicle is less than that of a home. Therefore, law enforcement may search a vehicle without a warrant if they have probable cause to believe that the vehicle contains contraband.  Furthermore, they may search the contents of luggage or other closed containers in the interior area of the vehicle so long as they have probable cause regardless as to whom the containers belong to, and whether the driver or any passenger is under suspicion.  In other words, a warrantless search of a car and its contents is reasonable if there is probable cause to believe they contain contraband.


Ultimately, the state bears the burden to demonstrate that any warrantless search is constitutional.  There are many exceptions, theories, and justifications for warrantless searches, and many activities that are technically not searches within the constitutional meaning of the term.  Thus, successfully navigating the various exceptions and caveats in Fourth Amendment Law is oftentimes instrumental in the outcome of a case.  Consider that, generally, any evidence obtained through an unconstitutional search is inadmissible as well as any subsequent evidence obtained as fruits from the improper search.  If a search does not pass constitutional muster, the evidence obtained from it and subsequent evidence gathered as a direct result must be excluded.  Therefore, both the law enforcement, prosecutors, and defense attorneys must always be vigilant and mindful of Fourth Amendment requirements.

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