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.
The rights set forth in the Fourth Amendment to our Constitution are some of our most precious and yet it is one of our most maligned amendments, frequently under attack by those who believe that we are "soft" on crime and/or unprepared to deal with some perceived "terrorist" threat. Both major parties and all three branches of government seem to struggle with the Fourth Amendment for one reason or another and none of them seem to have a good handle on what this Amendment is all about. In this article, I seek to briefly describe the nature and scope of the rights set forth in this Amendment .
The Fourth Amendment begins "The right of the people . . . ." This language makes it clear that this amendment speaks of an individual not a collective right. It goes on to state that the individual has a right to be "secure" in four different areas - his person, house, papers and effects - against "unreasonable searches and seizures." Essentially this means that the individual ought to be free from fear, anxiety, worry, apprehension or the like that his person or possessions will be searched and/or seized so long as he or she does not engage in any criminal misconduct. It obviously does not set forth an absolute right because the phrase "against unreasonable searches and seizures" implies that at least some searches and seizures will be justified. The questions then become what is the nature and extent of this right.
The nature of the right is relatively clearly set forth. It protects the individual from having his person, his house, his papers (i.e. personal papers, books, magazines, writings, etc...), or his effects (i.e. personal belongings) from being searched (i.e. explored or examined) or seized (i.e. to take forcible custody and/or control over a person, place or thing). The extent of the right, however, is not as clear. On the one hand, we know that the individual is not "secure against" any and all searches and seizures, but rather just unreasonable ones. On the otherhand, the definition of what constitutes an unreasonable search is not given.
The only assistance provided in the wording of the amendment itself occurs in the warrant clause where it says that "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 does not say that any search and/or seizure is unreasonable, by definition, if it is conducted without first obtaining a Warrant, but rather it suggests a Safe Harbor Rule which, if followed, should prevent one from running afoul of the Constitution.
Specifically, the amendment states that a Warrant can be issued only upon the fulfillment of certain conditions. First, "probable cause" (i.e. more than likely than not) must be established before a warrant can issue. This was designed to eliminate the problem that the colonists had with England over the use of "general" warrants or writs whereby officials were given broad authority to enter into peoples homes on mere suspicion in connection with the enforcement of the sedition laws. Second, "probable cause" was to be established by a statement given under Oath or affirmation (i.e. a statement sworn to before God or otherwise affirmed to be true). False oaths or affirmations, made to establish probable cause against an innocent person, carried with it criminal and/or civil penalties, thereby serving as a strong deterrent to improper use of the police power. Third, the statement had to describe the place to be searched and/or the persons or things to be seized with particularity (i.e. described with sufficient specificity to distinguish the item or person as belonging to a single, definite person, part, group, or thing). If any of these conditions were not met then the Warrant cannot issue, but if all of these conditions are met then (and this is implied not stated) a properly authorized government official - typically a Judge and/or Justice of the Peace - can, but is not obligated to, issue a Warrant.
The issue becomes more controversial, however, when one addresses the issue of when a search and/or seizure, without a warrant, may be conducted within the constraints set forth in the Constitution. In the first instance, I believe that it is reasonable to presume that a Warrant is required in any instance where a Warrant could reasonably be obtained. To construe the Fourth Amendment any other way would be to permit the exception to swallow up the rule. (This interpretation is supported generally by the so-called per se rule against warrantless searches and/or seizures adopted by the courts, subject to certain exceptions.) Still, the question remains as to when a warrantless search and/or seizure is permissible.
As discussed in previous articles, the second rule of contract interpretation is to construe the language so as to give effect to the intent of the parties. In my limited research, I have been unable to conclusively determine, from the Congressional and state ratification debates what the specific intent of the framers was, however, I can state, with greater confidence, the common law of the day which I believe is highly relevant because this country's judicial system, including the definition of most criminal acts, was rooted and grounded in the common law.
The principal exceptions to the warrant rule, under the common law, were as follows: (1) search incident to a lawful arrest; (2) search, by a constable, for a felon, identified with some particularity by the victim, in all suspected places, pursuant to the common law authority of the "hue and cry"; (3) arrest by an officer when treason, felony, dangerous wounding or breach of the peace occurred in his presence or he had good reason to suspect another of treason, felony or dangerous wounding; and (4) arrest by an individual when treason, felony or dangerous wounding occurred in his presence. Under each of these exceptions, however, the victim of an unconstitutional and/or otherwise wrongful search and/or seizure could sue and, in some instances, bring criminal charges against his or her accusers. Therefore the Fourth Amendment, when interpreted in accordance with the common law, maximizes both individual liberty and the likelihood that truth and justice will be served because it provides practical, common sense constraints on law enforcement officials, vis-a--vis the individual, and provides a vehicle for innocent persons whose rights are violated to hold those responsible accountable for their actions, including the recovery of damages where appropriate.