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The 4th Amendment – Right to Be Free From Unreasonable Search and Seizure


The United States was founded because individuals wanted to be free from oppressive practices of the British monarchy in the 1700’s. Under British colonial rule, Americans were often subject to having their land and personal property seized by government officials without warning.

As a result, the founding fathers of America were very much interested in protecting their property from unjustified intrusion by government officials. This emphasis on privacy is reflected in the 4th Amendment of the U.S. Constitution, which protects citizens from “unreasonable searches and seizures” by state or federal officials. Protection from search and seizure under the 4th Amendment is generally quite broad. Historically it has worked rather well, although it can be limited under certain circumstances. This article provides basic background on the scope of the 4th Amendment right to be free from search and seizure*.

*For your reference, the text of the 4th Amendment that we are discussing reads:

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.

Step by Step Process of the Protections

To begin with, the 4th Amendment only protects against unreasonable searches and seizures that are conducted by government officials, either state or federal. This means that only a state actor such as a policeman can violate your 4th Amendment rights.

For example, if a private security guard suspects you of shoplifting in a store and searches your bag, you cannot then sue them in court claiming that an unreasonable search occurred. The 4th Amendment is only intended to protect citizens against acts by the government and its representatives.

Secondly, a person has the right to be free only from “unreasonable” searches and seizures. This means that, if the government concludes that the search is reasonable, then they may conduct a search without violating your Constitutional rights.

In order to determine whether a search is reasonable, the following requirements must be met by the state:

  • the police have probable cause to believe that they can discover evidence of a crime in a person’s possession and
  • a warrant has been issued by a neutral and detached judge; or
  • if a warrant has not been issued, the search is justified by the surrounding circumstances (for example, if they are in hot pursuit or the evidence is in danger of being destroyed).

Here, probable cause means that the police have sufficient knowledge that the person is in possession of incriminating evidence. The knowledge must be based on material facts, and not suspicion alone. Also, the warrant must accurately describe the place to be search and/or the item to be seized. If any of these requirements are not met, the search is considered to be “unreasonable”.

More Steps- “Legitimate Expectation of Privacy”

Whether a search is considered reasonable also depends on what is called a person’s “legitimate expectation of privacy“. Without a warrant, police may not conduct a search in places where people have a legitimate expectation of privacy.

Expectation of privacy is determined by two things: whether the person themselves has a privacy expectation in the item; and an objective standard- i.e., whether society in general would recognize that there is a privacy expectation.

This is a somewhat vague standard, but courts have assumed an expectation of privacy in the following circumstances:

  • The person owns the place being searched
  • The person lives at the place being searched (whether or not they own the place)
  • The person is an overnight guest at the place being searched.

In these circumstances, the person is assumed to have a legitimate expectation of privacy, and police need a valid warrant to search these areas.Items and places where courts do not assume a privacy expectation are:

  • Public areas/items
  • Samples of one’s handwriting or the sound of one’s own voice or
  • Bank account records
  • Destination/arrival of vehicle while on public roads
  • Paint samples of a car (police can chip small portions of paint off your car and submit them for analysis, without a warrant)
  • Garbage left at the curbside for pickup
  • Areas of one’s land visible to the naked eye during a flyover
  • Curtilage (the unfenced area surrounding one’s land, i.e., open fields)

So, in all of these instances, people do not have a legitimate expectation of privacy, and may be searched without a warrant, so long as the police have probable cause to do so.

Privacy Interest in Cars vs. Houses: The “Automobile Exception”

There are many car advertisements out there today claiming how their latest car model is more like a home than a vehicle. However, in a search and seizure setting, privacy interests in a car are radically different than in a home. Due to the mobile nature of a car, courts have ruled that there is a much lower expectation of privacy in cars than in homes.

In general, police may search a car without a warrant if the car has been validly pulled over. This is known as the “automobile exception” to the warrant requirement.

The police may initially pull the car over for a different reason than for a search. For example, they might pull someone over for a broken tail light, and then search the car for contraband afterward. Note, however, that they still must have probable cause to believe that the car is carrying evidence in order to conduct the search. If they have probable cause, they may search the entire car, as well as any containers within the vehicle.

The lowered expectation of privacy in cars has been playfully summarized in what is known as “Reamey’s rule: never put anything in your car that you don’t want the police to see”.

Violations of the 4th Amendment: The Exclusionary Rule and “Fruit of the Poisonous Tree” Doctrine

In the event that an unreasonable search has occurred, Supreme Court cases have provided for avenues of relief for the person. Usually the remedy for a violation consists in excluding the evidence that was seized (although the case is not completely dismissed). Two legal doctrines dealing with violations of search and seizure are the Exclusionary Rule and the “Fruit of the Poisonous Tree” doctrine.

The Exclusionary Rule

The Supreme Court has ruled that any items seized as a result of an unreasonable search cannot be used as evidence against the defendant. This rule was established mainly as a preventive measure against police who were violating search and seizure rules. For example, if the policeman did not secure a valid warrant prior to the search, the evidence would be excluded under this rule. However, evidence seized illegally may sometimes be used for other purposes in court, for example, to impeach the credibility of a witness.

“Fruit of the Poisonous Tree” doctrine

After the Supreme Court established the exclusionary rule, further cases created the “Fruit of the Poisonous Tree” doctrine. This theory states that evidence obtained from an illegal search may not be used in order to obtain other evidence.

To illustrate, let’s say the police are seeking to arrest purchasers of drugs. In their investigation, assume that they illegally searched a person’s house without a warrant and obtained a paper with a list of names of known drug purchasers in the area. Since the list is illegally obtained, they may not then contact the names listed on the paper.

Here, the “tree” would be the paper with the list of names. “Fruits of the tree” would be any further evidence gathered as a result of contacting the people listed. Since the “tree” is “poisonous” (illegal) the fruits would be inadmissible as well.

Things to Remember

In summary, the way search and seizure law works is this: first, everyone has a legitimate expectation of privacy in certain places and items. If a law enforcement officer wishes to search such areas, they must obtain a warrant or conduct the search pursuant to a valid warrantless search. In such instances, courts will weigh the person’s privacy interest against the state’s interest in the search in order to determine if the search is unreasonable. If the search was made illegally, they must exclude the evidence and all fruits the illegal search as well.

If you feel you have been subjected to an unreasonable search and seizure, some questions to keep in mind are:

  • Was the search conducted by a representative of the government?
  • Did the person have a legitimate expectation of privacy in the item or place?
  • Did the police conduct the search pursuant to a proper warrant, supported by probable cause? If not, was it a valid warrantless search?

If an unreasonable search has occurred, it can drastically affect the outcome of criminal proceedings.

Source by Ken LaMance

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