Ch08

THE 4TH AMENDMENT: AN OVERVIEW OF CONSTITUTIONAL SEARCHES & SEIZURES

Chapter 8

Introduction

The 1st Amendment is the cornerstone of American freedom

The 4th Amendment is unique because it speaks not only to that desire, but also to a need

Abraham Maslow had a theory on human behavior & motivation In his hierarchy of needs, the need for

security came after the basic needs of food, clothing and shelter

Introduction

The essence of being an American to many means the right to be left alone by the government and to be secure in their persons, homes, papers and effects Many take this for granted

An argument in this country is whether we have too much government

Introduction

Government controls remain important to Americans It ensures that citizens can drive to and

from their destination without the fear of being pulled over by an overly zealous police officer who simply does not like the color of their car or skin

This security does not mean the government is barred from carrying out its responsibility

Introduction

Limited government power is necessary for the laws of the country to be enforced and the government’s business to be carried out

A balance is required for democracy Terms fundamental to understanding the

4th Amendment Search- an examination of a person, place or vehicle

for contraband or evidence of a crime Seizure- a taking by law enforcement of other

government agent of contraband, evidence of a crime or even a person into custody

The Importance of the 4th Amendment to Law Enforcement

The 4th Amendment governs much of what police officers are legally allowed to do as they serve and protect

The 4th Amendment has continued to evolve constitutionally, substantively and procedurally through common and statutory law

The Importance of the 4th Amendment to Law Enforcement

The 4th Amendment’s prohibition against unreasonable searches and seizures by the police is perhaps the most vital component of criminal procedure because of ample opportunities the U.S. Supreme Court has had to set forth when any government agent may or may not act, as well as when they have an expectation, or duty, to do so

Who is Regulated by the 4th Amendment?

When the Constitution was originally drafted, the 4th Amendment only applied to the federal government

Because of the 14th Amendment, it is now equally applied to state government

Wolf v. Colorado (1949) Established that any government agent

(federal, state or local) is regulated by the 14th Amendment


Private individuals or agencies are not regulated by the 4th Amendment Store detectives are not controlled by the

4th Amendment Why?

They are not government agents, and the Constitution was established to limit the power of government and its agents

Who is Regulated by the 4th Amendment? United States v. Parker (1994)

When a customer insured a packaged for more than $1,000, the United Parcel Service could open their packages without a warrant and inspect its contents

United States v. Cleaveland (1994) Held permissible a warrantless search by a private

electric company employee acting on a tip that a customer was bypassing the electric meter

United States v. Ross (1982) An airline employee who inspected the defendant’s

luggage according to the FAA regulations was acting in a government capacity and, was governed by the 4th Amendment


Sometimes a private party can be considered to be a government agent If a private party agrees to go in to get an

item from a house or a private security guard agrees to search someone for the police, this person can be considered an agent of the government

The Fourth Amendment would then apply

The Clauses of the 4th Amendment There are two clauses that are important

to the 4th Amendment in regards to search and seizure: Reasonableness Clause The Warrant Clause

Reasonableness Clause

“The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated”

The Warrant Clause

“…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”

Two Interpretations

These two clauses have been viewed differently by the Supreme Court

In the 1960’s the Court used the conventional 4th Amendment approach It combines the two clauses together It holds that all searches not conducted

with both a warrant and probable cause are unreasonable, and, therefore, unlawful

Two Interpretations

Since the 1960’s the Court has broadened government’s power by adopting the reasonableness 4th Amendment approach It sees the two clauses as separate, distinct

and addressing two separate situations This clause makes warrantless searches and

seizures valid and constitutional when they are sensible

Two Interpretations

There are critical concepts to understanding the 4th Amendment which are: Reasonableness Reasonable expectation of privacy Probable cause

Reasonableness

This term was one the framers of the Constitution used to require interpretation and application of a law intended to meet the needs of the people, rather than providing such rigidity that a commonsense application could not be made.

There are two approaches to Reasonableness Bright-line approach Case-by-Case approach

Reasonableness

Reasonable Sensible, rational, and justifiable

Bright-line approach Reasonableness is determined by a specific rule

applying to all cases

Case-by-case approach Reasonableness is determined by considering the

totality of circumstances in each individual case. It is the most commonly used method in the U.S.

The Constitution doesn’t provide an absolute right to be free from government intrusion, only unreasonable interference.

Probable Cause

Exists when the facts and circumstances within the officers’ knowledge and of which they had reasonable trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.

Probable Cause

Smith v. United States (1949) Defined probable cause as, “The sum total

of layers of information and the synthesis of what the police have heard, what they know, and what they observe as trained officers. We weigh not individual layers but the laminated total.”

Laminated total= totality of circumstances

Probable Cause

Totality of circumstances is the principle upon which a number of legal assessments are made, including probable cause. Not a mathematical formula It is looking at what does exist to assess

whether the sum total would lead a reasonable person to believe what the officers concluded.

The more factors present, the more likely a finding of probable cause.

Probable Cause

Probable cause is stronger than reasonable suspicion.

It can legally justify searches and arrests with or without a warrant and requires the question: Would a reasonable person believe that a

crime was committed, and that the individual committed the offense, or that the contraband or evidence is where it is believed to be?

Probable Cause

It must be established before a lawful search or arrest can be made.

Facts and evidence obtained after a search or arrest can not be used to establish probable cause.

They can be used to strengthen the case if probable cause was established before the arrest, making the arrest legal.

Probable Cause

If probable cause is not present, the police can not act.

Without probable cause, seized evidence may be inadmissible in court.

Arrests are determined illegal and officer can be held liable for such illegality.

Sources of Probable Cause

There are two basic categories of probable cause: Observational probable cause Informational probable cause

Observational Probable Cause What the officers perceive through

their own senses of sight, hearing, smell, touch and taste.

Experience, training and expertise may also lend additional creditability in justifying probable cause.

Observational Probable Cause Factors that will raise suspicion and contribute

to establishing probable cause are: Fleeing from the police Physical evidence may establish probable cause Admission made to police officers Presence at a crime scene or in a high crime area Association with other known criminals Furtive conduct

Questionable, suspicious, or secretive behavior Will raise an officer’s suspicion A person’s level of nervousness can not be used by itself,

but can play a part in the totality of circumstances

Informational Probable Cause Most of the time officers do not personally

witness criminal activity and they rely on information.

Includes official sources such as roll calls, dispatch, police bulletins and wanted notices.

Unofficial sources such as witnesses, victims and informants.

Draper v. United States (1959) Supreme Court at that time held that information

from a reliable informant, corroborated by the police, upheld a determination of probable cause.

Informational Probable Cause Aguilar v. Texas (1964)

Established a two prong test for informants 1st prong- tested the informants creditability 2nd prong- tested the informants basis of

knowledge and reliability of the information provided

Illinois v. Gates (1983) Abandoned the two prong test and replaced

it with the totality of the circumstances. Made the establishment of probable cause by

use of informants easier for police.

Search and Arrest Warrants

Government agents that have probable cause must go before a magistrate (judge) and swear under oath who and what they are looking for and where they think it can be found.

In determining whether probable cause for a warrant exists, the judge must consider the totality of the circumstances. Whether a reasonable person would believe what

the officers claim. Not every judge will sign a warrant. The officer may be told to come back with additional

information. Judges today will grant telephone warrants.

Search and Arrest Warrants

Because a judge determines whether probable cause exists, it removed the discretionary decision from the officers involved.

A valid warrant not only shifts the granting of suppression of evidence to the defendant, but also provides a shield against officer liability.

Knock and Announce Rule

Knock and Announce Rule The general rule is that officers must first knock

and announce their authority before breaking into a dwelling to execute a warrant

The intent is to prevent the occupant from responding with force against unknown intruders

How long must officers wait after knocking and announcing? United States v. Banks (2003)

15 to 20 second after knocking was sufficient to satisfy the 4th Amendment requirement

Special Conditions

Officers can ask for special conditions to be attached to a warrant

Exigent circumstances may justice an entry by police without announcing their presence May request a no-knock warrant

Afraid evidence may be destroyed Officer safety requires it Hostages or victims

Can also ask a judge to execute a warrant at night Nightcap warrant

When the suspected illegal activity is occurring

The Continuum of Contracts

Continuum of Contracts- the almost limitless variations of contracts between the public and the police illustrating how justification for police action increases as their reasons for thinking criminal activity is afoot build.


At one end of the continuum, the contract consists of nothing more than an individual and a police officer crossing paths. The police are unjustified for taking any

action. At the extreme end of the continuum, an

individual’s conduct leads to sufficient probable cause. The police are justified to arrest the person;

by force is necessary.


The intent of the Constitution is to prevent the government from intruding on people’s lives when they have done nothing wrong, however, it is not absolute.

When the police have lawful reason to act, they have the right to do so.


The U.S. Supreme Court has stated that the police have a responsibility to act to prevent crimes and apprehend criminals.

A police officer’s job is to decide where a particular interaction with a suspect falls along the continuum.

Police must make a knowledgeable decision in accordance with the Constitution.


When probable cause exists, the police will be justified in arresting the person.

When a person is under lawful arrest, they may be searched and questioned. However, in a custodial interrogation, it

requires them to be advised of their Miranda rights.

The Law of Stop and Frisk

The law of stop and frisk is the first point on the continuum of contracts where police have constitutional authority to interfere with a person’s freedom.

Police officers should neither be expected to ignore their reasonable suspicious nor be denied the right to ensure their own safety by checking for weapons.

Basic Definitions

Stop- a brief detention of a person based on specific and articulable facts for the purpose of investigating suspicious activity No Miranda warning is required

Articulable facts- actions described in clear, distinct statements

Frisk- a reasonable, limited pat down search for weapons for the protection of a government agent and others


During a stop, the suspect is not free to go just then, but will be able to shortly.

A stop differs from an arrest, in which a person is not free to go.

Because this detention is not an arrest (it is a stop), no Miranda warning need to be given.


The law of stop and frisk deals with that time frame during which officers follow up on their suspicions but before the time that the requisite probable cause is established to justify an arrest (Terry v. Ohio - 1968).


What can a government agent do in response to such suspicions? The law of stop and risk permits officers

to act on their suspicions rather than to turn away, awaiting the infrequent, obvious crime to be committed before their eyes.

Terry v. Ohio (1968)

The landmark case on stop and frisk. The case established that an officer with articulable

reasonable suspicion may conduct a brief investigatory stop, including a pat down for weapons if the officer has reason to suspect the person is armed and dangerous.

Reasonable suspicion- an experienced officer’s hunch or intuition.

This search is reasonable under the 4th Amendment and any weapons seized may properly be introduced in evidence against the person from whom they were seized.

Consequences of 4th Amendment Violations

An unlawful search or seizure can have two serious consequences:1. The evidence may be excluded from

court.2. Internal sanctions as well as civil and

criminal liability may be incurred.

The Exclusionary Rule

Is judge-made case law promulgated by the Supreme Court to prevent police or government misconduct.

It prevents evidence seized in violation of a person’s constitutional rights from being admitted into court. An officer who has violated someone’s rights may

sued, or Prosecuted criminally.

The exclusionary rule is by far the most frequently used means to address constitutional infractions by the government in criminal cases.


The exclusionary rule also helps: Preserve judicial integrity by preventing

judicial agreement in denying a person’s 4th Amendment rights.

Deters police misconduct by making improperly obtained evidence inadmissible in court .

Protects citizen’s constitutional right to privacy.


This rule reflects an insistence of American law that the ends do not justify the means.

If they did, any means of eliciting evidence would be permissible, including torture.

America is being pushed to its limits with respect to terrorism, new debate over the means of obtaining information has arisen.

The Supreme Court has stood firm that unreasonable search and seizure will not be tolerated.


Weeks v. United States (1914) Supreme Court held that illegally obtain

evidence is not admissible in court and the right to be free from unreasonable searches and seizures under the 4th Amendment applies to all invasions on the part of the government and its employees.

Applied to federal prosecutions Mapp v. Ohio (1961)

Made the exclusionary rule applicable at the state level.


Rochin v. California (1952) Searches that “shock the conscience” are a

violation of due process, and any evidence so obtained, will be inadmissible.

Silverthorne Lumber Co. v. United States (1920) Established the fruit of the poisonous tree

doctrine. Evidence obtained as a result of an earlier illegality

must be excluded from trial. Once the primary source (the tree) is proven to have

been obtained unlawfully, any secondary evidence derived from it (the fruit) is also inadmissible.

Exceptions to the Exclusionary Rule The exclusionary rule applies only in

criminal trials in which a constitutional right has been violated.

There are four exceptions to the exclusionary rule:1. Inevitable discovery doctrine2. Valid independent source3. Harmless error4. Good faith

The Inevitable Discovery Doctrine Is the exception to the exclusionary

rule deeming evidence admissible even if seized in violation of the 4th Amendment when it can be shown that the evidence would have inevitably been discovered through lawful means. Nix v. Williams (1984)

The court allowed evidence because an independent search party would have eventually discovered it.

Valid Independent Source

If evidence that might otherwise fall victim to the exclusionary rule, is obtained from a valid, independent source, that evidence can be admitted.

Murray v. United States (1988) The Court held that evidence initially seen

during an illegal search, but later recovered under a valid warrant would be admissible.

Exceptions to the Exclusionary Rule Harmless error

An exception to the exclusionary rule involving the admissibility of involuntary confessions and referring to instances in which the preponderance of evidence suggests the defendant’s guilt and the illegal evidence is not critical to proving the case against the defendant.

Exceptions to the Exclusionary Rule Good faith

Officers are unaware that they are acting in violation of a suspect’s constitutional rights. For example: when the government is

executing arrest or search warrants. If the warrants are later found to be invalid,

because of a typographical error citing the wrong address or apartment number, the evidence obtained while the warrants are executed are still admissible because the officers were acting in good faith.

Internal Sanctions, Civil Liability and Criminal Liability

Government misconduct could result in: Departmental discipline against the

officer Civil lawsuits Criminal charges

Internal Sanctions, Civil Liability and Criminal Liability America is litigious

A tendency toward suing

Police are an attractive target They have a lot of power They are public employees

Ch08

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