The 4th Amendment, the Legality of Searches and Seizures


Throughout history, human rights and freedoms have been the main values of the nation. From the earliest days of the nation’s history, state courts were to be the ultimate interpreters of state law, including state constitutional provisions. The importance of the topic is that some interpretations of the Fourth Amendment violate human rights and freedom, privacy issues, and security. Search and seizure law is drawn primarily from the Fourth Amendment, which has been called the most ambiguous of the 10 amendments that make up the Bill of Rights. Over time, the Supreme Court has come to see the protection of property and privacy as the main purpose of the Fourth Amendment. However, the Court has concluded that the amendment does not protect all property interests or apply to all situations where people might wish to protect their privacy. Taking into account historical facts and cases, it is possible to say that the Terry v Ohio (1968) decision violates human rights and privacy issues and can be declared unconstitutional. In the paper, first I will discuss the history of the Fourth amendments and its application during the 19th century; then I will discuss current Constitutional interpretations of the Fourth Amendment and its practical usage, and the third I will discuss limitations of the Fourth Amendment and possible violations of human rights caused by search and seizure policies.

Historical Overview

The first amendments added to the U.S. Constitution were those found in the Bill of Rights. The requisite number of states ratified these amendments within two years of the adoption of the Constitution (Taslitz 4). A central obstacle to ratification of the Constitution was the absence of a bill of rights, a topic not discussed extensively at the Constitutional Convention in 1787 but one that subsequently became a major bone of contention when some Anti-Federalists sought either to convene a second convention or to ratify the Constitution conditionally (Colb 123). The Bill of Rights undoubtedly grew out of distrust of the new government where the central government was to be much more powerful than that under the Articles of Confederation. In a sense, the most fascinating thing about the debate over the Bill of Rights was that both those who initially favored it and those who opposed it professed concern for the protection of individual rights. Since 1886, when the Supreme Court first took up the question of the meaning of the Fourth Amendment, the makeup of the Court has changed significantly. The Fourth Amendment states:

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 US Constitution).

The year was 1886, and the case, Boyd v. the United States, involved glass merchants charged with possessing 35 cases of imported plate glass upon which the proper customs duties had not been paid (Taslitz 14). The main issue of the case was whether or not the merchants had purchased the glass from a domestic supplier or from smugglers, so a judge ordered the defendants to bring an invoice for the glass into Court. The merchants refused, arguing that this amounted to an unreasonable search and seizure in violation of the Fourth Amendment. With an opinion written by Justice Bradley, a unanimous Supreme Court agreed with the merchants that they did not have to produce the invoice as ordered by the judge. The Court refused to limit the scope of the Fourth Amendment to its exact words (Taslitz 23).

That means in most cases the government must have a warrant before invading the sanctity of a home. Justice Butler wrote the opinion for a unanimous Court in the 1925 case of Agnello v. the United States. Frank Agnello had been convicted of conspiracy to sell cocaine without paying federal taxes on the drugs in his possession. While cocaine possession was illegal in most states at that time, federal law simply required that a tax be paid on the sale of cocaine. No one paid the tax because to do so would have subjected the person to prosecution under state laws for possession of an illegal drug (Wetterer 11). The Fourth Amendment states that it protects people and houses; it does not say anything about businesses. Nevertheless, the Court has assumed from the first search and seizure decision in 1886 that businesses are protected by the Fourth Amendment. In a unanimous decision in the 1921 case of Gouled v. the United States, the Court confirmed this conclusion. Felix Gouled had been charged with conspiracy to defraud the U.S. Army. As part of the investigation, an agent from army intelligence pretended to be friendly with Felix Gouled and gained admission to his office without a warrant. When Felix Gouled was out of the room, the agent went through Gouled’s private papers and found evidence of conspiracy (Wetterer 16).

Throughout the 1970s and 1980s and into the 1990s, the Supreme Court searched for simple, straightforward rules in the area of search and seizure that, like the Miranda decision, would provide a reasonable level of protection for people’s rights and at the same time not impede law enforcement too much. Writing these rules would be a long and difficult task for the Supreme Court. One area of the law of search and seizure that confuses many people concerns the doctrines of consent and standing. The Supreme Court has always said that people may consent to give up their constitutional rights as long as they have not been forced to do so. Whenever people confess to crimes, they are giving up their right to refuse to testify against themselves (Wetterer 18). They have consented to give up that right. The same applies to the Fourth Amendment. If a person gives the police permission to search his or her own home, then the search will not violate the Constitution. This can get complicated, however, because more than one person may have control over an area the police wish to search. For example, if three people rent a house together, they each have the right to consent to a search of the entire house. They each have control over the house and the power to allow anyone into the house, including the police. If one of the roommates is found to possess illegal drugs, he or she cannot complain if another roommate consented to the search. The roommate had the power to consent to the search and did just that. The amendment states “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated” (Wetterer 44). The amendment states that warrants shall only be issued if they are supported by “probable cause” (Wetterer 45). The Supreme Court did not begin to answer these questions until almost a century after the Fourth Amendment had been added to the Constitution.


Often the question is whether or not the person, free of coercion by the police, consented to a search. Also, with the issue of standing, it is not always clear when someone has a legal right to complain about the actions of the police (Parsons 17). A houseguest who is temporarily staying with a friend has the standing to complain about a search of the house while a guest is there but not when he or she is no longer a guest. While some people have debated the question of whether or not the Fourth Amendment can be subjected to what we might call strict construction, with the exception of Justice Black the members of the Court have not spilled much ink on this question. They have recognized from the beginning that the vague language of the Fourth Amendment granted to the members of the Supreme Court the power to determine what it did and did not protect. The use of phrases such as “unreasonable” and “probable cause” would clearly require a great deal of analysis and explanation by the justices of the Supreme Court (Parsons 15). For example, surely the members of the first Congress must have had James Otis in mind when they wrote the Fourth Amendment even though they left the word “business” out of the list of things protected. Just as clearly in the minds of most justices, the first Congress could not have intended a warrant to be used in every case, because that would make law enforcement all but impossible. The Court did take the position throughout the first half of the twentieth century that in most situations the Fourth Amendment required officials to obtain a warrant before a search or seizure unless there were special circumstances that justified not doing so (Kerr 503). Over time, however, the list of “special circumstances” would become so long that some justices would wish the Court had taken a different approach. By then it would be too late. In the minds of most justices, the Fourth Amendment should protect both property and privacy and should act to insulate people from the uncontrolled power of government officials. At the same time, the amendment should not unreasonably interfere with law enforcement. Striking a balance between these two goals would prove to be difficult.

Olmstead v. the United States held that the Fourth Amendment did not prohibit wiretapping by government officials and that wiretapping could be done without the need for either a warrant or probable cause. Chief Justice Taft wrote the opinion for the majority, which is included here. Justices Holmes, Brandeis, Butler, and Stone each wrote dissenting opinions (Parsons 41). Justice Brandeis’s dissenting opinion is included here. This may be the most frequently quoted dissenting opinion ever written by a Supreme Court justice. Katz v. the United States overruled the Olmstead decision and held that in most cases a search warrant would be required before wiretapping and bugging by government officials could take place. Justice Stewart wrote the opinion for the majority, which is included here. Justices Douglas, Harlan, and White wrote concurring opinions. When it comes to searching places, the Supreme Court has drawn a line between areas that are protected by the Fourth Amendment and areas that are not. The prime areas protected by the Fourth Amendment are homes, curtilages, and such private areas of businesses as private offices or locked warehouses. Open fields are not protected from police observation. The area of a business that is open to the public is also not protected (Greenhalgh 82).

From 1886 on, the Court assumed that the Fourth Amendment was intended to protect more than just property and that privacy, the freedom to be left alone, was also included (Parsons 77). Beginning in 1914, the Court decided that the only way to enforce the Fourth Amendment’s command that property and privacy be respected was to exclude from criminal trials evidence that had been obtained in violation of the Fourth Amendment. In 1961 the Court extended the exclusionary rule to state and local law enforcement after concluding that nothing else would force police at the local level to respect the commands of the Fourth Amendment. The fact that the exclusionary rule often meant that people convicted of terrible crimes would go free brought much public criticism to the Court, particularly the Warren Court. In no other area of constitutional law has the Court been faced with such terrible decisions: enforce the Fourth Amendment and a convicted murderer goes free; don’t enforce it and the Bill of Rights becomes meaningless. During the 1960s the national media criticized the decisions of the War (Greenhalgh 52). The criticism that the police were handcuffed was unfair. The Fourth Amendment handcuffed the police, not the Court. The criticism that the opinions of the Court were confusing and contradictory was more legitimate (Heffernan 3). As the years passed, more and more justices recognized that confusion did not help anyone and certainly did not ensure that people’s constitutional rights would be respected. Beginning with the Griswold decision in 1965 and ending with the Planned Parenthood decision in 1992, the Court struggled to expand the right to privacy beyond the realm of search and seizure and to do this in a way that would both protect the fundamental principles of individual rights and provide guidance for future Supreme Courts. The Court appears to have accomplished that goal. The expanded right to privacy includes the right of individuals to make such fundamental decisions as to whether or not to have a child. The general right to privacy is distinguished between decisions that must be made by the individual and decisions that the state may legitimately control. Whether the general right to privacy will expand further in the years to come remains to be seen (Heffernan 3).

Counter Thesis

Some critics suppose that the Fourth Amendment protects the rights and privacy of individuals and their property. The Supreme Court has assumed that the fundamental purpose of the Fourth Amendment is to protect both property and privacy: property from search and seizure and privacy from invasion. At the same time, the Court has refused to accept arguments that the Fourth Amendment simply transferred the laws concerning trespass into the Constitution (Connell and Valladares 1293). As a general rule, the Court has found that government officials must have a warrant before trespassing on some private real estate, while another private real estate is open to invasion without either a warrant or probable cause. Drawing the line between these two types of private real estate has been a major task for the Court (Heffernan 4).

The Fourth Amendment does not say “home,” it says “houses,” but the Supreme Court has consistently ruled that a home, whatever shape it takes, is protected from unreasonable invasion by the government. in the case of Mapp v. Ohio, the Court decided not only that the Fourth Amendment was applicable to the states but also that it required judges at all levels of government to make use of the exclusionary rule (Colb 123). The exclusionary rule simply states that if something has been seized by the police in violation of the Fourth Amendment, it cannot be used as evidence against the person whose rights were violated. Because of the exclusionary rule, judges faced with convicted murderers and robbers would often have to let them go free because the evidence used to convict them had been obtained in a way that violated the Fourth Amendment. The case of New Jersey v. T.L.O. decided in 1985, involved the right of public school children to be free from unreasonable searches and seizures (Wetterer 82). All of the justices agreed that the Fourth Amendment did apply to the public school setting, but they disagreed on the extent of this application. McCray v. Illinois concerned the arrest and search of a person in a public place. A majority of justices ruled that police could make this arrest and conduct this search with probable cause and without a warrant. They also ruled that police did not have to reveal the name of the informant who provided them with the information which constituted probable cause.

It is possible to refute these arguments because all of them violate privacy rights and human rights. Generally, before they may enter one of the private areas protected by the Fourth Amendment, police need a warrant or “exigent circumstances,” such as an emergency or the belief that evidence will be destroyed in the time it takes to obtain a warrant. Arrest warrants authorize the police to search for individuals named in the warrants in their own homes, but not in anyone else’s home. For that, the police would need a search warrant (Wetterer 52). Police would no longer be prevented from searching for and seizing “mere evidence,” whatever that was, and the fact that something was contraband, personal papers, or instrumentalities of crime would no longer have any effect on whether or not police could seize it. From the beginning, the Court recognized that the Fourth Amendment was intended to protect both property and privacy. At the same time, it did not think the protection of property was coextensive with the law of trespass. Police could trespass on some private property, an open field for example, without violating the Fourth Amendment. Police could not trespass and violate the Fourth Amendment, however, such as by putting on a wiretap. The amendment protected some property interests and some privacy interests but not others. In the 1960s the Court began to see the primary function of the Fourth Amendment as the protection of the reasonable expectation of privacy (Wetterer 52). The Court then had to decide which expectations of privacy it was willing to protect. People should not expect their backyards to be free from police observation from the air, for example, or their garbage to be free from police inspection. People should not expect that a field surrounded by fences and a “do not trespass” sign will be free from the random police investigation. The Court decided that seizing and searching people walking around in public places did not require a warrant, but in most cases, police could only do so if they had probable cause. The extent to which police could seize and search automobiles caused much confusion as the Court struggled to come up with a rule that provided the right balance between the rights of individuals and the needs of modern law enforcement. Ultimately, the Court decided that a warrant would not be required before searching or seizing automobiles, or the containers found in automobiles (Wetterer 81).


The analysis shows that the Fourth Amendment violates the rights of people and their privacy because of the “unusual conduct” or “probable cause” definitions. As with other areas of constitutional law, the Court should use a combination of balancing and line drawing to spell out the dictates of the Fourth Amendment. The Court does balance the property and privacy rights of the people against the legitimate needs of law enforcement. The Court divides the world into three areas: those that could only be searched with a warrant (except in emergencies); those that could be searched or seized with probable cause (with some exceptions); and those that could be searched without either probable cause or a warrant. The question of when police need a warrant to search is very difficult for the Court. The Court begins with the proposition that the police would usually need a warrant, and then over the years created so many exceptions that they seemed to swallow the rule. Today police generally only need a warrant if they wish to enter a private building, which means home, including a hotel room, or the private area of a business. Areas open to the public, such as an open field or the showroom of a business, are not protected by the amendment.

Works Cited

  1. Colb, S. F. What Is a Search? Two Conceptual Flaws in Fourth Amendment Doctrine and Some Hints of a Remedy. Stanford Law Review, 55 (2002), 119-123.
  2. Connell III, J., Valladares, R. L. Search and Seizure Protections for Undocumented Aliens: The Territoriality and Voluntary Presence Principles in Fourth Amendment Law. American Criminal Law Review, 34 (1997), 1293-1352.
  3. Heffernan, W. C. Fourth Amendment Privacy Interests. Journal of Criminal Law and Criminology 1 (2001), 1-8.
  4. Greenhalgh, W.W. The Fourth Amendment Handbook. American Bar Association; 2 edition, 2002.
  5. Kerr, O. S. Four Models of Fourth Amendment Protection. Stanford Law Review, 60 (2007), 503.
  6. Parsons, I. L. Fourth Amendment Practice And Procedure. National Institute for Trial Advocacy, 2004.
  7. Taslitz, A. Reconstructing the Fourth Amendment: A History of Search and Seizure, 1789-1868. NYU Press, 2006.
  8. Wettere, Ch. M. The Fourth Amendment: Search and Seizure. Enslow Publishers, 1998.
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