Tuesday, October 16, 2018
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The Fourth Amendment


The power to search is indispensable in the prosecution of criminal cases. Without it, the government would lose almost all ways to obtain evidence. However, the Fourth Amendment protects individual privacy from the government, lest it abuse its power to search. While the power to search warrantlessly is not expressly stated in the Bill of Rights, it has morphed into a fundamental, yet controlled, power of the police. Although warrantless search is sanctioned in all venues by the Court, each venue has distinctive characteristics which set unique rules to pursue the balance between individual privacy and legitimate government discovery.

The home has long been regarded as a sanctimonious place, the most secure place a man has against governmental intrusion. The Court has refused to lessen protections for even the curtilage, the immediate area surrounding the home, such as in Collins v. Virginia (2018). This case involves a motorcycle owned by Collins parked in a driveway, which was searched by an officer warrantlessly. The Court concluded that, “[…] when an officer physically intrudes on the curtilage to gather evidence, a Fourth Amendment search has occurred and is presumptively unreasonable absent a warrant.” Because the home is treated as a castle, warrantless governmental searches demand the strictest scrutiny, and even the officer’s minor intrusion to inspect the motorcycle was deemed illegal. Even when noting the limitations of the police, the Court still provides as high a respect as possible to the home. In Illinois v. Rodriguez (1990), the Court ruled that if officers obtain the consent of someone they reasonably believe has authority over a dwelling, but does not in reality, the evidence is admissible. However, the Court notes, “What respondent is assured by the Fourth Amendment is […] that no [search] will occur that is ‘unreasonable’.” The Court views to grant as many protections as possible to the home, only making way for highly compelling interests, such as the limited case of plain view. By fencing, locking, and other methods, the house demonstrates an aura of privacy and secrecy, causing it to be a place where individual privacy is highly prioritized.

Katz v. United States (1967) said that, “The Fourth Amendment protects people, not places.” The person, due to their volatility and instantaneousness, demands less protection than the home, but is still entitled to a high standard of privacy. The Court has allowed for limited warrantless searches, such as stop-and-frisk searches. Terry v. Ohio (1968), the case upholding this practice, said, “Where a reasonably prudent officer is warranted in the circumstances of a given case in believing that his safety or that of others is endangered, he may make a reasonable search for weapons of the person believed to him to be armed and dangerous.” Yet, the Court limits this search to a pat of the outer surfaces of the clothing. Because a person can readily pull out weapons to inflict injury, whereas a house cannot, public safety is a key exception in the otherwise guarded protection of the person against warrantless search. However, because the person is the protectorate of the Fourth Amendment, even public safety only warrants a highly limited search. The Court has taken extreme care in allowing warrantless search against people, setting the bar of reasonable suspicion very high. In Adams v. Williams (1972), the Court said, “Some tips, lacking in indicia or reliability, would either warrant no police response […] [b]ut in some situations – for example, when the victim of a street crime seeks immediate police aid […] the subtleties of the hearsay rule should not thwart and appropriate police response.” The Court brings reasonable suspicion to a higher level – not only does the suspicion need to be based on articulable facts, but the facts must also bring a degree of credibility, either from a trusted witness or personal observation. The Court limits searches of the free person to a small number of public safety exceptions, recognizing the right of the person to be secure in himself.

However, the Court has recognized two major classes of exceptions to this high degree of protection. One major area is the school, where the Court must factor in the legitimate educational purpose of the institution, the inhibition of which should be prohibited. The landmark case in this area is New Jersey v. T.L.O (1985). Perhaps the greatest step in T.L.O is the complete normalization of warrantless searches. In other venues, warrants are the highest legitimacy, but in the school system warrantless search is favored. While the T.L.O standard for justified search reads much like a watered-down probable cause standard, it allows broad searches, saying, “And such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the student’s age and sex and the nature of the infraction.” While other venues only allow for limited search, governmental discovery is highly prioritized, with only protections against ruthless, suspicionless search. In Safford Unified School District #1 v. Redding (2009), the Court ruled that a search of a bag based on an unconfirmed statement was justified, but when it extended to the underwear, it was not. In the school, contraband contrary to the school’s purpose is highly sought out. While searches against homes and persons may only be minimally intrusive, the school demands higher intrusiveness to weed out such contraband and allow students to focus on education.

The automobile has also been excluded from the normal protections of people and homes for its ready mobility, for fear it would easily move out of a warrant’s jurisdiction. Carroll v. United States (1925), the case initially creating the automobile exception, noted, “But those lawfully within the country, entitled to use the public highways, have a right to free passage without interruption or search unless there is known [sic] to a competent official, authorized to search, probable cause for believing that their vehicles are carrying contraband or illegal merchandise.” Carroll emphasizes the practicality of informal warrantless searches. While a warrant is formal, it is impractical in the context of a mobile vehicle, invalidated quickly if movement outside the jurisdiction occurs. California v. Acevedo (1991) attempts to increase the practicality of automobile searches by allowing limited searches within the automobile, specifically for a container to be searched with probable cause when a car may not have probable cause for a search. Perhaps similarly to the person, the crevices the car offers provide a difficult standard of probable cause. Allowing a limited search arguably broadens its scope. Due to the mobility of the vehicle, the Court has added a third factor – practicality, not necessarily prioritizing discovery or privacy.

Recently, technology has created newfound digital venues that have wildly different characteristics than established venues. Similar to United States v. Jones (2012), Carpenter v. United States (2018) deals with warrantless inquisition into a person’s location based on pings from his cellphone to cell towers. Carpenter emphasizes the change of times as well as the consent of the user, “First, cell phones and the services they provide are ‘such a pervasive and insistent part of daily life’ that carrying one is indispensable to participation in modern society. Second, a cell phone logs a cell-site record by dint of its operation, without any affirmative act on the user’s part beyond powering up.” In the future, the Fourth Amendment may be forced to lessen in scope as information-gathering technology becomes an increasing presence in life that lacks indication of express consent. The entry into the information age will demand new principles for radically different mediums.

The Court has continually tried to evaluate the impact of differentiating circumstances on each venue. With classical venues, like the person and the home, the Court developed basic principles governing warrantless search. As cultural, political, and social factors demanded the extension of these protections to other venues, the Court has been able to consider how to effectively combine ancient structures with modern influences. While many challenges have been presented to the Court, it has used this philosophy to solve them, and will do so in the ages to come.

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