The law of search and seizure derives primarily from interpretation by the U.S. Supreme Court of the Fourth Amendment to the U.S. Constitution. The Fourth Amendment provides that ”[t]he 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 amendment was proposed by the first Congress assembled under the newly ratified Constitution in 1789 and was approved by the required number of states in 1791.
During the debate in the states about whether to ratify the new Constitution (written at a convention held in Philadelphia in 1787), much concern was expressed about whether the federal government created by the instrument was too strong. In particular, there was considerable concern about the absence of a list of rights that people possessed with respect to this new national government. The Bill of Rights (the first ten amendments to the Constitution) was written to address this concern. Thus, the Fourth Amendment was intended to be a limit on the national government, not on the states, and the Supreme Court held in 1833 that the Bill of Rights applied only to the federal government (Barron v. Baltimore).
In 1868, the Fourteenth Amendment was ratified. That amendment includes a provision that prohibits the states from depriving anyone ”of life, liberty, or property without due process of law.” In 1949 in Wolf v. Colorado, the Supreme Court held that the due process clause requires that the states comply with the Fourth Amendment, although it also held that states did not have to exclude at trial evidence obtained in violation of the amendment. Twelve years later, however, the Court reversed itself in a very controversial decision, holding that in state criminal prosecutions evidence obtained in violation may not be introduced at the criminal trial of the person whose reasonable expectation of privacy was violated in obtaining the evidence to prove that person’s guilt (Mapp v. Ohio). (The evidence may be introduced to contradict any testimony given at trial by that person, Murray v. U.S.)
Scope of the Amendment
The Fourth Amendment prohibits unreasonable searches and seizures. The Supreme Court has held that the police are not necessarily searching, for purposes of the Fourth Amendment, just because they are looking for contraband, evidence, or a suspect. The Fourth Amendment provides no definition of ”searches,” but the Court has indicated that the police are searching, as that term is used in the Fourth Amendment, only when their actions intrude upon a reasonable expectation of privacy (Katz v. U.S.). The Court has also indicated that even when the police are on private property, they do not intrude upon a reasonable expectation of privacy when they walk about the ”open fields” outside the residence and the area immediately surrounding the residence (Oliver v. U.S.).
The Fourth Amendment also does not indicate whose actions are covered. The Supreme Court has determined that the actions of law enforcement officers and some other government officials, such as public school principals, are subject to Fourth Amendment requirements (N.J. v. T.L.O.). The Court has also held that the actions of private individuals are covered when such persons are acting jointly with the police, at the direction of the police, or under the influence of the strong encouragement of the police (Coolidge v. N.H.).
When the police arrest someone, they have seized that person; thus the Fourth Amendment applies to arrests. The Supreme Court has indicated that persons are seized when reasonable persons under the circumstances would conclude that they are not free to ignore the police or otherwise terminate the encounter (Florida v. Bostick). This definition includes arrests, but it also includes temporary detentions of people for purposes of a brief investigation where the police have reasonable suspicion to think that the person stopped has committed, is committing, or is about to commit a crime (Terry v. Ohio).
The Warrant Requirement
The Fourth Amendment has two distinct components: (1) a prohibition against unreasonable searches and seizures and (2) a requirement that warrants be specific and based on probable cause. The relationship between the two components is not obvious. The two parts could be viewed as essentially separate from and unrelated to each other. They could also be read as requiring the use of warrants (absent unusual circumstances) in order for searches and seizures to be reasonable. Over the years, justices have supported both positions, but most justices and scholars have favored the warrant requirement. Consequently, discussions of the law of search and seizure have typically been organized around a discussion of warrant requirements, followed by a discussion of the most common exceptions to that requirement.
Requirements for Obtaining and Executing Warrants
When a warrant to search or arrest is required, the police must obtain it from a neutral and detached judicial officer and must have probable cause to think that contraband or evidence of a crime will be found at the place to be searched or to think the person they want to arrest has committed a crime (Coolidge v. N.H.). The Supreme Court has defined probable cause as circumstances that would cause a reasonable person to think that seizable items are at the place to be searched or to think that the person to be arrested has committed a crime (Brinegar v. U.S.).
The warrant itself must specify the things for which the police may search and state the place to be searched with sufficient precision that a police officer can determine, with reasonable effort, where to search (Maryland v. Garrison). Before executing the warrant at a residence (or before entering the residence without a warrant, where an exception to the warrant requirement exists), the police must knock at the residence and announce their purpose and then wait a reasonable time before entering if no one responds to the knock (Wilson v. Arkansas). The police may dispense with knocking and announcing if they have reasonable suspicion to think that doing so would result in the destruction of evidence, would place the officers in danger, or would permit a suspect to escape (Richards v. Wisconsin).
Exceptions to the Warrant Requirement
The Supreme Court has long recognized several situations in which the police may search or arrest without a warrant. For example, in English common law, arrests for felonies could be made without a warrant. The Supreme Court held in 1976 that this common law rule is part of the Fourth Amendment, at least if the arrest occurs in public (U.S. v. Watson). In 1980, the Supreme Court ruled that if the felony arrest is made in a residence, a warrant is required because ”physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed” (Payton v. New York).
Another important exception to the warrant requirement allows the police to search an arrested person for a weapon or evidence of a crime (Chimel v. California). The Court justifies the need for such searches without a warrant in order to protect the arresting officer and to protect against the destruction of evidence. While the police do not need probable cause to think they will find either a weapon or evidence of a crime, the search is limited to a search of the arrestee’s body and the area within his immediate control where he could reach for a weapon or evidence (U.S. v. Robinson; Chimel v. California). The Court condoned pretext arrests (where the arrest is made so the officer can search incident to the arrest) when it held that, so long as there is a lawful basis for an arrest, the officer’s motivation in making the arrest is immaterial.
