"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 Fourth Amendment (Amendment IV) to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause. It was adopted as a response to the abuse of the writ of assistance, which is a type of general search warrant, in the American Revolution. Search and arrest should be limited in scope according to specific information supplied to the issuing court, usually by a law enforcement officer, who has sworn by it.
Like many other areas of American law, the Fourth Amendment finds its roots in English legal doctrine. Sir Edward Coke, in Semayne's case (1604), famously stated: "The house of every one is to him as his castle and fortress, as well for his defence against injury and violence as for his repose."[1] Semayne's Case acknowledged that the King did not have unbridled authority to intrude on his subjects' dwellings but recognized that government agents were permitted to conduct searches and seizures under certain conditions when their purpose was lawful and a warrant had been obtained.[2]
In Colonial America, legislation was explicitly written to enforce English revenue gathering policies on customs.[2] Until 1750, all handbooks for justices of the peace, the issuers of warrants, contained or described only general warrants.[2] William Cuddihy, Ph.D. in his dissertation entitled The Fourth Amendment: Origins and Original Meaning,[3] claims there existed a "colonial epidemic of general searches." According to him, until the 1760s, a "man's house was even less of a legal castle in America than in England" as the authorities possessed almost unlimited power and little oversight.
James OtisIn 1756, the colony of Massachusetts enacted legislation that barred the use of general warrants. This represented the first law in American history curtailing the use of seizure power. Its creation largely stemmed from the great public outcry over the Excise Act of 1754, which gave tax collectors unlimited powers to interrogate colonists concerning their use of goods subject to customs and permitted the use of a general warrant known as a writ of assistance, allowing them to search the homes of colonists and seize “prohibited and uncustomed” goods.[4]
A crisis erupted over the writs of assistance on December 27, 1760 when the news of King George II's October 23 death arrived in Boston. All writs automatically expired six months after the death of the King and would have had to be re-issued under the name of the new King, George III, to remain valid.[5]
In mid-January 1761, a group of over 50 merchants represented by James Otis, petitioned the court to have hearings on the issue. During the five hour hearing on February 23, 1761, Otis vehemently denounced English colonial policies, including their sanction of general warrants and writs of assistance.[6] However, the court ruled against Otis.[7] Because of the name he had made for himself in attacking the writs, he was elected to the Massachusetts colonial legislature and helped pass legislation requiring that special writs of assistance be “granted by any judge or justice of the peace upon information under oath by any officer of the customs” and barring all other writs. The governor overturned the legislation, finding it contrary to British law and parliamentary sovereignty.[8] John Adams, who was present in the courtroom when Otis spoke, viewed these events “as the spark in which originated the American Revolution.” [9]
Seeing the danger general warrants presented, the Virginia Declaration of Rights explicitly forbade the use of general warrants. This prohibition became precedent for the Fourth Amendment:[10]
That general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive and ought not to be granted.[11][12]
Article XIV of the Massachusetts Declaration of the Rights written by John Adams and enacted in 1780 as part of Massachusetts Constitution added the requirement that all searches must be “reasonable” and served as the basis for the language of the Fourth Amendment:
Every subject has a right to be secure from all unreasonable searches, and seizures of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in cases, and with the formalities, prescribed by the laws.[13]
The Fourth Amendment has been held to mean that generally a warrant must be judicially sanctioned for a search or an arrest.
In order for such a warrant to be considered reasonable, it must be supported by probable cause and be limited in scope according to specific information supplied by a person (usually a law enforcement officer) who has sworn by it and is therefore accountable to the issuing court.
Under Terry v. Ohio 392 U.S. 1 (1968), law enforcement officers are permitted to conduct a limited warrantless search on a level of suspicion less than probable cause under certain circumstances. In Terry, the Supreme Court ruled that when a police officer witnesses "unusual conduct" that leads that officer to reasonably believe "that criminal activity may be afoot", that the suspicious person has a weapon and that the person is presently dangerous to the officer or others, the officer may conduct a "pat-down search" (or "frisk") to determine whether the person is carrying a weapon. To conduct a frisk, officers must be able to point to specific and articulatory facts which, taken together with rational inferences from those facts, reasonably warrant their actions. A vague hunch will not do. Such a search must be temporary and questioning must be limited to the purpose of the stop (e.g., officers who stop a person because they have reasonable suspicion to believe that the person was driving a stolen car, cannot, after confirming that it is not stolen, compel the person to answer questions about anything else, such as the possession of contraband).[21]
For years now our government has found "exceptions" to our fourth amendment rights, along with many others, when the facts just do not back them up. Like Calvin Coolidge was saying in one of my earlier post this month some things are final. You have a right to bear arms, that is final. You have a right to free speech, that is final. You have a right to be secure in your person, houses, papers, and effects, against unreasonable searches and seizures. And this 'shall not be violated," that is final.
1.^ Coke's Rep. 91a, 77 Eng. Rep. 194 (K.B. 1604)
2.^ a b c d *Kilman, Johnny and George Costello (Eds) (2006). "The Constitution of the United States of America: Analysis and Interpretation". GPO. http://www.gpoaccess.gov/constitution/browse.html. pp. 1281–1282.
3.^ W. Cuddihy, The Fourth Amendment: Origins and Original Meaning (1990) (Ph.D. Dissertation at Claremont Graduate School)
4.^ Davies (1999)
5.^ Kinvin Wroth and Hiller B. Zobel, eds, Legal Papers of Adams II, p. 113, fn 22 (1965) “The writs of assistance did not become an issue until news of King George II’s death arrived in Boston December 27, 1760.”
6.^ Kinvin Wroth and Hiller B. Zobel, eds, Legal Papers of Adams II, p. 113, fn 23 (1965)
7.^ Lasson (1937), pp. 57–61
8.^ Lasson (1937), p. 66
9.^ Adams, Charles Francis, and John Adams (1856). The Works of John Adams, Second President of the United States: With a Life of the Author. Volume: 1. Little, Brown. pp. 59.
10.^ Levy (1995), p. 161
11.^ Article X of the Virginia Declaration of Rights, Levy (1995), p. 161
12.^ Levy (1995), pp. 162–164
13.^ Mass. Const. pt. 1, art. XIV.
14.^ United States v. Jacobsen, 466 U.S. 109 (1984): "This Court has ... consistently construed this protection as proscribing only governmental action; it is wholly inapplicable to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official." (punctuation omitted).
15.^ For example, see Article 1, § 7 of the Tennessee Constitution.
16.^ Lasson (1937), p. 106
17.^ Warden v. Hayden, 387 U.S. 294 (1967) (speculating that there may be "items of evidential value whose very nature precludes them from being the object of a reasonable search and seizure")
18.^ Devenpeck v. Alford, 543 U.S. 146 (2004)
19.^ Tennessee v. Garner 471 U.S. 1 (1985)
20.^ "No less than an individual in a business office, in a friend's apartment, or in a taxicab, a person in a telephone booth may rely upon the protection of the Fourth Amendment. One who occupies it, shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world." Katz v. United States, 389 U.S. 347, 352 (1967).
21.^ Florida v. Royer, 460 U.S. 491, 497–98, 103 S.Ct. 1319, 1324 (1983).
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