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Fourth Amendment to the United States Constitution – Wikipedia

The Fourth Amendment (Amendment IV) to the United States Constitution is part of the Bill of Rights.It prohibits unreasonable searches and seizures.In addition, it sets requirements for issuing warrants: warrants must be issued by a judge or magistrate, justified by probable cause, supported by oath or affirmation, and must particularly describe the place to be searched and the persons or …

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Fourth Amendment to the United States Constitution – Wikipedia

Fourth Amendment

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by John Wesley Hall Criminal Defense Lawyer and Search and seizure law consultant Little Rock, Arkansas Contact: forhall @ aol.com / The Book http://www.johnwesleyhall.com

2003-19,online since Feb. 24, 2003

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Fourth Amendment cases, citations, and links

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General (many free): LexisWeb Google Scholar | Google LexisOne Legal Website Directory Crimelynx Lexis.com $ Lexis.com (criminal law/ 4th Amd) $ Findlaw.com Findlaw.com (4th Amd) Westlaw.com $ F.R.Crim.P. 41 http://www.fd.org Federal Law Enforcement Training Center Resources FBI Domestic Investigations and Operations Guide (2008) (pdf) DEA Agents Manual (2002) (download) DOJ Computer Search Manual (2009) (pdf)Stringrays (ACLU No. Cal.) (pdf)

Congressional Research Service: –Electronic Communications Privacy Act (2012) –Overview of the Electronic Communications Privacy Act (2012) –Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012) –Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012) –Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012) ACLU on privacy Privacy FoundationElectronic Frontier Foundation NACDLs Domestic Drone Information Center Electronic Privacy Information Center Criminal Appeal (post-conviction) (9th Cir.) Section 1983 Blog

“If it was easy, everybody would be doing it. It isn’t, and they don’t.” Me

I am still learning.Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500’s)).

“Love work; hate mastery over others; and avoid intimacy with the government.” Shemaya, in the Thalmud

“A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one’s attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced.” Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev’d Nix v. Williams, 467 US. 431 (1984).

“The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.”Mapp v. Ohio, 367 U.S. 643, 659 (1961).

“Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.”Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).

“There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today.” Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).

“The great end, for which men entered into society, was to secure their property.” Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)

“It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment.” United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)

“The course of true law pertaining to searches and seizures, as enunciated here, has notto put it mildlyrun smooth.” Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

“A search is a search, even if it happens to disclose nothing but the bottom of a turntable.” Arizona v. Hicks, 480 U.S. 321, 325 (1987)

“For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. … But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Katz v. United States, 389 U.S. 347, 351 (1967)

Experience should teach us to be most on guard to protect liberty when the Governments purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding. United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)

Libertythe freedom from unwarranted intrusion by governmentis as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark. United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)

“You can’t always get what you want / But if you try sometimes / You just might find / You get what you need.” Mick Jagger & Keith Richards

“In Germany, they first came for the communists, and I didn’t speak up because I wasn’t a communist. Then they came for the Jews, and I didn’t speak up because I wasn’t a Jew. Then they came for the trade unionists, and I didn’t speak up because I wasn’t a trade unionist. Then they came for the Catholics and I didn’t speak up because I wasn’t a Catholic. Then they came for meand by that time there was nobody left to speak up.” Martin Niemller (1945) [he served seven years in a concentration camp]

You know, most men would get discouraged by now. Fortunately for you, I am not most men!—Pep Le Pew

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Fourth Amendment

The Fourth Amendment Search & Seizure – U.S. & Texas …

The following is a video transcript.

We have all heard of it, but what does it mean and how does it affect you?

The language of the Fourth Amendment reads:

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.

Simply put, the Fourth Amendment stops government agents (usually the police) from searching or seizing a person without first establishing probable cause and securing a warrant from a judge.

Before the Fourth Amendment came into being, Great Britain would use a legal instrument called a Writ of Assistance in the American colonies. These writs functioned as general search and seizure warrants. They had no requirement of what was or who was to be searched or seized. To make matters worse, they never expired and could be transferred from person to person.

These writs allowed the British government broad and general permission to interfere with the private lives of the colonists with no real restrictions. The British government could come and search whoever or whatever they wanted, whenever they wanted to.

The goal of the Fourth Amendment was to restrict government and provide security to Americans against this abuse. This is part of the right of privacy we as Americans enjoy. Today, in order for the government to search or seize something or someone, the general rule is, they must first obtain a warrant based upon probable cause from a neutral magistrate.

In Mapp v. Ohiothe Supreme Court held that any evidence obtained in violation of the Fourth Amendment would not be admissible in court.

However, over the years courts have been granting more and more leniency on the admissibility of evidence, even if it could be argued that it is in violation of the Fourth Amendment. This is because the exceptions to the warrant requirement have almost completely swallowed the rule.

This is due in part to advancements in technology. The interpretation of the Fourth Amendment has been stretched to its limit for scenarios the Founders probably could not have imagined such as automobiles, computers, electronic mail, and phone metadata.

We have talked about the nearly endless list of ways police can search your car in the past, with theinventory and automobile exceptions, but it is important to know about other types of government encroachment on your right to privacy.

We see a recurring theme when it comes to this kind of governmental interference. A new technology emerges, law enforcement uses this technology, pushing the limits of the Fourth Amendment, and then the courts (sometimes) reign them in.

For example, there have been many cases dealing with cell phone searches. Up until very recently, the police would just search through someones cell phone without a warrant to see what they could find. The courts have now held that to search through someones cell phone, the police must first obtain a warrant.

Another example is the use of infrared. Essentially, police were using thermal imaging to look directly into a persons house and could see people, fixtures within the home, or anything else that puts off a heat signature. Based upon what the police would see during that thermal search, they would then obtain a warrant for a physical search.

However, in Kyllo v. The United States, the Supreme Court held that the use of thermal image devices from a public vantage point to monitor a persons home constituted a search under the Fourth Amendment and required a warrant. This is a fast-changing area of the law, and the courts will have to make decisions relating to the use of new technologies as they advance and whether they implicate the Fourth Amendment.

What you need to know: do not give up your Fourth Amendment rights. If an officer says he is going to conduct a search, invoke your rights and do not consent. They may search anyway, but at least now your attorney may be able to get that evidence thrown out in court.

If you have any questions about the Fourth Amendment, call U.S. LawShield and ask to speak with your Independent Program Attorney.

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Thirty-fourth Amendment of the Constitution of Ireland …

The Thirty-fourth Amendment of the Constitution (Marriage Equality) Act 2015 (previously bill no. 5 of 2015) amended the Constitution of Ireland to permit marriage to be contracted by two persons without distinction as to their sex. Prior to the enactment, the Constitution was assumed to contain an implicit prohibition on same-sex marriage in the Republic of Ireland.

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Thirty-fourth Amendment of the Constitution of Ireland …

Fourth Amendment – newser.com

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Fourth Amendment – newser.com

Fourth Amendment | United States Constitution | Britannica.com

Fourth Amendment, amendment (1791) to the Constitution of the United States, part of the Bill of Rights, that forbids unreasonable searches and seizures of individuals and property. For the text of the Fourth Amendment, see below.

Introduced in 1789, what became the Fourth Amendment struck at the heart of a matter central to the early American experience: the principle that, within reason, Every mans house is his castle, and that any citizen may fall into the category of the criminally accused and ought to be provided protections accordingly. In U.S. constitutional law, the Fourth Amendment is the foundation of criminal law jurisprudence, articulating both the rights of persons and the responsibilities of law-enforcement officials. The balance between these two forces has undergone considerable public, political, and judicial debate. Are the amendments two clauses meant to be applied independently or taken as a whole? Is the expectation of privacy diminished depending on where and what is suspected, sought, and seized? What constitutes an unreasonable search and seizure?

The protections contained in the amendment have been determined less on the basis of what the Constitution says than according to what it has been interpreted to mean, and, as such, its constitutional meaning has inherently been fluid. The protections granted by the U.S. Supreme Court have expanded during periods when the court was dominated by liberals (e.g., during the tenure of Chief Justice Earl Warren [195369]), beginning particularly with Mapp v. Ohio (1961), in which the court extended the exclusionary rule to all criminal proceedings; by contrast, during the tenure of the conservative William Rehnquist (19862005) as chief justice, the court contracted the rights afforded to the criminally accused, allowing law-enforcement officials latitude to search in instances when they reasonably believed that the property in question harboured presumably dangerous persons.

The full text of the amendment is:

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.

See the rest here:

Fourth Amendment | United States Constitution | Britannica.com

Fourth Amendment | U.S. Constitution | US Law | LII …

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.

More here:

Fourth Amendment | U.S. Constitution | US Law | LII …

Fourth Amendment – the Text, Origins, and Meaning

The Fourth Amendment to the United States Constitution is a section of the Bill of Rights that protects the people from being subjected to unreasonable searches and seizures of property by law enforcement officers or the federal government. However, the Fourth Amendment does not prohibit all searches and seizures, but only those that are found by a court to be unreasonable under the law.

The full text of the Fourth Amendment states:

Originally created to enforced the doctrine that each mans home is his castle, The Fourth Amendment was written directly in response to British general warrants, called Writs of Assistance, in which the Crown would grant overarching, non-specific search powers to British law enforcement officials.

Through Writs of Assistance, officials were free to search virtually any home they liked, at any time they liked, for any reason they liked or for no reason at all. Since some of the founding fathers had been smugglers in England, this was an especially unpopular concept in the colonies. Clearly, the framers of the Bill of Rights considered such colonial-era searches to be unreasonable.

In deciding whether a particular search is reasonable, the courts attempt to weigh important interests: The extent to which the search intruded on the individual’s Fourth Amendment rights and the extent to which the search was motivated by valid government interests, such as public safety.

Through several rulings, the U.S. Supreme Court has established that the extent to which an individual is protected by the Fourth Amendment depends, in part, on the location of the search or seizure.

It is important to note that according to these rulings, there are several circumstances under which police may lawfully conduct warrantless searches.

Searches in the Home:According to Payton v. New York (1980), Searches and seizures conducted inside a home without a warrant are presumed to be unreasonable.

However, such warrantless searches may be lawful under certain circumstances, including:

Searches of the Person:In what is popularly known as its stop and frisk decision in the 1968 case of Terry v. Ohio, the

Court ruled that when police officers see unusual conduct leading them to reasonably conclude that criminal activity may be taking place, the officers may briefly stop the suspicious person and make reasonable inquiries aimed at confirming or dispelling their suspicions.

Searches in Schools:Under most circumstances, school officials do not need to get a warrant before searching students, their lockers, backpacks, or other personal property. (New Jersey v. TLO)

Searches of Vehicles:When police officers have probable cause to believe that a vehicle contains evidence of a criminal activity, they may lawfully search any area of the vehicle in which the evidence might be found without a warrant. (Arizona v. Gant)

In addition, police officers may lawfully conduct a traffic stop if they have reasonable suspicion that a traffic violation has occurred or that criminal activity is being carried out, for example, vehicles seen fleeing the scene of a crime. (United States v. Arvizu and Berekmer v. McCarty)

In practical terms, there are no means by which the government can exercise prior restraint on law enforcement officials. If an officer in Jackson, Mississippi wants to conduct a warrantless search without probable cause, the judiciary is not present at the time and can’t prevent the search. This meant that the Fourth Amendment had little power or relevance until 1914.

In Weeks v. United States (1914), the Supreme Court established what has been known as the exclusionary rule. The exclusionary rule states that evidence obtained through unconstitutional means is inadmissible in court and cannot be used as part of the prosecution’s case. Before Weeks, law enforcement officials could violate the Fourth Amendment without being punished for it, secure the evidence, and use it at trial. The exclusionary rule establishes consequences for violating a suspect’s Fourth Amendment rights.

The Supreme Court has held that searches and arrests can be performed without a warrant under some circumstances. Most notably, arrests and searches can be performed if the officer personally witnesses the suspect committing a misdemeanor, or has reasonable cause to believe that the suspect has committed a specific, documented felony.

On January 19, 2018, U.S. Border Patrol agents without producing a warrant to do so boarded a Greyhound bus outside the Fort Lauderdale, Florida station and arrested an adult female whose temporary visa had expired. Witnesses on the bus alleged that the Border Patrol agents had also asked everyone on board to show proof of U.S. citizenship.

In response to inquiries, the Border Patrols Miami section headquarters confirmed that under the long-standing federal law, they can do that.

In addition, The Immigration and Nationality Act 287(a)(3) and CFR 287 (a)(3) states that Immigration Officers, without a warrant, may within a reasonable distance from any external boundary of the United States…board and search for aliens in any vessel within the territorial waters of the United States and any railcar, aircraft, conveyance, or vehicle.

The Immigration and Nationality Act defines Reasonable distance as 100 miles.

Although the implicit privacy rights established in Griswold v. Connecticut (1965) and Roe v. Wade (1973) are most often associated with the Fourteenth Amendment, the Fourth Amendment contains an explicit “right of the people to be secure in their persons” that is also strongly indicative of a constitutional right to privacy.

More:

Fourth Amendment – the Text, Origins, and Meaning

Fourth Amendment | Constitution | US Law | LII / Legal …

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.

Go here to see the original:

Fourth Amendment | Constitution | US Law | LII / Legal …

Fourth Amendment | United States Constitution | Britannica.com

Fourth Amendment, amendment (1791) to the Constitution of the United States, part of the Bill of Rights, that forbids unreasonable searches and seizures of individuals and property. For the text of the Fourth Amendment, see below.

Introduced in 1789, what became the Fourth Amendment struck at the heart of a matter central to the early American experience: the principle that, within reason, Every mans house is his castle, and that any citizen may fall into the category of the criminally accused and ought to be provided protections accordingly. In U.S. constitutional law, the Fourth Amendment is the foundation of criminal law jurisprudence, articulating both the rights of persons and the responsibilities of law-enforcement officials. The balance between these two forces has undergone considerable public, political, and judicial debate. Are the amendments two clauses meant to be applied independently or taken as a whole? Is the expectation of privacy diminished depending on where and what is suspected, sought, and seized? What constitutes an unreasonable search and seizure?

The protections contained in the amendment have been determined less on the basis of what the Constitution says than according to what it has been interpreted to mean, and, as such, its constitutional meaning has inherently been fluid. The protections granted by the U.S. Supreme Court have expanded during periods when the court was dominated by liberals (e.g., during the tenure of Chief Justice Earl Warren [195369]), beginning particularly with Mapp v. Ohio (1961), in which the court extended the exclusionary rule to all criminal proceedings; by contrast, during the tenure of the conservative William Rehnquist (19862005) as chief justice, the court contracted the rights afforded to the criminally accused, allowing law-enforcement officials latitude to search in instances when they reasonably believed that the property in question harboured presumably dangerous persons.

The full text of the amendment is:

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.

More here:

Fourth Amendment | United States Constitution | Britannica.com

Opinion | Losing Our Fourth Amendment Data Protection – The …

Still, it came as a little bit of a surprise last summer, when the Supreme Court ruled in Carpenter v. United States that a weeks worth of cellphone location data records were protected by the Fourth Amendment, despite being stored by a third-party cellphone provider, because an individual maintains a legitimate expectation of privacy in the record of his physical movements. (The court did leave open the possibility that it might be legal for the government to see location data for a shorter period than a week).

In many ways, the Carpenter ruling was a victory for privacy advocates and signaled the Supreme Courts willingness to rein in third-party doctrine a little bit in an era when almost all of our communications are handled by intermediary companies. But it was also a stark reminder of how much our Fourth Amendment protections depend on what we and, more important, what our judges legitimately expect in terms of privacy.

Some Supreme Court justices have been roundly (and often deservedly) mocked for their ignorance about basic everyday technologies, such as text messages and email. But one advantage to having an older, less tech-savvy judiciary is that their ideas about privacy were formed during an earlier era when it might well have been reasonable to expect that the police would not be able to obtain a weeks worth of detailed location information about you.

In United States v. Jones, decided in 2012, the court ruled that a warrant was required to collect someones location data using a GPS device attached to his car. The majority ruling held that the Fourth Amendment applied because it protected the car from being tampered with, but in a concurring opinion Justice Samuel Alito argued that it was actually the location data not the car that deserved Fourth Amendment protection. By way of explanation, he wrote, Societys expectation has been that law enforcement agents and others would not and indeed, in the main, simply could not secretly monitor and catalog movement of an individuals car for a very long period.

For many people, especially those of us who grew up with ubiquitous location-tracking devices, to say nothing of ubiquitous large-scale data breaches, that is no longer our expectation. Does that mean we lose our Fourth Amendment protections for the information we no longer expect to be secret?

In March, the Senate confirmed Allison Rushings nomination as a judge on the Court of Appeals for the Fourth Circuit. At 36, she became the youngest federal judge in the country. In many ways, a younger and presumably more tech-savvy judiciary is a good thing for deciding cases that revolve around modern technologies. But at the same time, the Supreme Court and other courts have been reluctant to erode the Fourth Amendments protections for data like location information because it seems reasonable to them that people would expect that material to be private. They themselves expect it to be private. As that expectation shifts with a younger judiciary, then so too may those protections.

Today, our ideas about what is and what should be private are changing fast. As we routinely hand over more and more information about ourselves, our communications, our locations and our activities to tech companies, predicating our legal privacy protections on what we expect, rather than what we think people deserve or have a right to, is deeply problematic.

Originally posted here:

Opinion | Losing Our Fourth Amendment Data Protection – The …

Fourth Amendment – the Text, Origins, and Meaning

The Fourth Amendment to the United States Constitution is a section of the Bill of Rights that protects the people from being subjected to unreasonable searches and seizures of property by law enforcement officers or the federal government. However, the Fourth Amendment does not prohibit all searches and seizures, but only those that are found by a court to be unreasonable under the law.

The full text of the Fourth Amendment states:

Originally created to enforced the doctrine that each mans home is his castle, The Fourth Amendment was written directly in response to British general warrants, called Writs of Assistance, in which the Crown would grant overarching, non-specific search powers to British law enforcement officials.

Through Writs of Assistance, officials were free to search virtually any home they liked, at any time they liked, for any reason they liked or for no reason at all. Since some of the founding fathers had been smugglers in England, this was an especially unpopular concept in the colonies. Clearly, the framers of the Bill of Rights considered such colonial-era searches to be unreasonable.

In deciding whether a particular search is reasonable, the courts attempt to weigh important interests: The extent to which the search intruded on the individual’s Fourth Amendment rights and the extent to which the search was motivated by valid government interests, such as public safety.

Through several rulings, the U.S. Supreme Court has established that the extent to which an individual is protected by the Fourth Amendment depends, in part, on the location of the search or seizure.

It is important to note that according to these rulings, there are several circumstances under which police may lawfully conduct warrantless searches.

Searches in the Home:According to Payton v. New York (1980), Searches and seizures conducted inside a home without a warrant are presumed to be unreasonable.

However, such warrantless searches may be lawful under certain circumstances, including:

Searches of the Person:In what is popularly known as its stop and frisk decision in the 1968 case of Terry v. Ohio, the

Court ruled that when police officers see unusual conduct leading them to reasonably conclude that criminal activity may be taking place, the officers may briefly stop the suspicious person and make reasonable inquiries aimed at confirming or dispelling their suspicions.

Searches in Schools:Under most circumstances, school officials do not need to get a warrant before searching students, their lockers, backpacks, or other personal property. (New Jersey v. TLO)

Searches of Vehicles:When police officers have probable cause to believe that a vehicle contains evidence of a criminal activity, they may lawfully search any area of the vehicle in which the evidence might be found without a warrant. (Arizona v. Gant)

In addition, police officers may lawfully conduct a traffic stop if they have reasonable suspicion that a traffic violation has occurred or that criminal activity is being carried out, for example, vehicles seen fleeing the scene of a crime. (United States v. Arvizu and Berekmer v. McCarty)

In practical terms, there are no means by which the government can exercise prior restraint on law enforcement officials. If an officer in Jackson, Mississippi wants to conduct a warrantless search without probable cause, the judiciary is not present at the time and can’t prevent the search. This meant that the Fourth Amendment had little power or relevance until 1914.

In Weeks v. United States (1914), the Supreme Court established what has been known as the exclusionary rule. The exclusionary rule states that evidence obtained through unconstitutional means is inadmissible in court and cannot be used as part of the prosecution’s case. Before Weeks, law enforcement officials could violate the Fourth Amendment without being punished for it, secure the evidence, and use it at trial. The exclusionary rule establishes consequences for violating a suspect’s Fourth Amendment rights.

The Supreme Court has held that searches and arrests can be performed without a warrant under some circumstances. Most notably, arrests and searches can be performed if the officer personally witnesses the suspect committing a misdemeanor, or has reasonable cause to believe that the suspect has committed a specific, documented felony.

On January 19, 2018, U.S. Border Patrol agents without producing a warrant to do so boarded a Greyhound bus outside the Fort Lauderdale, Florida station and arrested an adult female whose temporary visa had expired. Witnesses on the bus alleged that the Border Patrol agents had also asked everyone on board to show proof of U.S. citizenship.

In response to inquiries, the Border Patrols Miami section headquarters confirmed that under the long-standing federal law, they can do that.

In addition, The Immigration and Nationality Act 287(a)(3) and CFR 287 (a)(3) states that Immigration Officers, without a warrant, may within a reasonable distance from any external boundary of the United States…board and search for aliens in any vessel within the territorial waters of the United States and any railcar, aircraft, conveyance, or vehicle.

The Immigration and Nationality Act defines Reasonable distance as 100 miles.

Although the implicit privacy rights established in Griswold v. Connecticut (1965) and Roe v. Wade (1973) are most often associated with the Fourteenth Amendment, the Fourth Amendment contains an explicit “right of the people to be secure in their persons” that is also strongly indicative of a constitutional right to privacy.

Read the original:

Fourth Amendment – the Text, Origins, and Meaning

US Government for Kids: Fourth Amendment

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From the Constitution

Here is the text of the Fourth Amendment from the Constitution:

“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.”

Reasons for the Fourth Amendment

The Fourth Amendment came about because of the actions of British tax collectors before the Revolutionary War. They would use general warrants to enter and search any house they wanted without needing evidence of wrongdoing. The Founding Fathers wanted to protect people from this sort of invasion of privacy from the government.

What is “searches and seizures”?

A “search” under the Fourth Amendment is when a public employee (like a police officer) looks at something that is considered “private”. It typically takes two things in order for something to be considered “private”:

1) the citizen thought it was private and it would not be able to be viewed by the public (For example, something inside a house would be private, something on the driveway could be viewed by anyone).

2) these expectations of privacy are realistic (It wouldn’t be realistic to expect something on your driveway to be private).

When someone is “seized” they are not free to leave (like being arrested and placed in jail). When something is “seized” it cannot be taken back (like the police taking your wallet and not giving it back).

In order to conduct a legal “search” or “seizure” the police must have a warrant written by a judge. To get this warrant they must present evidence to the judge that some criminal activity has taken place. This assures that the police can’t enter a person’s home or arrest a person without evidence that has been reviewed by a judge.

The Fourth Amendment also states that there must be “probable cause.” This means that there is enough evidence to show that a crime has likely been committed. The police must have this evidence before any arrest or search. Any evidence found during the search does not count as probable cause.

The requirements for search and seizure are slightly different in the public schools. The Supreme Court has said that school officials and police officers can search a student if they have “reasonable suspicion” that a crime has occurred. This is less of a requirement than “probable cause.”

There are certain places and situations where people are searched or stopped without a warrant. Consider the airport where everyone who flies is searched. When you agree to fly, you give up some of your Fourth Amendment rights. Another example is a roadblock that tests for drunk drivers. When you drive on public roads you give up some of your Fourth Amendment rights. These searches are generally accepted by the citizens for their own safety and protection.

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US Government for Kids: Fourth Amendment

Amendment IV – The United States Constitution

Imagine youre driving a car, and a police officer spots you and pulls you over for speeding. He orders you out of the car. Maybe he wants to place you under arrest. Or maybe he wants to search your car for evidence of a crime. Can the officer do that?

The Fourth Amendment is the part of the Constitution that gives the answer. According to the Fourth Amendment, the people have a right to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures. This right limits the power of the police to seize and search people, their property, and their homes.

The Fourth Amendment has been debated frequently during the last several years, as police and intelligence agencies in the United States have engaged in a number of controversial activities. The federal government has conducted bulk collection of Americans telephone and Internet connections as part of the War on Terror. Many municipal police forces have engaged in aggressive use of stop and frisk. There have been a number of highly-publicized police-citizen encounters in which the police ended up shooting a civilian. There is also concern about the use of aerial surveillance, whether by piloted aircraft or drones.

The application of the Fourth Amendment to all these activities would have surprised those who drafted it, and not only because they could not imagine the modern technologies like the Internet and drones. They also were not familiar with organized police forces like we have today. Policing in the eighteenth and early nineteenth centuries was a responsibility of the citizenry, which participated in night watches. Other than that, there was only a loose collection of sheriffs and constables, who lacked the tools to maintain order as the police do today.

The primary concerns of the generation that ratified the Fourth Amendment were general warrants and writs of assistance. Famous incidents on both sides of the Atlantic gave rise to placing the Fourth Amendment in the Constitution. In Britain, the Crown employed general warrants to go after political enemies, leading to the famous decisions in Wilkes v. Wood (1763) and Entick v. Carrington (1765). General warrants allowed the Crowns messengers to search without any cause to believe someone had committed an offense. In those cases the judges decided that such warrants violated English common law. In the colonies the Crown used the writs of assistancelike general warrants, but often unbounded by time restraintsto search for goods on which taxes had not been paid. James Otis challenged the writs in a Boston court; though he lost, some such as John Adams attribute this legal battle as the spark that led to the Revolution. Both controversies led to the famous notion that a persons home is their castle, not easily invaded by the government.

Today the Fourth Amendment is understood as placing restraints on the government any time it detains (seizes) or searches a person or property. The Fourth Amendment also provides that 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 idea is that to avoid the evils of general warrants, each search or seizure should be cleared in advance by a judge, and that to get a warrant the government must show probable causea certain level of suspicion of criminal activityto justify the search or seizure.

To the extent that a warrant is required in theory before police can search, there are so many exceptions that in practice warrants rarely are obtained. Police can search automobiles without warrants, they can detain people on the street without them, and they can always search or seize in an emergency without going to a judge.

The way that the Fourth Amendment most commonly is put into practice is in criminal proceedings. The Supreme Court decided in the mid-twentieth century that if the police seize evidence as part of an illegal search, the evidence cannot be admitted into court. This is called the exclusionary rule. It is controversial because in most cases evidence is being tossed out even though it shows the person is guilty and, as a result of the police conduct, they might avoid conviction. The criminal is to go free because the constable has blundered, declared Benjamin Cardozo (a famous judge and ultimately Supreme Court justice). But, responded another Supreme Court justice, Louis Brandeis, If the government becomes the lawbreaker, it breeds contempt for the law.

One of the difficult questions today is what constitutes a search? If the police standing in Times Square in New York watched a person planting a bomb in plain daylight, we would not think they needed a warrant or any cause. But what about installing closed circuit TV cameras on poles, or flying drones over backyards, or gathering evidence that you have given to a third party such as an Internet provider or a banker?

Another hard question is when a search is acceptable when the government has no suspicion that a person has done something wrong. Lest the answer seem to be never, think of airport security. Surely it is okay for the government to screen people getting on airplanes, yet the idea is as much to deter people from bringing weapons as it is to catch themthere is no cause, probable or otherwise, to think anyone has done anything wrong. This is the same sort of issue with bulk data collection, and possibly with gathering biometric information.

What should be clear by now is that advancing technology and the many threats that face society add up to a brew in which the Fourth Amendment will continue to play a central role.

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Amendment IV – The United States Constitution

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by John Wesley Hall Criminal Defense Lawyer and Search and seizure law consultant Little Rock, Arkansas Contact: forhall @ aol.com / The Book http://www.johnwesleyhall.com

2003-19,online since Feb. 24, 2003

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Fourth Amendment cases, citations, and links

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Research Links: Supreme Court: SCOTUSBlog S. Ct. Docket Solicitor General’s site SCOTUSreport Briefs online (but no amicus briefs) Oyez Project (NWU) “On the Docket”Medill S.Ct. Monitor: Law.com S.Ct. Com’t’ry: Law.com

General (many free): LexisWeb Google Scholar | Google LexisOne Legal Website Directory Crimelynx Lexis.com $ Lexis.com (criminal law/ 4th Amd) $ Findlaw.com Findlaw.com (4th Amd) Westlaw.com $ F.R.Crim.P. 41 http://www.fd.org Federal Law Enforcement Training Center Resources FBI Domestic Investigations and Operations Guide (2008) (pdf) DEA Agents Manual (2002) (download) DOJ Computer Search Manual (2009) (pdf)Stringrays (ACLU No. Cal.) (pdf)

Congressional Research Service: –Electronic Communications Privacy Act (2012) –Overview of the Electronic Communications Privacy Act (2012) –Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012) –Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012) –Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012) ACLU on privacy Privacy FoundationElectronic Frontier Foundation NACDLs Domestic Drone Information Center Electronic Privacy Information Center Criminal Appeal (post-conviction) (9th Cir.) Section 1983 Blog

“If it was easy, everybody would be doing it. It isn’t, and they don’t.” Me

I am still learning.Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500’s)).

“Love work; hate mastery over others; and avoid intimacy with the government.” Shemaya, in the Thalmud

“A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one’s attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced.” Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev’d Nix v. Williams, 467 US. 431 (1984).

“The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence.”Mapp v. Ohio, 367 U.S. 643, 659 (1961).

“Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.”Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).

“There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today.” Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).

“The great end, for which men entered into society, was to secure their property.” Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)

“It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment.” United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)

“The course of true law pertaining to searches and seizures, as enunciated here, has notto put it mildlyrun smooth.” Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

“A search is a search, even if it happens to disclose nothing but the bottom of a turntable.” Arizona v. Hicks, 480 U.S. 321, 325 (1987)

“For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. … But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Katz v. United States, 389 U.S. 347, 351 (1967)

Experience should teach us to be most on guard to protect liberty when the Governments purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding. United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)

Libertythe freedom from unwarranted intrusion by governmentis as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark. United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)

“You can’t always get what you want / But if you try sometimes / You just might find / You get what you need.” Mick Jagger & Keith Richards

“In Germany, they first came for the communists, and I didn’t speak up because I wasn’t a communist. Then they came for the Jews, and I didn’t speak up because I wasn’t a Jew. Then they came for the trade unionists, and I didn’t speak up because I wasn’t a trade unionist. Then they came for the Catholics and I didn’t speak up because I wasn’t a Catholic. Then they came for meand by that time there was nobody left to speak up.” Martin Niemller (1945) [he served seven years in a concentration camp]

You know, most men would get discouraged by now. Fortunately for you, I am not most men!—Pep Le Pew

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Fourth Amendment – Kids | Laws.com

A Guide to the Fourth Amendment

The Fourth Amendment, or Amendment IV of the United States Constitution is the section of the Bill of Rights that protects people from being searched or having their things taken away from them without any good reason. If the government or any law enforcement official wants to do that, he or she must have a very good reason to do that and must get permission to perform the search from a judge. The fourth amendment was introduced into the Constitution of the United States as a part of the Bill of Rights on September 5, 1789 and was ratified or voted four by three fourths of the states on December 15, 1791.

The Text of the Fourth Amendment

The text of the Fourth Amendment which is found in the United States Constitution and the Bill of Rights is the following:

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.

History of the Third Amendment

In Colonial America, laws were written in order to help the English earn money on customs. The justices of the peace would do this by writing general warrants, which allowed general search and seizure to happen. Massachusetts wrote a law in 1756 that banned these warrants, because tax collectors were abusing their powers by searching the colonists homes for illegal goods. These general warrants allowed any messenger or officer to search a suspected place without any evidence. It also allowed them to seize people without even saying what they did wrong or showing evidence of their wrongdoings. Virginia also banned the use of general warrants later due to other fears. These actions later led to the addition of the Fourth Amendment in the Bill of Rights.

The Fourth Amendment Today

Today, the Fourth Amendment means that in order for a police officer to search and arrest someone, he or she will need to get permission or a warrant to do so from a judge. In order to get a warrant, the police officer must have evidence or probable cause that supports it. The police officer, or whoever has the evidence, must swear that it is true to his or her knowledge.

Facts About the Fourth Amendment

The Fourth Amendment applies to the government, but not any searches done by organizations or people who are not doing it for the government.

Some searches can be done without a warrant without breaking the law, like when there is a good reason to think that a crime is happening.

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History and Scope of the Amendment :: Fourth Amendment …

SEARCH AND SEIZUREFOURTH AMENDMENT

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.

Annotations

History.Few provisions of the Bill of Rights grew so directly out of the experience of the colonials as the Fourth Amendment, embodying as it did the protection against the use of the writs of assistance. But though the insistence on freedom from unreasonable searches and seizures as a fundamental right gained expression in the colonies late and as a result of experience,1 there was also a rich English experience to draw on. Every mans house is his castle was a maxim much celebrated in England, as Samans Case demonstrated in 1603.2 A civil case of execution of process, Samans Case nonetheless recognized the right of the homeowner to defend his house against unlawful entry even by the Kings agents, but at the same time recognized the authority of the appropriate officers to break and enter upon notice in order to arrest or to execute the Kings process. Most famous of the English cases was Entick v. Carrington,3 one of a series of civil actions against state officers who, pursuant to general warrants, had raided many homes and other places in search of materials connected with John Wilkes polemical pamphlets attacking not only governmental policies but the King himself.4

Entick, an associate of Wilkes, sued because agents had forcibly broken into his house, broken into locked desks and boxes, and seized many printed charts, pamphlets, and the like. In an opinion sweeping in terms, the court declared the warrant and the behavior it authorized subversive of all the comforts of society, and the issuance of a warrant for the seizure of all of a persons papers rather than only those alleged to be criminal in nature contrary to the genius of the law of England.5 Besides its general character, the court said, the warrant was bad because it was not issued on a showing of probable cause and no record was required to be made of what had been seized. Entick v. Carrington, the Supreme Court has said, is a great judgment, one of the landmarks of English liberty, one of the permanent monuments of the British Constitution, and a guide to an understanding of what the Framers meant in writing the Fourth Amendment.6

In the colonies, smuggling rather than seditious libel afforded the leading examples of the necessity for protection against unreasonable searches and seizures. In order to enforce the revenue laws, English authorities made use of writs of assistance, which were general warrants authorizing the bearer to enter any house or other place to search for and seize prohibited and uncustomed goods, and commanding all subjects to assist in these endeavors. Once issued, the writs remained in force throughout the lifetime of the sovereign and six months thereafter. When, upon the death of George II in 1760, the authorities were required to obtain the issuance of new writs, opposition was led by James Otis, who attacked such writs on libertarian grounds and who asserted the invalidity of the authorizing statutes because they conicted with English constitutionalism.7 Otis lost and the writs were issued and used, but his arguments were much cited in the colonies not only on the immediate subject but also with regard to judicial review.

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Fourth Amendment:Searches and Seizures

What is the Fourth Amendment?

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 Defined:

Like the majority of fields within American law, the Fourth Amendment is heavily rooted in the English legal doctrine. In a general sense, the Fourth Amendment was created to limit the power of the government and their ability to enforce legal actions on individuals. The Fourth Amendment was adopted as a direct response to the abuse of the writ of assistance, which was a type of general search warrant used by the government during the American Revolution. The Amendment was created to limit the powers of the law enforcement agency who is conducting a search of an individuals personal property.

The Fourth Amendment is a part of the Bill of Rights, which are the first 10 Amendments to the United States Constitution and the framework to elucidate upon the freedoms of the individual. The Bill of Rights were proposed and sent to the states by the first session of the First Congress. They were later ratified on December 15, 1791.

The first 10 Amendments to the United States Constitution were introduced by James Madison as a series of legislative articles and came into effect as Constitutional Amendments following the process of ratification by three-fourths of the States on December 15, 1791.

Stipulations of the 4th Amendment

The Fourth Amendment guards against the governments ability to conduct unreasonable search and seizures when the individual party being searched has a reasonable exception of privacy.

The Fourth Amendment specifically requires a law enforcement agency to possess judicially sanctioned search and arrest warrants, which are supported by probable clause, to be administered before a persons property can be inspected.

The Fourth Amendment ties in numerous limitations whereby an individual may be searched without a warrant given the presence of certain circumstances. The individuals property may be searched and seized if: The individual is on parole or in a tax hearing, faces deportation, the evidence is seized from a common carrier, the evidence is collected by U.S. customs agents, the evidence is seized by probation officers, the evidence is seized outside of the United States, or probable cause is evident.

Court Cases tied into the 4th Amendment

In Mapp v. Ohio, the Supreme Court ruled that the Fourth Amendment is enforceable and should be applied to all states in the Union by way of the Due Process Clause of the Fourteenth Amendment. Additionally, the Supreme Court ruled that certain searches and seizures were in direct violation of the Fourth Amendment even when a warrant was properly issued to the coordinating law enforcement agencies.

State Timeline for Ratification of the Bill of Rights

New Jersey:November 20, 1789; rejected article II

Maryland:December 19, 1789; approved all

North Carolina:December 22, 1789; approved all

South Carolina: January 19, 1790; approved all

New Hampshire: January 25, 1790; rejected article II

Delaware: January 28, 1790; rejected article I

New York: February 27, 1790; rejected article II

Pennsylvania: March 10, 1790; rejected article II

Rhode Island: June 7, 1790; rejected article II

Vermont: November 3, 1791; approved all

Virginia: December 15, 1791; approved all

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Fourth Amendment | UpCounsel 2019

The Fourth Amendment includes the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.11 min read

“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.”

To pass muster under the Fourth Amendment, detention must be ‘reasonable.’ See:

In the context of a criminal arrest, a detention of longer than 48 hours without a probable cause determination violates the Fourth Amendment as a matter of law in the absence of a demonstrated emergency or other extraordinary circumstance. See County of Riverside v. McLaughlin, 111 S.Ct. 1661, 670 (’91). However, the Supreme Court arrived at this rule by considering the time it takes to complete administrative steps typically incident to arrest.

Non-consensual extraction of blood implicates Fourth Amendment privacy rights. Some examples include:

Even in the law enforcement context, the State may interfere with an individual’s Fourth Amendment interests with less than probable cause and without a warrant if the intrusion is only minimal and is justified by law enforcement purposes. For example,

The gathering of fingerprint evidence from ‘free persons’ constitutes a sufficiently significant interference with individual expectations of privacy that law enforcement officials are required to demonstrate that they have probable cause, or at least an articulable suspicion, to believe that the person committed a criminal offense and that the fingerprinting will establish or negate the person’s connection to the offense. For example:

Nevertheless, everyday ‘booking’ procedures routinely require even the merely accused to provide fingerprint identification, regardless of whether investigation of the crime involves fingerprint evidence. See:

Thus, in the fingerprinting context, there exists a constitutionally significant distinction between the gathering of fingerprints from free persons to determine their guilt of an unsolved criminal offense and the gathering of fingerprints for identification purposes from persons within the lawful custody of the state.

The drawing of blood from free persons generally requires a warrant supported by probable cause to believe that a person has committed a criminal offense and that his blood will reveal evidence relevant to that offense. See: Schmerber, 384 U.S. at 768-71; U.S. v. Chapel, ___ F.3d ___, slip op. at 5753-54 (9th Cir.’95) (en banc), but the absence of such a warrant does not a fortiori establish a violation of the plaintiffs’ Fourth Amendment rights.

The Supreme Court has noted repeatedly that the drawing of blood constitutes only a minimally intrusive search, as in the following cases:

“An essential purpose of a warrant requirement is to protect privacy interests by assuring citizens subject to a search or seizure that such intrusions are not the random or arbitrary acts of government agents.” Skinner, 489 U.S. at 421-2 (holding that a warrant was not required in part because “in light of the standardized nature of the tests and the minimal discretion vested in those charged with administering the program, there are virtually no facts for a neutral magistrate to evaluate”).

The Supreme Court recently reaffirmed and expanded the principle first enunciated in Skinner, stating that, in some contexts, “testing based on ‘suspicion’ of [wrongful activity] would not be better, but worse than suspicionless testing.” Acton, 1995 WL 373274, at *8. In Acton, the Supreme Court upheld as constitutional a school district’s practice of conducting random, suspicionless urine testing of school athletes for drug use. The Court rejected the proposition that the school district could “conduct such testing only if school officials had suspicion that a specific athlete was using drugs, holding that this alternative ‘entails substantial difficulties — if it is indeed practicable at all.” Id. Accusatory drug testing would “transform[] the process into a badge of shame” and would increase the risk that school officials would impose testing arbitrarily upon disfavored, but not drug-using, students. Id.

Except in certain narrowly limited cases, the Court repeatedly has stated its “insist[ence] upon probable cause as a minimum requirement for a reasonable search permitted by the Constitution.” Chambers v. Moreny, 399 U.S. 42, 51 (’70). Because “[t]he integrity of an individual’s person is a cherished value in our society,” searches that invade bodily integrity cannot be executed as mere fishing expeditions to acquire useful evidence: “The interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained.” Schmerber, 384 U.S. at 772, 769-70.

Only when law enforcement faces an exigent circumstance, such as a need to preserve evanescent blood alcohol evidence, and has probable cause to link the sought-after information to a crime under investigation is it constitutional to conduct nonconsensual blood testing without a warrant. Id. at 770-71. Therefore, forced extraction of blood not only ‘implicates the Fourth Amendment,’ as the majority notes, but also falls squarely within the area of privacy interests for which the traditional probable cause requirement determines reasonableness in the law enforcement context. Forced blood extraction intrudes on the private personal sphere and infringes upon an individual’s ‘most personal and deep-rooted expectations of privacy.’ Winston v. Lee, 470 U.S. 753, 60 (’85).

Schmerber v. California, 384 U.S. 757, 69 (’66). The Schmerber Court posed two questions:

In answering the first question, the Court recognized that it was ‘writ[ing] on a clean slate’ regarding the treatment of searches that involve intrusions into the human body. Id. at 767-8. It concluded that such searches require probable cause. Id. at 770-1.

Similarly, the Supreme Court in Winston v. Lee, 470 U.S. 753 (’85), recognized that Schmerber’s threshold standard was a requirement of probable cause “where intrusions into the human body are concerned,” which implicate “deep-rooted expectations of privacy.” Id. at 761, 760. The Winston Court then acknowledged “other factors” [b]eyond these standards that must be considered in determining whether a particular intrusion is reasonable. For instance, whether “the procedure threatens the safety or health of the individual” and “the extent of the intrusion upon the individual’s dignitary interests.” Id. at 761 (emphasis added).

In regard to the additional ‘dignitary’ factor (beyond the threshold inquiry of invasion of bodily integrity), the Winston Court noted Schmerber’s recognition that blood extraction is not ‘an unduly extensive imposition.’ Id. at 762. The Court contrasted this lesser bodily invasion, which the Schmerber Court had upheld upon demonstration of probable cause, with the more drastic measure of dangerous surgery to recoup criminal evidence, which the Winston Court concluded would violate the individual’s Fourth Amendment rights even when supported by probable cause.

Thus again, the context of the quotation demonstrates that the Court places blood extraction squarely within the probable cause requirement because it is an invasion of bodily integrity, while at the same time acknowledging that it is a less extensive imposition on dignitary interests than surgical removal of a bullet.

The unique situation in which the Supreme Court has approved suspicionless searches in the traditional law enforcement context includes the practice of stopping motorists at sobriety checkpoints. See Michigan Dep’t of State Police v. Sitz, 496 U.S. 444 (’90). The Sitz Court relied on well-settled law that motorists have a lessened expectation of privacy regarding stops and visual searches of automobiles on the nation’s roadways. Id. at 450 (explaining the importance of the context of ‘police stops of motorists on public highways’). At these sobriety checkpoints, which motorists may choose to avoid, only the initial brief stop and preliminary questioning may take place without individualized suspicion: “more extensive field sobriety testing” requires justification. Id. at 450-2.

Like the highway sobriety checkpoints, the ‘special needs beyond normal law enforcement’ rationale supports searches on lesser grounds than probable cause only in a very few, carefully tailored regulatory contexts that do not involve apprehension of criminal perpetrators. See, for example, National Treasury Employees Union v. Von Raab, 489 U.S. 656, 65-66 (’89) (applying the special needs exception to suspicionless quasi-consensual drug testing of Customs Service employees seeking transfer to positions having a direct involvement in drug interdiction).

The special needs exception covers testing which “is not designed to serve the ordinary needs of law enforcement [because] . . . results may not be used in criminal prosecution.” Von Raab, 489 U.S. at 666 (emphases added). Even so, a search in the special needs context almost always requires individualized suspicion. See the following cases:

Nonetheless, routine searches that intrude into prisoners’ bodies without probable cause may be upheld only when the search is undertaken pursuant to a valid prison regulation that is reasonably related to a legitimate penological objective. For instance:

Individuals have a categorically different and lesser expectation of privacy in their fingerprints, visual images, or voice prints.

The Fourth Amendment provides no protection for what ‘a person knowingly exposes to the public’. Like a man’s facial characteristics, or handwriting, his voice is repeatedly produced for others to hear. No person can have a reasonable expectation that others will not know the sound of his voice, any more than he can reasonably expect that his face will be a mystery to the world.

Blanket searches are unreasonable, however “even-handed” they may be, in the traditional criminal law enforcement context. See, e.g., Ybarra v. Illinois, 444 U.S. 85, 91-2, 92 n.4 (’79) (invalidating a blanket pat-down search of all patrons in a tavern, even though there was probable cause to search the bartender and the premises). The ill that the Fourth Amendment prevents is not merely the arbitrariness of police discretion to single out individuals for attention, but also the unwarranted domination and control of the citizenry through fear of baseless but “even-handed” general police searches.

In Zurcher, the Supreme Court held that a search of the offices of a university newspaper, which was not involved in any criminal activity, for photographs of demonstrators who had assaulted police officers did not offend the Fourth Amendment’s ban against unreasonable searches and seizures. The court concluded: “[T]he Amendment has not been a barrier to warrants to search property on which there is probable cause to believe that fruits, instrumentalities, or evidence of crime is located, whether or not the owner or possessor of the premises to be searched is himself reasonably suspected of complicity in the crime being investigated.” Zurcher v. Stanford Daily (’78) 436 U.S. 547, 549-50.

Fourth Amendment protects the “right of the people to be secure in their persons . . . against unreasonable searches and seizures.” The essence of that protection is a prohibition against some modes of law enforcement because the cost of police intrusion into personal liberty is too high, even though the intrusion undoubtedly would result in an enormous boon to the public if the efficient apprehension of criminals were the sole criterion to be considered. “The easiest course for [law enforcement] officials is not always one that our Constitution allows them to take.” Wolfish, 441 U.S. at 595 (Stevens, dissenting).

A permanent resident alien is entitled to constitutional protection. For example:

Martinez v. Nygaard, 831 F.2d 822, 824, 826-28 (9th Cir.’87) (analyzing whether seizures of three resident aliens complied with Fourth Amendment).

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