Russell Hebets May 1, 2017

The Fourth Amendment to the U.S. Constitution was part of the original Bill of Rights. The amendment is designed to protect persons, houses, papers, and effects from unreasonable searches and seizures. But the Fourth Amendment did not clarify exactly what qualifies as an unreasonable search and seizure. So it has been the courts who have determined what our Fourth Amendment rights actually are.

The Rights Protected

The Fourth Amendment protects us from the government seizing our persons, houses, papers, or effects. However, the amendment only protects against unreasonable searches and seizures and does not prohibit the government from ever seizing that which we consider private.

  • Generally, the amendment applies when the government wishes to arrest us, or seize our property and plans to use what they have seized against us in court during a criminal case.

  • Initially, the courts limited Fourth Amendment rights to protect just traditional property rights.

  • In more recent times the amendment's protections have expanded to grant a far wider right to privacy protection.

Consequently, the courts now look to see if there was a reasonable expectation of privacy in determining whether or not the Fourth Amendment applies in a particular case.

The Warrant Requirement

The government can seize people or property without violating the Fourth Amendment if they obtain a warrant from a neutral magistrate. The government official seeking the warrant must provide an application under oath/affirmation describing the individuals and/or property to be seized. The application must also identify the location to be searched.

  • In addition, the warrant application must explain the probable cause for believing that a crime has been committed.

  • Without demonstrating that there is probable cause to believe that a crime has been committed, there is no justification for the government to seize the persons or property described in the warrant application.

The Fourth Amendment does not describe what constitutes probable cause. The courts have defined probable cause to mean that the government official applying for the warrant must have reasonable grounds for believing that the person named has committed a crime, or that there is evidence of a crime at a place they desire to search.

Exceptions to Warrant Requirement

Over the years, the courts have also developed a number of exceptions to the warrant requirement of the Fourth Amendment. These exceptions permit arrest or detention of a person or seizure of property without a warrant.

  • Detention short of arrest.

  • Searching an individual while they are under arrest.

  • Searches that have been consented to by the owner or occupant.

  • Seizure of property in "plain view."

  • Searches in public schools and government offices.

  • Searches in prisons, and searches related to the probation of inmates.

  • Some vehicle searches, particularly for officer safety.

Electronic Surveillance

Originally, the courts held that electronic surveillance did not fall within the protections granted by the Fourth Amendment. But after the passage of the Federal Communications Act, and as courts expanded the privacy right protection of the Fourth Amendment, they also began to include electronic surveillance within the warrant requirements of the Fourth Amendment. So today, the general rule is that the government must obtain a warrant prior to undertaking electronic surveillance.

The Remedy

When the US government violates an American’s Fourth Amendment rights, the courts apply the Exclusionary Rule. While the Exclusionary Rule can be complex, it generally means that when the courts conclude that the government violated a person’s Fourth Amendment rights, they will not be permitted to use the evidence they seized against that person in court.

This is only an overview of our rights guaranteed by the Fourth Amendment. As with most criminal constitutional law issues, individual cases can be extremely complex. A skilled criminal defense and DUI lawyer Peoria IL relies on can help you determine if your Fourth Amendment rights were violated.

Thanks to our friends and contributors from Smith & Weer, P.C. for their insight into the fourth amendment’s protections.