Running Head: FOURTH AMMENDEMENT

Explain and contrast the three major interpretations of the Fourth Amendment to the U.S.
Constitution

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Institution:
Date

FOURTH AMMENDEMENT

The three major interpretations of the Fourth Amendment

Introduction to The Fourth Amendment
All Americans have the privilege of enjoying their fundamental human rights and
freedoms that many people around the world do not. Millions of people begrudge these rights
and freedoms and as such make Americans are resented and made enemies. The cornerstone
of the freedoms enjoyed by us, the Americans was positioned ages back by the founding
fathers. This group of heroic citizens met immediately after independence from the English
rule and established the United States Constitution.
From the history taught in many years of school, it was taught that in 1789, the first
United States Congress drafted the outstanding Bill of Rights in New York. The current Bill
of Rights constitutes ten amendments made to the originally drafted constitution. Of great
importance to this paper, is the Fourth Amendment, which will be the main area of
discussion. It is as below in its original form without editing it as below (The Bill of Rights,
2015). (Please dont consider plagiarism for this quote only).
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
(Schmalleger, 2012).
Apart from putting into place the Constitution of the United States, our founding
fathers also were far-sighted. They used the excellent forethought and prudence in setting up
the current government. They set up the government to have three branches with entirely
different roles. They included the Legislative branch, Judicial branch, and the Executive
branch. A very critical role of the executive branch entails enforcement of the law. Law

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enforcement takes place at the local level, the state level and the federal level of government
where men and women take up this task called police officers. The job of the police officer is
very significant in the attainment of the fourth amendment and is crucial to our livelihood as
they protect us and protect our rights as citizens.
As such the police officers deal with the Fourth Amendment on a daily basis. Simply
put, the Fourth Amendment protects citizens from searches that are not authorized or
permitted, called warrantless searches. The Amendment protects and guarantees the safety of
all people, places and things (property) from being subjected to search and seizure. It applies
to a police officer because the police officers are in continuous hard contact with the society,
in all places including private and public. Each and every one of the contacts the police
officers make is governed and regulated by the Fourth Amendment. Any time an officer stops
a vehicle on the street or stops a person going on with his/her business, or enters a house in
response to a service call, the police officer is controlled and must work under the confines of
the Fourth Amendment.
When the Fourth Amendment Applies
Before delving into the three major interpretations of the Fourth Amendment, it is
important to understand the scenarios under which the Fourth Amendment is applicable. Just
like the other components of the Bills of Rights (excluding the Amendments), the Fourth
Amendment was initially only applicable to cases at the Federal Court level. In 1949,
however, the United States Supreme Court made a significant ruling in the Wolf v. Colorado
case that the rights that the Fourth Amendment guarantees apply by the same token to the
state courts. The decision was as a result of the Fourteenth Amendment, which gives all
citizens of each state the entitlement to the requisite processes and equal protection through
the doctrine of incorporation (LaFave, 2004).

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Notwithstanding, some searches, and seizures sanctioned in the federal courts and
state courts are not Fourth Amendment issues. It is important to note and realize that this
amendment protects only the searches and seizures carried out by the government or done in
pursuit of governmental business. All investigative actions and surveillances performed
strictly by the private persons are not regulated by the Fourth Amendment. They include
actions taken by nosey neighbors, private investigators and suspicious spouses to mention but
a few. However, concerns about the Fourth Amendment seem to arise whenever the same
actions are used by agents of law enforcement (police) or private citizens working with the
police bodies.
The Fourth Amendment does not apply to all things or items that a person knowingly
shows off to the public at any place such as the home or the office. It does apply for all that a
person will try to keep as private even though the are accessible to everyone (Katz v. the
United States, 1967). For instance, the Supreme Court has made quite some rulings that
people preserve a reasonable expectancy of privacy in their bodies and personal possessions
such as clothing. In the Hester v.United States case, it was ruled that homeowners have the
right to privacy that goes inside their homes and in the area or space used for family activities
surrounding the homes. However, space does not extend to the open playfields and wooded
areas (Hester v. the United States, 1924). Unlike the homeowner, a business owner is afforded
a far less privacy interest and is further weakened when it comes to commercial property used
in all industries that are closely regulated for example airports, liquor businesses, and
restaurants. It is because the enterprise premises are in many cases exposed to routine
administrative searches by the governmental agencies because of the need to ensure
compliance with any applicable regulations such as the health and safety regulations.
Fourth Amendment Warrant Approach

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When the Fourth Amendment is proved adequate to enable a search or seizure, the
next pertinent issue is under what situations the warrant is needed. The Supreme Court made
a decision that the Constitution expressed a predilection for any requisite searches, seizures
and any arrests that are carried out in enforcing warrants by the law (Mincey v. Arizona,
1978). A warrant means a written instruction that must be signed by the court sanctioning a
law-enforcement agent to carry out a search, seizure and or arrest. Any searches or
confiscations done without an authorized or valid warrant are presumed invalid, and any
evidence obtained using such warrants cannot be utilized by the court unless proved to the
tribunal that the search was done under reasonable situations (Davies, 2010).
Furthermore, the Fourth Amendment requires that the warrant should be propped up
by an under-oath, detailed statement made by a police officer or law enforcement agent in the
presence of a neutral magistrate or judge. The Supreme Court further added that existence of
probable cause occurs when the actualities and the scenarios within the law enforcement
officers knowledge give rise to a reasonably ethical foundation or starting point. It is on this
basis that a man of reasonable and sound mind should believe that a breach of law
constituting a criminal act took place or is about to take place (Carroll v. the United States,
1925). As such probable cause can be determined even by out of court declarations and
proclamations made by competent police informants, regardless of whether the judge or
magistrate can prove them or not. However, the probable cause is not sufficient in instances
where the only evidence of a criminal act is the officers belief or suspicion (Aguilar v. Texas,
1964). In contrast, probable cause applies if the officers subjective justification for arresting
a suspect is criminal offenses that are different from the act at hand as long as the facts
indicate that (Devenpeck v. Alford, 2004) and (Search and Seizure Laws, 2015).
Also, for probable cause to hold, the police officers or law enforcement agents
statement or affidavit must be taken under oath as true with no falsehoods or exaggerations to

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the best of his or her knowledge. The oath can be written or spoken, or both, but the officer
must explicitly state in the affidavit that he lacks any knowledge or intention of biasing the
statement hence falsifying it in the support of the warrant. Erroneousness in the declaration
due to innocent omission or negligence on the officers side do not lead to invalidity of the
warrant. The warrant, also, should describe or state the particular person and or place that is
to be searched or seized.
The warrant needs to be detailed and adequate in content to enable an officer carrying
it to ascertain fully with the effort that is reasonable the individual persons and places as
stipulated in the warrant. For instance, the warrant should bear a street address for residences
at least. Most warrants designate the apartment name, hotel or building structure and as
required the sub-unit number or exact name to be searched. The persons in the warrant should
be described with vivid illustrations and specifics to enable an office of assumed average
intelligence to separate these people from others in the given community or setting.
Finally, in the warrant approach, the judge or magistrate issuing the warrant must be
neutral and detached from the case, and should bear no bias whatsoever that can alter the
case. This particular requirement implies that the individual judge or magistrate needs to
exercise impartiality and shouldnt be an affiliate, delegate, supporter or participant in the
competitive enterprise of law enforcement. It implies that attorney generals, prosecutors and
police officers can not serve as judges (California v. Acevedo, 1991).
4th Amendment Reasonableness Approach
The Reasonableness approach states that not all the searches, confiscations or arrests
must be made using a valid and lawfully implemented warrant. The U.S. Supreme Court
ruled that as long as the search, confiscation or arrest is reasonable under the prevailing
circumstances, and then a warrantless police search is deemed ok by the Fourth Amendment.

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These exceptions applied to the Fourth Amendment with regards to warrant requirements
indicate the reluctance of the court to hinder or slow down the responsibilities of all law
enforcement agents such as police officers. In doing this, the court tried to establish stability
by striking a balance between the privacy and rights of the public and the realistic
experiences of the work of the law enforcement officers. Destruction or concealment of
evidence and disappearance of witnesses, suspects can result from always requiring the police
officers to attribute some of the time to fill an application form for a warrant, locate a judge
and then appear before the magistrate (LaFave, 2004).
Some of the circumstances deemed reasonable fall into seven groupings for which a
warrantless search, confiscation or arrest can take place. They include;
Felony arrest in a public place.
Any criminal act that is taking place in the open and is visible by the general public
entails a felony, and the arrest of persons involved doesnt require a warrant regardless of
having enough time to procure one. However, felony arrests in private locations or places not
open to the public occasionally require warrants unless the law enforcement agent is in hot
pursuit or chase of a fleeing felon (Warden v. Hayden, 387 U.S. 294 1967)
Searches incident to lawful arrest.
In cases where an officer makes a lawful arrest without a warrant, the Fourth
Amendment allows a thorough search of suspects possessions and all areas that the suspect
can access or reach. Such types of searches aim at protecting the officers from hidden
weapons that may be used against them unknowingly. Hence, they can confiscate items in
that area.
Cars violating traffic law.

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Officers have the right to stop cars that they perceive as violating laws of traffic. Once
the car moves to the sides of the road, the Fourth Amendment immediately allows the officer
to check the interiors of the car.
Possible criminal acts in public.
Whenever a police officer anticipates a breach of the law to take place in a public
place, then the Fourth Amendment permits the officer to stop any suspicious person. The
officer is allowed to conduct a thorough search limited to only the suspects outside for any
weapons such as guns that may be used for the criminal act. The officer may further be
propelled to ask the suspect for the identification, but the suspect is under no obligation to
give it to the officer. The officer, depending on prevailing scenarios and suspects refusal to
produce the identification, may get probable cause to permit an arrest (People v. Loudermilk,
1987).
Exigent or Urgent circumstances.
The prevailing conditions at the time of the search, detention or confiscation must be
equivalent to emergency situations. Such situations include screams heard, shots fired, or fire
coming out of a building is sufficient to fulfill the Fourth Amendment's warrant approach.
Undocumented migrants and drunk drivers.
Specific events that can not be addressed effectively through the stipulated procedures
call upon warrantless searches, arrests or confiscations. For instance, the Supreme Court
upheld the roadside checkpoints that aimed to intercept undocumented migrants in the United
States v. Martinez-Fuerte case, and that were aimed at drunk drivers in the Michigan v. Sitz
case. However, in the case of Indianapolis v. Edmond, the Supreme Court found such
roadside checkpoints illegal and violative as they were meant to detect criminal activity.
The good faith of officer.

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When an officer uses a defective warrant that is later declared invalid, then the
searches, confiscations, and arrests may be justified, if the officer was acting in good faith.
Implying, the defect of the warrant was either by the judge but not due to the police officer,
and this exception aimed at preventing punishment of honest officers who were acting
apparently by the law.
Fourth Amendment & the Special Needs Approach
For a very long period, the Fourth Amendment did not help the criminal respondents
as the evidence obtained in violation of the two approaches above was still permissible in the
prosecution of the suspects. In the case of Weeks v. the United States, 1914, a respondent had
been convicted using evidence that had been obtained by a federal agent who had no arrest
warrant, but the Supreme Court reversed the conviction, hence creating the exclusionary rule.
In some cases, police behavior was detestable and unethical. As such this rule was
designed to discourage officers from misconduct, and enabled the court to exclude such
evidence from the application during trials upon proving the contravention of a provision of
the constitution. Defendants as such have the right to challenge the use of proof by invoking a
pre-trial motion to quash the evidence. In cases where the pre-trial motion is refused and the
defendant is convicted, and then he/she can appeal. In cases where the defendant succeeds on
appeal, double jeopardy principles do not stop retrial of the accused as the errors did not
address the guilt or innocence (Lockhart v. Nelson, 1988).
Other Examples of court cases
North Carolina
In the State v. Stanley case, 2005, an informer had been engaging in informing the
police for over 14 years and had resulted in the arrest of over 100 arrests. As such, the

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reliability of the informer was beyond doubt. The tip he gave was consequently enough
ground to provide probable cause (Storrow, 2005).
Ohio
In the State v. Mesa case, 1999, an inventory search was carried out by the police.
The search was as a result of the established routine and was in line with the police
procedures. As such the search of the impounded vehicle was administered in good faith
hence evidence was used in the court case (Karmel, 2002).
South Carolina
In the State v. Baccus 2005, a warrant was issued to give a blood sample. In the
appeal, it was established that the defendants rights as enshrined in the Fourth Amendment
of privacy were violated. Nevertheless, the majority of the rest of the evidence was in support
of the conviction of the defendant. The defendant was guilty of first-degree murder and
burglary. The error in the warrant was not sufficient to change the belief. As a result, the
ruling was upheld (Search and Seizure Laws, 2015)
Constitutional concept of reasonableness in respect to the three interpretations
The implication of the Fourth Amendment is that police or any other law enforcement
body cannot just surge into ones home, office, business and so on without the proper
permission and authorization. Such an act must be sanctioned and should have a reason for
the search. Otherwise, the search is unreasonable. Consequently, the agents tasked with law
enforcement must first and foremost seek a warrant. A search warrant can only be sanctioned
by the Supreme Court, a magistrate of a judge. A judge or magistrate can only issue a search
warrant if the law enforcement agent seeking the warrant has confirmed by a legal instrument
called the affidavit that a probable reason exists that a criminal act has occurred. The legal
document (sworn statement) should list all the information as stated and indicate all the

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evidence that the police officer or agent has prior knowledge of at the time of the request for
the warrant (Davies, 2010).
Furthermore, a search warrant can be issued when the judge has a good feel about the
fact that enough or adequate evidence exists to establish probable cause that is just sufficient
to substantiate and support the issuance of the warrant. The warrant must be detailed and list
all the particulars with regards to the specific breach of law. It should detail all the items or
properties to be seized or searched, should give the names of the people or locations to be
searched and in case not, it should give the applicable law that permits the act. The
exceptional cases include the urgent and exigent circumstances where a warrant is not
required. These circumstances must be such that the search will prevent the following;
physical harm, getaway of a suspect, or the destruction and concealment of evidence, and
finally lack of sufficient time to acquire the search warrant ahead of time (Dix & Dawson,
2001).

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References
Davies, T. Y. (2010). The Supreme Court Giveth and the Supreme Court Taketh Away: The
Century of Fourth Amendment" Search and Seizure" Doctrine. The Journal of
Criminal Law and Criminology, 933-1042.
Dix, G. E., & Dawson, R. O. (2001). Criminal Practice and Procedure. West Group.
Karmel, R. S. (2002). Reconciling Federal and State Interests in Securities Regulation in the
United States and Europe. Brook. J. Int'l L., 28, 495.
LaFave, W. R. (2004). Search and seizure: a treatise on the Fourth Amendment (Vol. 4). West
Group Publishing.
Search and Seizure Laws From Westlaw Books Dot Com. (2015, August 1). Retrieved
November 22, 2015, from http://www.valentinesdayontrial.com/305412.html
Storrow, R. F. (2005). Judicial Discretion and the Disappearing Distinction Between Will
Interpretation and Construction. Case Western Reserve Law Review, 56(65).
Terry v. Ohio, 392 U.S. 1, 1968, Certiorari, to the Supreme Court of Ohio, No. 67, argued
December 12, 1967, decided June 10, 1968, by the United States Supreme Court,
retrieved April 10, 2009. http://laws.findlaw.com/us/392/1.html
The Bill of Rights: A Transcription. (2015). Retrieved November 22, 2015, from
http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html