The Fourth Amendment

This chapter will focus on (1) basic principles of search and seizure law (2) the balance between law enforcement s use of science and technological advances to the Fourth Amendment (3) when exploitation of technology should be governed by the Fourth Amendment constraints of unreasonable searches as it pertains to explosives and dangerous chemicals and (4) effect of the USA Patriot Act and related legislation on the Fourth Amendment. The question of what constitutionally determines a reasonable search is simple, its answer and application are not. 

A right to be free from unreasonable searches and seizures is declared by the Fourth Amendment, but how this right translates into substantive actual terms is not specified. Traditional constitutional and statutory legal analyses of the Fourth Amendment are heavily affected by rapidly changing societal values, fears, and security interests after the World Trade Center and Pentagon terrorist attacks of September 11, 2001. 

The Fourth Amendment is 54 words long. It is divided into two general parts. The first 24 words are important. It pertains to what the amendment prohibits. It states who is covered ( the people ), what is covered ( persons, houses, papers, and effects ) and nature of protection ( to be secure... against unreasonable searches and seizures ). This part of the Fourth Amendment is usually described as the Reasonableness Clause or reasonableness requirement. 

The second part defines the scope of police powers in that, no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, particularly describing the place to be searched, and the persons or things to be seized. This is 

The relationship, if any, between these two clauses is a syntactical mystery and matter of continual controversy. The Supreme Court s jurisprudence is between a categorical warrant requirement and looking to reasonableness alone. The late twentieth century trend in Fourth Amendment law is toward the Reasonableness Clause [2]. Only unreasonable search and seizures are prohibited, but unreasonableness cannot be stated in rigid and absolute terms. However, the clarity of the language of the Fourth Amendment suggests it has wide spread appHcation. An examination of jurisprudence will show it does not. 

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The Fourth Amendment to the Constitution protects citizens against unreasonable searches and seizures. No search of a person s home or personal effects may be conducted without a written search warrant issued on probable cause. This means that a neutral judge must approve the factual basis justifying a search before it can be conducted. 

A basic understanding of search and seizure is necessary before it can be appHed to explosives and dangerous chemicals. Accordingly, elemental parts of the Fourth Amendment are presented and then the apphcable law. 

The people refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with the United States to be considered part of that community [8]. The Fourth Amendment does not apply to the search and seizure of property by US agents that is owned by a nonresident ahen and located in a foreign country. The class of protected people includes US citizens... 

Because privacy of the home is the essence, the Fourth Amendment, poHce actions must relate to the authorized intrusion. AH searches outside the judicial process, without prior approval of a judge, is per se unreasonable [24]. The poHce must estabHsh exigent circumstances to overcome this presumption. Only poHce can serve a warrant. Furthermore, members of the media and third parties cannot be present during execution of a search warrant [25, 26]. It is noteworthy that a vaHd arrest warrant cannot be used to enter the home of a third party named in the warrant. There must be a search warrant based on probable cause if the named person is on the premises [27]. Upon execution of a vaHd search warrant, poHce may detain its occupants whHe conducting the search [28]. Also, during the search of the premises, the police may not automaticaUy search someone else found at that location. The third party may be subjected to a safety pat down search based on a reasonable articuable basis for their safety and then temporarily detained, but nothing more. 

Probable cause is commonly defined as A reasonable ground to suspect that a person has committed, or is committing a crime, or that a place contains specific items connected with a crime. Under the Fourth Amendment, probable cause -which amounts to more than a bare suspicion, but less than evidence that would justify a conviction - must be shown before an arrest warrant or search warrant may be issued by a neutral judge [21]. 

The Fourth Amendment protects property as well as privacy, and appHes in the civil as well as criminal context. Seizures are covered even if there is no search [31]. 

Search and seizure is generally defined as the search by law enforcement officials, or their agents, of a person or place to seize evidence to be used in the investigation and prosecution of a crime. The security of one s privacy against arbitrary intrusion by the poHce, which is the core of the Fourth Amendment, is basic to a free society, and therefore, implicit in the concept of ordered liberty [36]. 

Under the Fourth Amendment, several general search categories exempt from the warrant-and-probable cause requirement include suspicionless searches conducted at the border in prisons at airports entrances to government buildings administrative searches inspections of closely regulated businesses routine regulatory investigations and special needs searches. These warrantless situations predominantly involve... 

A preliminary overview of the Fourth Amendment s application and exceptions include the search, seizure, protective stop, and frisk (Terry Stop) exception, search incident to arrest, administrative search exception, and consent exception. 

Under the Fourth Amendment, poHce may execute warrantless searches incident to a lawful arrest, as it is reasonable for authorities to search an arrestee for weapons that might threaten their safety, or for evidence, which might be destroyed. 

Searches conduced outside the judicial process are per se unreasonable — subject to only a few specifically established imperative exceptions. Even if reasonable at inception, a search may violate the Fourth Amendment by how it is carried out. Recognized exceptions to this Amendment have been growing in breadth and number (i.e., motor vehicles, marine vessels, open fields, abandon property, plain view, evanescent evidence, electronic surveillance, national security electronic surveillance). 

Motor vehicles are subject to the Fourth Amendment prohibition against unreasonable search and seizure. The Supreme Court, has, however, created the... 

In cases of domestic subversive investigations, compliance with the Fourth Amendment s warrant provision is required. The President cannot authorize domestic surveillance without prior judicial approval. These Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillance may be conducted solely within the discretion of the Executive Branch. Even Congress cannot exempt the President from warrant requirements in protection of domestic security [86]. 

The Fourth Amendment is a restriction against government action only. Evidence obtained in violation of the Fourth Amendment is excluded subject to recognized limitations and remedies. It is immaterial that the intrusion was in aid of law enforcement. The police have the burden of establishing their conduct is within the exception. 

The Executive Branch sought to change warrandess searches and surveillance restrictions of the Fourth Amendment through congressional passage of the Patriot Act. The Act has engendered significant debate over the historic role of civil liberties and comparative abuse of power by previous administrations. 

In practice, the Patriot Act and its successors, has circumvented the check and balance system. The Executive Branch has, for example, lowered the threshold of probable cause to the level of suspicion it has equated criminal activity with terrorist activity it has removed or delayed notice requirements for warrants it has required mandatory compliance on third parties for the production of information gathered secredy it has imposed a gag order upon notice and production of information it permits sharing of confidential personal information between investigative units and minimized the role of the judiciary. The overall effect is the Executive Branch and Justice Department are assuming power to define application of the Fourth Amendment. An additional result is the collection of a wide variety of highly personal and sensitive information on law-abiding individuals. 

The Patriot Act, to some Americans is a threat to democracy and civil liberties to other Americans, it provides a promise of protection against endangerment of their society. Both opinions are justifiable. The Patriot Act and its progeny are well intended. However, based upon legal traditions, it is philosophically, constitutionally and practically contrary to America s foundational constitutional rights and dvil Hberties. The Patriot Act, especially concerning the Fourth Amendment, should be periodically revisited by Congress to coincide with basic civil liberties and tenets of constitutional law. 

There are two paradigms of legal viewpoints for the detection of explosives and illicit chemicals based upon the Fourth Amendment. The traditional constitutional search and seizure aspects of the law, and second, the informal transitional perspectives predicated upon its manipulation for national security... 

Jule, R.S. Note, High-Tech Surveillance Tools and the Fourth Amendment Reasonable Expectations of Privacy in the Technological Age, 37 Am. Crim. L. Rev. 127, 138 (2000). 

LaFave, W.R. Search and Seizure A Treatise on the Fourth Amendment, 4th edition, 1-6 vol., Thompson-West Pub., 2004. 

Miller, J. Search and Seizure of Air Passengers and Pilots The Fourth Amendment Takes Flight, 22 Transp. L.J. 199 (1994). 

Riley, L.B. Comment, Concealed Weapons Detectors and the Fourth Amendment The Constitutionality of Remote Sense-Enhanced Searches, 45 UCLA L. Rev. 281 3006-07 (1997). 

M.J. DeGrave, Note Airline Passenger Profiling and the Fourth Amendment WiU CAPPS II Be Cleared For Takeoff 10 B.U.J. Sci. Tech. L. 125, Winter (2004). 

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