The Publics Perception of the Warrantless Search

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Table of Contents

Introduction
Literature Review
Methodology
Findings
Conclusion
Limitations and Recommendations
References

Introduction

As a society, people live in a time where ones whole life can be looked at on social media, pictures stored on many different smart devices, and communication, both private and professional, is done on the internet. A vehicle may be searched when being driven across the border from the United States to Canada or Mexico. These are just a few items that can be searched for law enforcement purposes without a warrant. The public should be aware that any activity that they engage in, especially if it is on social media, can be searched by law enforcement at any time when criminal activity is suspected.

Problem Statement

It is not known how or to what extent the public knows about the Fourth Amendment as it pertains to warrantless searches. For example, border vehicle searches, electronic device searches, or exigent circumstances, specifically when they are legal versus not legal.

Purpose Statement

The purpose of this research is to examine the extent of the publics knowledge of the Fourth Amendment and their perception of warrantless searches.

Hypothesis

The working hypothesis for this research project is based on the assumption that public knowledge of the Fourth Amendment is high. In addition, it is assumed that the public is unequivocal about the unreasonableness of searches without a warrant.

Literature Review

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, as stated in the Fourth Amendment of the United States Constitution. The Fourth Amendment was created to protect the citizens of the United States against unlawful search and seizure by the government.

Since the creation of the Fourth Amendment, it has been come necessary to due to the times and technology to revisit how the amendment is interpreted regarding when a warrant is or is not required prior to conducting a search and/or seizure. Over the years, there have been several cases that have brought to light the fact that police have conducted unreasonable searches and seizures. This literature review looks at the Fourth Amendment and when police can and cannot conduct a warrantless search. It will also highlight several cases that were brought before the Supreme Court to determine if the warrantless searches that were conducted where reasonable and legal.

Reasonable Searches

While the Fourth Amendment does protect a persons right to privacy and freedom from government instruction, there are instances where warrantless searches are legal. These searches fall within seven categories:

Felony arrest in a public place.
Exigent circumstances.
Reasonable searches and good faith.
Traffic stops for reasonable suspicion.
Searches directly related to a lawful arrest.
Suspects of ongoing criminal activity.
Certain roadside checkpoints.

Supreme Court Cases

In United States v. Johns, the Supreme Court held that the warrantless search of packages which were lawfully seized in a valid automobile search and stored in a Drug Enforcement Administration warehouse for three days did not violate the warrant requirement of the Fourth Amendment. The courts holding broadened the exception to the Fourth Amendment warrant requirement for the search of packages was set out in United States v. Ross in that the Court held that the search of packages found during a valid automobile search would not require a warrant where the police had reason to believe that the packages concealed the object of the probable cause search.

By extending the Ross exception to the facts of the Johns case, the Court indicated that the warrantless search of the packages found in automobiles, like the warrantless search of the automobiles themselves will not be deemed reasonable just because of the delay between the seizure of the packages and their search three days later. The fact that the vehicle containing the packages was sitting for three days in the custody of the DEA should have been enough to determine that a search warrant was indeed needed, thus the search should have been declared unreasonable (Bobber, 1985).

Can cops read text messages? In the case People v. Diaz, an officer found a cell phone in the sweatshirt pocket of a man who was arrested for selling drugs to a police informant. Prior to the arrest, the officer was listening to the transaction through a wireless transmitter. The cellphone was seized after Diaz was detained and the officer made a warrantless search of the phones text messages and found the message 6 4 80, which meant six pills for $80. Because the phone was the defendants personal property and was found on him at the time of his arrest, the court found that the search was constitutional.

In Ohio, the Ohio Supreme Court determined in Ohio v. Smith, that unless the officers safety is at stake or there is an emergency, the Fourth Amendment prohibits a warrantless search of cellphones seized during a warrantless arrest. The results of the cases differ over whether or not the cellphones extensive amount of electronic information gives the owner of the phone an expectation of privacy. The Ohios Judge deemed that the cellphones ability to store extensive data gives cellphone owners a higher level of privacy, which in turn requires a warrant. This is due to the fact that once the cellphone is seized, preventative steps can be taken to ensure that the data found on the phone is not lost or erased (Ward, 2011).

Proposed Solution

The ability to understand the Fourth Amendment as it applies to search and seizure can affect the outcome of a case. In a perfect world, an officer would be able to obtain a warrant prior to every search and seizure, but that is not always the case. There are times where the officer does not have time to wait for a warrant, such as an emergency or evidence could be destroyed before a warrant could be obtained. if unable to obtain a warrant, the office must prove that there was a reasonable and lawful reason to conduct a search and seizure without a warrant.

Social Policy Implications

Over time new and different situations will arise that have not been encountered before and the Supreme Court and lawmakers will need to work together to ensure that citizens rights under the Fourth Amendment evolve to meet the changing conditions.

Methodology

To test the hypothesis of how the public perceives the Fourth Amendment and their knowledge of the warrantless search, cases in which the validity of the warrantless search is in question will need to be researched as well as the development of a questionnaire to ensure that all demographics are correctly identified to include race and age to assist in finding out where the individuals surveyed get their news and follow up with a six-point opinion system of general as well as more specific information in the subject as well as knowledge of cases the involve the issues related to the warrantless search.

Target Population

The target population is essentially anyone since almost everyone has access to the news, whether on television, the internet, or the newspaper. The results of the survey will be more accurate if a large part of the target population participates in completing the survey.

Sampling

To assess the hypothesis, it will be necessary to be able to contact the most significant possible number of people within each demographic. It is known that most people watch or read the news or use the internet.

Instrument

The instruments used will primarily be the internet and hard copy. Links to the survey with access codes will be available as well as paper copies of the survey will be available for individuals that have limited access to the internet and social media. The survey will include both standard demographic information questions as well as questions specific to the subject matter.

Findings

The purpose of this research project was to investigate public opinion regarding the Fourth Amendment, which prohibits law enforcement searches without an appropriate warrant. This amendment in the Bill of Rights creates ambiguous implications for personal and national security (Bobber, 1985). On the one hand, it protects privacy interests and prevents searches of citizens unless there is a specific court order to do so.

On the other hand, national security and intelligence issues aimed at protecting state interests are more difficult because law enforcement agencies do not have unfettered access to data of heightened interest. As a consequence of this paradox, it was necessary to conduct a public opinion survey not only to determine general trends on the issue but also to look for potentially hidden data between demographic groups in how they were inclined to respond.

For a sample of respondents (n = 15), represented almost equally by males and females, it was found that everyone was familiar with the Fourth Amendment. More intriguing results were found in the situational scenario questions, which asked respondents to agree or disagree with a statement. In particular, Figure 1 shows that respondents tended to be ambivalent about the need for a search warrant regardless of the situation.

However, most of them certainly felt that a warrant was necessary. Apparently, the phrase for any reason for participants may have been associated with emergencies, in which 86.47% of participants responded that a warrant was not required for searches. This is further supported by the fact that 73.34% of respondents said a warrant might not be required if a police officer has probable cause to search an individual.

On the other hand, the majority of survey participants (80%) called it illegal for law enforcement agencies to wiretap personal phone calls without a warrant. From these results, it can be concluded that in peacetime, most people prefer to protect their own interests, but when critical situations arise, the states interests outweigh them. However, it can be cautiously assumed that society perceives some tacit contract between it and the state, according to which conducting searches without warrants in critical situations are acceptable, but wiretapping is not. In other words, respondents were willing to consent to government actions contrary to the Fourth Amendment when those actions did not directly affect them.

*Figure 1. A search warrant should be obtained prior to a search for any reason.*

*Figure 2. The government or police have the right to eavesdrop on phone calls without a warrant.*

As an additional confirmation of the above assumption, it is worth quoting the results of the nonparametric Chi-Square test. This analysis was designed to assess the relationship between respondents attitudes toward law enforcement during emergencies and the ability to eavesdrop on phone calls. The results of this test showed that participants who did not think it was necessary to have a warrant during emergencies mostly disagreed with the possibility of phone tapping by the authorities. The result was statistically significant, which means there is a possibility of extrapolating the results to the population. This creates a paradoxical picture in which virtually the same violation of constitutional law is differentially perceived by people depending on how that violation affects their lives.

*Figure 3. Bar chart comparing the distributions in the two survey questions.*

Conclusion

Summary

The purpose of this research paper was to determine the state of public awareness of the Fourth Amendment. The Amendment bans all searches by law enforcement agencies in the absence of judicial justification, that is, in the actual absence of an appropriate warrant. Obviously, this awareness was intended to show the extent to which respondents appeared to be aware of the problem of the illegal invasion of privacy or, conversely, the extent to which they supported the primacy of national security ideas over the privacy of a citizens personal interests. To measure this awareness, an online survey was administered to 15 respondents.

The purpose of this questionnaire was to determine not only whether individuals were familiar with the content of the Fourth Amendment but also to identify their attitudes toward specific situations. To do so, respondents were asked to rate their level of agreement on a five-point Likert scale with specific statements describing law enforcement actions in the event of a search, with or without a warrant.

The results of the statistical analysis, which included both descriptive and inferential statistics, showed exciting results. This result is entirely consistent with the first part of the working hypothesis of this project. In addition to expressing complete agreement with Fourth Amendment knowledge, all respondents were different about the legality of searches without arrest. One of the most intriguing results of this study, which raises many issues for discussion, involved determining the balance between the personal and the public. In particular, on the one hand, respondents agreed that a warrant was not necessary for emergency situations.

This seems logical because, in natural disasters, martial law, or an act of terrorism, the national security of large numbers of people appears to prevail, meaning that it is in the interest of the authorities to protect their population (Sanfilippo, 2020). The sample showed that society tends to agree with this and give up its personal security for the sake of national security. On the other hand, the survey demonstrated that wiretapping by law enforcement without an appropriate warrant was perceived by respondents as illegal, that is, individuals perceived this behavior as unfavorable. This aspect should be considered from the point of view of personal security of own interests, that is, society is not ready to make concessions to the authorities in the absence of essential need: personal is more important than public.

However, the inferential analysis showed a paradoxical result for these respondents. Although they agreed that a warrant was not necessary for emergencies, they did not agree to give up personal phone calls for wiretapping without a warrant. One might postulate it differently: those respondents who did not allow authorities to use their phones without a warrant allowed searches without a warrant in emergencies. This shows the paradoxical thin line between personal and public safety and the possibility of a dramatic shift between the two when geopolitical, or natural agendas change.

It is easy to draw a parallel between respondents beliefs and how the Fourth Amendment works in actual practice. In the already discussed case of Ohio v. Smith, already discussed, the Ohio Supreme Court concluded that wiretapping without a warrant could only be justified when an officer is in danger, or an emergency occurs (Ward, 2011). In this example, one can see that the issues of personal and national security are once again at odds, with circumstances forcing law enforcement to sacrifice one for the other. When it comes to this balance, most studies consistently look to the tragic day of 9/11, which was a watershed moment in U.S. history (Hartig & Doherty, 2021).

Obviously, if intelligence agencies had had an unfettered ability to search, such a tragedy could have been avoided. It can be assumed that it is this postulate that has become the root anchor for a society that does not want a repeat of such large-scale man-made disasters, so is willing to sacrifice some of its rights to the authorities in exchange for ensuring national security.

Thus, it is correct to postulate that the study has broadened our understanding of the Fourth Amendment problem with respect to the personal rights of citizens and illegal searches. The findings fully demonstrated the unresolved paradox of the balance of interests in society and the legal agenda, allowing the findings to be viewed as robust and representative. Resolving this conflict, while a high priority, is hardly a matter for the next few years or even decades.

As long as society exists within the framework of the state and entrusts administrative functions to the authorities, such conflicting delegation will be relevant. In the context of the criminal case, the results show that issues of unreasonable searches remain maximally sensitive, which means that generalizations and extrapolations of law enforcement practices for searching citizens can be misguided and lead to destructive consequences.

Limitations and Recommendations

The study shed light on the topic of public awareness of the Fourth Amendment, but it has several limitations. First, the sample used for the survey was relatively small, which may contribute to a bias in the reliability of the results. Second, individuals to whom the invitation link was distributed were accepted to participate; there is no guarantee that the same individual took the survey only once. The Hawthorne effect that occurs in surveys, leading to skewed results due to respondents sense of controlling observation, should also be considered (Nguyen, 2018). Addressing these limitations is part of the future development work of the project.

In addition to working on the limitations, the research can be expanded to produce more comprehensive results. Precisely, changing the paradigm from cross-sectional to longitudinal would measure the extent to which public attitudes toward unwarranted searches are a constant. In addition, it would be interesting to know the differences in such perceptions among different demographic groups. For example, this could relate to identifying differences for respondents of different ethnicities or from professional communities. It is expected that such changes would greatly expand the scope of the project.

References

Bobber, B. J. (1985b). Fourth amendment. Warrantless search of packages seized from an automobile. The Journal of Criminal Law and Criminology (1973-), 76(4), 933. Web.

Criminal Procedure Fourth Amendment Ninth Circuit Holds That Officers Warrantless Review of Images Flagged by Google as Apparent Sexual Abuse Material Violated Fourth Amendment United States v. Wilson. (2022). Harvard Law Review, 135(6), 1672+. Web.

Fourth Amendment. (n.d.). Web.

Hartig, H., & Doherty, C. (2021). Two decades later, the enduring legacy of 9/11. Pew Research Center. Web.

Jenkins, P. (2017). OMG-Not something to LOL About: The Unintended Results of Disallowing Warrantless Searches of Cell Phones Incident to a Lawful Arrest. BYU Journal of Public Law, 31(2), 437-478.

Kessler, J.V. (2010). The Fourth Amendment: Select Issues and Cases. Nova Science Publishers, Inc.

Musgrove, S. (2014). The Fourth Amendment: Policing the Police and the Warrantless Search. SSRN Electronic Journal. Web.

Nguyen, V. N., Miller, C., Sunderland, J., & McGuiness, W. (2018). Understanding the Hawthorne effect in wound research a scoping review. International Wound Journal, 15(6), 1010-1024. Web.

Sanfilippo, M. R., Shvartzshnaider, Y., Reyes, I., Nissenbaum, H., & Egelman, S. (2020). Disaster privacy/privacy disaster. Journal of the Association for Information Science and Technology, 71(9), 1002-1014. Web.

Schwinn, S.D. (2017). Does the Governments Warrantless Search and Seizure of a Cell Phone Users Cell-Site Data from a Cell Phone Carrier Violate the Fourth Amendment? Preview of United States Supreme Court Cases, 45(3), 91-94.

Skrmetti, J.T. (2002). THE KEYS TO THE CASTLE: A NEW STANDARD FOR WARRANTLESS HOME SEARCHES IN United States v. Knights, 122 C. Ct. 587 (2001). Harvard Journal of Law & Public Policy, 25(3), 1201.

Ward, S.F. (2011). 411: Cops Can Read Txt Msgs. ABA Journal, 97(4), 16-17.

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