Most of the legal declarations that make up the Bill of Rights, including the Fourth Amendment, were founded on the Common Law, which existed in the 16th and 17th century in England. As a matter of fact, three British law-related cases prompted the Fourth Amendment. Two out of the three cases were tried in England, and the other, adjudicated in America during the 17th century.
The two cases adjudicated in England, Entick v. Carrington in 1765 and Wilkes v. Wood in 1763, were about similar issues. In both cases, Entick and Wilkes were accused of seditious libel for indirectly condemning the king by criticizing his ministers.
The men disseminated written statements criticizing actions of the king. The king therefore passed a warrant that allowed his agents to search the residences of the men, and seize every written statement found. This action incited Entick and Wilkes to file lawsuits against the king for damages.
They claimed that it was not right for the kings agents to search their residences in a forcible manner and impounded all their written properties.
Lord Camden, the judge in charge of the case, concurred with the plaintiffs and thereby made a pronouncement that the warrant issued by the king to carry out the search, as well as the actions of his agents were indeed wrong on the grounds that the issued warrant permitted the agents to confiscate all their written belongings instead of confiscating only the written materials that were pertinent to allegations, and that the warrant was passed in the absence of a reasonable cause.
Also, the Fourth Warrant was inspired by the case between English Monarchs and American colonies. British Crowns imposed taxes on colonists in order to clear war debts. This action forced American traders to smuggle goods in a bid to dodge exorbitant taxes.
As a result, the British crown issued General Warrant, also referred to as Writs of Assistance, to their custom officers, which empowered them to search and impound possessions of people suspected of smuggling items. The Writs of Assistance, permitted government officials to search and impound virtually anything without reasonable cause. Writs of Assistance attained loss of right in 1763, when the French and Indian War ended.
This event led to the extinction of General Warrant. The Fourth Amendment was therefore incorporated into the United States Constitution in 1791 upon the enactment of the Bill of Rights. Even after acceptance of the Fourth Amendment, issues of search and seizure were not well recognized until 1914 when the Supreme Court case, Weeks v. United States, instituted the exclusionary rule .
As determined by this rule, the court will not recognize any evidence presented by the government that is contrary to the Fourth Amendment rights of the suspect, and such evidence is not sufficient to declare that person guilty.
In recent times, legal and political pundits have debated about the advantages of the exclusionary rule. Those against the rule argue that it abuses justice, and defends the guilty. Others in support of the rule are of the opinion that it prevents violation of human right by overzealous officers of the law.
Most of the legal declarations that make up the Bill of Rights, including the Fourth Amendment, were founded on the Common Law, which existed in the 16th and 17th century in England. As a matter of fact, three British law-related cases prompted the Fourth Amendment. Two out of the three cases were tried in England, and the other, adjudicated in America during the 17th century.
The two cases adjudicated in England, Entick v. Carrington in 1765 and Wilkes v. Wood in 1763, were about similar issues. In both cases, Entick and Wilkes were accused of seditious libel for indirectly condemning the king by criticizing his ministers.
The men disseminated written statements criticizing actions of the king. The king therefore passed a warrant that allowed his agents to search the residences of the men, and seize every written statement found. This action incited Entick and Wilkes to file lawsuits against the king for damages.
They claimed that it was not right for the kings agents to search their residences in a forcible manner and impounded all their written properties.
Lord Camden, the judge in charge of the case, concurred with the plaintiffs and thereby made a pronouncement that the warrant issued by the king to carry out the search, as well as the actions of his agents were indeed wrong on the grounds that the issued warrant permitted the agents to confiscate all their written belongings instead of confiscating only the written materials that were pertinent to allegations, and that the warrant was passed in the absence of a reasonable cause.
Also, the Fourth Warrant was inspired by the case between English Monarchs and American colonies. British Crowns imposed taxes on colonists in order to clear war debts. This action forced American traders to smuggle goods in a bid to dodge exorbitant taxes.
As a result, the British crown issued General Warrant, also referred to as Writs of Assistance, to their custom officers, which empowered them to search and impound possessions of people suspected of smuggling items. The Writs of Assistance, permitted government officials to search and impound virtually anything without reasonable cause. Writs of Assistance attained loss of right in 1763, when the French and Indian War ended.
This event led to the extinction of General Warrant. The Fourth Amendment was therefore incorporated into the United States Constitution in 1791 upon the enactment of the Bill of Rights. Even after acceptance of the Fourth Amendment, issues of search and seizure were not well recognized until 1914 when the Supreme Court case, Weeks v. United States, instituted the exclusionary rule .
As determined by this rule, the court will not recognize any evidence presented by the government that is contrary to the Fourth Amendment rights of the suspect, and such evidence is not sufficient to declare that person guilty.
In recent times, legal and political pundits have debated about the advantages of the exclusionary rule. Those against the rule argue that it abuses justice, and defends the guilty. Others in support of the rule are of the opinion that it prevents violation of human right by overzealous officers of the law.
The people residing in the United States are protected by the Constitution, and their privacy and the right to not experience an invasion of their property are also an element of this legislation. However, there are several exceptions and cases when the states well-being and safety allow the government agents to invade the privacy of individuals, for example, to perform searches and seizures.
These cases are the exceptions, although there has been a debate and several Supreme Court cases that are related to this Amendment and the rights of specific groups of people under it. Although the Fourth Amendment guarantees the privacy rights of students, the practical examples and court cases suggest that in some instances, college administration can perform searches with a mere language announcement of such actions and without having to obtain a warrant. This paper will analyze the applicability of the Fourth Amendment to the searches and seizures performed by colleges and whether this legislation protects the privacy of the students who live on campus.
Fourth Amendment and Student Rights
Firstly, it is necessary to define the Fourth Amendment and discuss the purpose and outcome of this legislation is. According to the United States Courts (2021), The Constitution, through the Fourth Amendment, protects people from unreasonable searches and seizures by the government (para. 1). However, this legislation does not apply to all cases and has several exceptions, which allow government officials to perform searches. This Amendment defines the types of searches and their purpose that are deemed as reasonable and can be justified under the laws of the United States. Therefore, the basic principle of this Amendment is that the citizens of the United States should not be searched, and their property cannot be seized unless the case is a threat to the safety of the country and the public.
Secondly, one should understand the balance between the outcome of the search and the violation of the persons rights. Morris (1969) states that this Amendment allows the searches and seizures in cases that are of public safety importance. Lemons (2012) argues that students perceive their dormitory rooms as private places, and there is a reasonable expectation that their privacy rights will not be violated in these places. These dormitories become the homes of the students during their studies, which from the viewpoint of the student-institution relationship should mean that the latter must respect the privacy and rights of the former. However, dormitories also house a large number of students, and the universities are responsible for their safety, which creates a space for interpreting the Fourth Amendment in a way that allows for searches on campus.
Another factor that predetermines the possibility of a search and seizure is the location where these actions take place. For example, schools have to have a warrant before performing a search of the individuals property (United States Courts, 2021). One case that demonstrates this approach is the Trustees of the Dartmouth College V. Woodward, 17 U.S. 518 (1819). This college was originally established as a religious-based institution that promoted the values that aligned with its mission.
However, this school received funds from the Federalist trustees, and the goal of this case was to convert this college into a private institution, which would not focus on religion and the integration of religion into education (Lemons, 2012). The Darthmunds trustees claimed that the government of New Hampshire violated their constitutional rights by attempting to commit the conversion (Lemons, 2012). Hence, this case is an example of the conflict between the state and the private colleges trustees regarding the property rights and the ability of these trustees to make important decisions regarding the values and teaching standards at this institution.
A search warrant is not always necessary when performing searches in dorm rooms or sororities located on the campus of a university. According to Fossey (2018), this Amendment clearly guarantees the rights of the students who reside on the campus, and their privacy and property rights cannot be violated by the institutions administrations. Therefore, to perform a search, the administration has to obtain a warrant, which would require them to collect evidence and prove the necessity of such actions. All other instances of such searches are unconstitutional, and students have the right to protect their privacy.
However, Fossey (2018) and Alazmi (2018) argue that the same rules do not apply to non-students and individuals who do not reside on campus, which means that the administration can perform a search of such people if deemed necessary. Moreover, Fossey (2018) argues that if the search is authorized by language in a housing contract or a reasonable regulation adopted to maintain safety, security, and an educational environment conducive to learning (p. 10).
Morris (1969) argues that these searches are justified if the authorities have a sound underlying reason, such as the concerns regarding the Universitys safety. A more recent example is the New Jersey v. TLO: 469 US 325 (1985), where the issue was the reasoning behind a search. This ruling suggests that if the administration has a proper justification for these actions, they do not have to obtain a search warrant.
The applicability of the Fourth Amendment to the searches and seizures performed on campus should be examined from the student-institution relationship viewpoint. In this regard, the colleges are the owners of the property that is situated on their campuses, which would provide them with the freedom to carry out the searcher. However, the property in the rooms where the students reside, although temporarily, belongs to these individuals, which evidently creates a conflict and a need to examine the Fourth Amendments applicability to this scenario with details.
Conclusion
In summary, this paper is the examination of the Fourth Amendment, which is the legislative guarantee that people in this state cannot be searched and their property shall not be taken from them without a sound justification. The main way to justify such actions is by citing a public safety concern. The cases such as the New Jersey v. TLO:: 469 US 325 (1985) show that these institutions do not have to obtain a search warrant.
However, their justification for these actions must be reasonable, for example, the concern regarding the safety of the students. Hence, although dormitories and sororities are the homes for the students residing in them, the student-institution relationship paradigm allows the latter to perform searches. These can be announced verbally, without any prior notification; however, the court cases and current legislations require the institution to justify their actions. Considering the responsibility of the universities to protect multiple students who reside on their campuses, the searches are justifiable even considering the Fourth Amendment.
References
Alazmi, A. (2018). Student privacy under the Fourth Amendment: Implications of student privacy at public colleges and universities in USA. 2018 IACB, ICTE Proceedings, 341-356.
Fossey, R. (2018). Students at public universities have a constitutional right to privacy in their dormitory rooms. Journal of College and University Student Housing, 44(3), 62-79.
Morris, J. (1969). Comment, the dormitory students Fourth Amendment Right to Privacy: Fact or fiction? Santa Clara Lawyer, 143, 1-10.
Lemons, B. R. (2012). Public education and student privacy: Application of the fourth amendment to dormitories at public colleges and universities. Brigham Young University Education and Law Journal, 2012(1), 1-10.
New Jersey v. TLO: 469 US 325. (1985).
The Trustees of the Dartmouth College V. Woodward, 17 U.S. 518. (1819).
The Fourth Amendment to the US Constitution was adopted in 1792. It guarantees peoples right to the inviolability of their identity, home, documents, and property in case of unjustified search or arrests. The right must not be violated, and no orders must be signed if there is not enough justification for the statement. It may be confirmed either by jury or the allegation with the detailed description of the crime scene of the people who committed it (FindLaw, 2019). However, not every search that is conducted by the police officers requires the application of the Fourth Amendment. It concerns only those searches that are initiated by the government or its directives.
The Fourth Amendment makes police officers act reasonably and respectfully when they start search activities in a particular location. It is stated that police officers have no right to search peoples property, especially houses, without a warrant signed by a judge or neutral magistrate. However, there is one significant outcome of the Amendment that concerns the fact that it may be applied only to the seizures and search activities initiated by law enforcement institutions (FindLaw, 2019). In other words, the Fourth Amendment does not protect American citizens from the actions of private detectives or extremely curious neighbors. Hence, the Amendment may be applied only concerning the actions of a legal institution.
Apart from that, the Amendment still protects peoples confidentiality even if search activities have been conducted. People may hope to ensure their privacy, when it comes to the matters they keep for themselves, including clothes and personal belongings. When the matter concerns the house, people are interested in keeping secret what happens inside the house and are not considered a matter for public discussions, while things occurring outside bother them less (FindLaw, 2019). Hence, US law considers peoples privacy if the matter does not concern anything that a person knowingly demonstrates to the public.
The previous statement claims that the matters that people intentionally expose to the public are unlikely to stay secret during a seizure or search activity. The right to confidentiality does not concern things and personal issues that are not guided by people themselves as private. Thus, they are not protected by the Fourth Amendment in case of the search (FindLaw, 2019). That is why social media pages or phone numbers that are published on the Internet or other materials that everybody has access to are not considered private and are not protected by the Fourth Amendment.
However, if a person faces unjustified search activity or even arrest, they may challenge the law enforcements actions. They may also require the elimination of all the evidence that was got due to the action that violated the countrys law (FindLaw, 2019). Apart from that, a person whose rights guaranteed by the Fourth Amendment were violated may sue the institution or those who did not observe his rules.
Taking into account all mentioned above, it is possible to conclude that the Fourth Amendment may be considered an ambiguous law. On the one hand, it guarantees and guides peoples privacy and confidentiality, but, on the other hand, it may be implemented only to the actions conducted by the government. In addition, the Amendment does not protect peoples property or information that was not held private before the investigation. In many cases, the actions of the law enforcement officers seem reasonable, a lot of people still face legal prosecution by mistake, so their reputation and property may be damaged due to the actions of the police officers.
Reference
FindLaws Team (2019). When the Fourth Amendment Applies. FindLaw, Web.
What most people are not aware or tend to be ignorant of is the fact that it is quite dangerous to turn a blind eye to history (Schulhofer, 2012, p. 17). Those living in the 21st Century have easily forgotten where the majority of their freedoms come from. Military commanders, leaders of countries as well as various societies have completely ignored history with awe-inspiring outcomes.
Considering the fact that the Fourth Amendment is rather important to America, it is quite fitting to study the history behind its beginning and its integration into the United States Constitution (McInnis, 2010, p. 50). The Fourth Amendment has its derivation dating back from 1791 where it was introduced to the US Constitution and made part of the Bill of Rights.
This Amendment is specifically intended to protect individuals from the unlawful searching of their homes as well as private property without authorized search warrants (Johnson, 2009, p.74). For this unreasonable factor to be determined two essential interests must be balanced; these are, the intrusion on a person’s Fourth Amendment rights, and legitimate government interests, for instance, public safety (Carmen, 2013, p.41).
The initiators of the Amendment believed that being free from the intrusion of the government into one’s home is a natural right and therefore indispensable to liberty (Taslitz, 2006, p.101). Once the Fourth Amendment was made part of the US Constitution, it was first and foremost implemented in the federal government.
However, it was later related to the states via the Due Process Clause of the 14th Amendment (Schulhofer, 2012, p. 21). The Fourth Amendment is important as it dictates that law enforcement officers behave in an ethical manner and requires that a search be founded on probable cause (McInnis, 2010, p. 51).
Society’s Response and Controversies related to the Fourth Amendment
Since its inception or rather an introduction to the US Constitution, the Fourth Amendment has resulted in a number of controversies from the society. It is a fact that in a society that not only condemns crime and values independence, but there is also bound to be tension between law enforcement interests and the privacy of the public (Carmen, 2013, p. 45).
The 21st Century has allowed criminals to add to their ability of hiding crime together with its proceeds, thus forcing the law enforcement to work hard in order to keep up. This has, in turn, inspired investigative techniques that tend to step on the rights to privacy and the Fourth Amendment rights of innocent American citizens (Johnson, 2009, p. 76).
While the federal government has made efforts of protecting the public from criminals and particularly terrorist acts since the 9/11 bombings of the Twin Towers, the public has raised concerns about how the government is going about it. It seems as though the government has taken advantage of its national security measures and went on to violate the Fourth Amendment rights of the citizens through unreasonable searches and seizures.
The society feels that the law enforcement agencies have also taken advantage and are now practicing discrimination where racial minority groups are concerned (Taslitz, 2006, p. 102).
In the past, the very first controversy was in 1967 when the Fourth Amendment was violated by federal agents who fixed a wiretap to the outside of a telephone booth that was usually used by a gambler (Schulhofer, 2012, p.29). The Court held that what mattered was whether or not the suspect had a reasonable expectation of privacy (McInnis, 2010, p. 52).
Today, the latest controversy regarding the violation of this particular Amendment is the adaptation of privacy protections to new realities of GPS devices. With such devices, the government can track down criminal suspects and monitor their activities.
However, the Fourth Amendment has been violated by the law enforcers who take advantage of this technology to spy on innocent American citizens, without probable cause (Carmen, 2013, p. 59). As has been stated earlier, the main purpose of the Fourth Amendment is to protect American citizens in their homes as well as on their persons from unlawful or unfair searches and seizures.
Looking at controversies such as the 2010 law in Arizona, some people believe that the security of the American citizens should be a priority over that of illegal immigrants (Johnson, 2009, p. 78). This simply means that if the federal government feels it has a reason to question the legality of one’s immigration status, the request is not unreasonable and therefore, such an individual may be searched without a warrant.
Those who have such beliefs seem to forget that by so doing, the law enforcement officers would be directly in violation of the Fourth Amendment. They would also be discriminating on the individuals due to their race or color (Taslitz, 2006, p. 103). The Fourth Amendment protects all American citizens irrespective of their racial background, ethnicity, gender, sex, or color.
How the Fourth Amendment has Evolved with Time
The Fourth Amendment has greatly evolved with time; the way it was applied in the past is not the same way it is being applied in the 21st Century. This Amendment gets much of its inspiration from the experience of the American colonies with the English Crown’s issuance of General Warrants (Schulhofer, 2012, p. 32).
These warrants, during that period, enabled government agents to have the authority to search and seize whatever they desired, without necessarily having a cause. The public issued several complaints, thus leading to a majority of the states to outlaw the use of these Warrants. This is also the time when the Fourth Amendment was included in the Constitution after the passing of the Bill of Rights (McInnis, 2010, p. 53).
With time, the issue of search and seizure was not yet prominent up until the Supreme Court case of Weeks vs. United States in 1914, where police officers entered the home of Fremont Weeks, and seized papers that would later be used to convict him of transporting lottery tickets via the mail (Carmen, 2013, p. 60).
The search and seizure were abrasively carried out without formal warrants, and the plaintiff decided to take legal action against the government, thus formally requesting the return of his private possessions.
The case later came to be recognized as monumental with regards to the Fourth Amendment as it also established the ‘Exclusionary Rule’ which states that any proof gathered by the government in violation of the Amendment rights of the accused cannot assist in the conviction of the person (Johnson, 2009, p. 81).
Today, the majority of legal and political commentators are continuously arguing the advantages of the Exclusionary Rule, suggesting that it protects those who are guilty and tend to pervert justice (Taslitz, 2006, p. 104).
Others declare that this Rule is a firm verification against law enforcers who happen to be overzealous in the violation of individuals’ rights to make arrests. With the commencement of the War on Terror, which was initiated soon after the 9/11 bombing attacks on American soil, the protection of the Fourth Amendment rights has rapidly gained recognition.
As a way of combating terrorism locally, the PATRIOT Act allows government agents to perform warrantless wiretaps of phone calls as well as e-mails (Schulhofer, 2012, p. 38). This is one of the issues that have brought about controversies with today’s society regarding the violations of the Fourth Amendment. The society no longer feels safe since their rights to privacy are being grossly violated, all in the name of War on Terror.
Conclusion
It is a fact that from what has been recently observed, people have easily forgotten where their freedom comes from. The Fourth Amendment is considered to be quite important to American history and has so far managed to protect American citizens from unreasonable searches and seizures by law enforcement agencies.
However, several controversies have also been brought forth regarding this particular Amendment and the invasion of people’s privacy, for instance, government surveillance and monitoring of phone calls.
The issue of discrimination against racial minority groups has also been raised as yet another controversy where it is argued that people from this particular group tend to be stopped and arrested on suspicion of engaging in criminal activity more than their white counterparts.
I believe that for the society to be able to eradicate such discrimination, it should not only emphasize on the importance of the ‘Exclusionary Rule,’ but also enforce strict punishment to law enforcers who do not adhere to the Fourth Amendment rights. The Fourth Amendment, together with the requirements of probable cause, is generally aimed at protecting innocent civilians at all cost.
References
Carmen, R. (2013). Criminal Procedure: Law and Practice. 9th Edition. New York: Cengage Learning.
Johnson, T. (2009). Legal Rights. New York: Infobase Publishing.
McInnis, T.N. (2010). The Evolution of the Fourth Amendment. Lexington, MA: Lexington Books.
Schulhofer, S.J. (2012). More Essential Than Ever: The Fourth Amendment in the Twenty-First Century. Oxford: Oxford University Press.
Taslitz, A.E. (2006). Reconstructing the Fourth Amendment: A History of Search and Seizure, 1789 – 1868. New York: NYU Press.
The Fourth Amendment was created to protect individuals from illegal searches and to feel secure against the abuse of the police, the army and other authority figures who may barge into homes, offices and schools without a warrant. It is not only the person who is protected against illegal apprehension but it also covers individual rights against the illegal seizures of property, papers, and effects (Smith, ). For centuries this law has provided protection from tyranny and the need of some law enforcers to go beyond the boundaries given by law.
Moreover, the Fourth Amendment also includes the right to privacy. After the September 11 terrorist attack as well as the proliferation of mobile technology and the notoriety of Youtube there are fresh challenges to the Fourth Amendment. This paper will show that the Fourth Amendment does not need a major overhaul to increase surveillance and intelligence gathering activities.
When the United States was established more than two hundred years ago, it was the result of a mighty struggle. Patriots and freedom fighters laid their lives on the line to secure American independence and when they decided to draft a Constitution to govern the Union, the memory of oppression and tyranny was still fresh in their minds and so the Fourth Amendment declares:
The right of the people to 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 (Smith, )
This law is easy to apply when it is limited to illegal search and seizures particularly in the context of a policeman apprehending a person without probable cause. But when it comes to privacy rights the use of technology to capture the person’s face on camera and digitally record a person’s voice and then upload to Youtube, the interpretation of this particular law becomes troublesome. There is a need to understand how to balance privacy rights and the need to secure this country from terrorist attacks.
Mobile Phones and Cameras
The first argument is with regards to capturing images and videos from a mobile phone and then turning around to upload it to Youtube. According to legal experts, there is no violation of the Fourth Amendment and asserted that “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” (Lectric Law, ). As long as the images were captured in public there is no violation of the law. Even if the images were captured inside the home or office and yet there is consent there is nothing wrong with this action.
The legal system will be bogged down if these types of activities will be considered illegal. It would also be difficult to deal with legal problems that arise from taking photos of celebrities and other public personalities. The right to privacy does not include the things that are made public by the individual. It is only when information is extracted that cannot be normally acquired publicly is the time when the Fourth Amendment can be used as a basis for an invasion of a privacy complaint.
Surveillance Cameras
Aside from mobile phones, another ubiquitous gadget is the surveillance camera or what is also known as CCTV. It is a known fact that privacy is the main issue every time a CCTV camera is installed in public places; however, privacy is difficult to define. Nevertheless, one can have a general understanding of what it means by reading the following:
Fondling someone’s buttocks without their consent, crossing the threshold of another’s home without permission, and peeping through a mostly closed window all impinge on privacy. The excessive use of force by the police … invades bodily privacy. Privacy also implies some measure of secrecy about one’s affairs (Taslitz, )
Based on this understanding of privacy it is difficult to prove that surveillance cameras invades privacy because what the cameras capture are already made public by the person when he or she decided to leave his house and move through a public area where a camera was installed for security purposes. A surveillance camera inside the bedroom of a person is an entirely different matter.
No Need to Change
There is no reason to change the Fourth Amendment. As long as law enforcers will not conduct any search without a warrant and as long as they will not search a person without probable cause then the Fourth Amendment must stay the same. The law even allows for a warrantless search as long as it can be established that there is a probable cause. The Fourth Amendment stays because it does not prevent the government to catch the terrorists it simply limits the power of the state to perform unauthorized search and seizure.
There is no need to modify the Fourth Amendment because it guarantees our freedom and yet at the same time it is not blind to the fact that surveillance and intelligence work is a deterrent to terrorism. There is no need to modify the Fourth Amendment because law enforcement people as well as security personnel can still continue doing their work without violating any part of it.
Conclusion
There is a need to understand the balance between the need to gather intelligence to thwart another 9/11 and the tension that occurs when a police officer or even a security guard will search into personal things. But this does not require modifying the U.S. Constitution particularly the Fourth Amendment. The law is very clear there should be no warrantless arrests and there should be no illegal seizures of property etc. As it is, the law is effective in preventing abuse of power by authority figures and yet provides a way for them to search if there is probable cause.
References
Lectric Law Library. (2010). “Fourth Amendment.” Web.
Smith, R. (2008). Fourth Amendment: The Right to Privacy. MN: ABDO Publishing.
Taslitz, A. (2006). Reconstructing the Fourth Amendment. New York: New York University Press.
At times, we hear news from media houses that a drug trafficker has been released from jail because the evidence that had been collected against him by law enforcers was considered unconstitutional. A moment of thought may cause us to debate about the relevance and importance of the fourth amendment. These isolated cases should not cloud the importance of protecting our privacy rights and in promoting a free society. This amendment was designed to protect people, guard people’s privacy and protect them from unnecessary searches by government officers. We need to enjoy, appreciate and protect this right at all means. The following is a text from the 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.” (Lectric Law Library, n.d)
The fourth amendment was designed by America’s founding fathers who knew the importance of limiting the government’s interference on citizens in order to create a liberal society. In colonial years, government officials misused their search powers and could conduct searches at any time they wanted and in whichever way they wanted. This taught our founding fathers the importance of limiting the government’s power on people’s privacy. They had seen it with their own eyes and they knew that power corrupts and that absolute power corrupts absolutely. (Schneier, 2009).
Some people may not see the importance of the fourth amendment. They may feel that they live straight and are therefore unlikely to be victims of unlawful searches. This is not a good kind of thinking because they forget it is not a matter of having been a victim of privacy’s violation but it is a matter of having a law to protect you anytime you need it. As Judge Learned Hand once warned us, it all starts with us. He said: “Liberty lies in the hearts of men and women; if it dies there, no constitution, no law, no court can save it.” (Lectric Law Library, n.d)
Mary Ann and James Stumble family were relaxing at their home when a social security worker knocked at their door demanding to search their house besides interrogating their children in private. Not pleased with the idea of a stranger interrogating their children in private besides interfering with their privacy and realizing that the social security worker did not have a search warrant, they denied him access. As they learnt later, their two year kid had been spotted naked on a driveway on a warm day. They believed that this did not warrant what they saw as government bullying. They refused the search and took up the mater to the court. The case came before the supreme court of North Carolina, which resolved that it was the social worker’s demands that were unconstitutional. This was a great victory for privacy rights; a right that should be guarded by all of us. (Lectric Law Library, n.d)
The fourth amendment has however brought about some problems and controversies. For example, we all feel bad when we see a criminal walk away free because the evidence collected against him is considered unconstitutional.
Many criminals have taken advantage and will likely continue to take advantage of this provision in the constitution to buy time, alter or remove any evidence that can be used against them. These are bottlenecks that are bound to exist considering that in the first place this law protects the privacy rights of every person indiscriminately. (Schneier, 2009).
Criminals and terrorists have a sophisticated crime network that is designed to evade detection at all means. It may prove almost impossible for law enforcers to deal with such individuals if they have to go back and get a search warrant before they can conduct searches on such. Our law enforcers should take advantage of a constitutional provision where they (law enforcers) are allowed to conduct searches in such situations because they have a good reason to believe that unlawful activities are going on. (Schneier, 2009).
One question that we need to ask ourselves is whether this is becoming more of an egocentric matter or a matter of law. Take the example of a pending case in court where a person who was standing outside his truck was approached by a police officer who asked him his name. The man refused to answer and was consequently arrested for interfering with investigations. My opinion is that this is more of a social relations problem than a matter of law. I reason that it was not necessary for the man to refuse replying the police officer especially after he had identified himself as much as it was not necessary to arrest him. Some restraint from both parties could have helped much. (Schneier, 2009).
Conclusion
Civil liberties were put in the constitution to protect ordinary people against the government. The fourth amendment is necessary to protect our privacy rights in our free society. However, we need to remember that a more sophisticated modern society that we live in is presenting new problems in implementing laws. This should never be a reason to compromise laws that guard our rights. Like any other law, controversial issues are bound to arise considering that no law is independent besides technicalities that may arise in implementing it. We need to guard this civil liberty, which enhances our rights and freedoms, a civil liberty that perpetuates our founding fathers’ dream of a free society.
The fourth amendment guarantees everyone in the United States safety in their papers, persons, houses and effects from unrealistic seizures and searches. It further makes it clear that warrants shall not be issued nor violated unless there is a credible reason supported by affirmation or oath specifying the place, persons or things to be seized.
The term reasonable means that the police should have a search warrant whenever they want to search private areas. The police cannot bring to court evidence obtained by violating the fourth amendment to try suspected criminals (White & James, 2004).
However, the amendment fails to define in specific terms what is reasonable or unreasonable. The missing definition has led to confusion among learned and experienced lawyers.
Despite the confusion, many lawyers agree that in order to establish what is reasonable and what is not, the court should evaluate the case on the basis of the following criteria;
First, the court should assess the legal principle. The court should find out if there was any need for privacy. If the issue being argued was in public viewing, then the simple attempt to obtain privacy does not entitle one to protection in amendment four.
Secondly, one cannot claim right to privacy if there is a vantage from which anyone can be able to hear what was being communicated.
In addition, the court should examine the degree of privacy which certain buildings afford. For example one cannot claim right to privacy if communication was done in public places.
Finally the court will also examine the invasiveness and complexity of technology employed. As a result of increasing growth of technology, police officers will be forced to get warrants in order to be able to use some devises for surveillance (Amsterdam, 1974).
In the case Katz v. United States, the Supreme Court ruled that FBI activities which electronically recorded telephone conversations made by the petitioner were not a violation of the fourth amendment. The Supreme Court agreed with the prosecution that phone conversations made in public telephone booths are not private and the police was right to use them in court as evidence. The reported eves dropping did not qualify as a search according to the fourth amendment. This means that the petitioner failed to justify the aspect of ‘search and seizure’ as stipulated in the fourth amendment. The Supreme Court also held that the investigating agency did not engage in any physical intrusion in a protected area.
Finally the Supreme Court noted that conversations made in public booths are not made for broadcast but the society does not view them as a private (Friedman, 1978).
This was a contradiction of what the same court ruled in 1928 in the case Olmstead vs. United States, 277. In this case, the court agreed with the petitioner on the basis of the following facts;
Firstly, the evidence which helped the FBI to discover the conspiracy was collected by trespassing the petitioner’s property. Messages on conspirator’s private phones were intercepted by more than four police officers.
Secondly the small wires inserted in the residence of the petitioner and leading to the main office were trespasses to the petitioner’s private property and qualify as ‘unreasonable search’ which the fourth amendment seeks to protect.
According to Katz, physical intrusion is not necessary for the court to realize that his rights to privacy had been violated against the fourth amendment. He imagines that since the telephone calls he made were private, the court ought to rule that his rights of privacy guaranteed in the fourth amendment had been violated.
References
Amsterdam, A.G. (1974). “Perspectives on the Fourth Amendment”. Minnesota Law Review, 58(11), 349-363.
Friedman,L. (1978). The Justices of the United States Supreme Court: Their Lives And Major Opinions. New York: Chelsea House Publishers.
White, W.S. & Tomkoricz, J.J. (2004). Criminal Procedure: Constitutional Constraints upon Investigation and Proof. Pittsburg: Pittsburg School of Law Press.
Most of the legal declarations that make up the Bill of Rights, including the Fourth Amendment, were founded on the Common Law, which existed in the 16th and 17th century in England. As a matter of fact, three British law-related cases prompted the Fourth Amendment. Two out of the three cases were tried in England, and the other, adjudicated in America during the 17th century.
The two cases adjudicated in England, Entick v. Carrington in 1765 and Wilkes v. Wood in 1763, were about similar issues. In both cases, Entick and Wilkes were accused “of seditious libel” for indirectly condemning the king by criticizing his ministers.
The men disseminated written statements criticizing actions of the king. The king therefore passed a warrant that allowed his agents to search the residences of the men, and seize every written statement found. This action incited Entick and Wilkes to file lawsuits against the king for damages.
They claimed that it was not right for the king’s agents to search their residences in a forcible manner and impounded all their written properties.
Lord Camden, the judge in charge of the case, concurred with the plaintiffs and thereby made a pronouncement that the warrant issued by the king to carry out the search, as well as the actions of his agents were indeed wrong on the grounds that the issued warrant permitted the agents to confiscate all their written belongings instead of confiscating only the written materials that were pertinent to allegations, and that the warrant was passed in the absence of a reasonable cause.
Also, the Fourth Warrant was inspired by the case between English Monarchs and American colonies. British Crowns imposed taxes on colonists in order to clear war debts. This action forced American traders to smuggle goods in a bid to dodge exorbitant taxes.
As a result, the British crown issued General Warrant, also referred to as Writs of Assistance, to their custom officers, which empowered them to search and impound possessions of people suspected of smuggling items. The Writs of Assistance, permitted government officials to search and impound virtually anything without reasonable cause. Writs of Assistance attained loss of right in 1763, when the French and Indian War ended.
This event led to the extinction of General Warrant. The Fourth Amendment was therefore incorporated into the United States Constitution in 1791 upon the enactment of the Bill of Rights. Even after acceptance of the Fourth Amendment, issues of search and seizure were not well recognized until 1914 when the Supreme Court case, Weeks v. United States, instituted the “exclusionary rule”.
As determined by this rule, the court will not recognize any evidence presented by the government that is contrary to the Fourth Amendment rights of the suspect, and such evidence is not sufficient to declare that person guilty.
In recent times, legal and political pundits have debated about the advantages of the exclusionary rule. Those against the rule argue that it abuses justice, and defends the guilty. Others in support of the rule are of the opinion that it prevents violation of human right by overzealous officers of the law.
Many different amendments form the American constitution. American Constitution is the supreme law that guides the actions, activities, conduct, and behaviors of citizens and residents. One of the American Constitutional Amendments is the fourth amendment. The fourth amendment of the US Constitution provides that “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 persons or things to be seized” (Caselaw.lp.findlaw.com) The words in this amendment endeavors to protect two fundamental interests of right to privacy as well as freedom from any arbitrary invasions.
Based on many cases in the US, the Supreme Court has attempted to provide a clear understanding of the amendment. One of the cases that have brought a lot of controversy into its facts and decision based on the fourth amendment is the case of Bailey v United States. The following discussion and analysis provide a deeper cross-sectional dissection of the case about the fourth amendment (Americanbar.org)
Facts about the Case
In the case of Bailey v United States, the defendant, Bailey was stopped by police officers from the District of Columbia in May 1989 for lack of front license plates, which are supposed to be part of vehicles (Oyez.org). Bailey’s car did not have a license plate hence the stoppage by the police officer. Surprisingly, Bailey was unable to produce a driver’s license and this worsened the situation. The police officer ordered Bailey out of the car and in the process discovered that he (Bailey) stuffed something between the seat and front console. Bailey’s action of stuffing something between the seat and console aroused the police suspicion, which then led to a serious search. (Bailey v. the United States, 516 U.S. 137)
The search by police established that Bailey had 27 plastic bags containing approximately 30 grams of cocaine and a nine-millimeter pistol (Oyez.org). Two years later, the police obtained a search warrant to search Robinson’s house after police suspected that was Bailey’s accomplice (Oyez.org). The search obtained an unloaded 0.22 caliber pistol besides 11 grams of cocaine. In addition, the search obtained some $20 bills related to one of the previous purchases of cocaine.
Question Presented
The main question presented to the Supreme Court of the United States of America for judgment in regards to this case was whether the fourth amendment permitted police officers, after searching for a deadly weapon within a private residence, to detain an occupant who is believed to have been the last to leave the vicinity, especially when the detention was conducted within a give reasonable time (Oyez.org). The Supreme Court of the United States of America had to make such a judgment based on the above-presented question.
Court’s Rulings
Bailey and Robinson were then charged with various charges that included amongst others possession of illicit drugs and violations of the 18 U.S.C. § 924(c) (1), which provides that an individual should not carry firearms during and within any crime related to drugs (Oyez.org). Bailey and Robinson were both convicted under 18 U.S.C. § 924(c) but appealed (Law.cornell.edu).
During the appeal court’s proceedings, a three-judge bench convicted Bailey under 18 U.S.C. § 924(c) whilst another three-judge bench reserved Robinson’s charges on the same law. In a bid to resolve the disparity of the rulings, the courts held that an individual is considered guilty of 18 U.S.C. § 924(c) if the gun is in a position that is easily accessible (Law.cornell.edu). Therefore, an individual is considered to be using a gun during a drug crime if the gun is in a position that is easily accessible (Oyez.org). In both Bailey’s and Robinson’s cases, the guns were easily accessible hence were guilty as charged under 18 U.S.C. § 924(c) (Law.cornell.edu). Nevertheless, the Supreme Court agreed to review the cases between Bailey and Robinson under 18 U.S.C. § 924(c).
Supreme Court’s Ruling
Unfortunately, the Supreme Court rejected the D.C. Circuit’s interpretations of the case in respect to U.S.C. § 924(c) concerning the possession of firearms during and within drug crimes (Law.cornell.edu). The Supreme Court concluded that using a firearm requires active employment and not necessarily on the basis that the firearm is within reach (Theatlantic.com). In addition, the Supreme Court confirmed that based on the statutes of the United States liability on firearms is not placed on mere possessions but only when they are actively employed. It does not mean therefore that anyone who has a firearm is guilty of its use unless there is active employment of the same.
Supreme Court confirmed that the D.C Circuit court erred in making the ruling on the basis that its definition of the use of firearms was wrong. Defining the use as accessibility or proximity of the firearm was inappropriate and unlawful as alluded to by the Supreme Court (Theatlantic.com). If the definition of the term used was on the same aspect then many people would have been guilty of the crime including those who have firearms for protecting their houses. Therefore, the Supreme Court confirms that the ruling by the D.C Circuit was wrong on the definition of the term used in respect to firearms as well as the U.S.C. § 924(c) (Michigan v. Summers, 452 U.S. 692)
Nonetheless, the Supreme Court also confirmed that the statute’s language was unclear on the use of firearms. For instance, the Supreme Court confirmed that it would have been difficult for the government to prove a violation of the U.S.C. § 924(c) if the use was not merely by possession (Law.cornell.edu). In any case, “use” in legal aspects related to the statute could mean aspects such as “availing”, “carrying”, “converting to a service”, and “employ” amongst others. All these definitions stem from mere possession. Therefore, the Supreme Court’s decision or ruling was the two were not guilty as charged especially because Bailey’s gun was in the car’s trunk and Robinson’s pistol was in the bedroom closet. Therefore, the two were considered not guilty by the Supreme Court.
Analysis
Revision of the case to suit the defendants by the Supreme Court spurs a lot of concerns and arguments in respect to the fourth amendment as well as the possession of firearms. In the above case, it is difficult to identify whether the two were guilty as charged. Based on U.S.C. § 924(c), it becomes very difficult under the fourth amendment to define the term ‘use’ concerning firearms (Law.cornell.edu). It is confusing to allude that the term ‘use’ was wrongly employed by the D.C. Circuit courts, which delivered a judgment confirming that Bailey and Robinson were guilty as charged. Revising the charges by the Supreme Court is challenging especially following the fact that related statutes do not provide a clear definition of “use of firearms”. Therefore, there was a serious need to understand the definition of the term ‘use’ in respect to firearms.
Opinion
In my personal opinion, the ruling of the Supreme Court was not correct. Based on the provisions of the fourth amendment, it is important that even though individuals have a right against searches and seizures, there is no harm in searching or seizing a person’s belonging especially when it has been established that there are some strong suspicions on the same (Caselaw.lp.findlaw.com). Given that there were no violations of the individual’s right in respect to privacy as well as freedom on their personal property as there were true suspicions, it, therefore, follows that the two should have been found guilty. It is difficult to ascertain that the two were not using the guns during and within the drug crime on the mere basis that the firearms were not within proximity or rather were inaccessible at the point in time mentioned. The mere fact that Bailey and Robinson had guns and were involved in drug crime should be enough to confirm that the two were guilty as charged.
Conclusion
From the above case analysis of Bailey v United States, many aspects arise. For instance, there is a need to abide by the provisions of the fourth amendment. According to the fourth amendment, an individual has a right to privacy as well as the freedom to enjoy personal belongings. However, this should not be a basis for persons to engage in criminal activities just because they cannot be searched or seized. Any suspicions must warrant serious search and possible seizure of property if the suspected person has been involved in criminal activities. Lastly, the case analysis also provides an understanding of possession and use of firearms especially during and within drug crimes.
References
Americanbar.org. In the Supreme Court of the United States: Chunon L. Nailey v United States of America. Web.