Fourth Amendment

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The Interpretation of the Fourth Amendment on Search and Seizure and its Effect on

Law Enforcement

Garret Hogue

Troy University

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The Constitution of the United States stated that people must be secured in their homes and in their persons against unreasonable search and seizure. Since the establishment of this right the courts, being local, state, and federal have interpreted it in many different ways. The interpretation of this amendment has effected how police officers conduct investigations. There have been many decisions by the courts since the Bill of Rights was ratified. These decisions have shaped how police search persons and property.

The Colonials were concerned about the government entering their homes. In order to enforce the revenue laws, English authorities made use of writs of assistance, which were general warrants authorizing the bearer to enter any house or other place to search for and seize ''prohibited and uncustomed'' goods, and commanding all subjects to assist in these endeavors. (http://www.caselaw.lp.findlaw.com/data/constitution/amendment04.) This was the early necessity to protect themselves from unreasonable search and seizures. With this practice in mind the framers of the Constitution wanted this protection. Over the coarse of several years this Constitutional Amendment has been argued over and tested in the judicial system. The results of this have caused certain procedures and rules by which law enforcement has to follow.

For the Fourth Amendment to apply there must by a search and or seizure of property or persons. With persons an arrest or "seizure" of that person can occur with or

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without a warrant. As with an arrest or search warrant, probable cause has to exist in order to obtain both. Probable cause is not defined by the Constitution or law. The

courts have shaped it. A definition of probable cause is facts or circumstances that would lead a reasonable person to believe that a crime has been or will be committed. Before any search or seizure probable cause has to exist. The probable cause is used to get a judge, usually a Magistrate Judge, to issue the arrest or search warrant. The warrant authorizes the officer to seize particularly described items and to bring them before the court that issued the warrant. The warrant must particularly describe the person to be arrested, the place to be searched, and must specifically list the items that can be seized, (Knoll 2001). In my experience most searches are conducted without a warrant. So the question that usually comes up in court and shapes the various decisions by the courts over the years is if the search was unreasonable. The exceptions to a search without a warrant are various. They alone have set precedents on searching and seizing property.

One of the numerous exceptions is search incident to arrest. There is a need for officer safety and the preservation of evidence. The courts have long upheld the need to officers to search persons after their arrest. The main consideration is if the arrest was valid. The arrest of a person could be made with a warrant or warrentless if probable cause existed. The search of the area immediately in their control is permissible and does not violate their fourth amendment rights. The arrest of a person inside a house brings about a justifiable " protective sweep" of the immediately adjoining spaces of the area of the house where the defendant is arrested, if the police have a reasonable belief

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based upon specific and articulable facts, that the area to be swept harbors person posing a danger to those at the arrest scene. (Knoll 2001).

There is also an arrest of persons inside a vehicle, which the courts have said officers can search the passenger compartment of that vehicle as long as his, arrest was valid. These issues have come up time and time again. The courts have established its acceptable practice so long as it does not go beyond the control of the suspect and is conducted for other than a valid reason,( Schalleger, pg 281).

The search of a vehicle brings about a whole new sets of standards established by the courts. A vehicle can be searched without a warrant if an officer has probable cause to believe that contraband is in the vehicle. A large reason this is acceptable is due to mobility of the vehicle. The evidence in the vehicle is mobile and therefore could be lost. The courts have established that vehicles have a less expectation of privacy.

There is an inventory search of a vehicle that is also permitted without a search warrant. When police come in possession of property they have the right to search the items in order to inventory the contents. This is used to protect the police from false claims of theft. The vehicle needs to be impounded and the purpose of the search is conducting an inventory not searching for fruits of the crime. The inventory should follow procedures established by the law enforcement agencies. As with my department there is a policy concerning inventory of vehicles. We have established an inventory sheet where all items in the vehicle are listed. This keeps people from making unsubstantiated claims against the officer.

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An officer at any time can ask for consent to search a person. The key component of the consent and what the courts will decide is if the consent was voluntary. There can be no coercion whether implied or express by the officer. The person who gave consent

can revoke it at any time. An interesting decision has come out of a consent search by the Georgia Supreme Court. It was common practice to ask a third party for consent to search as long as they joint access to the property. In Randolph v. State of Georgia the courts found the defendant's wife could not give consent to officer after he refused consent. Even though she had equal access to the area that was searched, the court upheld the motion to suppress. (www.gasupreme.us/pdf/s04g0674.pdf). This basically places a hold on consent to search by a third party, when the other party who has the same access does not give consent. There is an expectation of privacy in places that people rent. A landlord cannot give consent for the tenant. That tenant is afforded the same Fourth Amendment protection as a homeowner.