The Fourth Amendment: Text, Origins, and Meaning

Protection From Unreasonable Search and Seizure

Police officer examining license of teenage girl (16-17)
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The Fourth Amendment to the United States Constitution is a section of the Bill of Rights that protects the people from being subjected to unreasonable searches and seizures of property by law enforcement officers or the federal government. However, the Fourth Amendment does not prohibit all searches and seizures, but only those that are found by a court to be unreasonable under the law.

The Fifth Amendment, as part of the original 12 provisions of the Bill of Rights, was submitted to the states by Congress on September 25, 1789, and was ratified on December 15, 1791.

The full text of the Fourth Amendment states:

"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."

Motivated by British Writs of Assistance

Originally created to enforced the doctrine that “each man’s home is his castle,” The Fourth Amendment was written directly in response to British general warrants, called Writs of Assistance, in which the Crown would grant overarching, non-specific search powers to British law enforcement officials.

Through Writs of Assistance, officials were free to search virtually any home they liked, at any time they liked, for any reason they liked or for no reason at all. Since some of the founding fathers had been smugglers in England, this was an especially unpopular concept in the colonies.

Clearly, the framers of the Bill of Rights considered such colonial-era searches to be “unreasonable.”

What Are ‘Unreasonable’ Searches Today?

In deciding whether a particular search is reasonable, the courts attempt to weigh important interests: The extent to which the search intruded on the individual's Fourth Amendment rights and the extent to which the search was motivated by valid government interests, such as public safety.

Warrantless Searches Not Always ‘Unreasonable’

Through several rulings, the U.S. Supreme Court has established that the extent to which an individual is protected by the Fourth Amendment depends, in part, on the location of the search or seizure.

It is important to note that according to these rulings, there are several circumstances under which police may lawfully conduct “warrantless searches.”

Searches in the Home: According to Payton v. New York (1980), Searches and seizures conducted inside a home without a warrant are presumed to be unreasonable.

However, such “warrantless searches” may be lawful under certain circumstances, including:

Searches of the Person: In what is popularly known as its “stop and frisk” decision in the 1968 case of Terry v. Ohio, the

Court ruled that when police officers see “unusual conduct” leading them to reasonably conclude that criminal activity may be taking place, the officers may briefly stop the suspicious person and make reasonable inquiries aimed at confirming or dispelling their suspicions.

Searches in Schools: Under most circumstances, school officials do not need to get a warrant before searching students, their lockers, backpacks, or other personal property. (New Jersey v. TLO)  

Searches of Vehicles: When police officers have probable cause to believe that a vehicle contains evidence of a criminal activity, they may lawfully search any area of the vehicle in which the evidence might be found without a warrant. (Arizona v. Gant)

In addition, police officers may lawfully conduct a traffic stop if they have reasonable suspicion that a traffic violation has occurred or that criminal activity is being carried out, for example, vehicles seen fleeing the scene of a crime. (United States v. Arvizu and Berekmer v. McCarty)

Limited Power

In practical terms, there are no means by which the government can exercise prior restraint on law enforcement officials.

If an officer in Jackson, Mississippi wants to conduct a warrantless search without probable cause, the judiciary is not present at the time and can't prevent the search. This meant that the Fourth Amendment had little power or relevance until 1914.

The Exclusionary Rule

In Weeks v. United States (1914), the Supreme Court established what has been known as the exclusionary rule. The exclusionary rule states that evidence obtained through unconstitutional means is inadmissible in court and cannot be used as part of the prosecution's case. Before Weeks, law enforcement officials could violate the Fourth Amendment without being punished for it, secure the evidence, and use it at trial. The exclusionary rule establishes consequences for violating a suspect's Fourth Amendment rights.

Warrantless Searches

The Supreme Court has held that searches and arrests can be performed without a warrant under some circumstances. Most notably, arrests and searches can be performed if the officer personally witnesses the suspect committing a misdemeanor, or has reasonable cause to believe that the suspect has committed a specific, documented felony.

Warrantless Searches by Immigration Enforcement Officers

On January 19, 2018, U.S. Border Patrol agents — without producing a warrant to do so — boarded a Greyhound bus outside the Fort Lauderdale, Florida station and arrested an adult female whose temporary visa had expired. Witnesses on the bus alleged that the Border Patrol agents had also asked everyone on board to show proof of U.S. citizenship.

In response to inquiries, the Border Patrol’s Miami section headquarters confirmed that under the long-standing federal law, they can do that.

Under Section 1357 of Title 8 of the United States Code, detailing the powers of immigration officers and employees, officers of the Border Patrol and Immigration and Customs Enforcement (ICE) can, without a warrant:

  1. interrogate any alien or person believed to be an alien as to his right to be or to remain in the United States;
  2. arrest any alien who in his presence or view is entering or attempting to enter the United States in violation of any law or regulation made in pursuance of law regulating the admission, exclusion, expulsion, or removal of aliens, or to arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any such law or regulation and is likely to escape before a warrant can be obtained for his arrest, but the alien arrested shall be taken without unnecessary delay for examination before an officer of the Service having authority to examine aliens as to their right to enter or remain in the United States; and
  3. within a reasonable distance from any external boundary of the United States, to board and search for aliens any vessel within the territorial waters of the United States and any railway car, aircraft, conveyance, or vehicle, and within a distance of twenty-five miles from any such external boundary to have access to private lands, but not dwellings, for the purpose of patrolling the border to prevent the illegal entry of aliens into the United States.

    In addition, The Immigration and Nationality Act 287(a)(3) and CFR 287 (a)(3) states that Immigration Officers, without a warrant, may “within a reasonable distance from any external boundary of the United States...board and search for aliens in any vessel within the territorial waters of the United States and any railcar, aircraft, conveyance, or vehicle.”

    The Immigration and Nationality Act defines “Reasonable distance” as 100 miles. 

    The Right to Privacy

    Although the implicit privacy rights established in Griswold v. Connecticut (1965) and Roe v. Wade (1973) are most often associated with the Fourteenth Amendment, the Fourth Amendment contains an explicit "right of the people to be secure in their persons" that is also strongly indicative of a constitutional right to privacy.

    Updated by Robert Longley

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    Head, Tom. "The Fourth Amendment: Text, Origins, and Meaning." ThoughtCo, Feb. 1, 2018, thoughtco.com/the-fourth-amendment-721515. Head, Tom. (2018, February 1). The Fourth Amendment: Text, Origins, and Meaning. Retrieved from https://www.thoughtco.com/the-fourth-amendment-721515 Head, Tom. "The Fourth Amendment: Text, Origins, and Meaning." ThoughtCo. https://www.thoughtco.com/the-fourth-amendment-721515 (accessed May 26, 2018).