Fourth Amendment

Fourth Amendment

Professor Mark J. Richards

2012

I. Text of the fourth 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."

II. The shift to a less libertarian view of the fourth amendment

A. Probable cause

1. Generally, probable cause is required for a search and seizure to pass constitutional muster. Aguilar v. Texas (378 U.S. 108, 1964) established two independent requirements for probable cause in cases involving informants. Police must explain how informants know what they know, and why the police believe that the information is accurate. The police need to prove probable cause on both prongs of the test. Prior to 1983, a failure on the part of the government to meet either one of these requirements meant that the search lacked probable cause and would most likely be held unconstitutional.

2. However, the 1983 Illinois v. Gates (462 U.S. 213) decision began the move toward a new legal regime by holding that the two requirements were no longer independent. In a closely related 1984 decision (Massachusetts. v. Upton, 466 U.S. 727), the Court held that the "totality of the circumstances" is enough to justify a finding of probable cause, and stated that more deference should be given to findings of probable cause by lower courts and magistrates.

B. Exclusionary rule

1. Previously, the Court had established that evidence which was obtained through searches based on defective warrants lacking probable cause was to be excluded from consideration in a defendant’s conviction because the means of obtaining such evidence violated the fourth amendment (see Weeks v. U.S., 232 U.S. 383, 1914, and Mapp v. Ohio, 367 U.S. 643, 1961). This is the exclusionary rule, and it served as a major check on police violations of the fourth amendment until it was eviscerated by Leon and Sheppard.

2. Good faith exception

Two 1984 companion cases, United States v. Leon (468 U.S. 902) and Massachusetts v. Sheppard (468 U.S. 981). Leon and Sheppard established a good faith exception to the exclusionary rule. The exclusionary rule no longer applies to situations where the police, acting in good faith, seize evidence in the context of reliance on a warrant which lacks probable cause. Good faith means that the police reasonably believe that the warrant was properly issued. In other words, the police can seize evidence based on a warrant that lacks probable cause, but the evidence can still be used against the defendant if the police acted in good faith.

3. Inevitable discovery exception

Two additional 1984 cases also carved out exceptions to the exclusionary rule. If the police would have inevitably discovered (Nix v. Williams, 467 U.S. 431) the illegally obtained evidence or obtained it through other independent sources (Segura v. U.S., 468 U.S. 796), it does not need to be excluded.

4. Bottom line

The good faith and inevitable discovery exceptions to the exclusionary rule indicate that the Court will be generally less sympathetic to the claims of the accused in search and seizure cases. See: Herbert M. Kritzer and Mark J. Richards. 2005. "The Role of Law in the Supreme Court's Search and Seizure Jurisprudence." American Politics Research 33 (January): 33-55.

III. Exceptions to warrant requirement (See Epstein and Walker 2010, 460-462)

A. Consent

B. Terry searches

1. Terry v. Ohio (1968) permits an officer to frisk an individual under investigation when the officer has a reasonable suspicion that the individual is armed and dangerous.

2. Terry searches are limited to weapons that could be used to harm officers or others nearby.

C. Plain-view, plain-feel exceptions

1. In conducting a stop or a Terry search, if the officer observes an object that plainly appears to contraband, the officer may constitutionally seize the contraband (Michigan v. Long 1983). This is the plain-view exception. The rationale is that no reasonable expectation of privacy has been invaded, so this does not constitute an additional, independent search.

2. The plain-feel exception is analogous to the plain-view exception. "If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons" Minnesota v. Dickerson (508 U.S 366, 1993).

D. Search incident to arrest

E. Preventing loss of evidence

F. Hot pursuit

G. Drug dogs

H. Areas where there is no reasonable expectation of privacy (e.g. airport security screening)

IV. U.S. v. Leon (468 U.S. 902, 1984) and Massachusetts v. Sheppard (468 U.S. 981, 1984)

A. Facts

What was the problem with the warrant issued in the Leon case?

Lacked probable cause

B. Issue

Should the fourth amendment exclusionary rule be modified so as not to prohibit the prosecutor's use of evidence "obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause"?

Should the unconstitutionally obtained evidence used against Leon be excluded?

C. Holdings (White)

1. The fourth amendment exclusionary rule does not prohibit the prosecutor's use of evidence "obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause."

2. Exclusion is appropriate when:

-The judge issuing the warrant was misled by information on an affidavit that the officer "knew was false or would have known was false except for his reckless disregard for the truth."

-The officer relies on a warrant issued by a judge who failed to act in a neutral and detached manner.

-The officer unreasonably believes that probable cause exists.

-"A warrant is so fatally deficient - i.e. in failing to particularize the place to be searched or the things to be seized - that the executing officers cannot reasonably presume it to be valid."

3. The unconstitutionally obtained evidence used against Leon should not be excluded.

D. Reasoning

1. There are costs to imposing the exclusionary rule; it undermines truth-finding and allows some guilty criminals to go free or plea bargain to reduced sentences.

2. The exclusionary rule is justified by its effect on deterring unconstitutional police searches. However, if the officer is acting reasonably and in good faith, then the rule does not have a deterrent effect in that situation.

3. The exclusionary rule does not deter judges who issue warrants, because judges have no stake in the outcome of particular criminal prosecutions. Therefore, the police should not be punished when judges issue faulty warrants.

4. The text of the fourth amendment does not require the exclusionary rule.

5. Officer Rombach acted reasonably and in good faith, despite the finding of the Court of Appeals that there was not sufficient probable cause to support the warrant.

E. Concurrence

Blackmun argues that if the effect of the ruling is to discourage police compliance with the fourth amendment, the Court may reconsider the ruling.

F. Dissent (Brennan and Marshall)

1. "The right to be free from the initial invasion of privacy and the right of exclusion are coordinate components of the central embracing right to be free from unreasonable searches and seizures." (See Weeks and Mapp.)

2. The fourth amendment restrains the government as a whole, not just the police, so the majority's distinction between the deterrent effects on the police and judges is not textual. Also, both the police and the judiciary are involved in the singular government action of the search.

3. Weighing the costs of exclusion of evidence due to unconstitutional searches and seizures is improper. Such actions are categorically prohibited by the fourth amendment.

4. 1979 GAO study indicates that only 0.4% of all cases declined by federal prosecutors were declined due to illegal search problems.

5. The ruling will encourage police ignorance of the law, and discourage paying careful attention to constitutional warrant requirements. The holding will also discourage careful judicial review of warrant decisions, because even if the judge improperly issues a warrant, the decision will not be overturned if the police acted in good faith.

V. Safford Unified School District v. Redding (2009)

A. Facts

Who was Redding?

Why was she searched?

How was she searched?

B. Issue

C. Holding

D. Reasoning (Souter)

1. What is the standard in a school setting for level of suspicion needed to justify a search?

2. Was there enough evidence to justify a limited search? What could be searched?

3. Why does a search of her bra and underpants go too far?

E. Thomas, concurring in judgment and dissenting in part

1. Why would he hold that the search did not violate the fourth amendment?

2. Why does the dangerousness of the drug not matter?

3. What are the negative policy implications of the Court’s decision