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2005-6 Civil Liberties Topic Guide

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“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.” (U.S. Constitution, Article IV).

The Fourth Amendment is designed to protect against “unreasonable” searches and seizures by the government. Determining which searches are “unreasonable” is left to the courts to interpret or for the legislature to define. These interpretations and definitions are the heart of Fourth Amendment law.

Much of the history of Fourth Amendment law that occurred prior to the U.S. v. Katz Supreme Court decision is not relevant today because Katz overturned all of the important decisions central to this portion of the topic. I discuss the previous decisions briefly only because they provide an important contrast to contemporary law, and do introduce some of the most important theoretical issues related to the controversy.

The first famous Fourth Amendment case was Boyd v. U.S. (116 U.S 616 (1886). In this case, the federal government argued that Boyd lied about the contents of shipments of glass in order to avoid paying taxes. The federal government served Boyd with a subpoena for the invoices. Boyd claimed that the subpoena was unconstitutional, and the Supreme Court agreed, ruling that the government was forbidden to seize personal documents to be used as evidence against the maker of the documents. This decision is amazing to anyone knowledgeable of present day Fourth Amendment law. As O’Neil (1998) explains, “If it were true that the government has no constitutional right to ever obtain a person’s record keeping, then the modern regulatory state would have been an impossibility” (p. 702).

Within 20 years, the Supreme Court began cutting back on this grant of privacy. In Hale v. Henkel (201 U.S. 43 (1906)) a secretary-treasurer of a corporation objected to a subpoena issued pursuant to a Sherman Act investigation on the grounds outlined in Boyd. The Court rejected his claim, arguing “The privilege claimed would practically nullify the whole act of Congress…We do not wish to be understood as holding that an examination of the books of a corporation, if duly authorized by Congress, would constitute an unreasonable search and seizure within the Fourth Amendment” (p. 77). This began a trend in the Court that favored allowing the government adequate means to enforce necessary regulations without a warrant.

Prior to 1914, it was not clear what the penalty was for police officers who used illegally obtained evidence in prosecution. In U.S. v. Weeks (232 U.S> 383 (1914)) the Court adopted the exclusionary rule. The exclusionary rule says that any evidence obtained illegally could not be used against the defendant. The Court said that the rule was based on personal rights guaranteed in the Fourteenth Amendment. In Mapp v. Ohio (367 U.S. 643 (1961)) the Court applied the exclusionary rule to states: police at the state and local levels who obtained access to evidence through illegal earches and seizures would not it excluded at trial.

Relevant judicial history since Henkel dates back to the decision of Hester vs. the United States (265 US 57 (1924)). In Hester, two federal revenue agents hid in the bushes of the defendant’s property and observed that he was selling moon shine whiskey. Hester wanted the agent’s testimony suppressed because, he argued, they were trespassing on his property without a warrant. The Supreme Court rejected his claim, arguing that the Fourth Amendment extended to “persons, houses, papers, and effects,” but not to “open fields.” Similarly, in Olmstead v. the United States (277 U.S. 438 (1928)) defendant Olmstead challenged wire-taps on his phone that were used to convict him of a conspiracy to violation the National Prohibition Act. Consistent with its decision in Olmstead, the Supreme Court rejected his challenge, arguing that since there was not trespass on his private property that the agents did not need to obtain a warrant to engage in the wiretap.

In Katz v. U.S., the Supreme Court expanded the area that was free from government search intrusion without a warrant beyond the area of an individuals’ home. Katz, the defendant, was suspected of transmitting wagering (betting) information from a pay telephone. The police, without a warrant based on probable cause, placed a wiretap on the phone that Katz was using to collect evidence. In Katz v U.S., the Supreme Court ruled that such wiretaps constitute a “search” within the meaning of the Fourth Amendment, and that the protections of the Fourth Amendment “protects people, not

As discussed, the courts, particularly the Supreme Court, have played an important role in the development of Fourth Amendment law as it relates to searching without probable cause. Through a series of cases, the courts have generally defined both the boundaries of what constitutes a search and what types of searches do not require probable cause. In the previous section, I briefly introduced the importance of the courts, and in this section I will discuss some important Supreme Court cases that are related to searching and probable cause.

There are other areas of the law that the affirmative can draw cases from where the Supreme Court has said that a “search” has occurred but that probable cause is not required

Special needs searches

Border searches

Consent searches

Searches incident to arrest

Stop and frisk searches

Administrative searches

n Prison Searches

n Open fields searches

Study questions

1. Is the Court moving in the direction of protecting Fourth Amendment rights or way from protecting them?

2. List and explain four exemptions to the probable cause requirement.

3. What are the two most likely advantages to a case that increases Fourth Amendment protection?