Chapter 7 Fourth Amendment: Search and Seizure
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Chapter 7 Fourth Amendment: Search and Seizure
It is commonly held that the ten amendments that make up the Bill of Rights were enacted in response to the perceived abuses of American colonists by British colonial rule. The exact language of the Fourth Amendment is:
The right of the people to be secure in their houses, persons, papers, and effects against unreasonable searches and seizure, shall not be violated; and no warrants shall be issued 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.
The inspiration for the Fourth Amendment was most likely the fact that American colonists had no safeguards against search and seizure of property by the British colonial authorities. These authorities had what were called "writs of assistance," which allowed them to search anyone or their property at any time. This general warrant that could allow authorities unfettered powers to search and seize evidence did not strike Americans as especially fair (Samaha, 2012).
The language of the Fourth Amendment seems somewhat jumbled and wordy, and unfortunately, jurisprudence regarding the amendment has been just as chaotic. As Amar (1994) notes, the Supreme Court, in some cases, holds that the words of the amendment should be strictly construed, while in other instances, the Supreme Court seems to have provided a near limitless number of exceptions and circumstances in which neither warrants nor probable cause is needed. Among the established exceptions to the Fourth Amendment are "good faith" (Ball, 1978), "child welfare" (Coleman, 2005), and "exigent circumstance" (Katz, 1990). However, these exceptions are more applicable to general citizens and not to people who are inmates in a correctional facility. Regardless of the more narrower focus and the lesser rights that inmates enjoy, there are a few basics of Fourth Amendment jurisprudence that need to be discussed.
In general, most legal scholars recognize that the Fourth Amendment has two clauses. The first clause, often referred to as the reasonableness clause, simply demands that searches not occur unless some reason exists for the search. The second clause, which many people refer to as the warrant clause, demands that all warrants be supported by probable cause. The two clauses of the Fourth Amendment may seem easy to interpret at first; however, this is not the case and many legal scholars debate the link between the two. Such views are largely dictated by some combination of the judicial philosophy of a particular legal scholar and the individual facts of a case. Thus, there is often little consistency when deciding if mere probable cause is enough to search a person's home, business, or belongings, or a warrant is actually required (Davies, 1999).
While these circumstances may appear discouraging, some basic rules can be given. Unless some exception exists, such as exigent circumstances, law enforcement will need a search warrant to conduct a search of a person's home. A search of a person while walking down the street or riding in an automobile need be based only on probable cause (Samaha, 2012). There is an exceedingly practical reason for this distinction. If law enforcement wants to search a dwelling, officers can go through the normal procedures, present evidence of probable cause to a judicial official for a warrant, and then later present the warrant during a search of the premises. However, if a law-enforcement officer wishes to search a person on the street or a person riding in a vehicle, it would be inherently difficult to get a search warrant. After all, there is little guarantee that the person would still be there after the police left to get a warrant. One court case that illustrates such a distinction is California v. Carney. In that case, an agent of the Drug Enforcement Administration (DEA) possessed information that Carney had given marijuana to a person in exchange for sex in Carney's mobile home. After personally observing Carney take a "youth" back to his mobile home, the DEA agent stopped and questioned the youth after the youth had left the mobile home. The youth's story corroborated what the DEA agent had previously heard, so the agent requested that the youth knock on the door of the mobile home. Carney responded to the knock at the door and stepped out of the mobile home. After Carney stepped outside the mobile home, the DEA agent searched the premises and found marijuana. The Supreme Court ultimately ruled that the DEA agent, in that case, did not need a search warrant, as the home was also being used for transportation and was not in a place that was regularly used for residential purposes. Thus, the Court seemed to draw a line between actual fixed residences and residences that could be quickly moved.
In addition to whom or what can be searched, the courts have also considered what exactly constitutes a search. Originally, courts recognized what is called the trespass doctrine when deciding if an actual search occurred. If law enforcement could observe either a person's actions or contraband that they carried out on the street, these items were considered in "plain view." Law enforcement was able to view these items without trespassing. However, if law enforcement came upon a person's property without permission or a warrant and discovered contraband, officers would not be able to seize those items, because they had trespassed to find them (Harper, 2008). While this doctrine seems to make good sense, new technology frustrated this doctrine. In Olmstead v. United States, four people were convicted of violating the National Prohibition Act. To help gather evidence against these individuals, prohibition agents had placed taps along telephone wires into the homes of the appellants, as well as of the business office that they frequented. The Court ruled that no illegal search occurred because the agents had not actually physically trespassed onto the property of any individual. Yet, the Olmstead ruling was a relatively short-lived precedent. Perhaps the Supreme Court failed to properly contemplate the extent of its ruling and how the new technology of the telephone challenged existing legal doctrines, because it was Justice Brandeis' dissenting opinion in Olmstead that would become the future standard for dictating whether an unconstitutional search had occurred (Harper, 2008).
Prior to becoming a Supreme Court justice, Justice Brandeis had discussed what he believed to be a sacred right, the right to privacy. Although a right to privacy cannot explicitly be found in the Constitution, Brandeis argued that this right essentially meant that Americans should enjoy the right to be left alone (Harper, 2008). Thirty-nine years after Olmstead, in its ruling in Katz v. United States, the Supreme Court overturned its earlier position and ruled that searches should be guided by the privacy doctrine instead of the trespass doctrine. Ultimately, rather than deciding whether law enforcement officers had simply gone somewhere they were not authorized to go, courts need to decide whether a person, by their actions and deeds, indicated that they desired some form of privacy. In Katz, the appellant had walked into a public phone booth and shut the door. This indicated to the Court that he intended to conduct his conversation in private. Thus, if law enforcement agents wanted to tap a phone, they could still do so, but in the future, they would need a warrant. Finally, in Justice Harlan's concurring opinion in Katz, he identified a two-prong test for determining whether a person had demonstrated a desire for privacy. First, a person must have demonstrated that they had some expectation of privacy, which courts recognize as a subjective showing of privacy. Second, society as a whole must also recognize that an activity should guarantee privacy, which courts recognize as an objective showing of privacy.
A later case, Kyollo v. United States, further demonstrates how the privacy doctrine works. In that case, a law-enforcement officer suspected that Kyollo was growing marijuana inside his home. While the officer had a suspicion that illegal activity was going on, he did not have enough evidence to establish the probable cause needed for a warrant. Instead of trying to obtain further evidence through typical investigative means, the officer obtained a thermal imaging device that allowed him to see heat signatures that were not detectable by the naked eye. After a thermal image inspection, the officer noticed that an unusually large heat source was present around the area of Kyollo's garage that was not present in any of the neighboring homes. Combined with tips from informants and utility bills that showed that Kyollo paid a larger-than-usual electric bill, a warrant was obtained to search Kyollo's residence. Ultimately, more than 100 marijuana plants were found in the home. However, despite the officer's suspicions being confirmed, the Court ruled that Kyollo's rights had been violated. The thermal imaging device allowed the officer to observe something in the house that was not ordinarily visible. By using this type of technology, the officer had essentially looked inside Kyollo's house, which was not permitted without a search warrant.
The previously discussed cases clearly demonstrate the fierce debate over peoples' rights to be secure in their houses, persons, papers, and effects against unreasonable searches and seizure, thus placing restrictions on the power of agents of law enforcement and criminal justice. However, this debate takes a different turn when we shift our discussion to correctional settings. Incarcerated individuals, it is argued, should not have a reasonable expectation of privacy. After all, this expectation was forfeited during arrest and sentencing. As we discussed earlier...
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