Fourth Amendment Primer

• Author: Deja Vishny
• Pages: 115-128

3-1

CHAPTER 3

Fourth Amendment Primer

I. INTRODUCTION

The right of the people to be secure in their persons, houses, papers, and eects, against unreason-

able searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable

cause, supported by Oath or armation, and particularly describing the place to be searched, and

the persons or things to be seized.

Const. Amend. IV.

The Fourth Amendment: the bulwark of American liberty; a bedrock protecting Americans against governmental

overreaching; a wall that stands between the average citizen and unlawful police intrusion. Hah! These days the Fourth

Amendment is more like a piece of Swiss cheese, a punctured barricade, a cracked foundation. Fourth Amendment

jurisprudence is all about the exceptions, not the rule. The Supreme Court has done an almost complete about-face from

its pronouncement in Mapp v. Ohio, 367 U.S. 643, 655 (1961), that “all evidence obtained by searches and seizures

in violation of the Constitution is, by that same authority, inadmissible in a state court,” to its current view that, “Sup-



‘substantial social costs.’” Hudson v. Michigan, 547 U.S. 586,591 (2006).

Yet, despite the numerous exemptions from the general rule, Fourth Amendment litigation is an essential tool for



are some recent bright spots, such as Riley v. California, 134 S.Ct. 2473 (2014), where the court unanimously ruled that

police may not conduct a warrantless search of a cell phone incident to an arrest; and Florida v. Jardines, 133 S. Ct. 1409



For the typical practitioner, suppression motions that are litigated will never make it to an appellate reporter. Every

day suppression motions are granted, which are never appealed. These victories frequently lead to case dismissals or,



to mention having happy clients.

The next set of chapters in this book [Chapters 4-x] will delve deep into Fourth Amendment litigation, with case

   

Supreme Court has interpreted the Fourth Amendment, to help you spot issues for litigation in your cases.

II. CORE PRINCIPLES

A. Exclusionary Rule

§3:01 Illegally Obtained Evidence is Inadmissible

When searches and seizures violate the Fourth Amendment, the evidence is to be excluded from court proceed-

ings. Weeks v. United States, 232 U.S. 383 (1914). In Mapp v. Ohio, 367 U.S. 643 (1961), the court ruled the Fourth

Amendment applies to the states via the Fourteenth Amendment guarantee of due process.

§3:02 Fruit of the Poisonous Tree Doctrine

Evidence that is obtained or derived as a result of the unlawful search or seizure is excluded as the “fruit of the

poisonous tree.” Wong Sun v. United States, 371 U.S. 471 (1963). The tainted evidence can be tangible physical evi-



United States v. Crews, 445 U.S. 463 (1980).