Fourth Amendment.

The Fourth Amendment of the United States Constitution is one of the most talked about and referenced pieces of legal doctrine utilized in the practice of law, as it can change the landscape of both civil and criminal cases, based on the evidence provided in support of the claim at hand.  The Fourth Amendment to the United States Constitution guarantees the right to be free from unreasonable search and seizure activities. Law enforcement professionals need probable cause (evidence needed to conduct searches, make arrests or obtain search warrants), and a warrant in many cases, to search your person or belongings.  If there is no probable cause and you are searched illegally, evidence collected through that search will not be admissible at trial.  In law this has become known as the exclusionary rule (evidence collected in illegal searches will not be allowed in a court of law).  The Supreme Court decided in the mid-twentieth century that if the police seize evidence as part of an illegal search, the evidence cannot be admitted into court. There are many arguments as to the benefit of this rule of exclusionary law because as some high level judges have stated: ” It is controversial because in most cases evidence is being tossed out even though it shows the person is guilty and, as a result of the police conduct, they might avoid conviction. “The criminal is to go free because the constable has blundered,” declared Benjamin Cardozo (a famous judge and ultimately Supreme Court justice). But, responded another Supreme Court justice, Louis Brandeis, “If the government becomes the lawbreaker, it breeds contempt for the law.”

Background of the Law.

This law stems from generations of “authoritative power” people beginning during the colonial era, where search and seizure activities become commonplace because colonists had smuggling operations to avoid being taxed by the government, and King George declared under “writs of assistance” that the government could search any property or home without notice or reason which became the colonists took as disrespect leading to the American Revolution and the development of the United States Constitution, and the Fourth Amendment was only applicable to the federal government at first, but application of law was amended through the Due Process Clause of the Fourteenth Amendment in 1868.


There are exceptions to the 4th Amendment right regarding search and seizure activity, common examples for police officers are 1) when someone is caught in the act of committing a crime or there is probable cause; and 2) conducting a pat down search when an office believes that a person is behaving in a manner to give the officer expressed suspicion that a crime is or will be committed.

Right to be Secure.

People have a right to “be secure in their person, houses, papers and effects, against unreasonable searches and seizures,” limiting authoritative powers of the police to search people, property or homes and seize evidence.  In recent years with the advancement of technology, the federal and state governments have means to acquire information that may have in the past been out of their reach, the legal arguments regarding the manner in which evidence for a case has been collected is now a topic in the courts due to the use of traffic cameras, cyber security matters, drones and aerial devices are utilized to monitor activities by other government officials and these are arguable violations to the 4th Amendment rights.

How do Police Violate the 4th Amendment Rights of a Person.

In theory, a warrant is required before police can search an area but, on the streets,  there are daily exceptions to the practice of obtaining a warrant.  Police can  Police can search automobiles without warrants, they can detain people on the street without them “stop and frisk,” and they can always search or seize in an emergency without going to a judge.  The arguable idea here is “in an emergency” whereby these standards need to be placed out in front of and judged in a court of law.  The way that the Fourth Amendment most commonly is put into practice is in criminal proceedings. What constitutes a “search” is certainly different today than when this law was written. If you saw someone planting a bomb or pouring gasoline over or around the perimeter of a building, a police warrant is probably not necessary.  However closed-circuit television, traffic cams, and drones gathering evidence, or internet third parties having access to accounts is making information available to anyone,  the police standing in Times Square in New York watched a person planting a bomb in plain daylight, we would not think they needed a warrant or any cause. But what about installing closed circuit TV cameras on poles, or flying drones over backyards, or gathering evidence that was given to a third party such as online banking.  Non-guilty, non-suspicious persons get searched at the airport daily, is this a violation of the 4th Amendment rights? The reason for this search is to deter people from bringing weapons but there is no “cause,” probable or otherwise, of wrongdoing. Advances in technology, global, national and cyber threats are making the 4th Amendment even more important in our society.

When are police breaking the law?  Police are teetering on the fine line of the 4th Amendment rights when they:

  1. Claim to hear a noise, or someone reports a noise, and they conduct a search on private property.
  2. Make a person get out of the car during a traffic stop and frisk them if they have not done anything suspicious. If they have a cell phone in a pocket that information could be illegally viewed and if there is incriminating evidence,  there a police officer may then expand a search.
  3. Searching a car during a traffic stop because they are suspicious of the way a driver moved. These are subject matters to argue in court.
  4. Bias-based profiling stop
  5. Entering someone’s home who may not be familiar with the law and conducting a search without permission because the person just let them in the door because of the badge.

Seek Legal Counsel.

There are many reasons why a law enforcement will claim to be acting within the scope of the law during a search and seizure encounter.  Each situation is unique to its circumstances and if you think your rights under the 4th Amendment of the United States have been denied, seek professional legal assistance by contacting a civil rights lawyer or someone deals with police brutality cases.


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