Fourth Amendment Interpretations in Justice

Abstract

This article offers a review of Fourth Amendment interpretive law, with a focus on evolving exemptions to the exclusionary law as well as how social media had impacted interpretations of unreasonable searches and seizures and citizens’ privacy rights.

Criminal Justice Investigations: The Fourth Amendment

The Fourth Amendment to the Constitution guarantees “the right of the people to be secure in their persons, houses, papers, and effects,” by protecting them “against unreasonable searches and seizures,” with the additional caveat that “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” (Freidman & Kerr, 2022, par.1). Although the wording of the document seems fairly straightforward, it has proved contentious determining what constitutes reasonable and unreasonable searches under the law, and what constitutes private and public spaces, including areas such as one’s car, workplace, and even online.

One watershed moment in the history of the Fourth Amendment was the notion of the exclusionary rule, or the idea that evidence which was seized improperly could not be used in a court of law. There are many exceptions to the exclusionary rule, but the purpose of the restriction is widely considered that it is to disincentivize illegal police behavior, if the police are convinced a suspect is guilty, but lack adequate grounds to engage in a search or to obtain a warrant. Exceptions to the exclusionary rule include the good faith exception, independent sources, inevitable discovery, attenuation, impeachment, and qualified immunity (Jurkowski, 2017). In the case of the good faith exception, for example the courts may allow evidence, even if the evidence was obtained illegally, so long as it was gathered in evident good faith by the police, with the belief that the police were acting lawfully (Jurkowski, 2017).

In the case of an independent source, if an independent source legally obtained evidence, the illegal search’s fruits can still be used in court, and it is no longer the so-called fruit of the poisonous tree. Inevitable discovery alleges that the police would have found the evidence regardless, even if they had not conducted the illegal search (Jurkowski, 2017). Attenuation suggests that if there is sufficient distance between the discovery of the evidence and the illegal act, it may be allowed. Illegally obtained evidence can also be used to impeach witness testimony and also cannot be used against the police to convict an officer of the crime of violating a subjects’ rights (Jurkowski, 2017).

The 1961 U.S. Supreme Court decision Mapp v. Ohio was the first decision that applied the exclusionary rule universally to the states. In this instance, Mapp was convicted for possessing obscene materials after being subjected to illegal police search unrelated to such obscene materials. The police had no warrant to search for such materials, nor no probable cause to believe she possessed them. Although Mapp had appealed the conviction upon First Amendment grounds, the court struck down her conviction instead upon the fact that the materials were illegally obtained.

However, given the numerous exceptions which have arisen to the rule over the years regarding interpretation of how and when to apply it, the validity of the exclusionary rule is far from decided, and some might even contend that instead of throwing away illegally excluded evidence, a better approach might simply be to prosecute rogue policemen who do not follow constitutional protocols over the course of their duties (Friedman & Karr, 2022). Civil libertarians have argued that the Court has recently been eking away at Fourth Amendment rights, while advocates for prosecutors allege the need to balance the right of suspects with the right of the public to be safe.

Another question which frequently arises regarding the Fourth Amendment is what constitutes a search. Although it might be tempting to say never, consider the concept of airport security, whereby all individuals are searched in some shape or form (by going through metal detectors or other body search technology), and some are randomly selected to be searched, without any probable cause (Friedman & Karr, 2022). Stop-and frisk searches pose similar issues for law enforcement personnel regarding suspect rights, as is seen frequently discussed in the news and online. On one hand, it is alleged that if individuals are universally search, this is in effect, no harm nor no civil rights violation, but communities of color often allege that such searches disproportionately take place in underserved areas with historic tensions with the police, resulting in unfair and discriminatory practices against minority communities, and a violation of the right of the individual to move freely about, unmolested.

On the other hand, some types of random stops, such as driving stops to ascertain if individuals are drinking, have had a measurably positive effect upon preventing driving while intoxicated as well as reducing drinking fatalities: “Past estimates suggest that law enforcement against drunk driving reduces traffic fatalities by 20% and that high-probability detection is more effective than high-severity punishment,” although on civil rights grounds 12 states in the US, have prohibitions against random sobriety checkpoints by law enforcement (Redelmeier & Detsky, 2017). This raises the question if such checkpoints provide a valuable enough service that the civil rights concerns which they may present are less important to society, even if they may not necessarily meet a strict standard of the exceptions to the exclusionary rule.

A final issue which has arisen regarding Fourth Amendment law is how to interpret the use of technology in regards to searches and seizures. Technology such as social media offers a treasure trove of personal data that can be useful to law enforcement in a variety of contexts. Do public (or even private) Facebook posts constitute evidence in plain view, or must they only be searchable and available to law enforcement if the police obtain a warrant? What about such posts made on personal versus work computers? The Brennan Center has offered some potential evaluative standards for the degree to which such evidence constitutes public or private space that should be searched, including the comprehensive nature of the technology, thus allowing for surveillance to a near-perfect degree, and for a long duration (Hecht-Felella, 2021). Other considerations include the level of intimacy (the extent to which the communications reveal highly personal information that would normally only be disclosed to intimate friends), the relative ease, cheapness, and efficiency of the technology versus other standard surveillance tools, and the lack of specificity (the extent to which the police do not even need to know or identify the individual in advance, because the range of communication use is so vast) (Hecht-Felella, 2021).

To return to the example of Mapp v. Ohio, the obscene communications found within Mapp’s home which even in an illegal search took some effort to find might be very easily accessible on a Facebook post. Or, such a post on a private account might be screenshotted and posted by a user’s friend on a public account, giving a slightly deeper level of expected privacy, but still accessible without the user’s knowledge on the very public and easily searchable site of Facebook. Technology’s ease and accessibility, its ever-changing nature, and even the fact that law enforcement may not, because of generational divides, fully understand the extent to which certain methods generate expectations of privacy, continue to complicate Fourth Amendment rulings.