Fourth Amendment to the United

¶ … Fourth Amendment to the United States Constitution

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." Amendment IV (the Fourth Amendment) of the United States Constitution, which is part of the Bill of Rights, guards against unreasonable searches and seizures. The original text of the Constitution generated some opposition on the ground that it did not include adequate guarantees of civil liberties. In response, Congress proposed the Fourth Amendment, along with the rest of the Bill of Rights, in 1789. The process of adoption by ratifications by the requisite number of states was completed on December 15, 1791.

All jurisdictions put constraints on the rights of police investigators, and typically require search warrants, or an equivalent procedure, for searches within a criminal enquiry. A search warrant is a written warrant issued by a judge or magistrate, which authorizes the police to conduct a search of a person or location for evidence of a criminal offense. Under the Fourth Amendment to the United States Constitution, most searches by the police require a search warrant. In order to obtain one, an officer must first prove that probable cause exists, although this can be based on hearsay evidence and can even be obtained by oral testimony given over a telephone. Both property and persons can be seized under a search warrant. Under the Fourth Amendment searches must be reasonable and specific. This means that a search warrant must be specific as to the specified object to be searched for and the place to be searched. Other items, rooms, outbuildings, persons, vehicles, etc. would require a second search warrant.

Few provisions of the Bill of Rights grew so directly out of the experience of the colonials as the Fourth Amendment, embodying as it did the protection against the utilization of the "writs of assistance." But while the insistence on freedom from unreasonable searches and seizures as a fundamental right gained expression in the Colonies late and as a result of experience, there was also a rich English experience to draw on. "Every man's house is his castle" was a maxim much celebrated in England, as was demonstrated in Semayne's Case, decided in 1603. A civil case of execution of process, Semayne's Case nonetheless recognized the right of the homeowner to defend his house against unlawful entry even by the King's agents, but at the same time recognized the authority of the appropriate officers to break and enter upon notice in order to arrest or to execute the King's process. Most famous of the English cases was Entick v. Carrington, one of a series of civil actions against state officers who, pursuant to general warrants, had raided many homes and other places in search of materials connected with John Wilkes' polemical pamphlets attacking not only governmental policies, but the King himself. In an opinion sweeping in terms, the court declared the warrant and the behavior it authorized subversive "of all the comforts of society," and the issuance of a warrant for the seizure of all of a person's papers rather than only those alleged to be criminal in nature "contrary to the genius of the law of England."

In the colonies, smuggling rather than seditious libel afforded the leading examples of the necessity for protection against unreasonable searches and seizures. In order to enforce the revenue laws, English authorities made use of writs of assistance, which were general warrants authorizing the bearer to enter any house or other place to search for and seize "prohibited and uncustomed" goods, and commanding all subjects to assist in these endeavors. The writs once issued remained in force throughout the lifetime of the sovereign and six months thereafter. When, upon the death of George II in 1760, the authorities were required to obtain the issuance of new writs, James Otis, who attacked such writs on libertarian grounds and who asserted the invalidity of the authorizing statutes because they conflicted with English constitutionalism, led opposition. Otis lost and the writs were issued and utilized, but his arguments were much cited in the colonies not only on the immediate subject but also with regard to judicial review.

The language of the provision which became the Fourth Amendment underwent some modest changes on its passage through the Congress, and it is possible that the changes reflected more than a modest significance in the interpretation of the relationship of the two clauses. Madison's introduced version provided "The rights to be secured in their persons, their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized." As reported from committee, with an inadvertent omission corrected on the floor, the section was almost identical to the introduced version, and the House defeated a motion to substitute "and no warrant shall issue" for "by warrants issuing" in the committee draft. The word "secured" was changed to "secure" and the phrase "against unreasonable searches and seizures" was reinstated. In some fashion, the rejected amendment was inserted in the language before passage by the House and is the language of the ratified constitutional provision.