Fourth Amendment: History, Search and Seizure Law Explained

Fourth Amendment Background

The Fourth Amendment protects people's right to be secure in their persons, houses, papers, and personal effects against unreasonable searches and seizures. It further provides that no warrants shall be issued except upon probable cause, supported by oath or affirmation, and describing particularly the place to be searched and the persons or things to be seized. Like most fields of U.S. law, the English common law forms the principal basis of the Fourth Amendment. Broadly, it was created to limit governmental powers and the capacity of the state to enforce legal actions upon citizens. Amendment IV was implemented as a direct reaction to the historical abuse of writs of assistance — a type of general governmental search warrant employed during the era of the American Revolution. The Amendment was created to limit law enforcement powers when searching any American resident's personal property.

The Fourth Amendment falls under the Bill of Rights — the first ten Constitutional Amendments — which together provide the framework for defining individual freedoms. These Amendments were proposed and directed to the states during the first Congressional session of America's First Congress, under President George Washington's presidency, and were ratified on December 15, 1791. James Madison introduced them as a collection of statutory articles, which became effective as Amendments after ratification by 75% of the states.

Amendment IV constitutes the richest source of American constitutional litigation, particularly following its incorporation against the states through the Due Process Clause of the Fourteenth Amendment. It has a tremendously broad reach: of the several million arrests made each year in the United States, each one marks a Fourth Amendment event. Similarly, all searches of private areas or individuals by public officials — whether police officers, schoolteachers, airport security officers, crossing guards, or probation officers — implicate the Amendment. The Fourth Amendment serves as a constitutional guardian of individuals' privacy when it is diminished by a governmental search or seizure. It safeguards citizens' legitimate privacy expectations. In law, the term "legitimate" implies a genuine expectation of individual privacy that society considers "reasonable." Defining this phrase has generated considerable litigation under the Amendment's reasonableness clause.

The Constitutional Founders' attention to protecting citizens against unwarranted searches and seizures — and to mandating the production of particularized warrants under the Amendment's Warrant Clause — stems from three famous eighteenth-century cases, one from a colony and two from Britain. The two English cases, Wilkes v. Wood and Entick v. Carrington, involved pamphleteers who opposed the government. They were apprehended and their papers and books seized. Law enforcement used warrants that did not specify the places to be searched or the names of the suspects. Seizing agents were sued by both defendants for trespass, and both cases were decided in favor of Wilkes and Entick.

Search and Seizure Law in England and the Colonies

The Fourth Amendment forbids personal and privacy violations arising from unwarranted governmental intrusion. The Founders were clear about what constituted "unreasonable" conduct because they had direct experience of it under English rule. Before the American Revolution, the English claimed the power to furnish writs of assistance enabling law enforcers to force their way into businesses and private homes in search of evidence of smuggling. These general search warrants empowered their holders to search wherever they wished for smuggled items, without specifying which goods to look for or where to look for them. The writs had no expiration date and were regarded as an acceptable alternative to specific warrants. They could also be transferred and were, in fact, contrary to English legal tradition. Sir Edward Coke, the English Attorney General, maintained as early as 1604, in the Semayne Case, that the law possessed no unlimited authority to enter private dwellings.

Few provisions of the Bill of Rights grew so directly from colonial experience as the Fourth Amendment, which embodies the safeguarding of citizens against the use of writs of assistance. Nevertheless, a rich British legal tradition also informed this development. A celebrated English principle demonstrated in the 1603 Semayne Case was that every man's home is his castle. That civil case, Semayne v. Gresham, acknowledged homeowners' rights to defend their homes against unlawful entry, even by agents of the King, while simultaneously recognizing that appropriate officials could break and enter upon notice for the purpose of making arrests or executing the Crown's process. Entick v. Carrington, one of eighteenth-century England's most famous cases, arose from a series of civil lawsuits against state authorities who had used general warrants to raid numerous homes and private properties while seeking materials linked to John Wilkes' critical pamphlets attacking the King and British governmental policies.

One major colonial grievance against the British government concerned warrants used by trade officials to search colonists' personal property for smuggled goods. These documents — writs of assistance — accorded authorities broad powers to conduct seizures and searches based solely on general suspicion of unlawful acts. Introduced first during the reign of Henry VIII (1513–47), the English government maintained that these general search and seizure warrants, which stated no specific wrongdoing, were essential for efficient enforcement — particularly against publications deemed dangerous by the government. However, this practice was unpopular, and the controversies surrounding the Glorious Revolution of 1688, which forced James II from the British throne, led Parliament to begin limiting such powers. By the time the American Revolution began, general warrants had already markedly declined as a tool for restraining the press. Customs officials, however, continued using them without restriction. Because these writs were rarely used to seek smuggled goods within England itself, the British saw little problem with broad search and seizure powers in the customs context. Americans, however, had a dramatically different experience.

Warrant law originated in England and has a long history. Despite British citizens enjoying a right to defend their homes, agents of the law were authorized to enter and arrest individuals within their homes when enforcing the King's orders. Once England established its American colonies, laws governing search and seizure were enacted in response to the smuggling of illegal goods. British agents in the colonies were equipped with lifelong writs — court-issued authoritative documents — for searching property for unlawful contraband. Colonial communities were hostile to these writs, and by 1760 opposition to them had grown substantially. Plymouth lawyer James Otis influenced colonists to denounce the writs as violations of individual liberties. Following the American Revolutionary War, the nation became an independent state, and the Constitution's framers enshrined these protections. Adopted into the U.S. Constitution in 1791, the ten Amendments — including the Fourth — became American law, assuring early citizens that government agents could no longer unreasonably search their homes without proper cause and a valid warrant.

The customs inspectors of Britain, seeking to eradicate smuggling in colonial Boston, were provided with general search warrants allowing them to look anywhere they believed contraband might be found. Furthermore, these writs allowed law enforcers to compel private citizens to assist them — hence the term "writs of assistance." A group of Boston merchants, represented by James Otis, sued and sought a ruling that the writs were invalid. Though the merchants did not prevail, Otis's argument — a powerful defense of citizen privacy — became widely known and reinforced American opposition to English rule. John Adams later said of Otis's argument that it gave birth to American independence.

Historians generally agree that the Fourth Amendment aimed at affirming the outcomes in Entick and Wilkes and reversing the result of the Writs of Assistance Case. Three principles appear to follow from this. First, the government must not be authorized to search without substantial justification — a reason to believe the place to be searched contains required evidence. This was where the writs failed: searches were authorized on the basis of mere unsupported suspicion. Second, searches, especially of private homes and property, must not exceed their justification. This was the problem in Entick and Wilkes — authorities did not merely seek forbidden writings but seized every paper and book in the accused parties' homes. Third, the government must not use blanket warrants to evade the first and second principles.

Smuggling — not seditious libel — was the primary reason why protection against unwarranted searches and seizures was needed in the British colonies. To enforce revenue laws, British authorities employed writs of assistance: general warrants authorizing the bearer to enter any place, including private homes, to seek and seize uncustomed or illegal goods, and to compel subjects to assist them. Once issued, the writs remained in force throughout the sovereign's lifetime and for a further six months after death. When, following George II's death in 1760, authorities had to obtain new writs, James Otis led the opposition and attacked them on liberal grounds, asserting their invalidity due to their contradiction with British constitutionalism. Though Otis lost and new writs were furnished and used, his arguments were widely cited throughout the British colonies, both on the immediate subject and in connection with judicial review.

Evolution of Search and Seizure Laws in United States History

The Fourth Amendment of the American Constitution provides that citizens shall be safeguarded in their persons, houses, papers, and effects against unreasonable searches and seizures, and that no warrants shall be issued except 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 Amendment was approved on December 15, 1791, as one of ten amendments comprising the Bill of Rights. These Amendments reflected many citizens' unwillingness to accept the national Constitution without clauses that explicitly prohibited federal authorities from certain actions. The Fourth Amendment in particular addressed colonists' recent experiences with English soldiers, who frequently forced their way into colonists' homes without a warrant — or bearing one that was broadly or ambiguously worded — and confiscated whatever they desired.

Boston lawyer James Otis had recently been appointed Advocate General of the Admiralty Court, making him, in essence, the British Crown's top lawyer in America. In that post he was expected to defend the government's use of general writs. Strongly opposed to such arbitrary property searches and seizures, he resigned and instead took up the position of attorney for a group of more than fifty merchants who challenged the writs in court as unjust. Otis represented the merchants without charge. His speech condemning the writs, broad search warrants, and other English policies was so eloquent and compelling that word of it spread to all the colonies, and Otis was elevated to a position of leadership amid the growing tide of opposition to England.

After the Constitution was written, each state held its own convention to debate its merits. A number of individuals opposed it on the grounds that it granted the central government excessive power at the expense of states and individual rights. These critics — known as Anti-Federalists — were led by George Mason, Elbridge Gerry, Patrick Henry, and others. Their chief concern was that federal authorities would crush individual rights, and they demanded the inclusion of ten amendments explicitly stating which citizen rights were safeguarded from governmental interference.

The Fourth Amendment consists of only a few sentences, yet it has generated one of the most extensive bodies of legal theory, case law, and interpretation in the United States. The Supreme Court has contracted, expanded, and redefined the protections extended to citizens for more than two centuries, and this process continues today. From its elementary application to law enforcement searches of homes or vehicles, to its present-day implications for electronic surveillance, thermal imaging, and wiretapping, the Amendment aims at protecting what many Americans consider their most important right — the right to privacy. New Hampshire's Constitution, effective June 2, 1784, contains Article 19, which provides, in words similar to those of the Fourth Amendment, the basic rules applicable to searches and seizures conducted by state law enforcement officials. For more than 150 years, this Article formed the foundation of the state Supreme Court's decisions regarding whether particular search-and-seizure conduct was lawful, whether evidence derived from it was admissible, and what exceptions to the rule existed.

One of the first cases involving a Fourth Amendment violation was Boyd v. United States, 116 U.S. 616 (1886). In this case, the significance of Fourth Amendment privacy rights was discussed and established for the first time. Prior to it, police and other law enforcers were seizing documents pertaining to fraudulent claim cases heard in local courts. Boyd, the defendant, was importing glass plates from England into the United States and falsified import-related papers to avoid paying customs fees. Federal authorities, suspecting the documents were falsified, confiscated the plates. The Supreme Court held that the physical act of entering the search premises did not necessarily constitute an "unreasonable" search under the Fourth Amendment. Because the Court regarded Boyd's papers as private property, the District Attorney's inspection of them was deemed unconstitutional.

Nearly three decades later, in 1914, the Supreme Court addressed privacy rights in Weeks v. United States, 232 U.S. 383 (1914). Weeks, the accused, was transporting lottery tickets through the mail — at the time, an illegal form of gambling. He was arrested without a warrant after federal law enforcement discovered his activities, while other officers simultaneously entered his home without consent or a search warrant and seized his papers as incriminating evidence. He was convicted, but appealed to the Supreme Court. In 1914, the Court declared that evidence seized in direct violation of a defendant's constitutional rights cannot be used against him or her at trial. This principle became known as the Exclusionary Rule. However, at this stage the ruling applied only to federal courts and officials. State courts, including New Hampshire's, continued to follow the rule that the admissibility of evidence depended only on its relevance, not on how it was procured.

The law enforced by Mapp v. Ohio upon local police officers was essentially the same law imposed on federal authorities during the 1920s Prohibition era: probable cause for search and arrest, together with search warrants, was required unless there was good reason for not obtaining one. Partly because crime rates surged around the time Mapp was decided — serious felonies tripled in the following decade — these requirements came to be seen as burdensome for increasingly busy local police departments. Growing crime also produced public hostility toward the Supreme Court's attempts to regulate the criminal process, which was perceived as "handcuffing" prosecutors and police.

Beginning in 1968, the Supreme Court moved to relax those rules through two main strategies. First, in Terry v. Ohio, it allowed police officers to stop and frisk suspects on streets based on reasonable suspicion of criminal activity — a lesser standard than probable cause. Second, the Court made changes in the area of the warrant requirement. In a sequence of decisions between the early 1970s and early 1990s, it expanded or created several exceptions to the warrant requirement. Automobile searches, searches incident to a suspect's detention, and inventory searches — inspecting and cataloging the belongings of a person being arrested — were all exempted. Taken together, these exceptions meant that while the warrant requirement still applied to searches of apartments and houses, it was almost never applicable elsewhere. In cases of seizures and searches outside private homes, police still had to adhere to reasonable suspicion or probable cause standards, but they did not require advance judicial permission to conduct a search.

The introduction and expansion of the stop-and-frisk principle, as well as the contraction of the warrant requirement, were contentious. Fourth Amendment defenders — principally Justices Thurgood Marshall and William Brennan — argued fervently that preserving the probable cause standard, rather than the less demanding reasonable suspicion standard, was essential as the basic search-and-seizure threshold. They also argued for a general warrant requirement as an additional check on police overreaching. These arguments generally lost, and the legal structure that emerged in the early 1990s has since remained fairly stable.

Conclusion

With the increasing threats of war and terrorism, Americans' rights under the Fourth Amendment have become all the more relevant. While these laws may seem only temporarily necessary in response to a critical national emergency, it is imperative to remember that the war on terror has no predetermined duration. The United States will always face some form of ongoing threat. The changing landscape of world politics and the constant threat faced by the United States may lend legitimacy to certain security measures, but this context makes the importance of civil liberties even greater, not lesser.

Many judges have questioned the validity and benefits of the Patriot Act. To what extent can the civil rights of Americans be encroached upon? When does a law become so intrusive in nature that it acts against the best interests of its own people? There are multiple provisions within the Patriot Act that have received little judicial scrutiny. Even more troubling is that certain provisions under the Act are not subject to an expiration date. The existence of such open-ended powers diminishes the Bill of Rights and leaves little room for individual liberties, substituting control under the guise of security. The Rutherford Institute and similar civil liberties organizations continue to raise these concerns, reminding the public that constitutional protections must not be treated as expendable even during times of national crisis.