The Fourth Amendment and You: Understanding the Protection Against Unreasonable Search and Seizure

July 29, 2012 (Press-News.org) The Fourth Amendment to the United States Constitution protects all Americans against unreasonable searches and seizures of their property. What is an unreasonable search? Who decides if a search or seizure is unreasonable? Does a valid search have to be executed pursuant to a warrant? These questions and more will be answered in this article.

The Amendment Itself

The drafters of the Constitution took great pains to protect personal freedoms. They truly believed in life, liberty and the pursuit of happiness, and they wrote the Constitution in such a way as to prevent governmental intrusion into our lives as much as possible. The Fourth Amendment is definitely a provision aimed at ensuring privacy and autonomy. This Amendment states: "the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated."

Pretty clear, right? Unfortunately, not.

What Makes a Search or Seizure Unreasonable?

That issue has driven well over 200 years of legal debate. The fact that our founding fathers made a distinction between "unreasonable" and "reasonable" searches presumes that there are indeed situations where searches and even seizures of personal property are appropriate. The amendment goes on to provide guidance about when searches are acceptable: "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."

The amendment itself gives an example of when a search and/or seizure of a person and his or her property is acceptable -- when there is a warrant issued that is based upon probable cause and details what is being sought in the search. Even though the text makes it clear that a search or seizure based on a valid, properly obtained warrant that meets the criteria set forth in the amendment is appropriate, there are situations where a warrantless search is also reasonable in a particular situation.

Warrantless Searches and Seizures

A literal reading and strict interpretation of the Fourth Amendment's text would imply that searches are unreasonable if they are not undertaken with a warrant and based upon probable cause. Early cases questioning the scope of the amendment may have read the language as providing the groundwork for the only scenario in which a search may be undertaken, but the law has evolved since then. Courts now recognize that sometimes warrants are not necessary before a person or place may be searched.

In fact, warrantless searches are still reasonable searches if:
- Consent is given
- The person being searched is being arrested -- this allows police not only to search the person him or herself, but to also search a vehicle he or she is riding in
- A vehicle is being seized or impounded -- law enforcement officials have the right to inventory the entire vehicle as well as any closed containers therein if the vehicle is being seized or impounded as part of a criminal investigation or as part of a civil government action (i.e. the car is being towed and impounded because of non-payment of parking tickets)
- Authorities have probable cause that a crime has been committed and that evidence of said criminal act could be lost if a search is not undertaken immediately

Learning More

There are some situations in which a warrantless search of closed containers in a vehicle when an occupant has been arrested is not proper, though. The U.S. Supreme Court is currently addressing the issue in a case involving the DUI arrest of a Virginia man. A gun was found in the vehicle when police searched it following his arrest for drunk driving. Lower courts have been split on whether the gun evidence should be admissible since it was not found while police were actively searching for evidence of the crime he was arrested for (DUI). The Supreme Court's ruling -- one way or the other -- will have an impact on the validity of warrantless, non-consensual searches of vehicles following an arrest.

Even if police have undertaken a search and gathered evidence against you, it may still be possible to challenge the search if it was performed in an improper manner. For example, if it turns out that the police did not actually have probable cause to perform a search, it is possible that any evidence gathered could be ruled inadmissible. If you or a loved one is facing criminal charges, understanding the Fourth Amendment can make a huge difference in your case. Speaking with a skilled criminal defense attorney in your area is an effective way to allay your concerns and ensure that your rights are protected.

Article provided by Ronald E. Smith, P.C.
Visit us at www.ronaldsmithlaw.com