The Fourth Amendment, part of the Bill of Rights, is one, 54-word sentence but a bedrock protection against government oppression.
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.
Let’s break it down into bite-size pieces.
The right of the people. Like all rights, it is something everyone is America, even illegal aliens, possesses. It is not some gift granted to us by the government.
To be secure. To be safe, to not be bothered or harassed by governmental authorities for no reason.
In their persons. The government cannot invade our bodies. When they wanted O.J. Simpson’s blood for a DNA test they had to get a warrant. If they want a sample of your blood for a DUI investigation, they need a search warrant.
Houses. Even under English common law it has long been established, a man’s home is his castle. If the government, in the form of the police, want to come in they need a warrant. Note this clause also applies to any temporary shelter in which you are staying: a motel room, a private office, a tent, and the like. It also protects outbuildings on your property and even places such as storage lockers where you might keep your other belongings. However, note, it likely does not include motor homes or houseboats.
Papers. Our Founding Fathers were mostly concerned about their business ledgers because the British wanted to squeeze them for more taxes (sound familiar?), so, yes, “papers” include business records but also your diary, your journal, mail (letters, greeting cards, etc.). But nowadays not too many people write letters so would “papers’ include your modern electronic communications like email and texts? Yes, it does.
And effects. “Effects” pretty much includes everything you own that doesn’t fall in any of the other three categories. Your automobile would be one example.
And no Warrants shall issue. This includes both search warrants and arrest warrants.
But upon probable cause. The executive branch of the government (the police) must convince a judge (judicial branch) that there is a fair probability, in other words, it’s more likely than not, that what they want to seize is going to be at or inside the place they want to search. Understand, this is not a very high burden. It is less than the preponderance of the evidence test in a civil trial and, if given a numerical value, it can be as low as 50%.
Supported by Oath or Affirmation. The police have to swear, or affirm under penalty of perjury, that everything they have stated in the affidavit requesting the warrant it true.
And particularly describing the place to be searched. The judge must be convinced the police are sure of where they are going to search. Because the warrant application is the result of a police investigation, and because they don’t want to waste time searching the wrong place, the police rarely make mistakes here – but it can and has happened.
And the persons or things to be seized. The police are not allowed to go on a “fishing expedition” and just start seizing your property willy-nilly. They must “particularly” describe each item or group of items they want to seize. This description must be specific (“a Samsung big screen TV, a Dell computer, and an Apple iPad”) and not general or overbroad (“various electronic devices”).
Like most rules, there are exceptions to the Fourth Amendment warrant requirement, certain situations when the police do not need a warrant. In future blog posts I will discuss some of them.
Rebecca Ocain has been a criminal law trial attorney for over fourteen years.