“ 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.”
In Wolf v. Colorado (1949) the Supreme Court held that freedom from unreasonable searches and seizures is “implicit in 'the concept of ordered liberty’ ” and ruled that the Fourth Amendment is enforceable against the States through the Fourteenth Amendment.
State courts are free to provide higher levels of protection under their state constitutions but cannot provide less without running afoul of the Fourteenth Amendment.
The Fourth Amendment protects a person’s rights against the police and other government agents from unreasonable searches and seizures but does not protect against searches and seizures by private individuals.
Persons crossing the national border or other functional equivalents, and searches and seizures conducted by U.S. agents outside the territory of the United States are not protected by the Fourth Amendment.
Border searches are evaluated based on a broader due process standard; the conduct of agents cannot “shock the conscience.”
Title II, “Enhanced Surveillance Procedures,” enables law enforcement to access Internet communications, expands the authority for use of pen registers and trap and trace surveillance, and allows federal courts to issue “roving” surveillance orders in connection with foreign intelligence matters.
Law enforcement officers are authorized to seize voice-mail messages pursuant to a search warrant and to subpoena subscriber records of local and long distance telephone connection records and means of payment.
A person lawfully incarcerated in a prison or jail has no reasonable expectation of privacy.
Inmates are routinely subjected to searches of their persons although some courts hold that “strip searches” violate the Fourth Amendment rights unless there is probable cause to believe the arrestee is concealing weapons or contraband.
Other courts permit strip searches where there is a reasonable suspicion that the arrestee is concealing weapons or contraband.
Consent to a search must be truly voluntary and involve more than mere acquiescence to the authority of the police.
Courts have said that police may not search a home when one resident invites them in but another refuses to grant access.
In 1990 the Supreme Court shifted the focus from the dominion and control of the third party to the police officer’s subjective belief that the third party has the authority to grant consent to a search of the premises.
The problem of consent is especially acute in situations where several persons share a single dwelling, as is common among college students.
Because the Fourth Amendment mandates that “no warrants shall issue” except those “particularly describing the place to be searched and the persons or things to be seized,” an officer’s affidavit must contain a rather precise description of the place(s) or person(s) to be searched and the things to be seized and must attest to sufficiently fresh facts, and not mere suspicions.”
A judge or magistrate’s finding of probable cause may be based on hearsay evidence, but because hearsay evidence is often provided by confidential informants (CIs), whose motivations may be suspect, their reliability and basis of knowledge must be carefully checked.
The Supreme Court formerly required the officer’s affidavit show that a CI was both credible and reliable, and basis of the CI’s knowledge.
In 1983 the Court relaxed the standards and permitted magistrates to consider the totality of circumstances when evaluating applications for search warrants based on hearsay evidence.
Most states follow the relaxed standard but many have opted adhere to the more strict requirements.
Federal Rules of Criminal Procedure provide that a warrant “shall command the officer to search, within a specified period of time not to exceed 10 days, the person or place named or the property or person specified.”
“ The warrant shall be served in the daytime, unless the issuing authority … authorizes its execution at times other than daytime.”
States have varying requirements that govern the period of time and hours for execution of a search warrant.
Police may stop an automobile without a warrant and temporarily detain the driver as long as they have probable cause to believe that criminal activity is taking place or that traffic laws or automobile regulations are being violated.
To protect law enforcement personnel, in Terry v. Ohio (1968) the Supreme Court upheld authority of police officers to stop and frisk an individual and conduct a limited “pat-down” search for weapons based on reasonable suspicion.
Evidence derived from other evidence that is obtained through an illegal search or seizure is itself inadmissible.
Wong Sun v. United States (1963)
The Fourth Amendment does not require evidence to be excluded, even if it was initially discovered during an illegal search of private property, if that evidence is later discovered during a valid search that is wholly independent of the initial illegal activity.
In United States v. Leon (1984) the Supreme Court instituted a “good-faith exception” to the exclusionary rule where the police officer who conducted the search relied in “good faith” on the validity of a search warrant. But the good-faith exception to the exclusionary rule does not apply if:
(1) the magistrate was misled by an affidavit that the affiant knew was false or would have known was false except for reckless disregard for the truth;
(2) the magistrate wholly abandons his or her judicial role;
(3) the affidavit is so lacking in indicia of probable cause as to render belief in its existence unreasonable; or
(4) the warrant is so facially deficient that the executing officer cannot reasonably presume its validity.