 
Michelle Palaro
CJUS 2360
Fall 2015
Chapter 7
The Fourth
Amendment

 Limited government power is necessary for the
laws of the country to be enforced and the
government’s business to be carried out
 A balance is required for democracy
 Terms fundamental to understanding the 4th
Amendment
o Search - An examination of a person, place or
vehicle for contraband or evidence of a crime.
o Seizure - A taking by law enforcement or other
government agent of contraband, evidence of a
crime, or even a person into custody

 The 4th Amendment’s prohibition against
unreasonable searches and seizures by the police
is perhaps the most vital component of criminal
procedure
 It has given ample opportunities to the U.S.
Supreme Court to set forth when any government
agent may or may not act, as well as when they
have an expectation, or duty, to do so
 The Constitution does not provide an absolute
right to be free from government intrusion, only
“unreasonable interference”

 Facts: The Colorado Supreme Court upheld a number
of convictions in which evidence was admitted that
would have been inadmissible in a prosecution for
violation of a federal law in a federal court
 Issues: Were the states required to exclude illegally
seized evidence from trial under the Fourth and
Fourteenth Amendments?
 Holding: Yes
 Rationale: Any government agent (federal, state or
local) is regulated by the 4th Amendment by way of the
14th

 Private individuals or agencies are not
regulated by the 4th Amendment
o Store detectives are not controlled by the 4th
Amendment
 Why?
o They are not government agents, and the
Constitution was established to limit the power of
government and its agents

 Facts: UPS opened a duffel bag insured for $4000,
consistent with company policy, and found $4000 in
cash, then alerted the DEA, which found drugs. UPS
delivered the duffel under DEA operation and Parker
was arrested at the address
 Issues: Did UPS violate the 4th Amendment?
 Holding: No
 Rationale: UPS had no duty to secure a warrant as it
was not a state actor
 http://openjurist.org/32/f3d/395/united-states-v-parker

 United States v. Cleveland (1994)
o Held permissible a warrantless search by a private electric
company employee acting on a tip that a customer was bypassing
the electric meter
 United States v. Ross (1982)
o An airline employee who inspected the defendant’s luggage
according to the FAA regulations was acting in a government
capacity and was governed by the 4th Amendment
 Sometimes a private party can be considered to be a
government agent
o If a private party agrees to go in to get an item from a house or a
private security guard agrees to search someone for the police, this
person can be considered an agent of the government
o The Fourth Amendment would then apply

 There are two clauses that are important to the
4th Amendment in regards to search and
seizure:
o Reasonableness Clause
• “The right of the people to be secure in their persons,
houses, papers and effects, against unreasonable searches
and seizures shall not be violated”
o The Warrant Clause
• “…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 the 1960’s the Court used the conventional 4th
Amendment approach
o It combines the two clauses together
o It holds that all searches not conducted with both a warrant and
probable cause are unreasonable, and, therefore, unlawful
 Since the 1960’s the Court has broadened
government’s power by adopting the reasonableness 4th
Amendment approach
o It sees the two clauses as separate, distinct, and addressing
two separate situations
• This clause makes warrantless searches and seizures valid and
constitutional when they are sensible

 Reasonable
o Sensible, rational, and justifiable
 Two approaches to determine reasonableness:
o Bright-line approach
• Reasonableness is determined by a specific rule applying to all
cases
o Case-by-case approach
• Reasonableness is determined by considering the totality of
circumstances in each individual case. It is the most commonly
used method in the U.S.
 The Constitution doesn’t provide an absolute right to be
free from government intrusion, only unreasonable
interference

 Exists when the facts and circumstances within
the officers’ knowledge and of which they had
reasonable trustworthy information are sufficient
in themselves to warrant a person of
reasonable caution in the belief that an offense
has been or is being committed
 Totality of circumstances is the principle upon
which a number of legal assessments are
made, including probable cause

 Probable cause is stronger than reasonable suspicion
 It can legally justify searches and arrests with or without a
warrant and requires the question:
o Would a reasonable person believe that a crime was committed,
and that the individual committed the offense, or that the
contraband or evidence is where it is believed to be?
 It must be established before a lawful search or arrest can
be made
 Facts and evidence obtained after a search or arrest can
not be used to establish probable cause
 They can be used to strengthen the case if probable cause
was established before the arrest, making the arrest legal

 Facts: Aguilar (Defendant) was arrested on a warrant
issued by a Justice of the Peace. The affidavit provided
by police officers in support of the warrant stated that
they had received information from an unidentified
informant that Aguilar possessed drugs at his residence
 Issues: Was this enough for probable cause?
 Holding: Yes
 Rationale: Established a two prong test for informants:
o 1st prong - Tested the informants creditability
o 2nd prong - Tested the informant’s basis of knowledge and
reliability of the information provided

 Facts: The police received an anonymous letter
outlining specific details about the Defendants being
involved in drug trafficking, later corroborated by
their actions
 Issues: Is the letter enough for probable cause?
 Holding: Yes
 Rationale: Abandoned the two prong test and
replaced it with the totality of the circumstances
o Made the establishment of probable cause by use of
informants easier for police

 Government agents that have probable cause must
go before a magistrate (judge) and swear under
oath about who or what they are looking for and
where they think it can be found
 In determining whether probable cause for a
warrant exists, the judge must consider the totality
of the circumstances
o Whether a reasonable person would believe what
the officers claim
o Not every judge will sign a warrant
o The officer may be told to come back with additional
information
o Judges today will grant telephone warrants

 Knock and Announce Rule
o The general rule is that officers must first
knock and announce their authority before
breaking into a dwelling to execute a warrant
o The intent is to prevent the occupant from
responding with force against unknown
intruders

 Facts: Police went to Banks's apartment to execute a
warrant to search for cocaine, they called out "police
search warrant" and rapped on the front door hard enough
to be heard by officers at the back door, waited for 15 to 20
seconds with no response, and then broke open the door
 Issues: Is 15 to 20 seconds long enough for police to wait
after knocking and announcing?
 Holding: Yes
 Rationale: It is not unreasonable to think that someone
could get in a position to destroy the drugs within 15 to 20
seconds
 http://www.oyez.org/cases/2000-2009/2003/2003_02_473

 Stop - A brief detention of a person based on
specific and articulable facts for the purpose of
investigating suspicious activity
o No Miranda warning is required
 Articulable facts - Actions described in clear,
distinct statements
 Frisk - A reasonable, limited pat-down search
for weapons for the protection of a government
agent and others

 Facts: Terry and two other men were observed by a plain
clothes policeman in what the officer believed to be
"casing a job, a stick-up." The officer stopped and frisked
the three men, and found weapons on two of them
 Issues: Was the search and seizure of Terry and the other
men in violation of the Fourth Amendment?
 Holding: No
 Rationale: The Court found that the officer acted on more
than a "hunch" and that "a reasonably prudent man would
have been warranted in believing [Terry] was armed and
thus presented a threat to the officer's safety while he was
investigating his suspicious behavior"

 An unlawful search or seizure can have
two serious consequences:
1. The evidence may be excluded from court
2. Internal sanctions as well as civil and
criminal liability may be incurred

 Is judge-made case law promulgated by the
Supreme Court to prevent police or government
misconduct
 It prevents evidence seized in violation of a
person’s constitutional rights from being admitted
into court
o An officer who has violated someone’s rights may
sued, or
o Prosecuted criminally
 The exclusionary rule is by far the most frequently
used means to address constitutional infractions by
the government in criminal cases

 The exclusionary rule also helps:
o Preserve judicial integrity by preventing judicial
agreement in denying a person’s 4th Amendment
rights
o Deters police misconduct by making improperly
obtained evidence inadmissible in court
o Protects citizen’s constitutional right to privacy
 Rochin v. California (1952)
o Searches that “shock the conscience” are a violation
of due process, and any evidence so obtained, will
be inadmissible
o http://en.wikipedia.org/wiki/Rochin_v._California

 Facts: Weeks was arrested by a police officer at the
Union Station in Kansas City, Missouri where he was
employed by an express company. Other officers
entered the house of the defendant without a search
warrant and took possession of papers and articles
which were afterwards turned over to the U.S. marshal
 Issues: Was the evidence admissible?
 Holding: No
 Rationale: Illegally obtained evidence is not admissible
in court and the right to be free from unreasonable
searches and seizures under the 4th Amendment
applies to all invasions on the part of the government
and its employees

 Facts: Police officers received information that a suspect in
a bombing case, as well as some illegal betting equipment,
might be found in the home of Mapp, who refused to admit
them without a search warrant. Three hours later,
brandishing a piece of paper, they broke in the door but did
not find the bombing suspect nor the gambling equipment.
They did find pornographic material and she was found
guilty for possession of pornographic material
 Issues: Does the exclusionary rule apply to the states?
 Holding: Yes
 Rationale: If the rule didn’t apply to the states, the 4th
amendment protections would be meaningless

 The exclusionary rule applies only in
criminal trials in which a constitutional
right has been violated
 There are four exceptions to the
exclusionary rule:
1. Inevitable discovery doctrine
2. Valid independent source
3. Harmless error
4. Good faith

 Government misconduct could result
in:
o Departmental discipline against the
officer
o Civil lawsuits
o Criminal charges