The Fourth Amendment

The fourth amendment can be broken down into two distinct parts. The first part provides protection against unreasonable searches and seizures, although historically there have been myriad ways in which unreasonable searches were remedied. Modern jurisprudence has afforded the police officers an incentive to respect the amendment.

The second part of the amendment provides for the proper issue of warrants. When warrants are issued, there must be probable cause. Probable cause is tested using the "totality of circumstances" test as defined in Illinois v. Gates.

Not every incident where an officer ascertains information is considered a "search." An officer who views something which is publicly viewable (for instance, by looking through the window of a house from the street) is not conducting a "search" of the house. The Supreme Court ruled that there is no search unless an individual has an "expectation of privacy" and the expectation is "reasonable"--that is, it is one that society is prepared to recognize. So, for example, there is generally no search when officers look through garbage because there is no expectation that garbage is private. Similarly, there is no search where officers monitor what phone numbers an individual dials, although congress has placed statutory restrictions on such monitoring. This doctrine sometimes leads to somewhat unexpected results, the Supreme Court ruled that there was no expectation of privacy where officers hovered in a helicopter 400 feet above a suspect's house and conducted surveillance.

The Supreme Court has also ruled that there can be no expectation of privacy in illegal activity. Therefore, investigations that reveal only illegal activity (such as some use of drug sniffing dogs) are not searches.

A warrant is not necessary for a search or seizure under certain circumstances. Officers may search and seize objects that are in "plain view." Before the search and seizure, however, the officers must have probable cause to believe that the objects are contraband.

Similarly, "open fields"--pastures, open water, woods and other such areas--may be searched without warrant, on the basis that the individuals conducting activities therein had no reasonable expectations of privacy. Contrary to its apparent meaning, the "open fields" doctrine has been expanded to include almost any open space other than the land immediately surrounding a domicile.

There are also "exigent circumstances" exceptions to the warrant requirement, for instance, if an officer reasonably believes that a suspect may destroy evidence, he might be permitted to seize the evidence without a warrant.

The Supreme Court has also held that individuals in automobiles have a reduced expectation of privacy, because vehicles generally do not serve as residences or repositories of personal effects. Vehicles may not be randomly stopped and searched; there must be probable cause or reasonable suspicion of criminal activity. Items in "plain view" may be seized; areas that could potentially hide weapons may also be searched. With probable cause, police officers may search any area in the vehicle. They may not, however, extend the search to the vehicle's passengers without probable cause to search those passengers.

Under common law, a police officer could arrest an individual (arrests constitute seizures, at least for the purpose of the Fourth Amendment) if that individual committed a misdemeanor in the officer's presence, or if the officer had probable cause to believe that the individual committed a felony. The officer in question must have had probable cause before making the arrest; evidence discovered after the arrest may not be retroactively used to justify the arrest.

The person must also be under arrest to allow a search to be relevant. A person merely detained, such as someone pulled over for a traffic stop, is not "under arrest"; once the traffic ticket is written there is no right to search without permission as no further search will provide any additional evidence regarding the stop could possibly be uncovered. A search without permission after a speeding ticket was written that discovered marijuana was determined to be unlawful under these conditions.

The reasonable grounds standard is further applied to searches of homes of individuals on probation.

It has been held that searches in public schools require neither warrants nor probable cause. It is merely necessary that the searching officers have reasonable grounds for believing that the search will result in the finding of evidence of illegal activity. Government offices may be searched for evidence of work-related misconduct by government employees on similar grounds. Searches of prison cells are subject to no restraints relating to reasonableness or probable cause; neither is searches conducted at the border. Finally, a search is reasonable if the target without coercion consents to the search, even if the target is unaware and not told about their right to refuse to cooperate.

In general, a few things have been established. First, in an instance where a person has not been arrested and a search must be conducted in an area where a person has a reasonable expectation of privacy, law enforcement officials are required to gain permission from an arbiter, i.e. the courts, in order to be allowed to search someone. It is, for example, unlawful to force someone to undergo surgery to uncover incriminating evidence because that would interfere with the privacy of the human body. The application of this has been vague, however. Under HIPAA, for example, federal agents are allowed to search medical records through administrative subpoenas, which do not require court approval.

Also, the courts have established that in certain cases, probable cause is not necessary in order to conduct a search. If a police officer suspects you may present a threat to others, he has the right to frisk you on reasonable suspicion.

If you are driving drunk, you are likewise open to be searched on reasonable suspicion. In the case of random drug tests, no probable cause must be established in order to force you to be tested.

Regarding what level of notification must be provided to those who are to be searched: in some cases, notification of not only being searched, but also what is being searched, is necessary. For example, if you are being provided the service of a pregnancy test, and your sample is used to determine whether or not you have used illicit drugs. That is an illegal means of search if you are not informed. In certain cases the courts have found that where there is reason to believe that notification will lead to the destruction of evidence or the endangerment of