The Fourth Amendment

     This page is continued from Criminal Proceedings >>>> Arrest:


Fourth Amendment:

     “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.[1]

     To help easily assess whether a warrant was lawfully issued, or a search and seizure was executed lawfully, the following walthroughs have been compiled (includes sections on search warrants, seizure warrants, and probable cause).

Related Terms:

curtilage – the land or yard adjoining a house, usually within an enclosure; it is protected by the 4th Amendment’s guarantee against unreasonable warrantless searches.

messuage – a dwelling house together with the curtilage, including any outbuildings; all protected by the 4th Amendment’s guarantee against unreasonable search and seizure.

Search and Seizure
reasonable or unreasonable?

Related Doctrines:

open fields doctrine:

1. Criminal procedure. The rule permitting a warrantless search of the area outside a property owner’s curtilage; the principle that no one has a reasonable expectation of privacy in anything in plain sight.  *  Unless there is some other legal basis for the search, it must exclude the home and any adjoining land (such as a yard) that is within an enclosure or otherwise protected from public scrutiny. — aka open-field doctrine; open-fields rule.  Cf. PLAIN-VIEW DOCTRINE. [1]

Origins of the Fourth Amendment:

     Excerpt from Thomas James Norton’s The Constitution of the United States; its Sources and Its Application:

     “Hallam mentions that in the reign of Charles I the unconstitutional practice of committing to prison some of the most prominent people and searching their houses for papers was renewed.  Cooley says that this constitutional provision probably resulted from the seizure (1683) of the papers of Algernon Sidney, which were used as a means of convicting him of treason , and of those of John Wilkes at about the time (1763) that the controversy between Great Britain and the Colonies was assuming threatening proportions.  The general search warrant never was considered legal m England after the battle fought by Wilkes.  The protection of this clause is not limited to one’s dwelling house, but extends to his person and papers.  Many cases have arisen, but the courts have invariably held that no vague or general warrant is sufficient and that the letter of the Constitution must be closely followed.

     Even under the strict customs laws enacted by Congress, the burden of proof is on the claimant seeking to make seizure, and probable cause must be shown for the act; while the stringent acts of Congress regarding internal revenue require that upon the issuing of search warrants by the district court and the commissioners of courts, the internal revenue officer must make oath in writing that he has reason to believe and does believe that “a fraud upon the revenue has been or is being committed upon or by the use of premises.”  An order of court requiring a person to produce an invoice of goods for the inspection of government officers and to be offered in evidence against him was held an unconstitutional exercise of authority.

     James Otis of Massachusetts became celebrated in 1761 by contesting in court this form of tyranny through the use of Writs of Assistance.  The English practice of personal search had become odious in the Colonies.  “A person with this writ in the daytime,” said Otis in his argument, “may enter all houses, shops, etc. at will, and command all to assist him.”  Further, he said,“ Every man prompted by revenge, ill humor, or wantonness to inspect the inside of his neighbor’s house may get a Writ of Assistance.”

     Every day magistrates refuse to issue search warrants because probable cause is not shown or because the oath required by this Amendment is not sufficiently definite and direct. 

     An actual entry of the premises is not necessary to a search; a compulsory production of books and papers for use in evidence against the owner of them was said by the Supreme Court to be a violation of the Fourth Amendment.  And an act of Congress requiring a party to produce books and papers, and permitting the Government, in case of his refusal, to assume as true its allegations of what the books and papers contained, was held by the Supreme Court to be void for conflict with this Amendment.

     “The protection of the Constitution is not, however, confined to the dwelling-house,” says Cooley, “but it extends to one’s person and papers, wherever they may be.  It is justly assumed that every man may have secrets pertaining to his business, or his family or social relations, to which his books, papers, letters, or journals may bear testimony, but with which the public, or any individuals of the public who may have controversies with him, can have no legitimate concern, and if they happen to be disgraceful to him, they are nevertheless his secrets, and are not without justifiable occasion to be exposed.  Moreover, it is as easy to abuse a search for the purpose of destroying evidence that might aid an accused party, as it is for obtaining evidence that would injure him, and the citizen needs protection on the one ground as much as on the other.”

     In 1920 the Supreme Court held that this Amendment protected a corporation and its officers from an unwarranted “sweep of all the books, papers and documents ” made by representatives of the Department of Justice of the United States under an invalid subpoena in the hands of the United States District Attorney.  Admitting that the seizure was wrongful, the Government contended that it might use the information so obtained to make later a specific demand for papers which it was unable to make before.  The Court said No.[2]


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Disclaimer: Wild Willpower does not condone the actions of Maximilian Robespierre, however the above quote is excellent!

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