Abstract
The Fourth Amendment was included in the Bill of Rights with the intention of safeguarding individuals' right to privacy by requiring the production of a warrant by law enforcement officers in case of suspicion; however, the balance between ensuring privacy and the need to safeguard national security has been a subject of intense debate. This paper starts by giving a historical background of the Fourth Amendment, the evolution that has happened since it was put in place, the arguments for and against it, and an analysis of whether its observation impedes the work of the police. The paper also examines some of the court cases where police officers have been found to have violated the Fourth Amendment and the exceptions to that rule. As noted in the paper, for police officers, there is a thin line between respecting the rights of the citizens and letting potential criminals go away just because one cannot carry out a search.
Introduction
The Fourth Amendment was introduced into the U.S constitution as part of the Bill of rights (Americanbar.org). The Bill of Rights was included in the Constitution as a compromise by the Federalists to gain the support of the anti-federalists. The amendment is concerned with search and seizure of a person's house or property by law enforcement officers. It requires that the officers must obtain a search warrant from the court after having shown probable cause to conduct any searches or seizures (Beeman, 113). It was intended to afford citizens the right to privacy in their houses and that of their property.
Historical Background
The Fourth Amendment was brought to the U.S Congress as part of the Bill of Rights in 1789. The clamor for the amendment grew following discontent by citizens. They often faced mistreatment from law enforcement officers attached to the British colonial government in America in the 18th century (Beeman, 56). The writ of assistance acted as a search warrant obtained from the crown courts in Britain as well as its colonies. However, the principal contention of the writ of assistance is that it had an unlimited lifespan. It meant that law enforcement officers could use it to search a house and seize property without having any specific probable cause. It is for this reason that it came to be known as a general warrant. These searches would often lead to confiscation of papers not related to the material case under investigation.
The situation was worse for American natives. It is for this reason that Massachusetts enacted a legislation in 1756 barring the use of the writ of assistance - a first in the British colony of America. Later, the Virginia Declaration of rights in 1776 banned the use of general warrants. All this happened in the backdrop of the Articles of Confederation, which had led to the formation of a government to unite the states (Maier, 101). The government had however proved ineffective and for that reason there were calls for a new constitution to replace the Articles of the Confederation.
Proponents of a federal government did not see the need for the Bill of Rights to be incorporated in the Constitution, which was the reason they felt the issues addressed in the Bill of Rights were effectively covered in the individual state constitutions (Beeman, 97). However, anti-federalists demanded that it should be included in the Constitution if they were to offer their support. The compromise led to the inclusion of the Bill of Rights in the U.S constitution and by default the inclusion of the Fourth Amendment too.
Definition
The Fourth Amendment to the U.S Constitution states that “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” (Americabar.org).
Evolution in the Modern Times
The literal interpretation of the Fourth Amendment does not respond to the changes that occurred after the ratification of the U.S Constitution especially regarding advancements in technology. The amendment only takes note of the physical intrusion of the law enforcement officers in a person's house or property. However, the context cannot fully apply to the modern times of the 19th century up to now especially with the advent of electronic surveillance among other non-physical means of conducting searches. Most of the changes to address the constitutional deficiencies have been as a result of the jurisprudence of the U.S Supreme Court.
In the case of Katz v. the United States, 389 U.S. 347 (1967), the U.S Supreme Court overturned the ruling of the Court of Appeal for Katz (Justia.com). The issue had been the F.B.I's use of wiretapping to intercept telephone communications of Katz, a suspected drug dealer. The Supreme Court held that in using a phone, one has the expectation of some level of privacy and as such, the eavesdropping constituted a search without a warrant.
In the case of Kyllo v. the United States, 533 U.S. 27 (2001), it was ruled that using thermal imaging to determine the heat wave in a person's house, Kyllo's in this case, constituted a search without a warrant (Americabar.org). It, therefore, found the act unconstitutional and ruled in favour of Kyllo. In the case of United States v. Jones, 132 S. Ct. 945, 565 U.S. (2012), the Supreme Court held that the fixing of a GPS satellite on a suspect's car then tracking him constituted a search without a warrant and as such it was an infringement of the Fourth Amendment.
These case laws are a representation of the evolution that the Fourth Amendment, aided by the U.S Supreme Court, has undergone over the course of the last two centuries in a bid to catch up with the growth of technology.
Exceptions to the Fourth Amendment
There are some exceptions under which the right to an individual's privacy guaranteed under the Fourth Amendment may be wavered. Again, these exceptions have not been explicitly stated in the amendment but are as a result of precedence set by the U.S Supreme Court.
Consent search refers to a search by law enforcement officers that has been approved by the suspect themselves. In the case of Schneckloth v. Bustamonte, 412 U.S. 218 (1973), the Supreme Court ruled that in the case of a consensual search, a police officer is not obliged to inform the suspect of their right to refuse the search (Justia.com). The court was of the opinion that the Fourth Amendment does not operate in mutual inclusivity with the Fifth Amendment that requires a law enforcement officer to inform the suspect of their rights.
The other exception to the amendment is in the case where evidence is in plains view of the authority. In the case of Terry v. Ohio, 392 U.S. 1 (1968), the Supreme Court ruled that if a law enforcement officer has reasonable suspicion, they do not require a warrant (Knowmyrights.org). In this case, Terry, who was walking on the streets, then stopped by the police for a search did not have her rights violated. In the case of Herring v. the United States, 555 U.S. 135 (2009), the issue was whether conducting a search based on a defective warrant or the use of outdated warrant violates the Fourth Amendment or is acceptable under the exclusionary rule. The court held that despite police negligence in administering an outdated warrant, the subsequent the search of Herring's car was not illegal and, therefore, the arms and controlled substances found in the car, as a result, were admissible as evidence.
In the case of New Jersey v. T.L.O, 469 U.S. 325 (1985), it was determined that searching T.L.O's purse did not violate her rights in any way (Americanbar.org). T.L.O, a student in a public high school, was found smoking cigarettes and in the process, the principal proceeded to search her purse in which he found not only a pack of cigarettes but also other controlled substances. The ruling set the precedent that searches in public schools did not need to have a warrant before carrying out a search, as long there was reasonable suspicion to justify the search.
Arguments for the Fourth Amendment
The debate over the amendment has often been dominated by the privacy versus security questions. However, from a historical perspective, the right to privacy is important in maintaining order and peace in the society. Evidence of this is the discontent that fueled the clamor for the amendment in the 18th century (Maier, 55). This is especially the case where persons in authority have a tendency of abusing their powers and as such, the amendment offers a check against such abuse.
Furthermore, the use of intrusive methods by the government is one of the many avenues it can use to obtain information. Government agencies do not exhaust the other means and are often quick to make use of intrusive methods because they are the easiest and the least time-consuming. The amendment, especially as a result of the jurisprudence of the Supreme Court, has mechanisms that allow law enforcement to conduct searches without contravening the law.
Arguments against the Fourth Amendment
The amendment offers weak protection against electronic surveillance and its existence is not warranted. In support of this view is the fact the Supreme Court has never in its history deliberated on the constitutionality of government's use of electronic surveillance. Its debates have only been limited to how evidence obtained from electronic surveillance can be utilized in a trial.
Some have also argued that it has led to the protection of privacy of not only law-abiding citizens but also criminals. The very essence of pro-active policing requires round the clock surveillance of suspected criminals. It is however not possible to conduct such surveillance all the time given that general warrants ceased to exist and that courts would not grant a warrant where the specific probable cause cannot be established even in the case of a suspect.
An Impediment to Police Work?
The amendment contrary to some opinions does not impede police work. The amendment requires that law enforcement officers have a warrant to conduct a search or carry out surveillance. Historically, U.S courts have proved extremely generous to the officers as they are often granted the warrants (Beeman, 154). As such, the argument that it restricts their work is not valid. Furthermore, without the existence of the law, the police officers would have a blank check with which to commit violations of the law as regards the right to privacy.
Conclusion
Debate on the suitability of the Fourth Amendment is one that is set to be a lengthy one. However, it is evident that there cannot be a tradeoff between security and privacy as the two are mutually exclusive, and it is only through the efforts of pro-government that tacit relations between the two are being portrayed. It is indeed possible to have both security and privacy at the same time, and it would call for increased efforts by the law enforcement officers to interrogate other methods of collecting information. However, Congress, the executive and the nation at large must make efforts to ensure that the amendment is brought up to date. All in all, the right to an individual's privacy will always trump the need for security a function that the Fourth Amendment through its letter and spirit has observed over the years.
Works Cited
Americanbar.org. “Fourth Amendment - U.S. Constitution “, American Bar Association, accessed [09 Mar, 2016], http://search.americanbar.org/search?q=Kyllo+v.+United+States&client=default_fronten d&proxystylesheet=default_frontend&site=default_collection&output=xml_no_dtd&oe= UTF-8&ie=UTF-8&ud=1
Beeman, Richard. Plain, Honest Men: The Making of the American Constitution. New York, NY: Random House, 2009. Print.
Justia.com. "Katz v. United States, 389 U.S. 347,"Justia.com, accessed [09 Mar, 2016], http://law.justia.com/lawsearch?query=Katz%20v.%20United%20States%2C%20389%2 0U.S.%20347
Knowmyrights.org staff. “Terry v. Ohio, 392 U.S. 1 (1968)” Knowmyrights.org, accessed [09 Mar, 2016], https://www.google.com/search?q=Knowmyrights.org&ie=utf-8&oe=utf-8
Maier, Pauline. Ratification: The People Debate the Constitution, 1787–1788. New York, NY: Simon and Schuste. New York, NY. 2010.
