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The Fourth Amendment - what it is and isn't

"I'm fighting for the fourth amendment! No searches or seizures without warrants!" So declares a soldier, smiling confidently, on a vintage World War II poster.

How accurate is this? Does the Fourth Amendment guarantee "no searches or seizures without warrants"? Our brave soldier has oversimplified the matter. If only it were that black and white.

The Fourth Amendment

The Fourth Amendment provides "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."

What does this mean? When is a warrant required, and when is it not required?

When is a warrant needed?

A critical phrase in the above-quoted words is "probable cause." An official must be able to demonstrate to a judge that there is reason to believe that a search will uncover evidence of illegal activity or evidence otherwise important to the case. If the police have eyewitness testimony from a person who was involved in a crime and the accused does not have an alibi, this could be considered probable cause.

As the amendments states, when requesting a warrant, officials must be specific in stating both the place to be searched and the items that will be seized.

When is a warrant not needed?

The law attempts to find a balance between allowing law enforcement to effectively carry out its duties and protecting the rights and privacy of citizens. Hence, there are circumstances under which police may conduct a search without a warrant:

  • Police may search anyone who consents to a search.
  • Police may search a person who is arrested. This includes the person's clothing and any areas within the person's reach.
  • If a vehicle is pulled over for a traffic violation, the police may search the interior of the vehicle and glove compartment. However, they may not search the trunk without probable cause. If the car is impounded, the entire vehicle may be searched without a warrant.
  • If police believe that a crime is occurring in a public place, they may stop and search any person suspected of participating in that activity. This search is limited to the person's outer clothing for weapons.
  • "Exigent" circumstances may justify a warrantless search. This is determined by law enforcement at the time, but the final ruling is made by a court. Shots fired, screams, and fire have all been determined "exigent" circumstances that allow for a search without a warrant.
  • Brief searches at roadside checkpoints directed at illegal aliens have been deemed acceptable.

Although exceptions exist, the goal of the Fourth Amendment is to protect the rights and privacy of citizens. If you feel that you have been the victim of an illegal search, start your defense as soon as possible. Contact an experienced criminal defense attorney for help.

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Edward R. La Rue
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