Searches and Seizures: Overview of the Fourth Amendment

Excerpted from: Overview of the Fourth Amendment, 40 Georgetown Law Journal Annual Review of Criminal Procedure 3 (2011) (54 footnotes Omitted)

The Fourth Amendment to the United States Constitution governs all searches and seizures conducted by government agents. The Amendment contains two separate clauses: (1) a prohibition against unreasonable searches and seizures and (2) a requirement that probable cause support each warrant issued. Interpreted literally, the Amendment requires neither a warrant for each search or seizure nor probable cause to support a search or seizure. Nevertheless, the Supreme Court imposes a presumptive warrant requirement for searches and seizures and generally requires probable cause for a warrantless search or seizure to be “reasonable.” The Court, however, has also developed several exceptions to the warrant and probable cause requirements.

An unlawful search or seizure neither precludes prosecution nor invalidates a subsequent conviction. Instead, the usual remedy for a Fourth Amendment violation is suppression of the illegally seized evidence.

Government Action. The Fourth Amendment applies only to searches and seizures that are the product of government action. Although a search or seizure conducted by a private party not acting as an agent of the government is shielded from Fourth Amendment scrutiny, any subsequent government search or seizure that exceeds the scope of the initial private search must comply with the Amendment.

Conduct Constituting a Search or Seizure. A search is a governmental invasion of a person's privacy. The Supreme Court has adopted a two-part test to determine whether a person's expectation of privacy is legitimate. First, the individual must have a subjective expectation of privacy in a place or thing. Second, society must be prepared to recognize that expectation as objectively reasonable. Items or areas exposed to the public, abandoned, or accessed by consent are not protected because an individual does not have a legitimate expectation of privacy in those items or areas.

In determining whether government action constitutes a search, courts consider the intrusiveness of the action. For example, the use of dogs to perform a “sniff test” for drugs represents a minimal intrusion and therefore does not constitute a search.

The Fourth Amendment also protects against unreasonable government seizures of persons and property. The Fourth Amendment only applies to government actions that terminate “freedom of movement through means intentionally applied.” Seizureof a person occurs when a reasonable person (1) “would believe that he or she is not ‘free to leave”’ or (2) “would [not] feel free to decline the officers' requests or otherwise terminate the encounter.” The court must “tak[e] into account all of the circumstances surrounding the encounter.” An encounter with an officer does not constitute a seizure unless the officer restrains the individual's liberty by means of physical force or a show of authority to which the individual submits. A property seizure occurs when a governmental intrusion meaningfully interferes with an individual's possessory interest.

Probable Cause. Probable cause is required to justify most governmental intrusions upon interests protected by the Fourth Amendment. The Supreme Court defines probable cause to search as “a fair probability that contraband or evidence of a crime will be found in a particular place.” Probable cause to obtain an arrest warrant or to conduct a warrantless arrest exists when police have, at the moment of arrest, knowledge of facts and circumstances grounded in reasonably trustworthy information and sufficient in itself to warrant a belief by a prudent person that an offense has been or is being committed by the suspect. The Supreme Court has called probable cause “a practical, nontechnical conception” based on “common-sense conclusions about human behavior.” It “is a fluid concept--turning on the assessment of probabilities in particular factual contexts--not readily, or even usefully, reduced to a neat set of legal rules,” and its existence must be determined by an analysis of the totality of the circumstances surrounding the intrusion.

The probable cause determination is twofold, and each step warrants a different level of appellate review. First, judges must determine the “historical facts,” the events that occurred leading up to the stop or search. Second, judges must decide “whether these historical facts, viewed from the standpoint of an objectively reasonable police officer,” amount to probable cause. Appellate courts must review findings of historical fact only for clear error and must “give due weight to inferences drawn from those facts by resident judges and local law enforcement officers.” By contrast, the ultimate determination of whether probable cause for a warrantless search or seizure existed should be reviewed de novo on appeal.

Facts supporting probable cause may come from several sources. First, the personal observations of officers may establish probable cause. Police may use their experience, special training, and expertise to draw limited inferences of criminal activity from behavior that is not facially criminal. Second, probable cause may be based upon information from a reliable, known informant or information from an independent source that can be independently corroborated. Third, weapons or other evidence seized during stops based upon reasonable suspicion may provide probable cause, as may evidence discovered in plain view or during consensual searches and interviews. Finally, in certain circumstances, association with a person whom police have probable cause to arrest may establish probable cause to arrest the associate, particularly if the associate is present in a place in which criminal activity is openly and repeatedly conducted.

A search or seizure unsupported by probable cause is generally unlawful. In a series of decisions, however, the Supreme Court has held that reasonable suspicion of unlawful activity justifies searches and seizures when the intrusion on individual privacy is minimal and outweighed by an important governmental interest. Thus, investigatory stops, detentions, and protective sweeps if they are supported by individualized, articulable suspicion.

Some searches may be reasonable under the Fourth Amendment without any individualized suspicion. Searches extending beyond routine border searches, and searches involving special needs of the government other than normal law enforcement are reasonable. For example, random drug testing of certain students is reasonable without any particularized showing of suspicion. Additionally, individualized suspicion may not be necessary to justify searches incident to lawful arrest, searches at fixed checkpoints, routine border searches, inventory searches, and searches of pervasively regulated industries.

. 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.

U.S. CONST. amend. IV. The Fourth Amendment is applicable to state officials through the Due Process Clause of the Fourteenth Amendment. See Wolf v. Colo., 338 U.S. 25, 27-28 (1949), overruled on other grounds by Mapp v. Ohio, 367 U.S. 643 (1961).