British Law and the Constitution
Much of American law can be traced back to English legal practices. The colonies that eventually banded together had mainly followed English law.
Although the colonists felt oppressed by the British government, they nevertheless abided by Britain’s laws. (It is necessary to distinguish between English and Scottish law, which were separate and sometimes different.)
4th Amendment Simplified and Summarized
The Founding Fathers respected English law and used it in the legal system they introduced in the new United States. Thus, enshrined in the 4th Amendment, ratified as part of the Bill of Rights on December 15, 1791, were principles the government had already established in England.
This constitutional amendment is lengthy and 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.”
The Fourth Amendment forms part of the Bill of Rights that was advocated by the illustrious Founding Father James Madison in an effort to keep the federal government in check.
Exceptions to the 4th Amendment
Generally speaking, the 4th Amendment to the United States Constitution forbids searching private properties unless a judge or magistrate has issued a warrant.
There are a few exceptions, especially where the property owner has given consent or a suspect might be in danger or about to abscond.
There is also an exception where evidence or property is in danger of being destroyed. The authorities do not need to provide a search warrant if a searched property is abandoned or situated in an “open field” or plain view.
Some states have gone beyond the basic Fourth Amendment rights and provided protection to “open field” properties.
Fourth Amendment protection
Seizure of property by law enforcement officials is also forbidden under the 4th Amendment unless a warrant has been obtained. Again, specific rules apply.
The warrant should list the property the authorities can seize during a search. The search will be to locate those items and take them away.
Law enforcement officials cannot take items not listed in the warrant away unless they are in plain view and relevant to the investigation.
Searches and Seizures
The seizure of people requires a different approach by the authorities.
First, the police officer who will carry out the arrest must be in authority. This can be shown by the government official carrying handcuffs, commanding language, and appropriate force.
Second, the person being seized must accept the officer’s authority and permit themselves to be arrested.
Search and Arrest Warrants
To obtain a warrant either for an arrest or to permit a search, it will only be granted if the authorities show that it is necessary and there is reasonable suspicion of criminal activity.
Where “authorities can show probable cause,” a warrant can be issued. A judge or magistrate will look closely at why a request for a warrant is being made and supporting evidence before issuing one.
Warrantless searches can be carried out where there are “reasonable grounds” for the search. Also, there must be no use of unnecessary force. “Reasonableness” is a basic tenet of the law as it applies to the 4th Amendment.
The Framing of the 4th Amendment
In framing the Fourth Amendment, the Founding Fathers were concerned with a fundamental human right. That is the right not to be arrested, searched, or have property seized without good reason.
This provision is at the core of a civilized country’s beliefs, and the early legislators knew they had to guarantee this basic freedom for all.
It remains relevant today, especially where electronic surveillance and homeland security are of paramount concern.
4th Amendment Lesson Plan:
We have created a PDF of a 4th Amendment Lesson Plan for you. The PDF is both downloadable and printable.
How can asset forfeiture laws possibly be reconciled in light of the wording of the fourth? In many cases there are no charges even filed and the confiscating authorities are the ones receiving value of assets taken. This is stealing under cover of authority.
whatz the ‘probable cause’ or suspected criminal activity that was relied upon for the warrant to search trumps place ?? did the warrant describe & articulate with details & specify what was to be siezed ?
what judge or magistrate authorized the search warrant ?
What authority or law did the FBI rely on to apply for a search warrant ?
is the affidavit and/or search warrant request & the jusge-signed warrant a ‘public document’ ??? if so can it be obtained by an PRR or Public Records Request ??? or some other public records request ; like under the Freedom of Information Act ???
Can a child allow people into your home for searches?