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Much of American law can be traced back to English legal practices. As the colonies that eventually banded together to form the United States had followed, largely, English law, then this is not surprising. Although the colonists felt oppressed by the British government, they nevertheless abided by Britain’s laws. (It is necessary here to distinguish between English law and Scottish law, which was separate and sometimes different. It is not appropriate to talk of British law in this context)
The founding fathers respected many aspects of English law and used it in the legal system they introduced in the new United States. Enshrined in the 4th Amendment were principles that had already been established in England. This 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.”
Generally speaking, the 4th Amendment forbids searching private properties unless a judge or magistrate has issued a Warrant. There are a few precise exceptions to this, especially where the property owner has given consent or where 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 warrant if a searched property is abandoned or situated in an “open field” or plain view. Some states have gone further than the 4th Amendment and provided protection to “open field” properties.
Seizure of property is also forbidden under the 4th Amendment unless a Warrant has been obtained. Again, specific rules apply. The warrant should list the property that the authorities can seize during a search. The purpose of the search will be to locate those items and take them away. Items not listed in the warrant cannot be taken away unless they are in plain view and relevant to the investigation.
The seizure of people requires a different approach by the authorities. The police officer who is going to carry out the arrest must be clearly in authority. This can be shown by the carrying of handcuffs, commanding language, and appropriate force. The person being seized must accept the officer’s authority and permit himself or herself to be arrested.
To obtain a warrant either for an arrest or to permit a search, it will only be granted if the authorities can show that it is necessary. Where “probable cause” can be shown, then a warrant can be issued. A judge or magistrate will look closely at why a request for a warrant is being made 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.
In framing the 4th Amendment, the founding fathers were concerned with a basic 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 that they had to guarantee this basic freedom for all. It continues to be relevant today, especially where electronic surveillance and homeland security are of paramount concern.