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4th Amendment Search and Seizure Protections

Cite this article as: Jason Mance Gordon, "4th Amendment Search and Seizure Protections," in The Business Professor, updated January 5, 2015, last accessed April 2, 2020, https://thebusinessprofessor.com/knowledge-base/4th-amendment-search-and-seizure-protections/.
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4th Amendment Search and Seizure
This video explains the 4th Amendments protections of individuals against unlawful search and seizure.

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What protections does the 4th Amendment provide to individuals subject to criminal charges?

Protection of Individual Rights

The 4th Amendment protects individuals against “unreasonable search and seizure”. More specifically, the police must obtain a court order before searching the individual’s body or any physical location where the defendant has an expectation of privacy. To obtain a search order, the government must demonstrate to a judicial official (generally a magistrate judge) that there is probable cause to believe that the suspect or private location contains evidence of a crime. There are certain limitations to the requirement that the government secure a search warrant before searching private property. The most common exceptions include:

  • “Exigent circumstances” – This doctrine allows the government to proceed with a search of premises if there is a risk of harm to individuals or the destruction of evidence.
  • “Grab area” – Officers may search any place that is in the immediate grab area of a suspect at the time of arrest. The grab area can be interpreted very broadly to include any place in the reach of a suspect at any point during the arrest.
  • “US Entry/Exit” – The Federal Government also allows for warrantless searches at the border for individuals entering the United States. As such, there is no expectation of privacy for vehicles entering and leaving the country.

Special rules apply to electronic forms of surveillance, such as audio and visual recordings. Electronic surveillance generally requires a search warrant if surveilling a space where an expectation of privacy exists.

Protection of Businesses

The expectation of privacy applies to businesses as well as individuals. That is, the government must obtain a search warrant prior to searching business premises. This extends to administrative and civil enforcement actions as well. The more heavily regulated the business industry, the less it is afforded privacy protections against search. Many businesses have no expectation of privacy when the business is heavily regulated or closely connected to receipt of government funds for operation.

  • Example: If the owner objects, a building inspector may need a warrant to inspect whether a building meets code. A public university, government funded research laboratory, or public utility may have limited rights to privacy.

Exclusion of Unlawfully Obtained Evidence

The 4th Amendment protection against warrantless searches is enforced through criminal procedural law. If the government violates an individual’s 4th Amendment rights by conducting an unlawful search and seizure, the evidence uncovered in the search is not admissible at trial against the accused. This is known as the “exclusionary rule”. This rule exists to prevent the government, which has an interest in using seized evidence for prosecution of criminal law offenders, from infringing upon a defendant’s constitutional rights in pursuit of criminal law enforcement. There are exceptions to the exclusionary rule for unlawful searches. For example, if the government relied in good faith on a search warrant from the court that was later deemed invalid, the evidence uncovered in the search may still be used in a prosecution. This is known as the “good faith exception”. Further, if evidence is uncovered in an unlawful search that would have been inevitably discovered without the unlawful search, it may be used in a prosecution. This is known as the “inevitable discovery exception”.

  • Note: If the government searches beyond the authorization of the search warrant, any evidence uncovered in the search may be excluded.

Discussion: Do you think the 4th Amendment protects individual rights or is a hindrance on maintaining law and order? Why do you think that there is less 4th Amendment protection for businesses than individuals? Is the exclusionary rule sufficient repercussion to dissuade conduct by officials that violates an individual’s 4th Amendment rights?

Discussion Input

  • The 4th amendment protection against warrantless searches and seizures is important for the protection of individuals’ privacy rights. Most people would be uncomfortable living in a society where their belongings and homes could be searched on a whim by law enforcement without a warrant or any judicial oversight. However, others argue that if an individual is not involved in criminal activity then they shouldn’t have any issue with a search and, further, that requiring a warrant for a search allows for evidence to be moved, degraded, misplaced, or otherwise made less helpful or unavailable in court. There are less 4th amendment protections for businesses due to the diminished expectation of privacy resulting for their many levels of regulations and contact with the public. Business conduct can never truly be private in the way that individual conduct can be. For example, an individual cooking dinner for themselves in their home is subject to almost no regulations and has a high expectation of privacy while a restaurant serving food to the public is subject to a litany of health and safety regulations to protect the public and, thus, has a lowered expectation of privacy. The exclusionary rule is an imperfect safeguard against 4th amendment violations by law enforcement. While evidence obtained via unconstitutional searches is usually inadmissible against the accused in court, several exceptions to this rule exist. Under the good faith exception, if law enforcement relied on a search warrant that was later deemed invalid by the courts, then the evidence uncovered in the search can still be used in a prosecution against the accused. While it may be understandable for the officer conducting the search to rely on the seemingly valid warrant in front of them, this exemption undermines the accused’s constitutional rights because an unconstitutional search is an unconstitutional search, regardless of where the unconstitutionality originated. Additionally, under the inevitable discovery exception, evidence uncovered in an unlawful search that would have been discovered without the unlawful search can also be used in a prosecution. This also undermines the accused’s fourth amendment rights to be free from unreasonable searches and seizures – just because the evidence would have been discovered anyway shouldn’t mean that the accused should have been subject to the instrusiness of an unconstitutional search.  Also, even unconstitutional searches that don’t fall under one of the exclusionary rule’s many exemptions can be used to build a case against the accused as long as it isn’t offered as evidence of their guilt in court. Such evidence could be used against them in a variety of non-evidentiary ways, such as to impeach their testimony, to locate other evidence, or to identify other suspects.

Practice Question: Perry is suspected of dealing illegal narcotics from his home. A private informant testifies to a magistrate that he witnessed Perry selling drugs from his home. The magistrate issues a search warrant for the home, but does not include the automobile on the premises. The police raid and search Perry’s home but do not find any narcotics. One of the officers finds the keys to Perry’s car and searches the trunk. Below the spare tire is a large amount of illegal narcotics. Perry is charged with possession of the narcotics with intent to distribute. At trial, what defense will Perry likely raise to introduction of the drugs as evidence?

Proposed Answer

  • At trial Perry’s attorney will likely raise a Fourth Amendment defense and move to exclude the illegal narcotics that were found in his locked truck. Since the search warrant did not include Perry’s automobile, it is likely that the judge will exclude that evidence from trial. This is further compounded by the fact that the informant testified that Perry was dealing the illegal narcotics from his home, not his vehicle, and that the drugs were stored in a locked trunk signaling a heightened expectation of privacy. There also no exigent circumstance exception since Perry is not home and is thus unable to take destroy or move the evidence.

Academic Research

Soree, Nadia B, Whose Fourth Amendment and Does it Matter? A Due Process Approach to Fourth Amendment Standing (2013). Indiana Law Review, Vol. 46, No. 3, 2013; St. Thomas University School of Law (Florida) Research Paper No. 2014-10. Available at SSRN: https://ssrn.com/abstract=2491068

Funk, William F., Deadly Drones, Due Process, and the Fourth Amendment (June 12, 2013). William & Mary Bill of Rights, Vol. 22; Lewis & Clark Law School Legal Studies Research Paper No. 14/2013. Available at SSRN: https://ssrn.com/abstract=2278716

Wright, Andrew McCanse, Congressional Due Process (September 15, 2015). 85 Mississippi Law Journal 401 (2016). Available at SSRN: https://ssrn.com/abstract=2660917

Brady, Maureen E., The Lost ‘Effects’ of the Fourth Amendment: Giving Personal Property Due Protection (October 13, 2015). Yale Law Journal, Vol. 125, p. 946. Available at SSRN: https://ssrn.com/abstract=2624782

Mannheimer, Michael, Coerced Confessions and the Fourth Amendment. Hastings Constitutional Law Quarterly, Vol. 30, pp. 57-129, Fall 2002. Available at SSRN: https://ssrn.com/abstract=887350

Re, Richard M., The Due Process Exclusionary Rule (March 30, 2014). Harvard Law Review, 127 Harv L Rev 1885 (2014). Available at SSRN: https://ssrn.com/abstract=2401979

Mannheimer, Michael, Coerced Confessions and the Fourth Amendment. Hastings Constitutional Law Quarterly, Vol. 30, pp. 57-129, Fall 2002. Available at SSRN: https://ssrn.com/abstract=887350

Lvovsky, Anna, Fourth Amendment Moralism (June 26, 2018). University of Pennsylvania Law Review, Vol. 166, 2018; Harvard Public Law Working Paper No. 18-48. Available at SSRN: https://ssrn.com/abstract=3202596

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