The fourth amendment concerns the right of people, which makes them secure their papers, persons, effects and houses from irrational seizures and searches. This right protects against violation and does not allow issuance of warrants unless on credible grounds. Even so, the warrant must be accompanied by an oath or declaration that specifies the exact areas that are to be searched as well as the person to be investigated.
Understanding search and seizure
History and the fourth amendment’s Scope
Some elements of the bills of right came directly from the need to protect the residents after the colonial experience. One such right is the fourth amendment, which was because of the need to protect against the use of assistance rights. The rich experience form the English colonial days contributed in making the right and freedom against unreasonable searches and seizures. According to the English people, each man’s house was to be treated like a castle and should be accorded the same respect. The right of a homeowner to defend his home from unlawful entry was recognized. However, the same law recognized the use of notice by officers to search and any home with the authority of the king (Davies and Thomas 547) .
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The fourth amendment is the right that prohibits the abuse of privacy and persons. It protects against unreasonable intrusion most done by federal representatives. The basis of this right can be traced back to the British rule. Just like most of the bill of rights, the fourth amendment originates from the English common law of the seventeenth to eighteenth century. However, this right is unique because it can has a specific origin. It came into existence after a public uprising in 1760 in reaction to three cases. One of the cases was handled in the colonies while the other two were decided in England. The twin cases that were resolved in England were paired. These cases were charging the defendants for criticizing the ways that the king’s ministers operated and by extension criticizing the king of England. In the two cases, Wilkes vs. Woods and Entik vs. Carrington the king’s ministers issued warrants that were used to ransack and search the houses of the pamphleteers (Loewy and Arnold 1229) .
The warrants also authorized the seizing of the defendants’ properties in this case being books as well as papers. Warrants are legally accepted as permission to search someone and his property without which the search would not be allowed. Federal judges and magistrates in America issue the warrants after reviewing a police application and report. During the eighteenth century, these warrants were issued by the ministers of the king as they deemed fit. In the Wilkes and Entick cases, the two sued the government for damages since they claimed that the warrants were not merit since they were void. According to the executors of the warrants were thus considered illegal. Wilkes ad Entick won their cases with the presiding judge in both cases, Lord Camden, issuing very powerful statements. Although this case was decided away from the colonies, this judge was a hero in the colonies with several streets being named after him.
The Writs of assistance was the third case (Amar and Reed 53) . This concerned the British inspectors move to eliminate smuggling in the colonial Boston using absolute search warrants that were known as ‘writs of assistance’. This warrants allowed the officers to search every area that they thought contained hidden smuggled goods. It is also within these warrants that officers could compel private citizens to help with the search, which explains the name writs assistance. The famous case was when certain Boston merchants came together under the representation of James Otis to seek the nullification of the Writs assistance as they claimed it to be invalid. Even though the merchant’s did not succeed in this case, their defense remained a ringing reminder on the need for individual privacy, which was being interfered with the writs assistance. This argument served to strengthen the opposition against the colonial rule. According to some historians, this is where the child of independence was birthed. Even though it was a lost case, it served a greater purpose of pushing people to desire freedom.
An analysis by historians shows that most are in agreement with the notion that the fourth amendment was meant to affirm the Entick and Wilkes cases as well as overturn the results of the writs of assistance cases. This explains the three principles around it. The first one is on the government not being allowed to search any persons home or property without justification. There justification should be that the search is necessary because there is a possibility of finding evidence for the case. This was meant to address the problem that was experienced in the Writs of assistance which authorized searches based on mere suspicions f the inspector. The second principle was to restrict the extent to which these searches would go in private homes. This were not meant to exceed a certain level. This problem would address the Wilkes and Entick cases where there was no limitation to the extent of searches. A good example is when the officers of the king not only seized and took illegal writings but they also went ahead to confiscate all books and papers of those that were being suspected (Amsterda and Anthony 349) .
The fourth amendment would right this wrong and prevent any further violations of this nature. Thirdly, the government was being prevented from the use of ambiguous warrants in order to evade the previous principles, as this was the challenge that all the three cases faced before. It was important for the warrants to be specific on whom they target and the extent to which the search should go as permitted in the warrants. Back then, the English law considered it a trespass for any authority to invade someone’s home and privacy without legal grounds. This explains why the warrants in the three cases discussed above were considered dangerous even though today they are known to be the protection against police possible overreaching. The fourth amendment protects against the police action of going beyond what they are legally allowed to. These same warrants are what give the citizens of America the power to sue any police officer in case of breech of their rights.
It is important to note that the three cases did not show any commonplace criminal legal implementation. They did not come from a robbery, rape or murder investigation. Instead, they all involved a case of rebellious analysis and prosecution of normal citizen that respected the law but strongly disagreed with some components of it and they gained massive support from the citizenry. The history of the fourth amendment does not clarify if there was a deliberate restriction of ordinary crimes investigations. It is also worth noting that most of the searches during this period did not involve people that can be identified in today’s era as police officers. The reality is probably because no police forces existed in the early eighteenth century and the early English governance. It can be argued therefore that those who came up with the rules that governed the warrants did not think of the need to regulate the executors. The need to control or regulate the police executions came much later when these forces were developed. A certain level of modesty is thus sought when learning the lessons from the fourth amendment historical context (Bradley and Craig 1463).
The Text
The fourth amendment in addition to other bills of rights was a proposal made by James Madison although the current version was altered from the original. The original version of the fourth amendment read,
“ 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” (Amar and Akhil 1097)
Lawyers consider the first clause as the clause of reasonableness. This clause contains a simplified prohibition where unreasonable searches and seizures are strictly not condoned. However, the term unreasonable is not defined in this case. The second clause is the warrant clause, which places limits search, and arrest warrants issuance. There are three listed limits. This focus on the presence of a probable cause, definition of the search area and definition of the search object which implies on the ‘what or who’ has to be searched. The government is required to get arrest or search warrants before infringing on anyone’s privacy. According to the second clause, the extent of the warrants is limited to certain aspects. According to the fourth amendment text therefore, it is possible and legally acceptable that the police may search or seize even without a warrant as long as the reasons for doing so are reasonable. This is not surprising considering the origin of the fourth amendment. However, Madison and his supporters were keen on ensuring that what happened during the three cases that were discussed earlier do not repeat themselves.
The history of the fourth amendment until 1961
After the ratification of this bill just like the rest of the bills of rights, the fourth amendment only applied where the federal government was concerned. The police and state were not obligated to follow the fourth amendment bill. Furthermore, the federal investigations such as those conducted by the F.B.I were rare since these institutions did not exist. This means that the law of the fourth amendment remained mostly dormant until the 1920s when the first active federal agency was produced. The very first Supreme Court had adopted an exclusionary law that stated if evidence was obtained or seized illegally then it could not hold in a court of law. It was also during the 19 th century that search warrants were viewed as a means to limiting or undermining police authority and not necessary as a means of the government escaping legal limitations. This was a natural development in the fourth amendment since the stringent measures that were put in place served a great way of ensuring that the police only searched property with good reason (Levinson and Sanford 637) . Reasonable causes became the standards and grounds for which searches could be permitted. No warrants were to be issued unless there is a high chance that the evidence was likely to be found in the suspected areas. It was not enough to base your search and intrusion on baseless suspicions that could not be backed up. By the 1920s, therefore the fourth amendment was following a specific structure. This included obtaining the warrant beforehand and there was need to establish a probable cause. These rules still apply to date. The police know that any evidence obtained illegally without a warrant will be dismissed in court no matter how credible it is.
References
Amar and Reed. Boston, and the Writs of Assistance (1996): 53.
—. "Fourth Amendment, Boston, and the Writs of Assistance." Suffolk UL Rev (1996): 53.
Amsterda and Anthony. "Perspectives on the Fourth Amendment." Minn. L. Rev. 58 (1973): 349.
Bradley and Craig. ""Two models of the Fourth Amendment." Michigan Law Review (1985): 1468-1501.
Davies and Thomas. "Recovering the Original Fourth Amendment." Michigan Law Review (1999): 547-750.
Levinson and Sanford. "The embarrassing second amendment." The Yale Law Journal (1989): 637-659.
Loewy and Arnold. "The Fourth Amendment as a Device for Protecting the Innocent." Michigan Law Review (1983): 1229-1272.
