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U.S. Institutions - What is the Fourth Amendment?


U.S. Constituion

This Editorial is one of a series on the U.S. Constitution and the structure of the U.S. government.

In a bid to protect the rights of citizens, the founders of the United States of America included in the Constitution, or the legal framework of the new government, ten Amendments: three to protect individual rights and seven to ensure justice. They are collectively named the Bill of Rights.

The Fourth Amendment deals with issues of privacy. It 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.”

Search and seizure of private property by authorities was a major grievance with the framers of the Constitution. This is borne out in the writings of James Otis Jr., a colonial lawyer in Massachusetts who argued in court against Writs of Assistance, used instead of warrants by British officials to enter private homes and businesses to search for evidence of smuggling. Writs never expired and were transferrable from one official to another.

Arguing before a British court that writs should not be legal, Otis said that with a writ, “Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court can inquire. Bare suspicion without oath is sufficient.”

Otis lost that case. But his arguments, as well as memory of the violations of privacy and unreasonable searches suffered by the colonists under the British government, influenced the framers of the Constitution. And thus, the first Amendment to the U.S. Constitution to deal with justice, took aim at unreasonable search and seizure.

As a result, any search, seizure or arrest requires a judicially-sanctioned warrant which must be supported by probable cause. The warrant is limited in scope by specific information supplied to the issuing court. Evidence obtained without a warrant, and thus illegally, cannot be introduced into a criminal trial.

In the words of mid-20th century Supreme Court Justice Potter Stewart, “At the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion."

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