Civil Rights and Civil Liberties – 4th Amendment – Cars and Bugs, Part I
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Civil Rights and Civil Liberties – 4th Amendment – Cars and Bugs, Part I

>>The text of the 4th Amendment reads: “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 4th Amendment seems to be the most detailed
and specific of any of the provisions of the Bill of Rights, but as we’ll see, there’s
a lot of disagreement about the 4th Amendment’s scope, purpose, and meaning. And these points
of disagreement will only become more acute with more and more technological change. The 4th Amendment’s origins can be found in
Americans’ reactions to British abuses before the American Revolution. The British Crown
had always issued general warrants, or writs of assistance, which allowed British and Crown
officials — mostly customs officials — to search a home, ship, or office. Moreover,
these writs of assistance were often open-ended, meaning they were good for however long the
officials deemed necessary. Writs of assistance became more frequent and more controversial
on the eve of the Revolutionary War, as the colonists were facing — and resisting — new
customs and tax levy’s from the Crown. These were the immediate experiences of the Founder’s
who wrote the 4th Amendment, and even before the 4th was written most states had similar
amendments in their state constitutions. Moving on from the historical origins, we
need to identify the aspects of the 4th Amendment that are subject to controversy and rival
interpretation that we’ll be studying. What, exactly, does “probable cause” mean? We’ll
use a court-created definition that I’ll talk about in a few seconds, but know that there
are differing understandings of probable cause. What does “unreasonable” mean? There is no
glossary for the 4th Amendment, so we have to come up with our own reasonableness standards.
Also, are all searches without a warrant unreasonable? Should there be exceptions to the warrant
requirement? We’ll see that the Court’s answer to this last question is yes, and they’ve
created a whole host of exceptions to the warrant requirement. Even considering the differing understandings
of the text itself, there are some nuts and bolts basics to the 4th Amendment that we
have to know. One is that as a general rule, police must obtain search warrants for seizures
and arrests from a neutral and detached magistrate — a judge. To obtain a search or arrest warrant police
must show or demonstrate probable cause. Probable cause has been defined as “whether at that
moment of arrest, the facts and circumstances within the officer’s knowledge and of which
they have reasonably trustworthy information are sufficient to warrant a prudent man in
believing that the suspect had committed or was committing the offense.” This test is subjective because a judge — the
reasonable person — would agree that enough evidence exists to support a police officer’s
determination. And the test is neutral because it is the judiciary, not the police, making
the ultimate decision. Also, the text of the 4th Amendment makes
it clear that warrants need to be specific about what they’re looking for and that they
detail the location of the evidence in question. That specification helps guarantee that there
is protection for the person and their property beyond the location specified in the warrant. Even though the general rule is that warrants
need to come before arrests and seizures, that standard may not always be possible to
uphold. As a result, the Court has developed some exceptions to the warrant requirement. One exception is the plain view exception:
items in plain view to police, though not originally mentioned in the warrant, are subject
to search and seizure. Another is a search incident to arrest. If
you’re arrested (a seizure itself) you can be searched for your safety and the safety
of the officer. Exigent circumstances is also another exception.
Here, for any number of reasons, it may not be practical for police to obtain a warrant
to search or seize. It is thus after the fact, with our definition of probable cause, that
a judge will determine if the search or seizure violated the 4th Amendment. Of course your consent to be searched is an
exception to the warrant requirement. Consent searches are limited, though: for example,
your wife or husband can give officials consent to search your home if you’re not present.
If both of you are present, though, and one consents and the other does not, there can
be no search. Related to the plain view exception, there
is also the open fields doctrine, that, with some limitations that we’ll see, allows searches
of property from airplanes and helicopters. There is also, under circumstances which are
actually very common, a less stringent requirement than probable cause, for police to carry out
short investigative stops of individuals if they have “reasonable suspicion.” Automobiles also pose a challenge to 4th Amendment
jurisprudence. Should we treat an automobile differently than a house, for example? Houses
don’t move, but cars do — necessary evidence might literally drive off if the police had
to get a warrant every time they wanted to search a vehicle. Some of the exceptions we’ve
talked about, like plain view, consent, and the lower reasonable doctrine apply to vehicles,
but they still pose challenges when interpreting the amendment. So as you begin these 4th Amendment cases,
consider the following questions: Should the 4th Amendment be taken literally
— should police get a warrant anytime there is a search or seizure (remember — if you’re
arrested, you’re seized)? Do the exceptions to the 4th Amendment that
the Court has developed make sense? Are they fair? We’ll continue to talk about the 4th Amendment
in the next section, but enjoy these cases — they’re fascinating.

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