The Fourth Amendment: Liberty or Illusion?


The Fourth Amendment is a controversial issue in the United States, particularly in recent times. This Amendment protects citizens of the United States from unlawful searches and seizures from law enforcement. There is a fine line between a lawful and unlawful seizure that has both law enforcement and the citizens asking questions. In conjunction with describing in depth what this Amendment proposes and the issues it raises, this paper examines the history, importance, and necessity of the Fourth Amendment in a rapidly changing world. Law enforcement as a whole is faced with decisions every day relating to this Amendment and has the pressure of the public eye constantly making judgments. Discussing the issues this Amendment possesses can help us better understand whether it may need to be adjusted for the future.

Keywords: fourth amendment, law enforcement, citizens

Introduction

The Fourth Amendment, amongst others, helped gauge power the government holds after the United States established its independence. Throughout the years, there have been multiple adjustments to the Fourth Amendment, which helped to specify certain unclear aspects. Since the birth of the United States, our society has been developing with new technology, communication, and transportation. Society and policing are constantly evolving, and technology is quickly advancing. “The Fourth Amendment established a broad principle, rather than codifying any fixed set or version of eighteenth-century doctrines. Moreover, it’s hard to acknowledge the idea that founding-era law alone could answer the challenges posed by new social and technological circumstances” (Re, 2018, p. 1411). These laws were imposed over two centuries ago, and times have changed since they were first introduced. The Fourth Amendment effects law enforcement every day because of the decisions that are made on the job. It can become difficult to determine what constitutes a lawful or unlawful search because the real world has many variables to consider. This raises the concern as to if the Amendment functions properly in today’s world. “What amounts to a “search” under the Fourth Amendment is difficult because the cases must apply old constitutional approaches to novel technological problems” (James, 2014, p. 216). As the law changes, complex definitions and exceptions to the law can confuse an average citizen’s understanding of what he/she is protected against. As time progresses courts update the Amendment, but should the amendment continually adapt with society (and lag behind) or should society and law enforcement agree on a solution? Exploding technologies like aerial surveillance (drones) and high-resolution cameras makes it easier to intrude on someone’s privacy. Interestingly enough, the courts have decided that aerial surveillance, for the most part, does not constitute a search. Fine lines such as this make it very difficult to find a balance between a lawful search and an invasion of privacy. “Looking to the near future of technological capabilities, the various threads of Fourth Amendment doctrine threaten to become tangled in contradictions” (James, 2014, p. 184). A closer look at this Amendment might provide insight on if it’s being neglected and/or applies fair and equal balance to the progress of the justice system. 

History

Citizens of the United States are guaranteed rights under the Constitution. This doctrine was written with the birth of a newly independent country in mind. Dedicated colonists collected thoughts and wrote Amendments that would shape the core principles for American citizens. These rights were implemented to establish freedom, security, privacy, and equality. One, in particular, was created to protect citizens from unreasonable searches and seizures. Known as the Fourth Amendment, it specifically states, 

“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” (gpo.gov, 2018, p. 1199).

 Simply put, it means that without reasonable causation or a warrant issued by a judge, the government has no authority to impose, search, or seize you or your property. “Ratified in 1791, the widely publicized abuses by British officials at that time played no small part in why they created a right against unreasonable searches and seizures to be one of the important rights held against the government” (Fuqua & Stevens, 2014, p. 4). Colonists felt strongly about their right to privacy because of how they were treated by the British in the recent past. “The Fourth Amendment was in large part a reaction to the general warrants and warrantless searches that had so alienated the colonists and had helped speed the movement for independence” (gpo.gov, 2018, p. 1202). During this time, the British army was entitled to do whatever they pleased. Many demanded to stay at settler’s homes for shelter. Furthermore, they were allowed to search homes and confiscate anything that was considered paraphernalia. “A consensus in colonial America had also developed in opposition to nocturnal searches, which had “remained the norm” until the 1690s; to no-knock entries; and to specific warrants that identified multiple locations to be searched” (Fuqua & Stevens, 2014, p. 5). They assured their privacy would be secure from the government as a result. This Amendment is crucial to how the justice system operates and how citizens interpret their expectation of privacy.

Although the authors of this document had a general idea for prohibiting unlawful searches, it was unknown what exactly defined search and seizure. There was little context surrounding it so setting guidelines to reinforce its meaning was no easy task. The court system went to work to begin defining specific aspects. They started to form a foundation for an industrializing nation. It wasn’t until about 100 years later that the Supreme Court began trying to define what exactly this Amendment proposed. In 1886, “The Supreme Court made expansive interpretations of the constitutional guarantees against compulsory self-incrimination and unreasonable searches and seizures” (Lewis, 2014, p. 1). In Boyd v. United States, George and Edward Boyd were merchants that were shipping plate glass. “The Boyd brothers arose out of a minor dispute over the collection of customs duties on the importation of plate glass, which is a routine administrative action” (Epstein, 2015, p. 41). The Boyd merchants argued with officials and failed to pay the required tax. As a result, they were charged with a civil offense and they were instructed to show the invoices for the goods. They argued that the government had violated their Fourth and Fifth Amendment rights. “A unanimous Supreme Court ruled in favor of the Boyds and found part of the customs statute unconstitutional. The Fourth Amendment protected individuals from any procedures that had the same effect as a physical search” (Lewis, 2014, p. 1). The court ruled that it only permitted the government to search persons if there is suspicion of illegal contraband, not because of an illegal act. This ruling gave greater protection to citizens because it further limited the searches and seizures the government can conduct. It was cases such as these that helped form specific concepts on what established reasonable and unreasonable searches.

What Constitutes a Search?

“The question as to what constitutes probable cause has been considered a number of times by the US Supreme Court (Eastep, 2014, p. 1). “Neither the Fourth Amendment nor the federal statutory provisions relevant to the area define probable cause; the definition is entirely a judicial construct” (gpo.gov, 2018, p. 1217). When law enforcement exercises a search or seizure that means there was sufficient probable cause or a warrant was issued. A search can be of the person, their belongings, or their home. “Probable cause is to be determined according to the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act” (gpo.gov, 2018, p. 1217). Probable cause is perceived on a case-by-case basis with several factors that go into consideration. “Probable cause is the standard of proof necessary for law-enforcement officers to make arrests or to search and seize the belongings of suspects” (Eastep, 2014, p. 1). An officer can use any of his senses to determine probable cause. For example, if law enforcement smells a suspicious odor or an item in plain view looks skeptical, that can be interpreted as probable cause. “Whether an official action is a search or seizure protected under the Fourth Amendment generally depends upon whether society recognizes a reasonable expectation of privacy surrounding the type of area intruded upon and the type of information obtained by the intrusion” (James, 2014, p. 186). The police officer is sworn to uphold an oath that expects actions that are ethical and in good faith. The officer’s perception of a situation based on his training and expertise determine whether probable cause is present. Moreover, if a person knowingly exposes something to the public it does not constitute a search because there is no expectation of privacy in public. “The US Supreme Court has determined that the requirement for probable cause is restricted to areas in which there is a reasonable expectation of privacy. Evidence or contraband that is in plain view of a police officer is subject to seizure without probable cause” (Eastep, 2014, p.1). “Absent a search, police may observe the thing that is exposed without having to obtain a warrant or otherwise justify their observations. Probable cause, warrants, reasonable suspicion, and other measures of the fourth amendment do not come into play unless there has been a legitimate search” (Colb, 2002, p. 122). Reasonable suspicion is a level of doubt that is less than that of probable cause. Reasonable suspicion is required for stop-and-frisk searches. This standard of proof is a “hunch” that an individual may be dangerous. These two standards work simultaneously to achieve higher levels of suspicion. “A lesser standard of proof, reasonable suspicion, is needed by police officers before officers may stop a car. Once the car is stopped, probable cause for a full search may be developed by the circumstances” (Eastep, 2014, p. 1). Usually, some form of suspicion is required in order for an officer to conduct a search. Probable cause is the main determinate in whether an officer has the authority to search an individual.

Searches without Warrants

However, there are several exceptions to the Fourth Amendment that gives the government power to search without a warrant. Consent searches, stop-and-frisk (as briefly discussed), vehicular searches, open fields, and plain view searches, are some (not all) of the examples that facilitate this exception. Consent searches are common for day-to-day law enforcement workers. These searches are simply permission to search by the individual asked. “A search warrant, or at least probable cause, must be present to allow law-enforcement agents to undertake a legal search. However, if consent to a search is freely and voluntarily given, a warrant need not be present. A large number of searches are based on consent” (Jones, 2014, p.1). No probable cause or warrant is necessary for a consent search, and many people agree to be searched. The Fourth Amendment specifically protects people from searches, and they all too often waive that right by giving law enforcement permission to search. “The use of consent searches is controversial, in part because of the Supreme Court’s holding that the police need not inform citizens of their right to refuse. Critics feel that under the circumstances of a police-citizen encounter, most people do not feel able to refuse” (Jones, 2014, p.1). An officer does not need to inform a person that they have the right to refuse a search. Albeit, a citizen should have a firm understanding of their Constitutional rights but could be considered self-incrimination. 

 Terry v. Ohio is responsible for the stop-and-frisk law. Before that case, police needed probable cause in order to conduct a search of a person that seemed to pose a threat. “This law allows police to stop and search suspects or their property when there is a reason to believe that the suspects have committed crimes or may be carrying concealed weapons” (Andritzky, 2014, p. 1). This is to ensure the safety of officers and the public by using reasonable suspicion to justify a search of a person or their belongings. With stop-and-frisk, a police officer may briefly pat down a person. These types of searches are usually non-intrusive and less intensive than a formal search. Considering that less suspicion is required to initiate the search, an officer should not search as thoroughly as a formal search. This exception is mostly related to officer safety if he/she feels a person may have a weapon. “Reasonable suspicion contacts are commonly referred to as “stops” and are generally short-term in duration. Courts have allowed the police to conduct limited, nonintrusive, outer garment searches of suspicious persons for potential weapons used against the police” (Andritzky, 2014, p. 1). A person’s expectation of privacy no longer applies if law enforcement believes that they pose a threat to an officer or the public.

Vehicular searches are allowed to be conducted if the officer has probable cause to believe paraphernalia exists in the car. Only reasonable suspicion is required to stop a vehicle. “The Supreme Court held that the Fourth Amendment permits the police to stop and search a vehicle without a warrant when there is probable cause that it contains illegal contraband” (Lewis, 2014, p.1). This was first introduced in Carroll v. United States (1925). Carroll was transporting alcohol illegally when he was stopped by officers who had reason to believe he had contraband in his vehicle. They searched his car and found illegal alcohol. The court ruled granting police authority to stop and search a vehicle without a warrant as long as there is probable cause to do so. Years later it was also decided that motorhomes are also included in this rule. “In California v. Carney (1985), the Court held that a motorhome, unless situated in a residential location, still falls under the Carroll ruling” (Lewis, 2014, p.1). This rationale is based on the expectation of privacy. “The reduced expectancy concept has broadened police powers to conduct automobile searches without warrants, but they still must have probable cause to search a vehicle and they must have some articulable suspicion of criminal activity in order to make random stops of vehicles on the roads” (gpo.gov, 2018, p. 1239). The court claims that because it is a motor vehicle its function is for transportation, thus, traveling on a public roadway. It acts as an extension of a person’s residence, with its contents in plain view.

Lastly, the open field exception allows law enforcement to search open areas such as open water, woods, vacant lots, and open fields. “The Court ruled that the open field exception applies to fields that are fenced and posted. An individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home” (gpo.gov, 2018, p. 1245). There is no expectation of privacy in these areas and anything can be searched without a warrant or probable cause. Similar to the open field principle, the plain view principle allows anything in direct sight that is visible to the public, to not be considered under the Fourth Amendment. There is no expectation of privacy if an item is visible and in plain sight. “Objects falling in the “plain view” of an officer who has a right to be in the position to have that view are subject to seizure without a warrant or that if the officer needs a warrant or probable cause to search and seize his lawful observation will provide grounds therefor” (gpo.gov, 2018, p. 1246). In other words, an officer who is in the lawful sight of an object in plain view has the authority to take action. If an officer needs probable cause to search or seize, his lawful observation of the contraband (in plain sight) acts as his/her probable cause to search. 

The Weakening Fourth Amendment

In more recent times, however, the courts have favored law enforcement in their decisions. Many of these cases allowed the government to exercise their authority, which weakened the Amendment. This further complicated the interwoven confusion of the Fourth Amendment.  In Terry V. Ohio (1968), a police officer stopped and searched two people on the street that seemed suspicious. They were pacing back and forth in front of a store appearing to be “casing” the area. After almost a dozen times, the suspecting officer intervened. During his search of them, the officer found two pistols in their possession. “The court’s ruling in Terry allowed an exception to the probable cause requirement in the case of searches conducted on the street and upheld that suspects could be briefly stopped and subjected to a limited frisk, based on the officer’s reasonable suspicion” (Wilson, 2014, p. 1). In this scenario, no probable cause was required, only reasonable suspicion based on the criminal’s actions. This case was a success because the officer caught two suspects in the act of planning a crime and seized two firearms. This led to what is known as terry frisk, or stop-and-frisk, which allows the officer to search you if he/she has reasonable belief that a person can be dangerous and/or has access to a weapon.

 A second case, California v. Ciraolo (1985), police received an anonymous call that a resident was growing marijuana in his backyard. The backyard was completely blocked from sight at ground level. Law enforcement flew over his house at an altitude of 1,000 feet to survey his property and confirm the growing of marijuana. The court held that the Fourth Amendment was not violated by aerial observation with the naked eye. “The police observations here took place within a publicly navigable airspace, in a physically nonintrusive manner. The police were able to observe the plants readily discernible to the naked eye as marijuana, and it was irrelevant that the observation from the airplane was directed at identifying the plants and that the officers were trained to recognize marijuana” (California v. Ciraolo, 1999, p. 1). The argument remained that any pilot flying over public airspace could have seen the marijuana being grown in the backyard. The scope of the Fourth Amendment is being continually tarnished with new limitations being set forth. In this current age, is anyone truly protected under the Fourth Amendment as it was initially intended?

Another noteworthy case, United States v. Knotts (1983), found that the placement of a radio transmitting device in a container being shipped for the illegal manufacturing of drugs was not a Fourth Amendment issue. The company that distributed these chemicals notified police about chemicals disappearing which may be ingredients in the development of drugs. Police stashed a radio transmitter in a barrel of chloroform, later tracking the radio transmitter to the location. The court held that the use of a radio transmitter didn’t change anything that the police could have done visually. Since the transmitter was on a vehicle, the privacy expectation is much lower, which is how the court viewed the matter. This simply made the job easier for detectives considering they would have found the same information if they followed the vehicle physically.

Olmstead v. United States (1928) was the first Supreme Court case to be heard about the issue surrounding evidence obtained through a wiretap. Federal agents used a wiretap on Olmstead’s telephone without a warrant, and the case was challenged as a Fourth Amendment violation. “The majority held that the Fourth Amendment does not protect telephone calls since overhearing them does not disturb or invade the speakers’ property. The Amendment itself shows that the search is to be of material things—the person, the house, his papers or his effects” (Haglund, 2005, p. 12). In other words, the court found that the Fourth Amendment should only apply to physical belongings, not electronic communication. This case was overturned in 1967 in Katz v. United States. The lower courts ruled against Katz by referring to Olmstead v. United States. However, the Supreme Court ruled by a 7-1 margin that wiretapping Katz’s phone constituted a search and therefore was in violation of the Fourth Amendment. “The Fourth Amendment protects people, not places, and that the information a person seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected” (Wilson & Lewis, 2014, p. 1). The court ruled that law enforcement must obtain a warrant in order to wiretap private electronic conversations, regardless of if they occur in public. “This Supreme Court ruling significantly expanded Fourth Amendment rights in ruling that police must obtain warrants before wiretapping private conversations, even inside public telephone booths” (Wilson & Lewis, 2014, p. 1).

As a result of the 9/11 terror attacks in 2001, the U.S government created the Patriot Act. This act expanded the Foreign Intelligence Surveillance Act which strengthened investigator’s strategies to survey suspects. This act aimed to combat money laundering, treason, and malicious mischief through electronic and internet surveillance. These included wiretaps, pen-registers, and trap-and-trace devices. “The Supreme Court determined that people do not have a reasonable expectation of privacy in telephone numbers, and lower courts had applied that reasoning to hold that individuals do not have expectations of privacy in email IP addresses of computers on the Web” (Haglund, 2005, p. 12). The country was in a state of shock, and understandably so, therefore it was a matter of liberty vs. justice. In times of terror, laws like this can protect a country from another catastrophic event. However, that does not disregard the issue it presents to the Fourth Amendment. It seems contradictory to rule on Katz v. United States, and also pass an act that makes investigator’s jobs easier. Both involve electronic communication, and both contradict one another’s ruling. 

Does the Fourth Amendment Mean What it used to?

“A growing body of commentary calls for the Supreme Court to recalibrate its Fourth Amendment jurisprudence in response to technological and social changes that threaten the traditional balance between public safety and personal liberty” (Bellin, 2011, p.1). Much of the evidence above discusses how the Fourth Amendment is being slowly chipped away as the country evolves. Brand new ideas are set forth faster than the law can keep up. “Communication technology and the means of intercepting communications will continue to evolve at a pace that neither Congress nor the courts can maintain” (Haglund, 2005, p. 17). It seems as though the definition of the Fourth Amendment has become increasingly more complicated than its original meaning. As the world changes, new aspects challenge the soundness of the Fourth Amendment. It is impossible for legislation to consistently tweak the law for future stability. Moreover, the expectation of privacy over the last two centuries has slowly degraded with the introduction of new communication, transportation, and changing views of society. Law enforcement has seen an increase in authority with cases related to the Fourth Amendment. Of course, core principals of the Amendment are still in place, but many exceptions exist today that simply did not back then. 

“A search (or seizure) is the same whether a police officer suspects that a person jaywalked or is the Green River Killer. From a judicial perspective, the absence of a crime-severity variable means that in order to ensure that the authorities possess wide latitude to aggressively (and often reasonably) investigate the gravest offenses, courts must permit police to (often unreasonably) apply the same aggressive tactics to the pursuit of less serious offenders—a much broader category of investigations that includes most police-citizen interactions. This often overlooked facet of Fourth Amendment doctrine will become increasingly significant as new technologies—particularly those that enable searches at opposite extremes of the invasiveness spectrum challenge existing conceptions of what is and is not reasonable” (Bellin, 2011, p.5).

The trans-substantive Fourth Amendment doctrine claims that all crimes are treated equally instead of acknowledging that some crimes are worse than others. This has become an argument and is claimed to have skewed the Fourth Amendment. This states that no matter the degree of crime, a search will happen. However, for very minor offenses conducted searches may seem unreasonable considering the same amount of authority is given for extreme offenses. Bellin makes another good point explaining that our information is shared more now than ever before. “New technologies allow the state to investigate its citizens as never before, using satellite imagery, miniature surveillance cameras, facial recognition software, DNA databases, and e-mail filters. The volume of personal data that the government’s expanding surveillance arsenal can be applied to—much of it voluntarily disclosed to private third parties (e.g., Facebook)—is expanding as well” (Bellin, 2011, p. 6). Browsing the web stores information about search history and shows advertisements based on what was searched. Companies like Facebook are using this information, and it’s a question if they are doing it without violating the Fourth Amendment. It’s undoubted that the Fourth Amendment has changed in many aspects. Law enforcement as a whole is impacted by every Fourth Amendment change that occurs. More importantly, the citizen’s privacy continually decreases with the introduction of more technology. Courts have certainly catered to law enforcement and the citizens. But can there continue to be a waving line between what is protected under the Constitution and what isn’t?

The necessity of the Fourth Amendment

The new idea that has challenged lawmakers is electronic privacy. Before long, physical privacy was the only form imagined. There were no laws set in place to contest aerial surveillance, camera surveillance, electronic communication, and social problems. As the court system deals with the everlasting chore of the Fourth Amendment, the country faces a variety of other issues. One that has seen much media attention in recent years is terrorism. “In an increasingly globalized and dangerous world, it certainly seems like many citizens have been willing to trade privacy for safety, and thus do not mind being watched” (Pavletic, 2018, p. 195). The notion of liberty vs. justice holds true in times of terror. Citizens would rather feel secure by giving up some of their rights rather than holding onto their rights and feel frightened. Cases like Terry v. Ohio gave law enforcement more authority in order to protect the interest of citizens. The officer, in that case, seized two (illegal) guns and prevented a store from being broken into. Some may argue that these laws have weakened the Fourth Amendment but help to keep officers and the public safe when a threat arises. In our society, there are plenty of surprising ways that the government can survey its citizens, many times without them knowing. The Patriot Act, for example, gives investigators the power to examine bank records of (usually innocent) individuals who are transferring funds. Anyone may have been under investigation at some point and not have known about it. Law enforcement already has ways around our Fourth Amendment protection, given that reasonable suspicion at minimum is present. 

A large portion of searches stems from consent searches anyway. “57.6% of all [roadside] searches that law enforcement conducted in 2005 involved the target’s consent” (McGlinchy, 2018, p. 309)… A consent search is a cop’s quickest and easiest way to look for evidence in a car, in a home, or on a suspect’s person. Perhaps because of that, it is not always clear in practice that answering no really means no” (McGlinchy, 2018, p. 301). In most scenarios like this, an individual is entitled to reject a search under the Fourth Amendment. Of course, if an officer has probable cause then the search will most likely take place, but nothing stops an officer from curiously asking if he can search a vehicle. As stated earlier, an officer doesn’t need a warrant or probable cause in order to ask to search a vehicle. Many individuals feel defenseless when questioned by the police, so they allow consent to search. “The inherent psychological pressure of being questioned by the police, cultural fear of law enforcement, and a pattern of discriminatory requests to search create situations likely to result in coercion” (McGlinchy, 2018, p. 301). Individuals allow police to search their belongings because they know they are innocent, but doesn’t that defeat the purpose of having protection against it? “There is a natural inclination to cooperate with the police to avoid potential conflict” (McGlinchy, 2018, p. 308). Additionally, law enforcement is sometimes improperly proficient on these acute points of the Fourth Amendment. “The Board found that officers had been provided “insufficient guidance” on how to conduct a truly voluntary search. When a community member encounters an officer in full uniform who requests to conduct a search of their person, belongings, vehicle or home, a very thin line exists between voluntariness and coercion” (McGlinchy, 2018, p. 309).

Our society that is constantly growing in fear of terrorism, and courts and law enforcement has responded accordingly by strengthening their authority concerning the Fourth Amendment. As stated earlier, individuals would rather give up some of their freedoms to be safer than to demand stronger governmental protection. Laws like the Patriot Act and court cases like Terry v. Ohio make it easier for law enforcement to track down criminals who pose a threat to society. Is the Fourth Amendment continually fading because of new trends set forth in our society? Is it an inevitable step to combat the many violent issues and constant surveillance we face today? It seems as though it’s impossible to completely seal the Fourth Amendment from every angle. We live in a media age that has clouded the Fourth Amendment with many confusing exceptions and rules that are based on new era phenomenon.

Should the Fourth Amendment be Strengthened?

“Nearly two-and-a-half centuries of judicial decisions have slowly whittled exceptions into the Fourth Amendment’s Warrant Clause, incidentally carving chunks out of the values that the Framers intended the amendment to preserve” (Bean, 2015, p. 927). There is no question the Fourth Amendment has been weakened over time. As a building block of our countries history, it is important to note why colonists felt so strongly about their privacy.

“In drafting the Fourth Amendment, the Framers were influenced by abusive British law enforcement methods, particularly the general search warrant and writ of assistance, which provided government officials with virtually limitless discretion to search and seize the property of the colonist. The inequities which resulted from abuse of the writs of assistance are well documented and were a 

major impetus in the occurrence of the American Revolution. In response to the British officers’ abuse of power, the Framers set about crafting a system that would restrain such broad government discretion” (Bean, 2015, p. 929).

Based on their past experiences under British ruling, colonists insisted to create a system that forbids the government to execute unreasonable searches. The exploitation of privacy that the colonists faced was still fresh in their memories. Therefore, they had a strong bias against giving the government the power to search without causation. Times have changed since then and although the fundamental idea remains, new laws have weakened it to an extent. Moreover, our society is exposed to more surveillance now than ever before. “Concerns have been raised about how to protect legitimate expectations of privacy when surveillance is applied to technology that legislators and judges have not even imagined” (Haglund, 2005, p. 17). Courts are trying to tackle this issue one at a time. It would be impossible for lawmakers to keep up with the ever-changing Fourth Amendment. That being said, the core principals of the United States are based upon the Constitution and providing rights to the people. The Fourth Amendment is a staple in what defines our freedom and has arguably been neglected. Unfortunately, we now live in a world where privacy isn’t exactly what it used to be.  Instead of tweaking the law consistently, maybe lawmakers should re-examine the Fourth Amendment to future-proof it for the rapid advancement of technology? The court system has acknowledged this as an issue. Instead of trying to transform the law, lawmakers have tried to make it easier for law enforcement to obtain warrants. “With modern advances in technology, the procedure by which law enforcement officers obtain warrants can and should be streamlined” (Bean, 2015, p. 932). Instead of strengthening the Amendment itself, courts are making it more convenient for law enforcement to conduct searches. On the other hand, it may benefit individuals because it takes the judgment away from an officer. With a faster means to provide a warrant, a judge can make a decision faster through electronic communication rather than an officer risking poor decision making. “Failure to implement new technology in the warrant procurement process will potentially lead to an increase in warrantless searches, further diminishing the protections provided by the Fourth Amendment’s Warrant Clause” (Bean, 2015, p. 936). In some cases, the courts are headed in the right direction but are they doing enough to tune the Amendment for present times?

Continuing on the idea of terrorism, this new-found awareness for terror is responsible for urging lawmakers to provide exceptions to the Fourth Amendment for law enforcement. “As the population in the United States grows, and as new forms of crime and terrorism emerge, the already significant burden on law enforcement departments and the judicial system will likely continue to increase” (Bean, 2015, p. 936). Since lawmakers cannot keep up with demands of the Fourth Amendment, law enforcement has struggled consequently. Terrorism is a huge concern today and law enforcement is expected to sufficiently monitor people’s behaviors without violating their privacy. Courts have made this process easier, however, a criminal can get searched just as an innocent individual can get searched and there is no way to know for sure who is who. Police violate people’s privacy every day. The laws surrounding the Amendment are continually being entangled with moral problems.

Review

More than two centuries ago, the United States gained its independence from Britain. The British were able to restrict the freedom of Americans by channeling trade, charging outrageous tax, and disregard privacy. Many Americans felt as though they were being taken advantage of by Britain, so they aimed to break free from the king’s power. Without the brave men who fought against the British, the United States would not be what it is today. Colonists wanted to have their own form of government separate from British control. Therefore, the Constitution was created, which laid out the way the country would operate. They wanted the country to be centered around the people, so they created Amendments. The Amendments within the document granted rights to the citizens which protected them from unfair treatment and promised uncontested freedom. The Fourth Amendment was one of those, and it promised all citizens freedom against unreasonable searches and seizures of property, self, papers, and houses. Without a warrant or probable cause, no law enforcement official would have authority to search.

Fast forward to modern times, the Fourth Amendment changed from the black and white meaning it once was. Over the course of two centuries, technology grew and new issues arose that society and law enforcement had to face. New forms of transportation (planes/cars/drones), electronic surveillance (cameras, cell phones), and terrorism create new dynamics for the Fourth Amendment. Now, it can be interpreted in several different ways. Privacy has undoubtedly declined with these technological introductions. What constitutes a search has now become a question because new age influences have clouded the once straightforward meaning of the Fourth Amendment. Guidelines for electronic searches needed to be addressed as well as aerial surveillance, terrorism prevention, automobile searches, and any other technological advancement. The court system has seen countless cases come through to re-examine certain scenarios in order to determine where the line is drawn for a reasonable expectation of privacy. The justice system is faced with re-defining an 18th-century concept that can be implemented in a society that is heavily reliant on surveillance technology. It’s seemingly impossible to go out in public in this day-and-age and not have your privacy violated in some way. Terrorism has also been a concern in recent years. In order for law enforcement to effectively do their jobs, proactive approaches to this issue may have helped to prevent future occurrences. For example, the Patriot Act allows investigators to have more flexibility with monitoring electronic communications. This is an example that shows how the Fourth Amendment has weakened as electronic technology become a large part of life for many individuals. 

Lawmakers and police have an incredible burden trying to keep up with the constant battle that occurs between an individual’s privacy and unreasonable searches. The definition of a lawful search entails a dynamic process that changes as time moves forward. In order for protection against unreasonable searches and seizures, lawmakers must re-imagine the concept of privacy for a modern world. The law cannot work the same as it did two centuries ago because new technology and societal changes have molded a different lifestyle. The concept of privacy and what constitutes an unreasonable search is based on an 18th-century law that was heavily influenced by unfair treatment by the British.  The world we live in today is completely different, so those ideas simply do not fit in a modern society. Moreover, lawmakers are falling short of producing future-proof laws that can help reinvent what reasonable searches and seizures mean. By examining each problem as it occurs, this leaves a never-ending chain of cases that will only get worse as time passes. This examination illuminates the issues that we face with the Fourth Amendment. It is an interwoven, confused doctrine based around an old impression of British mistreatment. The Amendment has plenty of exceptions to aid law enforcement with modern issues. This seemingly weakens the protection that it was originally intended to provide for the people. 

Conclusion

This research discusses the Fourth Amendment and the implications it has on today’s demands. The world is changing, and judicial efforts to confront progressing technology, surveillance, law enforcement, and society, are proving to be more than a mere challenge. Citizens of the United States deserve the rights that were promised by the Constitution. The Fourth Amendment has changed drastically since it was first imagined. The United States has transformed over the course of two centuries. Since then, automobiles, aircraft, electronic communication, and surveillance were all introduced. These wonderful advancements continue to help society grow. However, these also deliver interesting issues concerning the privacy of individuals.  Each of these advancements required Fourth Amendment analysis by the court. Privacy is not the same as it had been years earlier. Additionally, the Amendment changed by gaining complexity due to these technological advancements. This law has been weakened and lawmakers need to future-proof by re-simplifying the definition. Citizens need a balance of safety and privacy tailored to modern times.

References

Andritzky, F. (2014). Stop and frisk. Salem Press Encyclopedia. Retrieved from https://centhsally.centenaryuniversity.edu/login?url=http://search.ebscohost.com/login.aspx?direct=true&db=ers&AN=95343112&site=eds-live

Bean, A. H. (2015). Swearing by New Technology: Strengthening the Fourth Amendment by Utilizing Modern Warrant Technology While Satisfying the Oath or Affirmation Clause. Brigham Young University Law Review, 2014(4), 927–950. Retrieved from https://centhsally.centenaryuniversity.edu/login?url=http://search.ebscohost.com/login.aspx?direct=true&db=bth&AN=109329913&site=eds-live

Bellin, J. (2011). Crime-Severity Distinctions and the Fourth Amendment: Reassessing Reasonableness in a Changing World. Iowa Law Review, 97(1), 1–48. Retrieved from https://centhsally.centenaryuniversity.edu/login?url=http://search.ebscohost.com/login.aspx?direct=true&db=a9h&AN=69631216&site=eds-live

California v. Ciraolo. (1999). Supreme Court Cases: The Dynamic Court (1930-1999), N.PAG. Retrieved from https://centhsally.centenaryuniversity.edu/login?url=http://search.ebscohost.com/login.aspx?direct=true&db=fth&AN=2162209&site=eds-live

Colb, S. (2002). What Is a Search? Two Conceptual Flaws in Fourth Amendment Doctrine and Some Hints of a Remedy. Stanford Law Review, (1), 119. https://doi-org.centhsally.centenaryuniversity.edu/10.2307/1229591

Eastep, C. R. (2014). Probable cause. Salem Press Encyclopedia. Retrieved from https://centhsally.centenaryuniversity.edu/login?url=http://search.ebscohost.com/login.aspx?direct=true&db=ers&AN=95343045&site=eds-live

Epstein, R. “Entick v Carrington” and “Boyd v United States”: Keeping the Fourth and Fifth Amendments on Track. The University of Chicago Law Review, 2015. n. 1, p. 27. Disponível em: <https://centhsally.centenaryuniversity.edu/login?url=http://search.ebscohost.com/login.aspx?direct=true&db=edsjsr&AN=edsjsr.43234687&site=eds-live&gt;. Acesso em: 5 nov. 2018.

Fuqua, D. M., & Stevens, C. M. (2014). Technology and the Fourth Amendment: History and   Application of Principles of Decision in Light of New Means of Surveillance. FDCC Quarterly, 64(1), 2–25. Retrieved from https://centhsally.centenaryuniversity.edu/login?url=http://search.ebscohost.com/login.aspx?direct=true&db=bth&AN=97506316&site=eds-live

Government Publishing Office (US). (n.d.). Fourth Amendment – Search and Seizure. Retrieved from https://www.gpo.gov/fdsys/pkg/GPO-CONAN-1992/pdf/GPO-CONAN-1992-10-5.pdf

Haglund, R. (2005). What Happens to the Fourth Amendment When the Usa Patriot Act Enters Wireless Hot Spots? Journal of Internet Law, 9(1), 12–22. Retrieved from https://centhsally.centenaryuniversity.edu/login?url=http://search.ebscohost.com/login.aspx?direct=true&db=bth&AN=17735275&site=eds-live

James, D. (2014). The Fourth Amendment, Future Methods of Environmental Enforcement, and Warrantless Inspections. Review of Litigation, 33(1), 183–218. Retrieved from https://centhsally.centenaryuniversity.edu/login?url=http://search.ebscohost.com/login.aspx?direct=true&db=heh&AN=97176427&site=eds-live

Jones, D. M. (2014). Consent searches. Salem Press Encyclopedia. Retrieved from https://centhsally.centenaryuniversity.edu/login?url=http://search.ebscohost.com/login.aspx?direct=true&db=ers&AN=95342785&site=eds-live

Lewis, T. T. Boyd v. United States. Salem Press Encyclopedia, 2014. Disponível em: <https://centhsally.centenaryuniversity.edu/login?url=http://search.ebscohost.com/login.aspx?direct=true&db=ers&AN=95329235&site=eds-live&gt;. Acesso em: 6 nov. 2018.

Lewis, T. T. (2014). Carroll v. United States. Salem Press Encyclopedia. Retrieved from https://centhsally.centenaryuniversity.edu/login?url=http://search.ebscohost.com/login.aspx?direct=true&db=ers&AN=95329271&site=eds-live

McGlinchy, J. C. (2018). “Was That a Yes or a No?” Reviewing Voluntariness in Consent Searches. Virginia Law Review, 104(2), 301–340. Retrieved from https://centhsally.centenaryuniversity.edu/login?url=http://search.ebscohost.com/login.aspx?direct=true&db=bth&AN=129010004&site=eds-live

Pavletic, J. (2018). The Fourth Amendment in the Age of Persistent Aerial Surveillance. Journal of Criminal Law & Criminology, 108(1), 171–196. Retrieved from https://centhsally.centenaryuniversity.edu/login?url=http://search.ebscohost.com/login.aspx?direct=true&db=a9h&AN=128153683&site=eds-live

Re, R. M. (2018). Fourth Amendment Fairness. Michigan Law Review, 116(8), 1409–1463. Retrieved from https://centhsally.centenaryuniversity.edu/login?url=http://search.ebscohost.com/login.aspx?direct=true&db=bth&AN=130069608&site=eds-live

Wilson, R. L., & Lewis, T. T. (2014). Katz v. United States. Salem Press Encyclopedia. Retrieved from https://centhsally.centenaryuniversity.edu/login?url=http://search.ebscohost.com/login.aspx?direct=true&db=ers&AN=95330004&site=eds-live

Wilson, R. L. (2014). Terry v. Ohio. Salem Press Encyclopedia. Retrieved from https://centhsally.centenaryuniversity.edu/login?url=http://search.ebscohost.com/login.aspx?direct=true&db=ers&AN=95330412&site=eds-live

Michael Cirasella

current events Privacy

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: