The Fourth and Fifth Amendments — Encountering Law Enforcement, Part 1
Part of Kheiro Magazine’s “Constitutions Series” introducing the U.S. Constitution
Stuart H. Kluft, J.D.
How many times have you heard someone say, “I know my rights!” when encountering the police? Have you ever wondered whether you actually know your rights if you find yourself in such a precarious situation? Did you know your rights change according to the circumstances in which you find yourself?
Imagine yourself sitting in the front passenger seat of a car carrying two other people. The Federal Border Patrol pulls the car over and demands that everyone get out of the vehicle. You get out and the officer begins searching the car. He opens the glove box and finds cocaine in the glove compartment located only 6 inches from where you were just sitting. You, however, had no idea the cocaine was there. The officer puts you in handcuffs, reads you your Miranda Rights and asks you to explain yourself.
What do you do? Do you know your rights?
If you remember nothing else from this series in Kheiro, remember this advice a prominent professor of criminal procedure gave in law school: “Demand to speak to a lawyer in an affirmative and clear voice, and shut the fuck up!” It could save you your freedom.
This column and the ones following it will cover your rights when encountering the police so you can (1) understand the government’s powers and limitations regarding your privacy and freedom, and (2) better respond if a situation arises in which a government agency — such as your local police or FBI — does not respect your rights.
For now we will dissect the different clauses, rights and protections granted by the Fourth and Fifth Amendments to every person within the United States’ borders. This dissection will give us the appropriate background to allow us to dive deeper into the nuances of the powers and limits the Fourth and Fifth Amendments impose on law enforcement.
Anatomy of the Fourth Amendment
The Fourth Amendment of the United States Constitution is short — just 54 words long — yet incredibly powerful. As the first installment of this series explained, the Constitution and its Amendments generally only apply to the government. However, the Fourth Amendment is a bit of an exception to this general rule. This is because unlike most amendments to the Constitution, it does explicitly state a right: “The right of the people to be secure in their persons, houses, and effects, against unreasonable searches and seizures […]”
This first half of the Fourth Amendment is known as the “Search and Seizure Clause.” It is followed by the “Warrants Clause,” which gives the government the power to restrict your rights, but only if certain conditions are met.
The Search and Seizure Clause
The Search and Seizure Clause guarantees that you, as a person, when inside the borders and territories of the United States, have the right for your person (body), house (domicile), and effects (personal property) to be secure from being disturbed by the government through an involuntary search, or from having those things taken from you. This means the status quo arrangement between the government and the individual is that the government cannot stop or search you or your home, or take your belongings. However, this is not an unlimited right. There are obvious exceptions such as emergencies, which have been defined by the Supreme Court, and the warrant exception, which is found in the text of the amendment itself.
The Warrants Clause
The Warrants Clause is the second half of the Fourth Amendment. It says the government can only intrude upon the rights granted by the Search and Seizure Clause if it can obtain from a judge a legal warrant.
A physical warrant document, in most circumstances, is what keeps the government — typically in the form of a local police force — from being able to arrest you, enter your home, look within your belongings and/or take your belongings from your direct possession.
If the government does not have a warrant, and also fails to receive your consent, then any evidence they gather cannot be used to prosecute you. This is called the “exclusionary rule” and is a prophylactic rule formulated by the judiciary in order to protect your constitutional rights.
As you may know, however, the police don’t always need a warrant in order to stop you, arrest you, enter your home or vehicle, or seize your property. This is because the U.S. Supreme Court has established several exceptions to the Warrants Clause that allow the government to get around the warrant requirement. Under these exceptions the searches are no longer considered “unreasonable” and are therefore permitted under the Constitution.
Exceptions to the Warrants Clause
There are numerous exceptions to the Warrants Clause. One of the more obvious exceptions to the warrants clause is called the “Hot Pursuit” exception.
Imagine you live in an apartment complex and are sitting on your couch in your underwear watching TV one evening. All of a sudden the police barge in, guns blazing, and with no warrant or consent start searching every room of your apartment. In nearly every situation this would be considered unreasonable under Fourth Amendment and would be a violation of your constitutional rights.
However, if the police were in ‘hot pursuit’ of a dangerous criminal, whom they followed into your building and whom they believed in good faith had run into your apartment unit, this search would not violate the constitutional protection against unreasonable search.
You might be aware of other exceptions through common sense, while some require a legal education to fully comprehend. This series will highlight many of them in the columns to come.
Anatomy of the Fifth Amendment
The Fifth Amendment of the Constitution is very complex and contains several clauses that affect various issues related to police encounters. For now we are concerned with the most urgent aspect of your right against self-incrimination, known as your “Miranda rights.”
Later in the series we will cover more details of your right against self-incrimination, the Due Process Clause, the Takings Clause and the concept of double jeopardy all covered by the Fifth Amendment.
Miranda Rights
“You have the right to remain silent, the right to an attorney…”
It’s scary to be on the receiving end of these words, but if you know your rights, these words are in fact empowering. The moment you hear them it means your Fifth Amendment rights are being tested.
Your Miranda Rights are not written in the Constitution or its Amendments; they were enumerated by the Supreme Court in its interpretation of the Fifth Amendment’s right against self-incrimination, in the landmark case Miranda v. Arizona.
Before this ruling, courts assumed that suspects already knew they had the right to keep quiet, request a lawyer, and avoid incriminating themselves. However, the Supreme Court held in Miranda that suspects have to be explicitly told: they have a right to remain silent, anything they say could be used against them in court, they have the right to consult with an attorney, and if they cannot afford an attorney the state will provide one.
Now that suspects are read their rights, Miranda has become a double-edged sword. In theory you know your rights — after all, you have just been informed of them.
But how do these rights actually work? How long do they last? How do you assert them? What happens if you choose to waive them? What if you make a false statement?
If you waive your rights — which most people do, whether intentionally or unintentionally — you have no real course of action for taking back anything incriminating you might have said, even if those statements were not true.
That’s why my law professor offered this crucial advice: (1) say, “I demand to speak to my lawyer,” and then (2) shut up. If you follow these instructions you have a much higher likelihood of getting your freedom back than by trying to talk your way out.
Now that the introduction to the Fourth and Fifth Amendments are behind us, keep your eyes open for the next installment of the bi-weekly Constitutions Series, where we will continue to discuss your Miranda rights and dive deeper into the Fourth Amendment’s Search and Seizure Clause.
That way you will be better prepared to say — and mean — “I know my rights!”
NOTE: The views expressed here do not represent the opinion, statements, or positions of Kheiro Magazine. This information is not legal advice, nor IS IT intended to be legal advice; it is solely designed to provide helpful information on the subjects discussed. Kheiro Magazine has made every attempt to ensure the accuracy of the information provided herein, however it is not a substitute for actual legal advice. If you find yourself in legal trouble contact an attorney immediately. Further, readers should be aware that the law changes and what is contained here today might not be true tomorrow. As such, these statements are only held out to be accurate as of the date of publishing.
