The Fourth and Fifth Amendments — Encountering Law Enforcement, Part 2
Part of Kheiro Magazine’s “Constitutions Series” introducing the U.S. Constitution
Stuart H. Kluft, J.D.
FOURTH AMENDMENT SEARCHES AND SEIZURES
In our last column, Part 1 of Encountering Law Enforcement, we covered the general protections offered by the Fourth Amendment to the U.S. Constitution. Today, in Part 2 will cover the specifics: when, where and to whom the Fourth Amendment gives protection from an unreasonable search and/or seizure.
When
The Fourth Amendment applies to government searches and seizures.
A search occurs when there is a physical intrusion of a person, or of something that a person seeks to keep private. Specifically, the Fourth Amendment limits the government from searching a person, their house, or their property if (1) that person exhibits a subjective expectation of privacy, and (2) that expectation of privacy is reasonable, meaning society wants to and ought to protect you from government intrusion without a warrant.
The first prong is pretty straightforward. It only requires the person subject to the search personally believe he or she should have privacy under the circumstances.
The second prong is a little more difficult because it relies on societal standards, which differ over time and geography, and according to cultural and other influences. The Supreme Court has decided over many cases when and where American society generally believes it has an expectation of privacy that should be protected from an unreasonable search and/or seizure unless a warrant or exception applies. The reason this is important is because if evidence is found through an unreasonable search or seizure that evidence can be suppressed, meaning not usable during a trial, due to the exclusionary rule. The exclusionary rule is a remedy for the accused, a punishment for that specific government agency, and a deterrent for the entire government for violating your rights and protections guaranteed by the U.S. Constitution.
The Supreme Court has held that a societal expectation of privacy generally exists in your home, bathrooms, phone booths, locked cell phones, closed bags, and other enclosed spaces. Essentially American society believes you should and ought to be protected in locations where you are able to lock others out from being able to see or hear you.
However, this is not an unlimited right to protection in those locations. You also have to act in a way that protects and maintains your privacy. If, for example, you leave the windows to your home wide open and expose your living room meth lab to anyone who walks by, you lose that expectation of privacy. This is because it is unreasonable to expect others to look away when you knowingly exposed something.
In the case of technological advancements such as tracking devices, heat/thermal imaging devices and night vision aids, the Supreme Court has held that use of these technologies does not violate the Fourth Amendment if they are readily available to the public, or they do not enhance the normal powers of observation.
The Supreme Court has also held that a societal expectation of privacy generally does not exist in public places; in open fields on private property; from the airspace above you visible to the naked eye, meaning planes and helicopters; in your garbage; in public information conveyed to a third party, such as phone records, bank records, etc.; and if a dog can detect illegality through a smell emitted.
A seizure occurs when a reasonable person would have believed that he or she was not free to leave during an encounter with law enforcement, no matter how brief that time may be. The existence of a seizure is determined by evaluating all of the circumstances surrounding the encounter.
The officer does not need to say, “You are not free to leave,” in order to create this reasonable expectation. The key is that the circumstances must show that a reasonable person would not feel free to end an encounter with a government agent and continue to go about their business. In that case a seizure has occurred.
For example, a seizure can be demonstrated through the threatening presence of several officers, a display of a weapon by an officer, a physical touching or restraint by an officer, any indication that compliance is an order through verbal or physical commands, or the blocking of exit paths by an officer, among many other scenarios.
If in the case of a person running from a police officer, a seizure does not occur until there is a “submission to authority generally evidenced through a touching by a government agent.” Let’s unpack this a bit.
Imagine a person is running from the police and carrying a bag containing illegal drugs. If he is caught while holding on to the bag, that bag has “submitted to authority” at the same time as that person, and it will enjoy Fourth Amendment protections. This means the bag cannot be unreasonably searched or seized, and the police will need a warrant or exception to open, search, and/or confiscate it or else that evidence found can be suppressed through the exclusionary rule.
However, if that person throws the bag before the police can grab a hold of him, that bag has been abandoned and will not enjoy Fourth Amendment protections or have the ability to use the exclusionary rule on that evidence. This means the bag can be opened, searched and used against that suspect in a criminal trial with no legal remedy for that person.
Crucially, this is true even if the only reason the officer chased that person in the first place was due to an illegal reason such as profiling on the basis of the person’s race, ethnicity, gender, sexual orientation, hairstyle or clothing or for another unreasonable purpose.
Where
The Fourth Amendment protections apply to any person, whether a citizen or not, within the borders of the United States. It does not apply to anyone that is outside of the legal territory of the United States.
This might sound simple, but what about a U.S. citizen that encounters a U.S. government agent while abroad in a foreign country?
Even if you are a citizen of the United States, when you are outside the sovereign borders of the U.S., the Fourth Amendment does not protect you.
For example, picture an American citizen in a house in Colombia. The Drug Enforcement Agency (DEA) wants to enter the house, even though they have no probable cause to believe there are drugs, suspects or fugitives inside. The Fourth Amendment does not prevent them from entering the house (although Colombian law might).
If the DEA wanted to enter it, they would not need a warrant or an exception to the warrant requirement to do so. If they did find drugs or a fugitive inside, the Fourth Amendment would not provide any recourse to suppress that evidence. It can and will be used in a criminal trial, because only searches and seizures within U.S. borders need to reasonable.
To Whom
The Fourth Amendment only applies to the government of the United States. This means only those who are employed, deputized or acting on behalf of a government entity — such as the federal, state or local government — must adhere to the limitations imposed by the Fourth Amendment.
For example, imagine there is evidence of a crime in your bathroom cabinet. You hire Paul the plumber to fix your pipes, and while he’s there he opens the cabinet without your permission and finds the evidence.
If Paul the plumber voluntarily turns the evidence over to the police, you would not receive any Fourth Amendment protections, even though he stole your property. Paul might be liable for a crime or tort for taking your belongings, but the evidence he found could be used against you in your criminal trial.
However, if the police directed Paul the plumber to look for and take the evidence from your bathroom without a warrant or an exception to the warrant requirement, you would be entitled to Fourth Amendment protections. In this situation the plumber would be acting on behalf of a local government agency — the police. Because that evidence was found through an illegal search and seizure you can suppress that evidence from being used in your criminal trial through the exclusionary rule because the government violated your Constitutional right to privacy protected through the Fourth Amendment.
Now that we’ve covered the general who, what, when, and where of the Fourth Amendment’s application, the next column will discuss the Warrant Clause and some of its exceptions that allow the government to search and seize without violating your Fourth Amendment rights.
Keep your eyes open for our next Constitutions Series column to better understand your rights and how to protect yourself if you find yourself in such a precarious situation with law enforcement.
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.
