Brushfire of Freedom
The Armory
Note - Originally published in Brushfire Sparks on May 5th, 2009
“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 fourth amendment is the second boundary of private property and stems from the practice of the “general warrant” issued by the King of England. General warrants allowed random searches of property without cause or evidence of crime. The warrants were issued for the life of the King plus six months. The practice was originally challenged in 1761 by James Otis and a group of merchants who called for hearings on general warrants and and writs of assistance. Otis later became an assemblyman in Massachusetts, leading the passage of a law making the warrants illegal. Though the governor overturned the law, John Adams viewed these events regarding the warrants as the spark that started the American Revolution.
The fourth amendment requires that any warrant must be judicially sanctioned, meaning a judge must issue the warrant for search and seizure. It is the basis for much of our legal system and private property laws. The original prohibition against general warrants was the Virginia Declaration of Rights, which stated the practice as , “...grievous and oppressive...”.
For a warrant to be issued today, the request for warrant must be supported by probable cause and be limited in scope to the subject of the search. Someone must swear an oath that the cause for search is just and valid, and that person is held accountable to the court for that oath. Even if you are not in law enforcement or the legal profession, you have most likely encountered some of these concepts when watching television. The purpose of the fourth amendment and the associated laws and rulings has always been to protect private property. A man’s home is his castle and should not be violated indiscriminately by authorities of the state.
There have been multiple cases regarding this particular right of the people. Because it is more directly restrictive of the government, it is constantly in question in criminal cases. The fourth is the root of the”technicality” defense, where law enforcement fails to properly define the scope of a search, or provide sufficient evidence to support the search and seizure of evidence. The error in these defenses is that the court often finds the accused “not guilty” because their rights have been violated in the investigation of the crime. This is simply a misapplication of the amendment and not a flaw in its construction. In leu of declaring a criminal “not guilty”, the courts should consider removing the improperly gathered evidence from the case and continue the trial rather than release a potential criminal back onto the streets. There are other exceptions such as “plain view” and “open fields” that allow search of areas and collection of evidence that may not be considered private property, or evidence in open site of the investigator.
So, that’s the history. What does it mean for you? It means your home, your car, and your person are all protected from random government searches by the US Constitution. It means the power of the government is limited to enacting and enforcing the law, not randomly investigating citizens with no specific cause. It defines private property, and protects it from the government, ensuring the freedom of the people. In more recent terms it means that phone conversations and your computer fall under a reasonable expectation of privacy and can not be investigated by law enforcement without oath and warrant.
We take many of these rights for granted, largely because those of us alive today have never been forced to live without them. Imagine what it would be like if federal agents could come to your home and conduct an investigation without cause. Imagine that they seized your computer, cell phone, or other personal property. Imagine they could take those items and present them as evidence against you for charges not yet provided and have you confined to prison. Now, take a mental walk around your home for a moment. What’s in there that might be used against you? Perhaps some photos of a bachelor party that got a little out of hand. Maybe some articles you’ve been reading as part of a class project. Perhaps some web sites, phone numbers, or MP3’s that have been stored that, out of context, might seem suspicious. Imagine what you would have to do to your home, your car, and your life to protect it from those types of random searches. Now, breathe a little easier in knowing that the fourth amendment is there to protect you against unjust searches...for now.
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