Annie
Diamond Member
- Nov 22, 2003
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Anyone can read this, not hard. Lots of footnotes.
http://caselaw.lp.findlaw.com/data/constitution/amendment04/01.html
http://caselaw.lp.findlaw.com/data/constitution/amendment04/01.html
... The Court has drawn a wavering line. 13 In Harris v. United States, 14 it approved as ''reasonable'' the warrantless search of a four-room apartment pursuant to the arrest of the man found there. A year later, however, a reconstituted Court majority set aside a conviction based on evidence seized by a warrantless search pursuant to an arrest and adopted the ''cardinal rule that, in seizing goods and articles, law enforcement agents must secure and use search warrants wherever reasonably practicable.'' 15 This rule was set aside two years later by another reconstituted majority which adopted the premise that the test ''is not whether it is reasonable to procure a search warrant, but whether the search was reasonable.'' Whether a search is reasonable, the Court said, ''must find resolution in the facts and circumstances of each case.'' 16 However, the Court soon returned to its emphasis upon the warrant. ''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. In the scheme of the Amendment, therefore, the requirement that 'no Warrants shall issue, but upon probable cause,' plays a crucial part.'' 17 Therefore, ''the police must, whenever practicable, obtain advance judicial approval of searches and seizures through a warrant procedure.'' 18 Exceptions to searches under warrants were to be closely contained by the rationale undergirding the necessity for the exception, and the scope of a search under one of the exceptions was similarly limited. 19
During the 1970s the Court was closely divided on which standard to apply. 20 For a while, the balance tipped in favor of the view that warrantless searches are per se unreasonable, with a few carefully prescribed exceptions. 21 Gradually, guided by the variable expectation of privacy approach to coverage of the Fourth Amendment, the Court broadened its view of permissible exceptions and of the scope of those exceptions. 22
By 1992, it was no longer the case that the ''warrants-with- narrow-exceptions'' standard normally prevails over a ''reasonableness'' approach. 23 Exceptions to the warrant requirement have multiplied, tending to confine application of the requirement to cases that are exclusively ''criminal'' in nature. And even within that core area of ''criminal'' cases, some exceptions have been broadened. The most important category of exception is that of administrative searches justified by ''special needs beyond the normal need for law enforcement.'' Under this general rubric the Court has upheld warrantless searches by administrative authorities in public schools, government offices, and prisons, and has upheld drug testing of public and transportation employees. 24 In all of these instances the warrant and probable cause requirements are dispensed with in favor of a reasonableness standard that balances the government's regulatory interest against the individual's privacy interest; in all of these instances the government's interest has been found to outweigh the individual's. The broad scope of the administrative search exception is evidenced by the fact that an overlap between law enforcement objectives and administrative ''special needs'' does not result in application of the warrant requirement; instead, the Court has upheld warrantless inspection of automobile junkyards and dismantling operations in spite of the strong law enforcement component of the regulation. 25 In the law enforcement context, where search by warrant is still the general rule, there has also been some loosening of the requirement. For example, the Court has shifted focus from whether exigent circumstances justified failure to obtain a warrant, to whether an officer had a ''reasonable'' belief that an exception to the warrant requirement applied; 26 in another case the scope of a valid search ''incident to arrest,'' once limited to areas within the immediate reach of the arrested suspect, was expanded to a ''protective sweep'' of the entire home if arresting officers have a reasonable belief that the home harbors an individual who may pose a danger. 27
Another matter of scope recently addressed by the Court is the category of persons protected by the Fourth Amendment--who constitutes ''the people.'' This phrase, the Court determined, ''refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with [the United States] to be considered part of that community.'' 28 The Fourth Amendment therefore does not apply to the search and seizure by United States agents of property that is owned by a nonresident alien and located in a foreign country. The community of protected people includes U.S. citizens who go abroad, and aliens who have voluntarily entered U.S. territory and developed substantial connections with this country. There is no resulting broad principle, however, that the Fourth Amendment constrains federal officials wherever and against whomever they act.
The Interest Protected .--For the Fourth Amendment to be applicable to a particular set of facts, there must be a ''search'' and a ''seizure,'' occurring typically in a criminal case, with a subsequent attempt to use judicially what was seized. Whether there was a search and seizure within the meaning of the Amendment, whether a complainant's interests were constitutionally infringed, will often turn upon consideration of his interest and whether it was officially abused. What does the Amendment protect? Under the common law, there was no doubt. Said Lord Camden in Entick v. Carrington: 29 ''The great end for which men entered in society was to secure their property. That right is preserved sacred and incommunicable in all instances where it has not been taken away or abridged by some public law for the good of the whole. . . . By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set foot upon my ground without my license but he is liable to an action though the damage be nothing . . . .'' Protection of property interests as the basis of the Fourth Amendment found easy acceptance in the Supreme Court 30 and that acceptance controlled decision in numerous cases. 31 For example, in Olmstead v. United States, 32 one of the two premises underlying the holding that wiretapping was not covered by the Amendment was that there had been no actual physical invasion of the defendant's premises; where there had been an invasion, a technical trespass, electronic surveillance was deemed subject to Fourth Amendment restrictions. 33 The Court later rejected this approach, however. ''The premise that property interests control the right of the Government to search and seize has been discredited. . . . We have recognized that the principal object of the Fourth Amendment is the protection of privacy rather than property, and have increasingly discarded fictional and procedural barriers rested on property concepts.'' 34 Thus, because the Amendment ''protects people, not places,'' the requirement of actual physical trespass is dispensed with and electronic surveillance was made subject to the Amendment's requirements. 35
The test propounded in Katz is whether there is an expectation of privacy upon which one may ''justifiably'' rely. 36 ''What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.'' 37 That is, the ''capacity to claim the protection of the Amendment depends not upon a property right in the invaded place but upon whether the area was one in which there was reasonable expectation of freedom from governmental intrusion.'' 38
The two-part test that Justice Harlan suggested in Katz 39 has purported to guide the Court in its deliberations, but its consequences are unclear....