Fourth Amendment and the Protections against Unlawful Search and Seizure


4th Amendment

4th Amendment

The 4th Amendment to the US Constitution does two things. First, it protects individuals from searches and seizures that are unreasonable. Second, it creates the constitutional minimum requirements before a warrant is issued.

The Fourth Amendment 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.

Fourth Amendment Issues in Criminal Appeals Cases

Potential violations of the 4th Amendment are frequent grounds for an appeal in criminal cases throughout Illinois and federal appeals.

Did the Search or Seizure Occur Based Upon Government Action?

The first issue in 4th Amendment appellate cases is whether the search or seizure resulted from government action.

The Fourth Amendment protects individuals only from government intrusions. Originally, the Bill of Rights only restricted the federal government. Today, after the 1961 US Supreme Court decision of Mapp v Ohio, the protections of the Fourth Amendment also restrict action taken by state and local governments.

For example, “citizen’s arrests” regardless of their illegality would never trigger the 4th Amendment because only private action occurred. Likewise, evidence collected by private entities such as hospitals usually does not involve unreasonable searches or seizures.

Actions of private security personal are also another common occurrence when appealing a wrongful conviction based upon a Fourth Amendment violation.

Private security personnel currently outnumber police officers in the United States 3-1. As a result, whether you’re shopping in a supermarket or a pharmacy, working in an office building, or visiting a friend in a housing project, you may be more likely to be confronted by a security guard than by a police officer.

At the present time, the Fourth Amendment does not apply to searches carried out by non-governmental employees like private security guards.

At the present time, the Fourth Amendment does not apply to searches carried out by non-governmental employees like private security guards.

For example, assume that a shopping mall security guard acting on a pure hunch searches a teenager’s backpack. Inside the backpack the guard finds a baggie containing an illegal drug. The guard can detain the teenager, call the police, and turn the drug over to a police officer. The drug is admissible in evidence, because the search was conducted by a private security guard.

As private security guards increasingly exercise traditional police functions, courts may one day apply Fourth Amendment guidelines to their conduct.

Did a Seizure Occur?

Whether a search or seizure occurred is often times the most litigated issue in criminal appeals cases involving the 4th Amendment.

The police and prosecution will argue that the police-citizen encounter was not a seizure but a voluntary encounter. As a prosecutor this was often the argument I used most often. The legal presumption is that a police officer can approach a person on the street and ask them even incriminating questions without violating the 4th Amendment because the person knows that he can refuse to answer the police officer’s questions.

Did a Search Occur?

This issue usually occurs in appeals cases in situations where the police officer states that the search occurred after the person gave permission to search. 

The US Supreme Court has created a two-part definition of a search:

1) a person expects privacy in the thing searched and 2) society believes that expectation is reasonable

As a rule of thumb, think of it this way: if the police have the authority to search, they’ll just search. If they ask for consent, it’s because they don’t have the authority to search unless you give permission.

The 4th Amendment’s Requirement of Probable Cause     

What is the Probable Cause Definition

Probable cause is a term that is used often in criminal law. Probable cause allows a police officer to arrest someone or to conduct a search without an arrest warrant and it is required before a judge can issue an arrest warrant. Probable cause is also required before a grand jury can return an indictment. How is Probable Cause Defined?

Although probable cause is a term that is used often in the criminal law, it does not have a fixed definition. A common definition of probable cause used by the courts is “a reasonable amount of suspicion, supported by circumstances sufficiently strong to justify a prudent and cautious person’s belief that certain facts are probably true.” To establish probable cause, a police officer is allowed to use his or her knowledge and experience in making the determination as to whether probable cause exists.

Probable cause exists when the facts and circumstances are sufficient to warrant a prudent person to believe that a person has committed, is committing, or is about to commit a crime.

How Can Probable Cause Be Established?

Probable cause exists when the police officer has sufficient facts to justify a search and seizure. To establish probable cause the police officer’s actions must be based upon actual facts and circumstances that would lead a reasonable officer to believe that criminal activity has occurred or is about to occur.

To satisfy the probable cause requirement a police officer is allowed to his or her personal observations; hearsay statements made to the officer; the officer’s expertise; and any circumstantial evidence available at the time of the search or seizure.

Probable cause is a term that dominates 4th Amendment law. All warrantless arrests and searches are conducted based upon probable cause. A court decides whether probable cause actually existed after a suppression hearing. Evidence that was seized without probable cause is excluded and cannot be used in any future prosecution. Probable cause is a very fact-based legal term. Case law is filled with cases that are identical that have reached a different result on the legality of a warrantless arrest or search. Most of the time, the difference in results is the ability of the criminal defense attorney to establish a 4th amendment violation.

Terry Stops

Whether a traffic stop violates the Fourth Amendment is analyzed as a Terry stop. For a traffic stop to be valid, a police officer must have specific and articulable suspicion that the driver has violated a traffic law.

There is also a lowered expectation of privacy inside of motor vehicles.

Never put anything in your vehicle that you do not want the police to see.

Exigent Circumstances Exception

Generally the Fourth Amendment prohibits the police from arresting a person without an arrest warrant. However, when exigent circumstances exist the police can arrest someone in their home without first obtaining a warrant.

Exigent circumstances can occur when a police officer must act quickly.

In most criminal appeals cases, exigent circumstances occur when the police have a reasonable belief that evidence is in imminent danger of being removed or destroyed.

Exigent circumstances may also exist where there is a continuing danger, or where officers have a reasonable belief that people in need of assistance are present.

Hot Pursuit Doctrine

The hot pursuit doctrine is nothing more than a specific exigent circumstance. The hot pursuit doctrine allows the police to enter a person’s home when the police are in hot pursuit of a fleeing felon and the fleeing person tries to evade arrest by entering his or her house. In these limited situations, the police are allowed to follow the suspect into the residence to arrest the person and seize any evidence in plain view.

When Does the 4th Amendment Not Protect You?

The Fourth Amendment applies to a search only if a person has a legitimate expectation of privacy in the place or thing searched. If not, the Fourth Amendment offers no protection because there are, by definition, no privacy issues.

Courts use a two-part test to determine whether, at the time of the search, a defendant had a legitimate expectation of privacy in the place or things searched:

  1. Did the person actually expect some degree of privacy?
  2. Is the person’s expectation objectively reasonable — that is, one that society is willing to recognize?

For example, a person who uses a public restroom expects not to be spied upon (the person has an expectation of privacy) and most people would consider that expectation to be reasonable. Because of this reasonable expectation of privacy in this situation, the police installing a hidden video camera in a public restroom would be a violation of the Fourth Amendment.

On the other hand, when the police look for and find a weapon on the front seat of a car, it is not considered a search under the Fourth Amendment because the reasonable objective expectation is that the front seat of a car is not a private place.

A good example of how this works comes from a U.S. Supreme Court case titled Bond v. US, 529 U.S. 334 (2000). In Bonds, the Court held that a bus passenger had a legitimate expectation of privacy in an opaque carry-on bag positioned in a luggage rack above the passenger’s head, and that the physical probing by the police of the bag’s exterior for evidence of contraband constituted a search subject to 4th Amendment limitations.

What Happens When a Search Violates the 4th Amendment?

The primary remedy for a violation of the Fourth Amendment is based upon the exclusionary rule.

Under the exclusionary rule, if a court finds that an unreasonable search occurred, any evidence seized as a result of the search cannot be used as direct evidence against the defendant in a criminal prosecution, state or federal.

The criticism of the exclusionary rule on the ground that it unfairly lets the criminal go free because the police committed an error; but the rule’s supports argue that excluding illegally seized evidence is necessary to deter police from conducting illegal searches. According to this deterrence argument, the police won’t conduct improper searches if the resulting evidence cannot be used to convict the defendant.

Fruit of the Poisonous Tree Doctrine

The fruit of the poisonous tree doctrine extends the exclusionary rule to any additional evidence discovered subsequent to information that was obtained from the illegal search.


Officer Wiley arrests Hy Lowe for selling phony telephone cards. A judge rules that Officer Wiley illegally entered Lowe's home and improperly seized a map showing the location where Lowe hid the phone cards. Officer Wiley then found the phone cards in that location. Because Officer Wiley obtained the map through an illegal search, the phone cards are the fruit of that unlawful search and are therefore inadmissible into evidence. Some defendants believe that if they can show that a search was illegal, the case must be dismissed. Not true. If a prosecutor has enough other evidence to prove the defendant guilty, the case can continue. Also, the illegally-seized evidence can be considered by a judge when deciding on an appropriate sentence following conviction admitted in civil cases and deportation cases, and in some circumstances, be used by a prosecutor to attack the credibility of a witness who testifies in the trial.


The Fourth Amendment to the US Constitution is a complex area of law that is very case specific and a difference in one fact could be the difference between a court ruling a search or seizure to be illegal or a search or seizure was lawful.

Many wrongful convictions have been overturned on appeal because the trial court incorrectly denied a motion to suppress evidence based upon an unreasonable search or seizure.


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