Fourth Amendment Protections

What it says

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.

What it does

Protects the individual citizen from a government agent searching or taking property without just cause. Searches and seizures deemed “reasonable” (the exact meaning of this term is the topic of many court cases) must include a specific judicial warrant detailing what is being sought. The Fourth Amendment limits (at least partially) the government's ability to intrude into individual citizens’ privacy and property.

How It Happened

Under English rule, the American colonists were subject to “general warrants” and “writs of assistance” authorizing British troops to search colonials’ homes and properties and seize their goods. Without the need for specific allegations or probable cause, authorities regularly raided the homes of potential revolutionaries and smugglers seeking to avoid the King’s taxes. British authorities confiscated black market goods for their own use, and collected letters and papers suspected to contain treasonous or revolutionary ideas and plans. This constant harassment from government was still fresh in the minds of those colonists when they were drafting the Bill of Rights to limit the scope of their new government, and established explicit protections in the Fourth Amendment to protect future American Citizens.

Why It Matters to Libertarians

You’re being watched, listened to, and tracked just about everywhere. While some claim, “those with nothing to hide have nothing to fear,” Libertarians are realistic about the abuses that result from warrantless searches and unchecked power. Troublingly, a recent SCOTUS ruling allows police to use evidence against you, even if it was obtained during an illegal search.

How It Works (and Doesn’t)

The Fourth Amendment requires law enforcement officers to present probable cause to a judge and obtain a warrant. Under oath, officers must ‘particularly’ describe the areas to be searched and the property to be seized (drugs, unlicensed weapons, the jeans you were wearing when your mother-in-law was murdered) BEFORE they may search your property. Like all fundamental rights, however, our intrusive government has carved out exceptions to the rule meant to restrain it.

When It Doesn’t Apply

Consent

If you ““freely and voluntarily” tell the cops it’s okay to search you, your car, or your home, you have legally forfeited your right to having a warrant issued. While police may not deceive or trick you into giving consent (say, by pretending to work for the gas company to gain entry to your home) they can apply pressure and make you believe it’s in your best interest to consent, even when it isn’t. If you live with someone, and that person consents but you object to a search, the ‘no’ wins and the warrant must be obtained. But if your roommate (or landlord) consents to a search, anything they find in ‘common areas’ can be seized as evidence against you.

Plain View and Open Fields

If an officer is lawfully present at your home (a crime is suspected or the officer has been called to the scene by a neighbor) and she see contraband, or evidence of a crime “in plain view” (that anyone in the room could see without moving anything around), the cop can seize the item(s) without a warrant and may report what she observed. The “plain view” exception is modified for the outdoors in the “open fields” rule. Someone growing marijuana in a policy-backward state, for example, cannot rely on the Fourth Amendment to protect a crop a cop spots from the road.

Exigent Circumstances

Exigent (from the Latin for “urgency” and also “require”) circumstances may also be exploited by officers to avoid the warrant requirement. If an officer has “reasonable suspicion” a crime is being committed (a woman is screaming from a locked apartment), has just been committed (a masked man running from a bank with bulging duffel bags) or evidence is being destroyed (a heroin user attempting to flush his stash) he does not need a warrant to arrest someone, enter a property, or use contraband. Television cops will sometimes pretend to hear someone screaming before breaking down a door illegally.

New York City’s infamous “Stop and Frisk” program relied on this exception to enable officers to briefly detain and search a person on an officer’s (sometimes imagined or fabricated) claim of “reasonable suspicion.”  A federal judge ruled in 2013 that such stops were unconstitutional, as police were using the vague bounds of “reasonable suspicion” as a pretense for racially profiling and selectively searching Black and Latinx residents. The slightly more restrictive “Terry Stop” is a legal standard allowing officers to search a citizen's “outer garments,” for weapons “for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.”

Motor Vehicle

The Supreme Court has ruled that because others can see you (and peek into your windows) much more freely, you don’t have the same expectation of privacy in your car as you do in your home. Under this diminished definition of privacy (which libertarians oppose) cops can search the passenger compartment and trunk  of your vehicle without a warrant (relying on probable cause or reasonable suspicion, the standard of the Terry search). Even this limited protection has exceptions: Customs and Border Protection (Border Patrol) can search your car at the border without any suspicion of criminal activity, and if your car is legally impounded (if you are caught driving on a suspended license, for example) officers may search the car to “take inventory.”

Incident to Arrest

If you are arrested, arresting officers do not need a warrant to search you or your belongings EXCEPT your cell phone (the cops will need a warrant to search your cell phone). If contraband is found, it may be seized and used as evidence against you. If you’re driving your car and the cops pull you over to arrest you, chances are they will search your car without a warrant, because “it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of arrest.”

Border Search

If you are crossing into the United States, even if you are a citizen, Customs and Border Protection may search [without a warrant] you, your belongings (including computers and electronic devices) and car without having any level of suspicion. Reasonable suspicion by a border guard even permits a strip search.

Suspected Terrorism

Under the ironically named PATRIOT ACT and its equally ironic “USA Freedom Act” (Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection and Online Monitoring Act) the government may collect and store enormous amounts of metadata from citizens’ phones and devices. Edward Snowden revealed the National Security Agency’s warrantless surveillance and bulk collection of Americans’ private data in the absence of Congressional authorization. Some sixteen federal agencies were granted access to these illegally collected troves. These laws allow telecommunications companies and internet service providers to store our data, and allows for the issuance of SECRET WARRANTS (exactly the situation our Founders hoped to avoid) from the Foreign Intelligence Surveillance Court (FISC or FISA). By invoking fear of terrorism, the FISA court does an end-run around the Fourth Amendment: government agencies have requested more than 34,000 warrants in the court’s history, and just 12 warrants were denied. An approval rate of 99.7% indicates that FISC does not provide a check on law enforcement power, but instead serves as a rubber stamp for abuses of the Fourth Amendment.


Because Knowing is Half The Battle

  • Georgia DOES NOT have a law that specifically addresses no-knock warrants, YET Georgia law says that force can only be used to enter “after verbal notice or an attempt in good faith to give verbal notice by the officer.”

  • An elderly lady named Kathryn Johnston, who lived in Atlanta was shot several times to by  police who served a no-knock warrant that was based upon falsified paperwork. In total 39 shots were fired police.

  • A baby’s face was torn to his teeth, and his chest wall was torn to his muscle, when cops used a flash-bang grenade while serving a no-knock warrant.

  • Cops can arrest you for an offense whose penalty does not include jail time. And if the cops find contraband during the search, they can seize it and it can be used as evidence in your prosecution.

  • A Federal Appeals Court ruled that cops can shoot and kill your dog while serving a search warrant; even if your dogs have not attacked the cops.

  • The cops can search the passenger compartment and trunk of your car without a warrant, or probable cause; they only need reasonable suspicion.

  • If the cops [legally] impound your car, they can search trunk and passenger compartment without a warrant.

  • Cops don’t need a warrant,or probable cause to have a drug dog walk around your car as long as the cop doesn’t “prolong the detention on ‘beyond the time reasonably required to complete’ the stop’s ‘mission.’”

  • Drug dogs had more than 200 false alerts in a UC Davis study.

  • When cops randomly knock on your door and ask questions, you have the right to tell them you won’t open your door nor speak to them, and to continue watching repeats of Martin.

  • One of the most important Fourth Amendment cases involved the cops showing up to an old lady’s home and entering it without probable cause. She asked for a warrant, and the cops gave her a fake warrant. The cops then searched her home and found porn; the cops arrested her.

  • A Georgia SWAT team shot and killed a man when they raided his home by breaking down the backdoor without announcing themselves. The SWAT team did not have a no-knock warrant. The warrant they obtained was the fruit of the words given by a self-confessed meth-addicted burglar who robbed the slain man’s home the day before. The SWAT team raided his home to find drugs; there were no drugs. According to the slain man’s family, the slain man had government security clearance.

  • Police with a no-knock warrant entered Tracy Ingle’s home and shot him five times. Police were there to find drugs, there were no drugs. Tracy Ingle did not have health insurance at the time of the shooting and his family couldn’t afford to  retain an attorney for Ingle (his family paid the initial $1,000 but didn’t have the cash the attorney later required). Oh yeah, the cops charged Ingle with running a drug enterprise, don’t forget that the cops found no drugs in his home.

  • Ismael Mena was shot and killed by SWAT when they raided his home with a no-knock warrant. The police had the wrong house.

  • Mario Paz and innocent man was shot and killed by police when they raided his home with a no-knock warrant. The police used a grenade during the raid.

  • Alberta Spruill, an innocent woman was killed by police after police raided her home with a no-knock warrant. The no-knock warrant was the result of bogus information given by informant. The police used a concussive grenade which caused Spruill to have a heart attack that killed her.

  • Iyanna Davis was shot in the breast when the cops executed a no-knock warrant at the wrong house.



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