By Roger Wall
The Fourth Amendment is one of my favorite amendments, and it is also one of the most litigated of any of the Amendments.
The Fourth Amendment reads as follows:
“The Right of the people to be secure in their persons, house, papers, and effects against reasonable 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”.
Obviously the founding fathers who drafted this Amendment did not adhere to the Ernest Hemingway axion that “briefer is better”.
This is certainly one fact and thought-filled long sentence that has been subject to several legal decisions over the long decades since it’s publication in 1791.
Of course it was enacted to prevent British Army and Loyalist Force seizures conducted under military rule during the Revolutionary Rule.
And the “no writs issued unless supported” upon probable cause and supported by affidavits part, was derived from the English Magna Carta at Runnymede, enacted by King John in 1215, at the urging of his noblemen .
The Amendment stands for the proposition that all searches and seizures supported by a lawful probable cause affidavit are presumed to be constitutionally valid.
The legal problems occur when law enforcement conducts searches and seizures without a warrant. There are a number of well-recognized exceptions approving warrant-less searches:
– by voluntary consent;
– if an item is in “plain and open view”;
– if exigent (emergency) conditions exist;
– if search is incident to an arrest for the purposes of officer safety;
– if officers believe they were acting in good faith, even if the warrant is technically deficient (ie: like a slightly wrong listing of the legal description of the place to be searched);
– by a lawful “stop, frisk, and search” ( Terry v, Ohio, 1968) etc.
But what happens when law enforcement conducts an unlawful search due to an improperly sworn warrant, or if their actions do not fall under any of many recognized exceptions that qualify for a lawful warrant less search?
In 1961, the U.S. Supreme Court adopted a new and controversial standard of consequences that an accused could now rely on if a search was ruled unlawful.
Prior to the Mapp v. Ohio decision, the only remedy available for an accused was to sue the police in court for a violation of their Fourth Amendment Right as a result of their civil rights being violated. This option of course wasn’t really available for poor people.
So in the Mapp decision, the Court announced that from this point forward, the Court would establish the “Exclusionary Rule”; and that it would be the law in all of the States, as administered through the “due process” clause of the 14th Amendment.
Under the exclusionary rule, all evidence obtained from an unlawful search or if tainted by an unlawful search, such evidence would be and is inadmissible at trial. By the way, this same rule can now also apply if an accused person’s statement is illegally taken.
The result of this rule was earth-shattering at the time, especially to the police. In other words, “good evidence” of drugs, stolen property, and even a body in a freezer or even a confession would now be inadmissible as evidence if resulting from an illegal search.
The “exclusionary rule” has been under a steady legal attack for over a half-century now, but while the Supreme Court has slightly minimized it, to date, it has left the rule in effect.
In another ground shaking ruling in the late 90’s, the Supreme Court ruled that random spot checks for driver licenses, auto insurance, DWI, and drugs are legal if the process is not “over-used” and as long as the stop is brief and truly random.
In a 2008 case out of Iowa, the Supreme Court modified the rule stating that obtaining a “police search dog” within 35 minutes was too obtrusive and too long to be admissible for a random stop. That is why you now frequently encounter a dog at these sorts of stops.
As an amateur legal historian, I sometimes wonder what our founding fathers would think about how the Constitution is currently being applied in modern times. What would Washington, Madison, and Jefferson say if their coach was “randomly” stopped for questioning or for a brief search along the stage route from Boston to Philadelphia. “You mean we could be stopped and questioned at 12-15 different points along our journey? No Way!”
It also makes me wonder what their thoughts would be concerning the very divisive process of impeachment now in front of every American.
Note: December 4th
It’s been a wet year. Two more minor floods of 4 – 4 1/2 feet of water over my Hunter Creek bridge in November. I wish I would have kept track of the annual 2019 moisture levels. I am estimating that its been one of our wettest years, probably exceeding our little rain belt of 44 in. by 18-22 in. amazing! And last year was wet also. Global Warming? Possibly.
I hope you all enjoyed your Thanksgiving with friends and family. I know I did.
And again it’s almost Christmas time, not only a special time to celebrate friends and family again, but to remember those who serve people less fortunate than ourselves.
I had three deer taken off of my place this year: an 8-point buck and a button buck taken the first weekend. And then a friend of the family, a young college co-ed shot a nice little four-pointer, of which she was justifiably proud.
Personally, I like the venison from young yearlings all the way up to a fork-horn buck. The problem is that it’s a lot of work to butcher a small deer for 20-30 pounds of meat. I am not really into tough old bucks or big gamey does any more.
Anyway, be safe, be courteous, and above all, enjoy yourself in the deer woods this fall.
Now, get up and go enjoy our beautiful Ozarks outdoors!