Search and seizure

SIGNIFICANCE: The Fourth Amendment requires an appropriate balance between criminal investigations and protection of people’s privacy and possessions.

Search and seizure law provides a focal point for the collision of competing objectives within the justice system. On the one hand, police must search for and seize evidence and suspects in order to enforce the criminal laws. On the other hand, the Fourth Amendment’s prohibition on “unreasonable” searches and seizures aims to avoid granting too much power to police officials and to preserve people’s privacy and liberty. The US Supreme Court has regularly been presented with cases requiring the justices to interpret the Fourth Amendment in a way that satisfies the dual goals of protecting people’s rights and simultaneously permitting police officers to conduct effective investigations.

Historical Origins

American search and seizure law can be traced to English origins. Although the roots of search and seizure in English common law are not clear, the English gradually developed the practice of using warrants to justify government intrusions into citizens’ homes, usually in a search for stolen goods. Eventually, English kings began to use general warrants justifying unlimited searches. These warrants did not specify the places to be searched or the items being sought. In effect, law-enforcement officers could use the general warrants to search as they pleased. For example, warrants came to be used to discover whether people possessed any books or pamphlets that criticized the king. Because of these abusive practices, during the mid-eighteenth century Parliament passed resolutions condemning general warrants, and English courts began to limit the government’s use of such warrants.

In the American colonies, people felt victimized by “writs of assistance,” general warrants used by British officials to conduct exploratory searches of people’s homes and businesses. These searches were frequently used to determine whether all proper taxes and duties had been paid to the king for goods produced, bought, or sold. Disputes about such British tax policies and search and seizure methods contributed to the American Revolution.

After independence from Great Britain was achieved, the authors of the Bill of Rights had keen memories of their dissatisfaction with British search and seizure practices. As a result, they wrote the Fourth Amendment in order to set explicit limits on the government’s ability to conduct searches and undertake seizures. According to the Fourth Amendment, “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 drafters of the Bill of Rights thus sought to prevent unreasonable searches by requiring the use of specific warrants that were to be issued by neutral judges after the presentation of evidence justifying the need for a search.

Legal Doctrines

For most of American history, the Fourth Amendment had little impact on police searches because the Supreme Court paid little attention to such issues. Moreover, the Fourth Amendment was initially applied only against federal law-enforcement officials and not against state or local police. Some state judges interpreted their state constitutions to place limits on local enforcement activities, but police officers in many areas searched people and homes with impunity. Such searches were sometimes carried out for purposes of intimidation and harassment of the poor, members of racial minority groups, or political opponents of the local mayor or police chief.

The Supreme Court’s development and enforcement of strong search and seizure rules began with the case of Weeks v. United States in 1914. Here the Court invalidated federal officers’ warrantless search of a home by creating the “exclusionary rule.” The Court declared that if any federal searches violate the Fourth Amendment, no evidence discovered during those searches can be used against a defendant in court, even if the evidence demonstrates the defendant’s guilt. By making exclusion of evidence the remedy for improper searches and seizures, the Supreme Court effectively declared that it was more important to protect people’s rights to privacy and liberty than to make sure that every criminal law was strictly enforced. Advocates of the exclusionary rule assumed that it would deter police from conducting improper searches.

In 1949, the Supreme Court declared that the Fourth Amendment’s protections are also applicable against state and local police, although the justices declined to apply the exclusionary rule to such officers (Wolf v. Colorado ). In 1961, however, the Court began to treat state and local police searches in the same manner as federal searches by applying the exclusionary rule to all law-enforcement officers (Mapp v. Ohio ). The Court’s decision generated an outcry from local law-enforcement officials, who claimed that the justices were preventing the police from catching guilty criminals. During the 1960s, many politicians criticized the Supreme Court’s decisions on this and other cases having to do with the rights of criminal defendants.

One such critic was Richard Nixon, who, after winning the presidency in 1968, used his appointment powers to place on the Supreme Court new justices who believed that the search and seizure rules were too harsh on the police. One Nixon appointee, Chief Justice Warren E. Burger, wrote an opinion containing strident criticisms of the exclusionary rule and expressed the view that Fourth Amendment rights could be protected without excluding useful evidence found during improper searches (Bivens v. Six Unknown Named Agents, 1971). Eventually, the Supreme Court’s composition changed to contain a majority of justices who shared Burger’s view. Thus, during the 1980s in particular, the Supreme Court issued many new decisions, making it easier for law-enforcement officers to conduct searches and seize evidence without obtaining proper warrants.

For example, in United States v. Leon (1984), the Supreme Court created a “good-faith” exception to the exclusionary rule by permitting police to use evidence seized under a defective warrant that had been based on inadequate justification. Because the error had been made by the judge who issued the warrant rather than by the police officers who conducted the search, the Court permitted the evidence to be used. In another example of relaxed standards, the justices permitted police to search an apartment based on an erroneous belief that the suspect’s girlfriend possessed the authority to consent to the search (Illinois v. Rodriguez, 1990).

The Supreme Court has identified a variety of situations in which police officers can search and seize people or evidence without any warrant. Such situations include automobile searches, stopping and frisking suspicious persons on the street, searches incident to an arrest, and searches conducted in emergency circumstances. In each of these circumstances, society’s need to enforce laws and preserve criminal evidence could be defeated if officers were always required to obtain a warrant before conducting a search. Automobiles, for example, are mobile and could disappear with important evidence if the Supreme Court did not define some circumstances in which warrantless searches are permissible. In defining these circumstances, however, the justices seek to limit the conditions that justify a search in order to withhold from police officers the power to conduct searches on a whim.

A Difficult Balance

American search and seizure laws reflect changing decisions about the most appropriate balance between the need to investigate crimes and the Fourth Amendment’s mandated goal of protecting people from governmental intrusions. During the 1960s, when many Americans became keenly aware of the concept of constitutional rights and the existence of harsh and discriminatory law-enforcement practices, the Supreme Court gave great emphasis to the protection of rights, even if it meant that some guilty offenders would go free. During the 1970s and 1980s, however, fear of crime became a growing concern for many Americans. The greater attention given to issues of law and order by the public and politicians was reflected in changes in the Supreme Court’s composition and, eventually, in changes in legal doctrines affecting search and seizure. By the mid-1990s, the Supreme Court had relaxed many of the restrictions placed on police officers’ search and seizure methods during the 1960s.

Although the rearrangement of priorities gave police officers a freer hand in conducting searches and using improperly obtained evidence, the changes did not represent an abandonment of the Fourth Amendment’s restrictions on search and seizure. Even the justices who believed that greater emphasis should be placed on crime control still identified some circumstances in which police officers’ search and seizure activities went beyond constitutional boundaries. For example, in Minnesota v. Dickerson (1993), the Court invalidated the seizure of cocaine from a man’s pocket, asserting that police engaged in a warrantless stop-and-frisk search of a suspicious person on the street had erred in extending their inquiry beyond a search for a weapon. The city's police force has made an effort to limit stop-and-frisk searches, which have been a prevalent aspect of policing in the city since the 1980s.

Another factor also helped to protect the Fourth Amendment. By the late twentieth century, police officers and judges had become better trained, more professional, and less connected to and controlled by local patronage politics. Thus, these officials had greater legal knowledge and ethical sensitivity than their predecessors and sought on their own to respect citizens’ Fourth Amendment rights.

Debates about search and seizure are likely to continue because of the difficulties involved in achieving a consensus among policymakers, scholars, and judges about the appropriate interpretation of the Fourth Amendment. The inevitable collisions between the social goals of vigorously investigating crimes and protecting citizens from governmental intrusions virtually guarantee that courts will continually be presented with situations in which the Fourth Amendment must be interpreted to strike an appropriate balance between these goals. The most significant conflicts about search and seizure have generally focused on the exclusionary rule. Many scholars and judges believe that the Fourth Amendment is merely an empty promise if police officers are permitted to use improperly obtained evidence, yet the Supreme Court gradually permitted greater use of such evidence during the 1980s. As society’s values change and new justices are appointed to the Supreme Court, there are likely to be further developments in search and seizure doctrine. Thus, it is difficult to imagine that search and seizure issues will ever disappear from the nation’s justice policy agenda.

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