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.
Most people have heard the phrase A man’s house is his castle. This quote comes from one of the least credited revolutionaries from the mid-1770′s. James Otis wrote more about the virtues of revolution than perhaps any of the other founders. He gave us the aforementioned phrase as well as Taxation without representation. The particular quote about a man’s house is his castle is one of the reasons for this very Amendment.
A man’s house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court may inquire.—James Otis
“This writ” was imposed on the colonies with the “Stamp Act.” It meant that a soldier, or soldiers, could—and often did—write their own search warrant to enter ones home looking for non-compliance with the act. If you did not have the King’s stamp on every legal document, letter, newspaper or any other article requiring it, they could confiscate your home for their own use and throw you out.
Sort of like the Supreme Court has allowed with eminent domain.
Judge Andrew Napolitano explained this bit of Constitutional history during an interview with Alex Jones. “Do you remember, Alex, studying basic American History? The King of England had ingenious ways to tax us. The last straw was the Stamp act. It required that every colonists have on every piece of paper in his or her home a stamp. Every book, every bank draft, every mortgage, every lease, every deed, every pamphlet, even a poster that was going to be nailed to a tree had to have the King’s stamp on it. Imagine having to go—we have enough difficulties with the Post Office, as it is—you had to go to a foreign post office in the colonies and buy the King’s stamp.
“Question. How did the government know if you had the King’s stamp on every piece of paper in your house? Answer: The Parliament enacted the Townsend acts which permitted British soldiers to write their own search warrants. And thus they would show up at your home and hand you a piece of paper on which they had purported to authorized themselves to enter your home ostensibly to look for the stamps. Of course they would confiscate alcohol. They would confiscate furniture which you couldn’t demonstrate you had paid taxes on. They would even sometimes kick you out of the house and take it over for days, or weeks, or months.
“We fought a revolution. We won the Revolution. We wrote a Constitution. We added the Fourth Amendment to that Constitution. Which, next to the right-to-life, is the greatest right there is; the right to be left alone. And it says the government can’t come onto your property and can’t seize what you have and can’t intrude into your privacy unless it goes to a judge and demonstrates to a neutral judge that its more likely than not that you are committing a crime.”
“Fast forward two-hundred years to the Patriot act. What does the Patriot act do? It allows federal agents to write their own search warrants. We have elected a government that has done the very same thing to us, which was the last straw when we broke away from an island three-thousand miles away that was regulating us as if we were chattel and as if we were slaves to them.”
We notice, in this Amendment, the phrase probable cause. We notice, also, what it applies to.
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.
A person must have probable cause to get a warrant. It does not say that one can conduct a search because he has probable cause. And what must the warrant include? Yes, they are supposed to present you with a warrant that says Officer so-and-so has the authority to search the bathroom medicine cabinet for such-and-such a pill, commonly known as this-and-that.
Let us say that Officer so-and-so enters the premises and find a bong billowing the lovely smell of hashish? Now, Officer so-and-so has found evidence of a new crime. He can, now, arrest the person because he actually witnessed the crime and search at will.
There is nothing wrong with the above scenario, except, possibly, that Officer so-and-so is violating his oath to the Constitution because drugs law are in violation of the Ninth Amendment. We will discuss the Ninth Amendment in detail later. It is Officer so-and-so’s duty to make the arrest and let the courts decide. A sheriff of the county, however, can tell his officers not to make the arrest because it violates the Constitution. 99.9% won’t, however, because then they will wind up having to fight the battle in court (which is their duty), so it’s easier to let the victim and his lawyer fight the good fight.
Terry v. Ohio, 392 U.S. 1 (1968)
established that “stop and frisks” (seizures) may be made under reasonable suspicion if the officer believes a crime has been committed, is, or soon will be committed with a weapon concealed on such person.
I actually agree with this ruling. Police do have the right to defend themselves against a real threat. While they should probably not be tasering thirteen-year olds and grandmothers—as has been reported—if they face a situation where they feel a viable threat, a frisk is a good idea. I have no objection to holding weapons during the duration of a stop.
United States v. Matlock, 415 U. S. 164 (1974)
Court announced the “co-occupant consent rule” which permitted one resident to consent in the co-occupant’s absence.
Illinois v. Gates, 462 U.S. 213 (1983)
lowered the threshold of probable cause by ruling that a “substantial chance” or “fair probability” of criminal activity could establish probable cause. A better-than-even chance is not required.
New Jersey v. T.L.O., 469 U.S. 325 (1985)
Concerning searches at schools
Griffin v. Wisconsin, 483 U.S. 868 (1987)
United States v. Knights, 534 U.S. 112 (2001)
Samson v. California, 547 U.S. 843 (2006)
Supreme Court ruled that reasonable suspicion is not even necessary in searches of parolees.
Georgia v. Randolph, 126 S. Ct. 1515 (2006)
When officers are presented with a situation wherein two parties, each having authority to grant consent to search premises they share, but one objects over the other’s consent, the officers must adhere to the wishes of the non-consenting party. Overturned U.S. v. Matlock.
Bear in mind that this is not a law class, I am not a lawyer and not giving legal advise. I only show what the founding fathers intended as compared to what we have today. If you choose to use this information, it is at your own risk and that of your lawyer.
But I will say one thing with confidence. If you run into a situation similar to anything found in this article, do not take it out on the officer. In fact—as we will learn in the next article—you have a right to remain silent. Use it! Keep your mouth shut! Do not speak to anyone except your lawyer. This prevents two things. One, it prevents you from helping the officer make a case against you. And, two, they can’t say that you had an “attitude” during your arrest.
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Tags: 4th Amendment, Arizona, Bill of Rights, Constitution, Education, Fourth Amendment, Honor America Days
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