Protection Against Unreasonable Searches and Seizures

Let's dig into the Fourth Amendment. The Fourth Amendment is the provision in the Bill of Rights that provides protections against unreasonable searches and seizures. Let me actually read you the full text of the amendment. 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."

You might not understand every piece of that, but we're going to flesh it out a little bit. As it turns out, this relatively short constitutional provision is the source of a really, really detailed and complex set of constitutional rules governing almost every step of the police investigatory process. There is often a logic to how those rules work but there is a certain amount of arbitrariness too because these rules were developed by the Supreme Court over a long period of time, with different justices in the court at different times. Some of it is just a little arbitrary and you're just going to have to learn the rules.

To the extent there is a deeper principle at work, I'm going to try to do my best to explain that to you because my teaching philosophy is that people are going to remember things better if they actually understand why the rule is the rule, rather than just being given a list of arbitrary seemingly random things to remember. We're going to dive into the specifics in a moment but I wanted to start just by giving you a little bit of the overview of how we're going to approach the Fourth Amendment lessons here. As I see it, there's really three overarching questions you're going to want to answer with respect to Fourth Amendment analysis.

Three Overarching Questions

1. Was it a search or seizure? (Does the Fourth Amendment apply at all?)

First, I want you to figure out, when you're approaching any specific fact pattern, whether the actions at issue are a search or a seizure governed by the Fourth Amendment in the first place. I'm going to call this the threshold question of whether the Fourth Amendment even possibly applies at all. There's some sub-questions involved in that that we're going to get into.

2. If so, was it constitutional?

After you answer that question, and only after you've answered that question, then you're going to figure out, well, did this thing that is a search and seizure, that we've determined is a search and seizure, did it satisfy constitutional requirements?

Was it done in the correct way following the right kinds of rules and so forth, including, and particularly importantly, whether a warrant was needed or whether an exception to the warrant requirement applies?

3. If not, will the evidence be excluded at trial?

Then finally, if you answer both those questions to conclude that yes, this is something to which the Fourth Amendment applies and actually, no, this was a situation where the government action did not comply with the constitution, it was unconstitutional in some way, it was unreasonable under the Fourth Amendment in some way, you're still not done with the analysis.

Because there's often an additional question that you're going to need to answer, which is, even if that's true, is the evidence that was obtained using this unconstitutional search and seizure subject to exclusion in a criminal trial? Fourth Amendment issues typically come up in criminal trials. They can come up in civil cases but that's not really the way the bar likes to test it. It likes to test it in the context of criminal trials, where someone is arguing, " This evidence that's being used against me was obtained unconstitutionally and therefore it must be excluded as evidence under the Fourth Amendment exclusionary rule."

As we will see, even if the evidence was obtained improperly, that doesn't necessarily mean it has to be excluded in the criminal trial. Basically, three questions. Is this even at the threshold, is this something the Fourth Amendment even covers? Second, if it does, if it is something that the Fourth Amendment even covers, was the government conduct here in some way unconstitutional? Then, if that's the case, is introduction of this evidence barred in a criminal trial? I want you to think of those three things as distinct questions. I think this is an area where you're going to really benefit by doing your best to try to keep the different conceptual boxes separate in your head.

Make sure you don't start thinking about one issue when you're actually thinking about something else. Start thinking about, "Was there a search here at all?" And it turns out you're actually supposed to be answering the question, " Was a warrant necessary at all?" Keep things in the right place and I'll do my best to help you with that.