Threshold Questions

The first question, or really a set of questions I want you to ask is whether this is conduct to which the Fourth Amendment applies at all. Let's start with figuring that out by looking back at the text of the Fourth Amendment, which I read to you a little bit earlier. 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." Then there is some other language that's not quite relevant to us at this moment. We're going to get to it later.

Objects of the Search

What does that tell us? Well, it's about security in persons, houses, papers, and effects, first of all. It's also specifically about unreasonable searches and seizures. So, for it to be applicable at the threshold, we need to determine that the thing that's threatened is a person, house, paper, or effect, and we need to determine that the thing that's being done is a search or seizure.

Who's Searching?

Applies to search and seizure by government actors

But we also need to figure out one other thing. If you notice, this is actually written in the passive voice, and that doesn't tell you who's actually threatening the people's security, but that's important because as it has been interpreted, the Fourth Amendment is something that applies only to government actors.

Applies to federal, state, and local actors

It has been held to be incorporated, which means that it is a federal constitutional requirement, but it applies to both federal government actors and state and local government actors. But the person who is doing the thing that is potentially a search or seizure has to be either a government actor, him or herself, or at least acting at the behest of a government actor.

Fourth Amendment and the Police

What are the categories to which you're going to see this apply to the kinds of people that can violate the Fourth Amendment? The most obvious and largest category is just the police. Publicly paid police, whether they're on or off duty, if they're acting in any kind of law enforcement capacity, they're capable of violating the Fourth Amendment because they're the government. They're not just random citizens. Private citizens can, under some certain circumstances, violate the Fourth Amendment, but only when they're acting at the direction of the police.

Police and private actors

If a police officer says to somebody on the street, " Hey, I'd like you to go break into that house and steal somebody's diary," the fact that it's a private person who breaks into the house and takes the object down and brings it to the police doesn't mean that the Fourth Amendment doesn't apply, because, in that situation, the private person is really acting as an agent of the police. We're going to attribute that private person's actions to the government.

Private police

The final situation is private police who are employed by a private organization, a private company, but only if they're deputized with the power of arrest. That's going to include people like the private law enforcement that are working at universities often have this authority, the power to arrest. It's that power to arrest that's been given to them by the government that basically makes them, for the purposes of the Fourth Amendment, public actors.

If you're analyzing a fact pattern, if the person allegedly violating the Fourth Amendment isn't in some way a government actor, there's just no basis for a Fourth Amendment claim. The other textual requirements, well, I said, "It's only going to apply to things that affect the individual's persons, houses, papers, and effects." It's actually a pretty capacious clause, so things that violate somebody's bodily integrity, intrusions at your house, taking your stuff, basically, it's all going to be covered.

What's Not Covered

What's not going to be covered? Well, one thing that isn't covered is open fields. If you have a home, the Fourth Amendment is going to limit the police's ability to come in and search inside your house and to come near the periphery of your house, which is called the curtilage. If you have an open field, multiple acres of open field next to your house, the Fourth Amendment actually has been held not to govern searches of that.

Even if there's a fence up, the police can come into the open field and search that, and that doesn't violate the Fourth Amendment. It just is again another situation where the Fourth Amendment claim just dies on the threshold. Those questions, you know, who can violate the Fourth Amendment, what specific things does it apply to, are sort of simpler.

The big question is going to be, was something a search or a seizure at all? In particular, there's going to be a huge amount of case law and rules about whether something is a search. That is the most contested, the most complicated part of Fourth Amendment doctrine. Often answering that question, was this a search or was this a seizure, kind of answers the other questions that are going to be relevant. That's what we're going to spend the most time on, and we're going to go on to that in the following lessons.

Recap: Basic Questions

But at the onset, ask, " Was the person who allegedly violated the Fourth Amendment a government actor? And did they in some way intrude on a person, house, or someone's papers, or effects?" If not, if any of those questions turns out not to be, the answer turns out to be no, the Fourth Amendment isn't going to apply.