Fourth Amendment - John Bandler

The Fourth Amendment and Search and Seizure

by John Bandler

The Fourth Amendment protects us from unreasonable searches and seizures by the government.

Here's what it says (I added the line breaks to separate each phrase).

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 law on government searches, seizures, and collection of evidence starts with the Fourth Amendment, the highest law on the topic. All other laws and government actions need to comply with it.

I have a chapter on the Fourth Amendment in my 2025 book on Cyberlaw, and a similar chapter in my upcoming book on Introduction to Law (2026 I hope).

Interesting 4th Amendment facts and conclusions by John

Ratified 1791
Word count: 54
Words unchanged since 1791 (232 years)
Toothless for almost 125 years (until Weeks in 1914) (Weeks gave it some Weak Teeth)
Weak teeth for almost 50 more years (until Mapp in 1961)
Number of words written since 1791 about what these 54 words mean? Millions and probably billions!
Meaning and interpretation have evolved!
- Proof that "originalism", "textualism", and "founders' intent" are legal concepts for Constitutional law that should be taken with a grain of salt.

Fourth Amendment applies only to government action

To analyze whether the Fourth Amendment applies, we look to see whether there was government action, also known as “state action.”

A search warrant requirement - then exceptions to that

The Fourth Amendment imposes a search warrant requirement on law enforcement. That’s the first general rule.

But then there are exceptions to that rule, circumstances when law enforcement can search without getting a warrant. These circumstances include:

Consent
Plain view
Search incident to lawful arrest
Pat down frisks upon reasonable suspicion
Automobile searches upon probable cause (the “automobile exception”)
Hot pursuit
Emergencies (exigent circumstances)
Automobile inventory.

The exclusionary rule

The exclusionary rule is a penalty on law enforcement and a protection for citizens and criminal defendant. It means that illegally seized evidence will be excluded from a trial. Put differently, if a judge decides that police or the government violated the Fourth Amendment when obtaining evidence, the judge will suppress (exclude) that evidence, and the jury will not be allowed to see it.

An Evolution: Fourth Amendment chronology and case progression

An evolution of law and interpretation. Initially there were no consequences for violations of the 4th Amendment, then applied only to federal government, then applicable also to state and local governments

Fourth Amendment ratified in 1791

Weeks v. United States, 232 U.S. 383 (1914)

Warrantless seizure by federal law enforcement from a private residence violates the 4th Amendment. Illegally seized evidence must be excluded (suppressed).

Burdeau v. McDowell, 256 U.S. 465 (1921)

Searches by private parties, even illegal searches, do not implicate the 4th Amendment, and suppression is not a remedy.

Gambino v. United States, 275 U.S. 310 (1927)

Searches by local or state law enforcement (in 1927) don't implicate the 4th Amendment unless it is on behalf of the federal government (silver platter).

Mapp v. Ohio, 367 U.S. 643 (1961)

4th Amendment applies to states (not just the feds) via Due Process clause of the Fourteenth Amendment. Illegal searches by local law enforcement do implicate the 4th Amendment, and suppression (exclusion) is a remedy.

Katz v. United States, 389 U.S. 347 (1967).

4th Amend applies to conversations too (phone calls). Concept of reasonable expectation of privacy (REP) from Government

Terry v. Ohio, 392 U.S. 1 (1968)

Police may temporarily detain (stop) and possibly pat down frisk based upon reasonable suspicion (which is less than probable cause). “Stop and frisk” is Constitutionally permissible.

People v. Zelinksy, 24 Cal 3d 357 (Cal Sup Ct 1979)

Under California law, an illegal private search by a private entity, used in a criminal case, could be subject to suppression under the California Constitution.

Minnesota v. Buswell, 449 N.W.2d 471 (Minn. App. 1989) Ch 8 p.459.

Under Minnesota law, it is not enough just to say it was a private search to evade the 4th Amendment. The court must analyze whether there was government involvement.

Now let's get digital

This is the time to play this song via YouTube.

United States v. Jones, 565 U.S. 400 (2012). GPS tracking using a device is a search, requiring a search warrant supported by probable cause.

Riley v. California, 573 U.S. 373 (2014) Law enforcement needs a search warrant to search a defendant's cell phone. The warrant exception for search incident to lawful arrest might cover pockets and beyond, but definitely does not cover searching contents of a cell phone.

Carpenter v. United States 585 U.S. 296 (2018). Law enforcement's obtaining of third-party location data requires a search warrant and a showing of probable cause.

ECPA, Electronic Communications Privacy Act

A statute that lays out the procedure for law enforcement to obtain electronic evidence, consistent with the Fourth Amendment. (It also prohibits certain online conduct, but that's a different matter)

Disclaimer

This short article cannot be expected to capture all nuances of the law in this area.