Amendment 4 — Overview Of Unreasonable Searches And Seizures

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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 Fourth Amendment prohibits unreasonable searches and seizures. For a judge to issue a search warrant, there must be probable cause and a particularized description of what is to be searched or seized. In Harris v. United States,[1](https://www.law.cornell.edu/constitution-conan/amendment-4/overview-of-unreasonable-searches-and-seizures#fn1amd4 " 331 U.S. 145 (1947). ") the Supreme Court approved as “reasonable” the warrantless search of a four-room apartment pursuant to the arrest of the man found there. A year later, the Court’s majority set aside a conviction based on evidence seized during a warrantless search pursuant to an arrest and adopted the “cardinal rule that, in seizing goods and articles, law enforcement agents must secure and use search warrants wherever reasonably practicable.” [2](https://www.law.cornell.edu/constitution-conan/amendment-4/overview-of-unreasonable-searches-and-seizures#fn2amd4 " Trupiano v. United States, 334 U.S. 699, 705 (1948). See also McDonald v. United States, 335 U.S. 451 (1948). ")

This rule was set aside two years later, when the Court held that the test “is not whether it is reasonable to procure a search warrant, but whether the search was reasonable.” [3](https://www.law.cornell.edu/constitution-conan/amendment-4/overview-of-unreasonable-searches-and-seizures#fn3amd4 " United States v. Rabinowitz, 339 U.S. 56, 66 (1950). ") Whether a search is reasonable, the Court said, “must find resolution in the facts and circumstances of each case.” [4](https://www.law.cornell.edu/constitution-conan/amendment-4/overview-of-unreasonable-searches-and-seizures#fn4amd4 " Id. at 63. ") The Court, however, returned to its emphasis upon a warrant in Chimel v. California.[5](https://www.law.cornell.edu/constitution-conan/amendment-4/overview-of-unreasonable-searches-and-seizures#fn5amd4 " 395 U.S. 752 (1969). ") In Chimel, the Court held that “[t]he [Fourth] Amendment was in large part a reaction to the general warrants and warrantless searches that had so alienated the colonists and had helped speed the movement for independence. In the scheme of the Amendment, therefore, the requirement that ‘no Warrants shall issue, but upon probable cause,’ plays a crucial part.” [6](https://www.law.cornell.edu/constitution-conan/amendment-4/overview-of-unreasonable-searches-and-seizures#fn6amd4 " Chimel v. California, 395 U.S. 752, 761 (1969) ") Therefore, the Court explained, “the police must, whenever practicable, obtain advance judicial approval of searches and seizures through a warrant procedure.” [7](https://www.law.cornell.edu/constitution-conan/amendment-4/overview-of-unreasonable-searches-and-seizures#fn7amd4 " Terry v. Ohio, 392 U.S. 1, 20 (1968). In United States v. U.S. Dist. Ct., 407 U.S. 297, 321 (1972), Justice Lewis Powell explained that the “very heart” of the Fourth Amendment’s mandate is “that where practical, a governmental search and seizure should represent both the efforts of the officer to gather evidence of wrongful acts and the judgment of the magistrate that the collected evidence is sufficient to justify invasion of a citizen’s private premises or conversation.” Thus, what is “reasonable” in terms of a search and seizure depends on the warrant. Coolidge v. New Hampshire, 403 U.S. 443, 473–84 (1971). See also Davis v. Mississippi, 394 U.S. 721, 728 (1969); Katz v. United States, 389 U.S. 347, 356–58 (1967); Warden v. Hayden, 387 U.S. 294, 299 (1967). ") Search warrant exceptions would depend on the rationale for the exception, and the scope of such a search would be similarly limited.[8](https://www.law.cornell.edu/constitution-conan/amendment-4/overview-of-unreasonable-searches-and-seizures#fn8amd4 " Chimel v. California, 395 U.S. 752, 762–64 (1969) (limiting scope of search incident to arrest). See also United States v. United States District Court, 407 U.S. 297 (1972) (rejecting argument that it was “reasonable” to allow President through Attorney General to authorize warrantless electronic surveillance of persons thought to be endangering the national security); Katz v. United States, 389 U.S. 347 (1967) (although officers acted with great self-restraint and reasonably in engaging in electronic seizures of conversations from a telephone booth, a magistrate’s antecedent judgment was required); Preston v. United States, 376 U.S. 364 (1964) (warrantless search of seized automobile not justified because not within rationale of exceptions to warrant clause). There were exceptions, e.g., Cooper v. California, 386 U.S. 58 (1967) (warrantless search of impounded car was reasonable); United States v. Harris, 390 U.S. 234 (1968) (warrantless inventory search of automobile). ")

During the 1970s, the Court was closely divided on which standard to apply.[9](https://www.law.cornell.edu/constitution-conan/amendment-4/overview-of-unreasonable-searches-and-seizures#fn9amd4 " See, e.g., Almighty-Sanchez v. United States, 413 U.S. 266 (1973), Justices Potter Stewart, William O. Douglas, William Brennan, and Thurgood Marshall adhered to the warrant-based rule, while Justices Byron White, Harry Blackmun, and William Rehnquist, and Chief Justice Warren Burger placed greater emphasis upon whether the search was reasonable. Id. at 285. Justice Lewis Powell generally agreed with the former group of Justices, id. at 275 (concurring). ") For a while, the Court adopted the view that warrantless searches were per se unreasonable, with a few carefully prescribed exceptions.[10](https://www.law.cornell.edu/constitution-conan/amendment-4/overview-of-unreasonable-searches-and-seizures#fn10amd4 " E.g., G.M. Leasing Corp. v. United States, 429 U.S. 338, 352–53 (1977) (unanimous); Marshall v. Barrow’s, Inc., 436 U.S. 307, 312 (1978); Michigan v. Tyler, 436 U.S. 499, 506 (1978); Mincey v. Arizona, 437 U.S. 385, 390 (1978) (unanimous); Arkansas v. Sanders, 442 U.S. 753 (1979); United States v. Ross, 456 U.S. 798, 824–25 (1982). ") Gradually, however, guided by the variable-expectation-of-privacy approach to the Fourth Amendment ’s coverage, the Court broadened its view of permissible exceptions and the scope of those exceptions.[11](https://www.law.cornell.edu/constitution-conan/amendment-4/overview-of-unreasonable-searches-and-seizures#fn11amd4 " E.g., Chambers v. Maroney, 399 U.S. 42 (1970) (warrantless search of automobile taken to police station); Texas v. White, 423 U.S. 67 (1975) (same); New York v. Belton, 453 U.S. 454 (1981) (search of vehicle incident to arrest); United States v. Ross, 456 U.S. 798 (1982) (automobile search at scene); Brigham City, Utah v. Stuart, 547 U.S. 398 (2006) (warrantless entry into a home when police have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury); Michigan v. Fisher, 558 U.S. 45 (2009) (applying Brigham City). On the other hand, the warrant-based standard did preclude a number of warrantless searches. E.g., Almighty-Sanchez v. United States, 413 U.S. 266 (1973) (warrantless stop and search of auto by roving patrol near border); Marshall v. Barrow’s, Inc., 436 U.S. 307 (1978) (warrantless administrative inspection of business premises); Mincey v. Arizona, 437 U.S. 385 (1978) (warrantless search of home that was “homicide scene” ); Arizona v. Gant, 556 U.S. 332 (2009) (search of vehicle incident to arrest where arrestee had no access to vehicle). ") In 1991, the Court held that “[t]he touchstone of the Fourth Amendment is reasonableness,” and that the Amendment “merely proscribes [state-initiated searches and seizures] which are unreasonable.” [12](https://www.law.cornell.edu/constitution-conan/amendment-4/overview-of-unreasonable-searches-and-seizures#fn12amd4 " Florida v. Jimeno, 500 U.S. 248, 250 (1991). ") By 1992, the “reasonableness” approach prevailed over the “warrants-with-narrow-exceptions” standard.[13](https://www.law.cornell.edu/constitution-conan/amendment-4/overview-of-unreasonable-searches-and-seizures#fn13amd4 " Of the Justices on the Court in 1992, only Justice John Paul Stevens frequently sided with the warrants-with-narrow-exceptions approach. See, e.g., Illinois v. Rodriguez, 497 U.S. 177, 189 (1990) (Marshall, J., dissenting joined by Stevens, J.); New Jersey v. T.L.O., 469 U.S. 325, 370 (1985) (Stevens, J., dissenting); California v. Acevedo, 500 U.S. 565, 585 (1991) (Stevens, J., dissenting). ") The Court held that “reasonableness, in turn, is measured in objective terms by examining the totality of the circumstances,” and the Court had “consistently eschewed bright-lines rules.” [14](https://www.law.cornell.edu/constitution-conan/amendment-4/overview-of-unreasonable-searches-and-seizures#fn14amd4 " Ohio v. Robinette, 519 U.S. 33, 39 (1996). ") Since the 1990s, the Court has recognized more exceptions to the warrant requirement, tending to confine the warrant requirement to cases that are exclusively “criminal” in nature. Furthermore, even within that core area of “criminal” cases, the Court broadened some exceptions. Nevertheless, throughout the years, the Court has grappled with what constitutes a search[15](https://www.law.cornell.edu/constitution-conan/amendment-4/overview-of-unreasonable-searches-and-seizures#fn15amd4 " See e.g., Katz v. United States, 389 U.S. 347, 351–52 (1967) ( “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” ). ") or a seizure,[16](https://www.law.cornell.edu/constitution-conan/amendment-4/overview-of-unreasonable-searches-and-seizures#fn16amd4 " See e.g., Torres v. Madrid, No. 19-292, slip op. at 3 (U.S. March 25, 2021) ( “The ‘seizure’ of a ‘person’ plainly refers to an arrest.” ); see also Olmstead v. United States, <a href="/sup