The Fourth Amendment Ratification & Applicability


The Fourth Amendment upholds the US peoples’ right to be secure in their persons, houses, papers, and effects (Cornell University Law School, n.d). The law enforcing officers, therefore, is forbidden from searching or taking anything from the citizens without significant justification. The amendment further classifies irrational searches and seizures as those without reasons. For the police to be issued a search warrant, they must convince a judicial officer that someone has broken the law. In the warrant, clear information is given on property, places and people to be searched (Cornell University Law School, n.d).

Throughout history, courts and scholars have sought the original understanding of the amendment, especially investigating the intended practices for regulation and procedure for such regulations. Additionally, technological advances, especially Big Data, have called for further studies and careful implementation of the Fourth Amendment.

Background information

To understand the Fourth Amendment, digging for its history and origin is essential. The Fourth Amendment history dates back to the colonization era. When America was under the British colony, Britons in their home country had the right to home security. As seen in the maxim ‘Every man’s house is his castle’ (demonstrated in Semayne’s case decided in 1603) (Clancy, 2011). The monarchs had limited authority over personal properties. Further, the king’s agents were restricted from searching or making arrests on private property. However, homeowners would recognize the authority of suitable king’s representatives to make searches, seizures, arrests, and carry out other loyal executions (Clancy, 2011).

The adoption of the Fourth Amendment in the US colony, however, came later after lawyers such as John Adams saw the necessity of regulating the British search and seizure activities. As such, the Amendment was a creation of a thorough jurisprudence on how the colonial government carried out search and seizure. The historical events in Britain and her American colonies just before the American Revolution propelled the embracing of the Fourth Amendment. During the 1761-1791 period, the British search and seizure practices intensified and became more aggressive. During this period, lawyers such as James Otis became vocal challenging the British policies on search and seizure. James Otis claimed that the search and seizure practices were retrogressive and infringed on people’s privacy. Therefore, he gave a recommendation of replacing the writ system with a proper search and seizure system. Subsequent English cases on the issues of search and seizure were highly against the general warrants as previously practiced (Clancy, 2011). On attaining independence, many states drafted their constitutions including the protection from unwarranted searches and seizures.

The Fourth Amendment proposal and ratification

The first constitutional convention was followed by somewhat rigorous constitutional debates. The adoption of the constitution was given relatively plenty of attention by the campaigns against and for the constitution adoption. One of the major aspects that resulted in the unpopularity of the constitution among some citizens was the lack of inclusion of human rights. Notably, several remarks were made concerning the inappropriateness of the then search and seizure practices.

The state of Virginia was among the pioneer states to have a search and seizure policies proposal. The Virginia constitutional agreement was initiated on June 2, 1788, and the ratification of the constitution, factoring in the proposed change that was done on June 27, 1787.

As such, the state set a precedent and, consequently, other states started proposing the amendment of the constitution to introduce proper search and seizure policies. Consequently, the Anti-Federalist unanimously settled on the inclusion of a ‘Declaration or Bill of Rights’ (Clancy, 2011). Nevertheless, the Anti- Federalist records contain less comprehensive annotations of search seizure provision relative to the Virginia agreement records. Notably, the question of general warrants raised many concerns in the Anti-Federalist convention. Additionally, members largely discussed the issue of unjustified intrusions. Patrick Henry was among the most vocal Anti-Federalist, and his contributions led to the drafting of a search and seizure proposal on June 5, 1788.

The first Congress made numerous sequential amendments to include a bill of rights in the constitution. The Fourth Amendment was drafted from one of the series of amendments.

James Madison came up with the original draft although he was a member of the Federalists who opposed the necessity for the bill of right.

Interestingly, the Anti-Federalists opposed the ratification on the realization that it would avert the second constitutional convention (Clancy, 2011). However, many states ratified the constitution with the Fourth Amendment.

The applicability of the Fourth Amendment

Issuance by Neutral Magistrate

The Fourth Amendment stipulates that only judicial officers or magistrate should issue warrants. The Amendment, nonetheless, does not deny law enforcement the support of reasonable inferences, but rather its provisions promote neutrality in inference from detached judicial officers. Therefore, the Fourth Amendment brings in the aspect of sobriety in judgment, which may lack in an officer engaged competitively in ferreting out delinquency. However, the judicial officer must pass two validity test of neutrality/detachment and capability of establishing and determining probable cause (Cornell University Law School, n.d).

Probable cause

The search warrant clause highly depends on the concept of probable cause. However, the definition of probable cause does not clearly come out in the Fourth Amendment and the federal statutory provisions. As such, judicial intervention is critical for probable cause to be established and defined. Therefore, a law enforcement agent wishing to carry out a search must present adequate facts to a judge. The information must be outstandingly sufficient and trustworthy for the applicant for a warrant to convince the magistrate and consequently determine a probable cause. The court, therefore, will sustain the determination if and only if there are considerable reasons for the judge to conclude there was ‘commitment or intention of committing a crime’ (Cornell University Law School, n.d).

Search and Seizure

The Fourth Amendment allows law enforcement agents to search property and people upon receiving a search warrant from judicial officers. The probable cause aspect, determined by judiciary officers, is critical in the search process. However, the police may be excluded from the provisions, especially when there is sensible suspicion of unlawful activity.

Further, the Fourth Amendment clearly outlines seizure practices. As such, the Amendment gives a direction on the determination of property subject to seizure. Additionally, the Fourth Amendment categorizes seizures as reasonable or unreasonable. The Amendment prohibits unreasonable seizures while prescribing lawful seizure.

Contrabands and outcomes/instrumentalities of crime are the major categories of property subject to seizure. Seizure of property based on evidence is limited to only when the owner has some meaningful interference. Otherwise, private property should not be seized. Additionally, persons are subject to seizure especially when freedom of movement is denied (Cornell University Law School, n.d).

The Fourth Amendment Exception to the Warrant

The general purpose of the Fourth Amendment is to protect the US citizens against arbitrary arrests. It is the foundation for laws guiding search warrants, wiretaps, safety inspection, stop-and-frisk, current practices on surveillance and data collection among others (Cornell University Law School, n.d). The Fourth Amendment is the basis for privacy law (Beeman, 2009). There are however instances where warrant may not be necessary.

First, it is generally acknowledged that when a consent is available, then a warrant is not necessary. There are however certain exceptions to this provision. The scope of the consent, for instance, could limit its application while other factors such as voluntary consent and rights to a consent for a search are all factors for considerations. A consent search is considered relevant even if the police fail to tell the suspect about their right to refuse the search, and it is still valid even if the consent search emanated from a third party without right to a property (Hudson, 2013).

Second, the plain view and open field doctrines also guarantee exceptions to the warrant. The plain view provision refers to objects that are in ‘plain sight’, and the police are allowed to seize a contraband object when they are probably sure about the object (Berlin, 2011). On the other hand, open fields refer to open areas, including water and fields which the police may conduct their search without obtaining a search warrant (Cornell University Law School, n.d). It is argued that such searches would not violate privacy of individuals. Under the Fourth Amendment, individuals have special protections for their houses, persons, personal effects, and even papers. However, this special protection does not apply to plain view and open fields. In this case, plain view and open fields lack the settings accorded to intimate activities found within the home setting, which does not require interference and surveillance from the US government. In addition, such open fields do not require any privacy. However, an area immediate to the home, that is, outdoor is covered under the Fourth Amendment because it is regarded as an extension of the house and must be given similar protection as the home.

Third, exigent circumstances allow police to conduct searchers without warrant because it would be impractical or risky to get a warrant (Berlin, 2011). Terry stop, for instance, allows officers to frisk any individuals to search for weapons. This allows the police to preserve evidence prone to destruction and disarm dangerous suspects. In addition, police are allowed to conduct a warrantless search when they suspect that a vehicle may be transporting illegal items, immediate draw blood samples for immediate tests and if police engage in hot pursuit with suspects.

Fourth, motor vehicles also have exceptions. However, it is imperative to recognize that they offer reduced privacy because motor vehicles are not regarded as place of residence or stores for personal belongings. The police may not arbitrarily stop and conduct a search on motor vehicles, except when there exists credible cause or suspicious activities are noted. On the same note, they may collect any exposed property and conduct searches on specific places that could be used to conceal weapons (Cornell University Law School, n.d). They must have probable cause to proceed, but must the police must obtain warrant to search other occupants (Berlin, 2011).

In addition, police should obtain warrants to search vehicles after the arrest of an occupant. However, they should believe that the evidence is there and the person can reach the passenger section.

Fifth, search incident on lawful arrest provides for exceptions. This provision is used to stop arrested persons from eliminating evidence or attacking police with weapons. Hence, it is imperative for an officer to disarm the arrested person. In some instances, the Supreme Court has ruled that the search incident to arrest exception is not applicable when it is obvious that the suspect may not destroy evidence or get access to any weapon. Still, in some cases, the Supreme Court has ruled that the police should conduct search for evidence and weapons once the arrest is made. In some cases, the Supreme Court has ruled that a search warrant is mandatory for police to search the suspect’s mobile phone. The Supreme Court argued that the modern mobile phone is ubiquitous and vital part of everyday life that has gained critical recognition and it may be considered as important part of human body. In fact, they contain digital information, including general and intimate information about users.

Sixth, the border search exception allows authorities to conduct searches along the US borders or airports warrantless or probable cause. In fact, searches at the borders and international airports are now casual even without any suspicion. However, a search that invades privacy and personal dignity, including body opening searches require reasonable suspicion, but information contained in personal electronic gadgets are subject to random searches even in a lack of suspicion.

Seventh, foreign intelligence surveillance is also a part of a warrant exception. This exception applies to national security issues and foreign intelligence against alien powers and their agents when they are soundly believed to be rising outside the US. While the Fourth Amendment does not allow unrealistic searches and confiscation, the exception applies to all elements of communications, including private communication and personal papers. The Congress had to amend the law in 1978 to protect telecommunication companies within the US from legal actions and allow surveillance for intelligence purposes.

Eighth, the community caretaking exception is rooted in the notion that police occasionally do not act as law enforcement agents investigating and arresting offenders, but they may function as caretakers of communities who focus on preventing danger in emergencies. Critics argue that this exception to the Fourth Amendment only leads to confusion, particularly on its limits. Courts have not decided whether it should be restricted to vehicles or extend to homes without any warrants (Hudson, 2013). The term ‘community caretaking’ makes the exception more appealing and attractive to the public. Others have argued that the exception is rational, common sense and justified when police are engaged in emergency duties. Conversely, others argue that the exception is a drawback to search-and-seize protections.

Finally, other exceptions may apply to public institutions but not always. For instance, no warrant is necessary for a public school search if there is sufficient belief that a search will result in establishing a criminal activity, but a strip search among students or teachers require warrants. Further, government institutions may also be searched without warrants if the police suspect unlawful work-related activities by public servant while searches in correctional facilities are not restricted.

The Application of Exclusionary Rule

The Courts have often used the exclusionary rule to impose the Fourth Amendment in which the evidence may not be admissible. According to the exclusionary rule, any evidence acquired by violating the Fourth Amendment is invalid. As such, the function of the Fourth Amendment is to deter – force officers to respect constitutional provisions for individual privacy. After 1914, the Court applied the exclusionary rule. Before then, any piece of evidence could be used in courts irrespective of how it was obtain. In fact, for the past decades, the Courts have consistently maintained that evidence and leads acquired by illegal means are not admissible and, the Fourth Amendment and exclusionary rule are used in most cases.

It has however been difficult to determine the usefulness of the exclusionary rule in instances of state proceedings. Many critics have argued that exclusionary rule limits the extent of police work and, it can lead to poor investigation and setting free of guilty individuals charged with reliable evidence. At the same time, it has been noted that exclusionary rule has not resulted in preventing unlawful searches by law enforcement agents.

Conversely, supporters of the exclusionary rule maintain that only few criminal convictions have been thrown out under the rule. In addition, there is no other reliable alternative to enforce the Amendment. While there was an attempt to repeal the rule in 1982 in California, it had little impact on federally guaranteed rights as defined under the Fourth Amendment. Nevertheless, it restricted state courts from increasing individual rights under the Fourth Amendment.

In some instances, the Supreme Court has demonstrated that the exclusionary rule is limited and may not apply to national security issues (Fowler, 2014). For instance, grand juries are allowed to use evidence acquired without paying attention to the Fourth Amendment when questioning witnesses. It is argued that the damage could be severe than the benefits when the exclusionary rule is extended in such circumstances and may not have the deterrent effect.

The Court has been clear on the role of exclusionary rule. That is, the rule is a judicial alternative formulated to protect the Fourth Amendment rights majorly by its deterrent impact, but cannot act as an individual constitutional right of the suspected party.

Given the peculiar nature of cases, courts have often ruled on exclusionary rule on a case-by-case basis to determine its applicability and limitations (Berlin, 2011). In fact, it the rule does not apply to tax hearings, evidence acquired from private parties, couriers, child protection, deportation hearings and paroles among others.


The Fourth Amendment fundamentally prescribed the idea that every man’s home is his kingdom and should therefore be secured from arbitrary searches and seizures by the US government. As such, the Amendment safeguards individuals from unreasonable arrests. It is the major provision for search warrants, surveillance, privacy law, stop-and-frisk, wiretaps and safety inspections among other criminal laws. The Fourth Amendment is applicable on search, seizure, warrant, exceptions, and probable cause. Conversely, some exceptions have been noted to the requirement of the warrant, including consent, community caretaking, plain view and open fields, motor vehicles, exigent situations, search incident to a lawful arrest, border search, and foreign intelligence surveillance among others.

The courts have used the exclusionary rule to apply the Fourth Amendment such that any evidence acquired by violating the Amendment is not admissible in courts. Nevertheless, the exclusionary rule may not apply in some instances, and the courts have the power to interpret the law to determine applicability and limits of the Fourth Amendment and exclusionary rule.


Beeman, R. (2009). Plain, Honest Men: The Making of the American Constitution. New York: Random House.

Berlin, M. M. (2011). Crime Scene Searches and the Fourth Amendment. Investigative Science Journal, 3(2), 4-22.

Clancy, T. K. (2011). The Framer’s Intent: John Adams, His Era and the Fourth Amendment. Indiana Law Journal, 86(979), 979-1061.

Cornell University Law School. (n.d). Fourth Amendment.

Fowler, S. (2014). Circumventing the Constitution for National Security: An Analysis of the Evolution of the Foreign Intelligence Exception to the Fourth Amendment’s Warrant Requirement. University of Miami National Security & Armed Conflict Law Review, 14(1), 207-240.

Hudson, D. L. (2013). Courts in a muddle over 4th Amendment’s community caretaking exception. ABA Journal.

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LawBirdie. "The Fourth Amendment Ratification & Applicability." March 22, 2023.