Posted on 2/13/17

TheFourth Amendment to the United States Constitution provides, “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.” This amendment was created to protect citizens against illegal searches and seizures.

This amendment can invalidate criminal evidence obtained as a result of an illegal search. For instance, if the police barge into a house without a warrant and find guns, drugs, and dead bodies with fingerprints all over the house, the media can then come and broadcast that information to the world. Presuming that no fourth amendment exception exists, the defendant would be able to suppress the evidence at trial, despite clearly being the culprit of serious crimes. Thus, despite being a serious offender, a defendant can invoke a fourth amendment right to defend him or herself against serious accusations.

Warrant Preference v. Reasonableness

The conjunctive of “and no warrants shall issue” has spurred discussion as to the best interpretation of this amendment. A school of thought known as “warrant preference” holds that, based on a simple reading of the amendment, there is a presumption of an illegal search absent a warrant. The legal theory behind this school of thought is that the Fourth Amendment protects citizens against the police, thereby compelling the police to seek out a neutral magistrate before allowing them to search a home. In other words, a search is “unreasonable” absent a warrant.

This theory played out in the 1969 United States Supreme Court case ofChimel v. California. In that case, the police arrested Chimel at his home and then searched the rest of his house without a warrant. Chimel sought to suppress evidence collected in his house because the police did not have a warrant. The prosecution countered that the search was incidental to his arrest and therefore proper. The Supreme Court ruled in favor of Chimel, stating the police were only able to search in Chimel’s immediate vicinity without a warrant. This ruling was consistent with the warrant preference theory, which holds that a search is presumed unreasonable absent a warrant because not having a warrant should prevent the police from searching a home.

A different school of thought holds that there is no focus on the conjunctive between unreasonable search and warrant. Instead, these are two separate clauses. A search can be reasonable even absent a warrant. This school holds that the focus is not whether there was a warrant but whether a search is reasonable. Thus, according to this theory, the Chimel case would likely have gone the other way, wherein the police arrested Chimel and reasonably assumed that his house contained contraband. Justice Antonin Scalia expressed this theory in the 1991 case California v. Acevedo.

If you have are facing criminal charges due to a search and seizure, contact the criminal defense firm of Christopher Abel, a board certified criminal defense attorney.

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