Fourth Amendment of the United States Constitution, Essay Example

The initial part of the 4^th amendment protects the right of persons with their persons, houses, effects and papers against unreasonable searches and seizures as distinguished in the infamous English case of Entick v Carrington [1765] where the executive power was limited when the King’s Chief Messenger ‘illegally seized’ Entick’s private papers from his home. The King’s Messengers were acting on the orders of Lord Halifax who had ‘no authority to issue such a warrant.’ This is perhaps one of the most infamous search and seizure cases in the history of law. Every invasion of private property is considered a trespass. See: Mapp v Ohio [1961] where an illegal search was performed and evidence was taken without proper warrant. Supreme Court threw out the evidence. It was here that the first time at the state level this was permitted.

The second part of the 4^th amendment vehemently states a warrant shall be issued with the effect stating the exact place to be searched and person or things to be seized, upon probable cause. See: Caroll v United States [1925] where it was distinguished by the United States Supreme Court that probable cause exists when all facts and circumstances of a reasonably skilled police officer are to believe that a criminal offense has been or is about to take place. Under any other circumstance it would be deemed illegal to commission a warrant.

Can a general warrant be issued? Absolutely not! General warrants are an abuse of power and would not protect the rights of citizens. Open writs would not only abuse people’s rights but would be open predication for government to seize control over a democratic society. We have already established it is a trespass to search without a warrant or by a warrantless search or without probable cause on private property or private persons. Police need to justification to stop a person on the street to ask questions and a person is entitled to refuse to answer such questions; however a police may only search a person with reasonable suspicion to suspect criminal activity. This means the officer must ‘possess trustworthy facts’ of ‘sufficient cause’ that the person might or has committed a crime. For example: The smell of alcohol on a person would be reasonable suspicion to arrest a person for the crime of DUI. Whren v United States [1996]distinguished that any traffic stop was legitimitate legal basis for a stop. The officers had reasonable cause to stop the defendants for the traffic stop hence the evidence obtained from the drug bust was legally obtained.

References

Entick v Carrington [1765]

Mapp v Ohio [1961]

Caroll v United States [1925]

Whren v United States [1996]