Today courts are carving away our Fourth Amendment Rights in the name of protecting law enforcement. For instance, many people are stopped by the police in public and immediately patted down by police with the explanation that the pat down was necessary for the officer’s safety. Circuit courts often unthinkingly accept these actions by police with little analysis despite
“The police officer is not entitled to seize and search every person whom he sees on the street or of whom he makes inquiries. Before he places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so. In the case of the self-protective search for weapons, he must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.” Sibron v. New York, 392 U.S. 40, 64 (1968) (fact that individual talked “with a number of known narcotics addicts” did not justify self-protective search of individual). See also, Terry v. Ohio, 392 U.S. 1, 27 (1968) ; United States v. Orman, 486 F.3d 1170 (9th Cir. 2007) ; United States v. Gray, 213 F.3d 998 (8th Cir. 2000)
The Sibron court found the stop and frisk unreasonable since the police officer lacked a reasonable basis for believing that the defendant was either engaged in criminal activity or was armed and dangerous. Furthermore, the officer was plainly on a fishing expedition for drugs when he reached into the defendants pocket rather than trying to neutralize some threat of danger. Id., at 64.
“[The pat down seeking concealed weapons] must be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer….[the search must be confined strictly confined] to what was minimally necessary to learn whether the men were armed and to disarm them once he discovered the weapons. [A pat down does not allow for a] general exploratory search for whatever evidence of criminal activity he might find.” Terry v. Ohio, 392 U.S. 1, 29-31(1968)
The language of the Fourth Amendment, due to an oversight when it was redrafted, has been a source of confusion. Abrams, Constitutional Limitations on Detention for Investigation, 52 Iowa L. Rev. 1093, 1101 (1967); Comment,28 U.Chi. L. Rev.664,678-92 (1961). The amendment has been said to have “both the virtue of brevity and vice of ambiguity.” Landynski, J., Search and Seizure and the Supreme Court: A Study in Constitutional Interpretation, (1966)p.42. It has been described as “Delphic.” Uviller, Reasonability and the Fourth Amendment: A (Belated) Farewell to Justice Potter Stewart , 25 Crim. L. Bull., January-February 1989 p.29. The United States Supreme Court has also indicated that the “ course of true law pertaining to searches and seizures… has not … run smooth.” Chapman v. United States,365 U.S. 610, 618 (1961) (Frankfurter, J., concurring). In regards to warrantless searches, the law has been said to be “ something less than a seamless web.” Cady v. Dombrowski, 413 U.S. 433, 440 (1973) (Rehnquist, J.).
Unlike its language, the historical origins of the Fourth Amendment are clear. They are traceable to the political events in England and the Colonies which ignited the American Revolution. Landynski, at 19. These events involved the unrestrained and indiscriminate searches and seizures pursuant to general warrants and Writs of Assistance. Landynski, at 20.
Of the two, the writs were more onerous to the colonists. At least the general warrants were aimed at specific individuals alleged to have printed “seditious publications.” Landynski, at 20-21. The Writs of Assistance, however, permitted unlimited discretion and were valid for the life of the sovereign. Landynski, at 30-31. The Writs were used to enforce taxes on goods and to prevent the colonists from trading outside the British Empire. As a result of these taxes, colonists commonly engaged in smuggling. Id. For instance, John Hancock was defended by John Adams in a smuggling case that was eventually dropped. Landynski, at 30 n. 49.
The death of George II caused 63 Boston merchants to challenge the issuance of new Writs. They hired James Otis, Jr. who eloquently argued that the Writs were void, but he lost. Landynski, at 33-35. This is not surprising since English courts, rather than attempting to control indiscriminate searches and seizures under the general warrants, had assisted in their use for some time. Landynski, at 25-26. John Adams was to later write the following about Otis’ oratory:
Mr. Otis’ oration against the Writs of Assistance breathed into this nation the breath of life. [He] was a flame of fire! Every man of a crowded audience appeared to me to go away, as I did, ready to take arms against writs of assistance. Then and there was the first scene of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born. In 15 years, namely in 1776, he grew to manhood and declared himself free.
Lasson, N., The History and Development of the Fourth Amendment to the United States Constitution (1970) p.59.
Clearly, therefore, the Fourth Amendment was in direct response to these abuses which had started in Great Britain and carried over to the colonies. See, Payton v. New York, 445 U.S. 573, 583-84 (1980). Thus, the basic policy or purpose behind the Fourth Amendment is to safeguard an individual’s privacy and protect individuals against arbitrary invasions by officials of the government. Delaware v. Prouse, 440 U.S. 648, 653-54 (1979) (quoting Camara v. Municipal Court, 387 U.S. 523, 528 (1967)). See also, Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978); United States v. Martinez-Fuerte, 428 U.S. 543, 561 (1976); United States v. Ortiz, 422 U.S. 891, 895 (1975); Almeida-Sanchez v. United States, 413 U.S. 266, 270 (1973).
It was the Fourth Amendment which was meant to allow, to paraphrase William Pitt, the poorest man to defy all the power of the State by challenging the indiscriminate search of his or her person.. Lasson, at 49. The Fourth Amendment is a broad declaration of our right to be secure in our persons but it, like all our rights, is only good so long as courts interpret and apply the right consistent with the Framers’ understanding. As an early Fourth Amendment explained:
[C]onstitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta principiis [“resist beginnings”]. Boyd v. United States, 116 U.S. 616, 6 S. Ct. 524, 29 L. Ed. 746 (1886).
If you want to protect against indiscriminate search of your person, contact Attorney Paul Ksicinski immediately at 414-207-6345.