4th Amendment Information

INVESTIGATION AND POLICE PRACTICES (#) - indicates footnote

The Fourth Amendment protects individuals against unreasonable searches and seizures by the government (1). This protection applies to any interest in which an individual has a reasonable expectation of privacy (2). Generally, searches and seizures must be based on probable cause and made pursuant to a warrant (3). Arrests are "seizures" within the Fourth Amendment (4). An arrest must be based on probable cause(5). A warrant is not required if the arrest occurs in a public place (6). Absent exigent circumstances or consent, however, an arrest warrant is required to arrest a defendant in his home(7). Furthermore, absent exigent circumstances or consent, a search warrant is also required to arrest a defendant in a third party’s home (8). A search generally must be made pursuant to a warrant based on probable cause (9). The warrant must be issued by a neutral and detached magistrate capable of determining probable cause(10). Additionally, the warrant must describe with particularity the place to be searched (11) and the things to be seized (12). Although the fourth amendment generally requires that searches be based on probable cause and made pursuant to a warrant, there are exceptions to both requirements. Emergency searches (13), automobile searches (14) and "plain view" searches (15) do not require a warrant, but must be based on probable cause. The following searches require neither a warrant nor probable cause: searches incident-to-arrest (16), "stop and frisk" searches (17), inventory searches (18), and consent searches (19). This article was taken from The University of Kansas Law Review, Criminal Procedure, Edition, Vol. 43, No. 5, pp.973-74 (1995), with permission from the University of Kansas, School of Law.

1. The Fourth Amendment 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.

2. Katz v. United States, 389 U.S. 347, 351-53 (1967).

3. U.S. CONST. amend. IV.

4. United States v. Cortez, 449 U.S. 411, 417 (1981).

5. See generally id. at 417-18.

6. United States v. Watson, 423 U.S. 411, 414, 416-17 (1976).

7. Payton v. New York, 445 U.S. 573, 576 (1980).

8. Steagald v. United States, 451 U.S. 204, 205-06 (1981).

9. U.S. CONST. amend. IV.

10. Shadwick v. City of Tampa, 407 U.S. 345, 350 (1972).

11. Steele v. United States, 267 U.S. 498, 501 (1925).

12. Go-Bart Importing Co v. United States, 282 U.S. 344, 357 (1931).

13. United States v. Santana, 427 U.S. 38, 42-43 (1976).

14. United States v. Ross, 456 U.S. 798, 825 (1982).

15. Arizona v. Hicks, 480 U.S. 321, 326 (1987).

16. Chimel v. California, 395 U.S. 752, 762-73 (1969).

17. Terry v. Ohio, 392 U.S. 1, 30-31 (1968).

18. South Dakota v. Opperman, 428 U.S. 364, 372-75 (1976).

19. Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973).