The United States Constitutional History: Fourth Amendment - Research Paper Example

? FOURTH AMENDMENT FOURTH AMENDMENT Introduction: Different laws have been made in the US Constitutional history having their impacts; either positive or negative on the citizens and the authorities. Though, out of those the Fourth Amendment is of vital importance and holds a significant place in US Constitution. It is imperative for the US citizens and the law enforcement agencies as well. However, the law is still altering with the change in common and statuary laws. Undoubtedly, Fourth Amendment has served the people of US in an efficient and helpful manner and in their best interests1. However, it is observed that the Fourth Amendment has been a victim of different controversies and is regarded as an issue by the US Constitution making authorities and a few other elements. To address this issue, this paper aims to provide a clear explanation and solution. Moreover, to evidence and balance the theory, different federal statues and pending cases on the issue will also be discussed and highlighted. The paper will also discuss reasons for the growing controversies behind the chosen topic followed by a Social Policy and its implementation. Contextual Background to the Issue: The US citizens who have been a victim of the ‘freedom vs. security’ debate has suffered a lot. It has been possible because of the Fourth Amendment that the people can find themselves safe and that they will never be violated. Their security in the US society was assured and protected by this law in the US constitution (Gonzales, 2007). Background (Fourth Amendment): Due to the increase in the Injunctions of Assistance and general warrants in the late 17th century many elements; citizens, authorities, and groups strongly objected the process and as a consequence the Fourth Amendment was written and compiled. According to those injunctions of assistance the officials have rights to trespass and enter any property or home without a sound reason; they also had rights to seize their belongings. Mentioned in the ‘Bill of Rights’ the 4th Amendment was approved on the 15th of December, 1771. The amendment basically protects and safeguards people rights of privacy and security.2 According to the article VI in the 4th Amendment: “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”. It was before and without this law, that people felt insecure and did not have any assertion or right over property, security, or privacy. Incidents have been noticed in which Army Marshals and other officers have entered the homes and have taken different evidences which can be used for trial in the court or to help make an arrest (Fradin, 2007). However, a number of controversies have been noticed in the past few years, 4th amendment remains one of the strongest amendment from citizen point of view. The 4th Amendment was never appreciated by the FBI and other agencies working for the security of the State. The law had been breached in the Bush era and it is being violated again in the present era of President Obama. The Obama administration requested their supporters in the Congress to pass a legislation that will allow the federal agents to continue their search and march without any barrier and through the 4th Amendment. This is to ensure that they get all the private information of all the citizens residing in their country (Smith, 2010). The 4th Amendment which ensures the individual’s right to be left alone and with their security and privacy is again at stake by the Federal agents in the country. The officers want to make the system more easy and through for them so that they can gather digital information. It was witnessed and revealed in the past when the Bush government was exposed that they had been collecting data and records from the telecommunication companies of their customers without any court warrant3. However, after the issue was exposed the agencies had to pay fine and the damages as it was illegal and counted as criminal activity for the violation of law. The Obama administration seems to be on the same track and has urged the Internet providers to pass them the records and information without the warrants and that they will be punished if they do not do so (LaFave, 2004). According to the FBI, it has been revealed that the federal agents are too busy to get the court warrants and therefore they have adopted the wrong and illegal approach of getting into the internet and telecommunication systems without the legal warrants. However, after the revelations of such incidents which has caused trouble for both the agents; and the companies have led a decline in the association of these companies with FBI and other agencies. They are now declining the government requests to get into their systems and take whatever information they want, however, the legislation which is proposed by the Obama administration will punish such internet and telecommunication providers who would not share their customer records with them (Maclin, 2012). These are some alterations and to be specific they are violation of the 4th Amendment. They are creating holes in the law and are letting disclose the US citizen’s private data and records to the federal agents. The court is however playing a notable role in this regard, while the issue still continues (Fradin, 2007). US Constitution and 4th Amendment: It was because of the 4th Amendment in the US Constitution that the people thought they will not be bothered or feel violated by any of the federal agent or the government. The US Constitution protected the rights of every individual. However, people today are violated because of different issues or on probability chances. If someone observes that any individual is up to something unfamiliar and against the legal standards or rules and the security of others than the government still holds the right to search and seize anything they want with a consent of a court. However, the overall process has been made tough because of the 4th Amendment in the US Constitution (McInnis, 2010). According to the US Constitution some exceptions have been presented in the 4th Amendment. These exceptions are again however in the favor of the citizens first then the government. If a person whose home is being searched without a search warrant issued by the court, but with his own consent; then in the eyes of law and the US Constitution the process is completely legal and do not violate any law. The example of such exception was revealed when Schneckloth v. Bustamonte(1973)4 happened. Moreover, in United States v. Matlock (1974)5 the court ordered that warrantless search can be conducted if the third party co-occupant can give permission to search, in this way the individual’s right as per the 4th Amendment are not being violated (Maclin, 2012). Another exception is granted in case of ‘Plain View’ and ‘Open Fields’. Plain view includes a person’s property that need to be searched with a legal search warrant example Coolidge v. New Hampshire (1971)6, whereas open fields are excluded from plain view and does not need any legal warrant. Open fields includes water, woods, and pastures etc. which can be searched without legal warrants. In Oliver v. United States (1984)7 the officers crossed a private land with a warning of no trespassing and a fence. However, after walking a 100 miles into the suspects land they discovered a field of Marijuana. The Supreme Court ordered that the government did not violate any law as there was no expectation of privacy on an open land (Harr, Hess, & Orthmann, 2011). The federal officers can also conduct a search without a legal warrant in case of an exigent scenario. In Carroll v. United States (1925) the court passed orders in favor of the officers saying that they can search the car without any warrant to look for the suspected illegal imports. Moreover, the federal officers need no search warrant while searching any school or hospital. However, it should be highly ensured that the government has strong grounds that some illegal activities are going on there.  New Jersey v. T. L. O (1985)8 is a suitable example to the issue. In case of prison cells, then the search does not depend on any sound reason or any probable cause (Harr, Hess, & Orthmann, 2011). However, despite of such flexibilities and variations in the law, it is being violated and is still considered as a bone of contention by many authorities; federal and government both. The US Constitution provides a complete guideline on how to tackle the different scenarios of security and privacy of citizens and their property, however sadly the system has failed to fully implement the laws and abide by the US Constitution9. According to the US Constitution anyone who is in breach of the presented laws is accountable and shall pay the damages as it is a crime to do so; even if the federal officers have done so they are also held accountable in front of the Supreme Court.  In Trupiano v. United States (1948)10 the Supreme Court passed orders saying that: “a search or seizure without a warrant as an incident to a lawful arrest has always been considered to be a strictly limited right. It grows out of the inherent necessities of the situation at the time of the arrest. But there must be something more in the way of necessity than merely a lawful arrest."11 Federal Statue and 4th Amendment: There should be no doubt in understanding that the 4th Amendment was formulated and implemented by the US Constitution in order to avoid the subjective arrests and unreasonable searches of the citizen’s properties and belongings. However, as per the common law it was normal to arrest a person who was in breach of the legal systems and had done something wrong without a warrant and this was somehow reflected in the 4th Amendment as well that if someone is arrested or is being searched in a public place of sound reasons and probable cause without a legal search warrant then it is not against the laws defined. But on the contrary if any arrest is being made or any search is to be done inside a person’s home or his property then the forces and authorities are liable to provide with a legal search warrant. Breach of the laws were filed and reported until recently, when different illegal arrests and searches are suppressed by the federal statues and that they can be excluded from the scene (Harr, Hess, & Orthmann, 2011). Supreme Court Decision that affected 4th Amendment: Right after its establishment the 4th Amendment has been a serious topic among the public and the government. Both the parties were equally excited for its usefulness. Keeping this in view different cases have been filed in the Supreme Court by the public, companies, institutions or by the government itself12. Some cases concerning the 4th Amendment are as follows; Katz V. The United States: In this case, the petitioner was Mr. Katz who was a gambler. He was arrested by the officers for illegal gambling as he had been involved and been doing it over a public phone. In order to catch him red handed the FBI placed an electronic recorder over the phone outside of the public phone booth. The FBI stated that it is completely legal and they did not violate any law as that the recording device was placed outside of the booth and the FBI did not trespass the public booth. However, the court orders were in favor Mr. Katz saying that the 4th Amendment speaks for the protection of the individuals and not only individual’s belongings or property against the searches made illegally. The court stated that it was electronic rather than physical thus needed a warrant. The process could have been legal and authorized if it had followed proper standards presented in the law13. 1. Silverman v. United States, 365 U.S. 505 (1961): In this US Supreme Court Case, the results were in favor of Silverman as the court stated that any federal officer cannot break into a person’s house or office or any other property without a warrant so that he may secretly observe and listen to him to associate to his suspected criminal activities, seen or heard14. 2. Olmstead v. United States, 277 U.S. 438 (1928): This case conducted in the Supreme Court of the US is about the 4th Amendment, wiretapping and privacy. However, in this case too, the court ordered results in favor of Olmstead. The court reviewed the case and the recordings that were obtained through wiretapping of the private telephone conversation which was accessed and recorded by the agents were seen as a breach of the law; as they did not have any judicial approval i.e. warrant. It directly affected the defendant’s right which were preserved by the 4th Amendment15. 3.  Smith v. Maryland 442 U.S. 735 (1979): In this case the Supreme Court of the US ordered in favor of the authorities and not the defendant stating that according to the explanation and understanding of the 4th amendment, the installation of a pen register is not any way of searching and therefore, no warrant was required. Since the defendant had already the disclosed the numbers to the phone company therefore, there remains no sign of privacy as all the details that were observed through the pen register were digital numbers and did not include any search16. Pending Supreme Court Cases of 4th Amendment: The issue is so severe that not only the past cases in the Supreme Court has been witnessed but many pending cases are also observed which are still undergoing the court hearing and proceedings and are likely to be ordered with a result (Smith, 2010). Here are some pending cases filed as per the 4th Amendment in the Supreme Court of the US; 1- United States v. Jones (615 F.3d 544, D.C. Cir.): This case is still ongoing and the question which is to be answered is if 4th Amendment gives the authorities the right or it prohibits them from placing any tracking device in cars without legal warrants. Moreover, can it record the movements for 24 hours a day and 7 days a week; for continuous four weeks. Seeing the past cases on the same issue, it can be predicted that the court hearings will be in favor of the defendant and that authorities will be found guilty and in breach of the law17. 2- Florence v. Board of Chosen Freeholders of Burlington County, NJ (621 F. 3d 296, 3rd Cir.): In this pending case at the Supreme Court of the US it is argued and investigated that if 4th Amendment allows the routine strip searches while prison entry of the criminals who are arrested for minor charges and that too in the absence of personalized suspicion. However, this case is a little complex and tricky and no prior prediction can be given at this point18. 3- Howes v. Fields (617 F. 3d 813, 6th Cir.): This case is regarding Miranda purposes and an inmate who was eliminated from the general prison ward and was investigated regarding a crime scene which occurred outside of the prison and if the inmate was still in custody? However, the court results on the case are still pending and are yet to come19 (LaFave, 2004). Proposed Outcome: If the police have a doubt or suspect anyone or any place, then in order to search that place or person and seize the belongings legally, it is necessary for the officer to take a grant from a judge i.e. a search warrant. Once the officers have been granted the warrant then they have the right to clutch only those items that have been mentioned in the warrant and shall bring them in front of the court. The warrant specifically mentions the place that is going to be searched and the items to be seized. However, the warrants were used generally to search and recover the stolen items, according to common law, but at present the modern law is a bit different20. These warrants are used to search for diverse items which includes intoxicated liquors, terrorism tools, arms and ammunition, counterfeiter’s tools, tools used for burglary, gambling plans, goods which are smuggled, narcotics; drugs, and other dangerous medicines, and any other item which is illegal and whose possession is a crime. Such objects can be seized and can be brought in front of the court as evidences21. However, regardless of the fact that this law is completely designed to function for the security and protection of the citizen’s privacy and their rights, it is being violated by the law making authorities itself. Calling it in the name of national security, the US agencies are in complete breach of this law and have proposed different legislations so that it can provide an easy and through system to them rather than the 4th Amendment (McInnis, 2010). Different cases highlighting the breach of the 4th Amendment had been piling up the court files. The role of the Supreme Court of the United States is of vital importance at this point. It is completely up to the Chief Justice and the remaining Justice Department that they ensure that the law remains enacted and is efficiently followed by all small and big authorities and agencies. It should be left on the court alone to decide whether the search or the investigation needs a search warrant or not, instead of the authorities to assume this themselves and get data and records of millions of citizens, intruding their privacy22. However, new reforms and laws should be brought in which provides more clear and visible understanding of the difference between human rights, freedom and the security. The punishments for the breach of 4th Amendment or any other law should be made stricter with increased fine and other penalties. It will be then observed that the issue will be solved to a maximum percentage ensuring more individuals enjoying their privacy and rights.23 Social Policy Implication: It should be assured that rules and legal principles should implement the purpose. In order to completely address this growing issue, the Court needs to create a guideline or a rule book having all the possible postulates and scenarios for the police so that they can effectuate their infringements and investigations. The law should be revised ensuring that the rights and security of the individuals. Not to forget, the core purpose of the Fourth Amendment is to safeguard individual security which is in jeopardy at the moment24. A more generalized and detailed legal principles should be designed and implemented which can protect the individual rights as well as the law itself, including all the basic rules and the exceptions to them. Since this issue is a serious social issue therefore, the solutions should also be in the form of serious social policies and reforms. If the issue is not addressed at the earliest and the legislation which is proposed by the Obama administration is passed then it will exacerbate the issue making it worse. If it will be passed then the federal agents will be able to get into the telecommunication and internet services provider’s record and library directly without needing any warrant or the telecommunication or internet service provider consent. The law was made by the government for the public, however it seems that the government made the law to violate the citizen’s right. This is a serious constitutional issue which is endangering the image of United States of America in the international community. If the issue is not resolved with some sound solutions and provisions, then it will jeopardize the overall justice and security system of the country. The issue is terrible at present and many people and authorities are already criticizing it. If the sharing of the internet data between the internet service provider and the government will not even leave the little privacy which the individuals enjoy through what is call e-mail. It will however badly affect and violate the 4th Amendment and will not be a positive and constructive decision towards the law and justice system of the country. People who already blames the system will totally call off their beliefs. It should however be noticed that the constitution particularly the 4th Amendment was made for the people and to keep the government away from the backs of the people. The case at present is vice versa in which the people works for the government rather than the government works for the people. References List Fradin, D. B. (2007). The U.S. Constitution. Singapore: Marshall Cavendish. Gonzales, D. (2007). A Look at the Fourth Amendment: Against Unreasonable Searches and Seizures. New Jersey: Enslow Publishers, Inc. Harr, J. S., Hess, K. M., & Orthmann, C. M. (2011). Constitutional Law and the Criminal Justice System, 5th ed. Mason: Cengage Learning. LaFave, W. R. (2004). Search and seizure: a treatise on the Fourth Amendment, Volume 5. Phoenix: Thomson/West,. Maclin, T. (2012). The Supreme Court and the Fourth Amendment's Exclusionary Rule. London: Oxford University Press. McInnis, T. N. (2010). The Evolution of the Fourth Amendment. Lanham: Lexington Books. Smith, R. (2010). Fourth Amendment: The Right to Privacy. Edina: ABDO. Read More