The topic of
discussion for this Constitution Monday comes from the Fourth Amendment to the
U.S. Constitution: “The right of the
people … no Warrants shall issue, but upon probable cause, supported by Oat or
affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.” This
provision guarantees to the American people that they are to be free from
arrest except on properly issued warrants.
W. Cleon Skousen explained,
“However, no warrant is required if the person is observed committing the crime
and he is apprehended by those who witnessed the offense.
“Among the most offensive
devices used by the Crown against the colonies were the writs of assistance,
general warrants allowing officials to engage in `fishing expeditions,’
ostensibly to discover evidence of smuggling contraband goods. James Otis of Massachusetts became celebrated
in 1761 by contesting this form of tyranny in the courts.” (See The
Making of America – The Substance and Meaning of the Constitution, p. 703.)
William J. Stuntz of The
Heritage Foundation explained, “The first half of the Fourth Amendment’s text
bans `unreasonable searches and seizures.’
The second half, known as the Warrant Clause, states a set of basic
requirements for search warrants – that they must be supported by an affidavit
that establishes probable cause, and that they must describe both the location
and objects of the search.
“One its face, the Warrant
Clause would appear to be one of the most clearly written clauses in our
Constitution. It requires that warrants
be supported by probable cause, that the police officer seeking the warrant
swear to the truth of the facts used to support his application, and that, once
issued, the warrant describe where the search is to take place and what the
officer is allowed to look for. All this
is plain from the text. Perhaps because
they are so plain, the rules just described have not been the subject of much
litigation.”
Mr. Stuntz further explained that
the text of this clause did not answer clearly two very important
questions: (1) “What does `probable
cause’ mean? The Fourth Amendment’s text
does not say.” (2) “Are officers ever required to obtain warrants in order to
carry out a search or make an arrest?
Again the text leaves the question open, though it implies that the
answer is no: the phrasing of the
Warrant Clause limits warrants but does not mandate their use.”
“Probable cause” was determined
by two court cases. “In Brinegar v. United States (1949), the
Supreme Court defined `probable cause’ as information that would lead `a man of
reasonable caution’ to believe `that an offense has been or is being
committed.’ In Illinois v. Gates (1983), the Court put it more succinctly,
describing probable cause as `a fair probability.’ … In most cases `probable cause’ means what
the ordinary definition of `probable’ would suggest: more likely than not….”
After explaining why the second
question is much more complex, Mr. Stuntz explained: “Thus the original understanding of the
Warrant Clause was in one sense clear, and in one sense not….
“Today’s Warrant Clause doctrine
differs from the historical understanding in some important respects….”
A quick summary of my
understanding of what Mr. Stuntz wrote would be: Warrants should be issued only by judicial
officers or magistrates. Warrants can be
issued without “probable cause” to authorize such things as building and fire
code inspections. Because police
investigate crimes and have more power to enforce the law, they normally need
to have warrants for “probable cause” – except for (1) Exigent circumstances” – meaning practically impossible; (2) Arrests outside the home; (3) Searches
incident to arrest – if being arrested, officers can search bags, cars,
etc.; (4) Inventory searches – officer can take any belonging the arrestee
has in his possession to the police station, and make a record of it; (5) Automobiles can be searched without
warrants for “probable cause”; (6) Street
stops and frisks – given reasonable suspicion, officer can briefly stop a
suspect and frisk for weapons.
“In addition to these
exceptions, there are several categories of searches that involve government
officials other than police officers (e.g., searches of lockers by school
principals, and government employers searching employees’ file cabinets), or
government interests separate from the interest in criminal law enforcement
(e.g., searches of vehicles at the nation’s borders, searches of baggage at
airports). Such searches general do not
require warrants.” (See The Heritage Guide to the Constitution, pp.
326-329.)
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