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Unformatted text preview: Criminal Procedure Search and Seizure: Fourth Amendment Doctrine 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. Fourth Amendment: Overview 1. Reasonableness Clause and Warrant Clause a. Reasonableness requirement – describes the scope of the clause and the nature of the protection b. Warrant clause – contains probable cause requirement and describes the proper form and scope of a warrant, or particularity requirement. c. There has been a judicial struggle over the relative weights of the two clauses. i. Earlier cases view the warrant requirement as dominant, and assumed that any search without a warrant was per se unreasonableness. Johnson v. United States (hotel room opium case), Katz . ii. Recently courts have moved towards applying a reasonableness test alone to determine whether or not a search is protected by the Fourth Amendment. Acevedo (recent car search case – Scalia suggests cops shouldn’t have to get warrant at all if they have probable cause). In these opinions a warrant is helpful but not necessary where probable cause exists, because the probable cause can still be reviewed by a court after the fact. d. General crux of argument: Do you believe that police generally act reasonably? i. If yes, then the warrant requirement is superfluous and disserves justice by invalidating lots of reasonable arrests ii. If no, then the warrant requirement is a necessary safeguard e. Under reasonableness doctrine, unintentional fourth amendment violations shouldn’t be remedied. If purpose of Fourth Amendment is to deter police or make sure they act reasonably, little is gained by sanctioning good faith conduct. But if purpose of Fourth Amendment is to protect people’s rights, then there needs to be a remedy whenever those rights are violated, regardless of whether police intended it. Second reading is more supported by a purely textual reading. 2. Functions of Fourth Amendment generally: a. Limiting use of force and coercion by police b. Protect people’s dignity and their legitimate expectations of privacy c. Legitimating police activity and the criminal justice system generally 3. Standing : Fourth Amendment rights are personal . (more infra) 4. Exclusionary Rule is the most common remedy for Fourth Amendment violations, infra 5. Private Searches : Fourth Amendment only limits government action . Any evidence obtained by private individuals is admissible, unless they were acting “as an instrument or agent of the Government”. Infra 6. “The right of the people” does not extend to non-citizens and the Fourth Amendment protections generally do not apply to actions of foreign officials not on American soil....
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- Fall '09
- Fourth Amendment to the United States Constitution