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FOURTH 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. SEARCH AND SEIZURE History and Scope of the

Amendment History.—Few provisions of the Bill of Rights grew so directly out of the experience of the

colonials as the Fourth Amendment, embodying as it did the protection against the utilization of the

‘‘writs of assistance.’’ But while the insistence on freedom from unreasonable searches and seizures as a

fundamental right gained expression in the Colonies late and as a result of experience, 1 there was also

a rich English experience to draw on. ‘‘Every man’s house is his castle’’ was a maxim much celebrated in

England, as was demonstrated in Semayne’s Case, decided in 1603. 2 A civil case of execution of process,

Semayne’s Case nonetheless recognized the right of the homeowner to defend his house against

unlawful entry even by the King’s agents, but at the same time recognized the authority of the

appropriate officers to break and enter upon notice in order to arrest or to execute the King’s process.

Most famous of the English cases was Entick v. Carrington, 3 one of a series of civil actions against state

officers who, pursuant to general warrants, had raided many homes and other places in search of

materials 1200 AMENDMENT 4—SEARCHES AND SEIZURES 4See also Wilkes v. Wood, 98 Eng. 489 (C.P.

1763); Huckle v. Money, 95 Eng. Rep. 768 (K.B. 1763), aff’d 19 Howell’s State Trials 1002, 1028; 97 Eng.

Rep. 1075 (K.B. 1765). 5 5 Eng. Rep. 817, 818. 6 Boyd v. United States, 116 U.S. 616, 626 (1886). 7The

arguments of Otis and others as well as much background material are contained in Quincy’s

MASSACHUSETTS REPORTS, 1761–1772, App. I, pp. 395–540, and in 2 LEGAL PAPERS OF JOHN ADAMS

106–47 (Wroth & Zobel eds., 1965). See also Dickerson, Writs of Assistance as a Cause of the American

Revolution, in THE ERA OF THE AMERICAN REVOLUTION: STUDIES INSCRIBED TO EVARTS BOUTELL

GREENE 40 (R. Morris, ed., 1939). connected with John Wilkes’ polemical pamphlets attacking not only

governmental policies but the King himself. 4 Entick, an associate of Wilkes, sued because agents had
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forcibly broken into his house, broken into locked desks and boxes, and seized many printed charts,

pamphlets and the like. In an opinion sweeping in terms, the court declared the warrant and the

behavior it authorized subversive ‘‘of all the comforts of society,’’ and the issuance of a warrant for the

seizure of all of a person’s papers rather than only those alleged to be criminal in nature ‘‘contrary to

the genius of the law of England.’’ 5 Besides its general character, said the court, the warrant was bad

because it was not issued on a showing of probable cause and no record was required to be made of

what had been seized. Entick v. Carrington, the Supreme Court has said, is a ‘‘great judgment,’’ ‘‘one of

the landmarks of English liberty,’’ ‘‘one of the permanent monuments of the British Constitution,’’ and a

guide to an understanding of what the Framers meant in writing the Fourth Amendment. 6 In the

colonies, smuggling rather than seditious libel afforded the leading examples of the necessity for

protection against unreasonable searches and seizures. In order to enforce the revenue laws, English

authorities made use of writs of assistance, which were general warrants authorizing the bearer to enter

any house or other place to search for and seize ‘‘prohibited and uncustomed’’ goods, and commanding

all subjects to assist in these endeavors. The writs once issued remained in force throughout the lifetime

of the sovereign and six months thereafter. When, upon the death of George II in 1760, the authorities

were required to obtain the issuance of new writs, opposition was led by James Otis, who attacked such

writs on libertarian grounds and who asserted the invalidity of the authorizing statutes because they

conflicted with English constitutionalism. 7 Otis lost and the writs were issued and utilized, but his

arguments were much cited in the colonies not only on the immediate subject but also with regard to

judicial review. Scope of the Amendment.—The language of the provision which became the Fourth

Amendment underwent some modest AMENDMENT 4—SEARCHES AND SEIZURES 1201 8 1 ANNALS OF

CONGRESS 434–35 (June 8, 1789). 9The word ‘‘secured’’ was changed to ‘‘secure’’ and the phrase

‘‘against unreasonable searches and seizures’’ was reinstated. Id. at 754 (August 17, 1789). 10 Id. It has

been theorized that the author of the defeated revision, who was chairman of the committee appointed
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to arrange the amendments prior to House passage, simply inserted his provision and that it passed

unnoticed. N. LASSON, THE HISTORY AND DEVELOPMENT OF THE FOURTH AMENDMENT TO THE UNITED

STATES CONSTITUTION 101–03 (1937). 11The amendment was originally in one clause as quoted above;

it was the insertion of the defeated amendment to the language which changed the text into two

clauses and arguably had the effect of extending the protection against unreasonable searches and

seizures beyond the requirements imposed on the issuance of warrants. It is also possible to read the

two clauses together to mean that some seizures even under warrants would be unreasonable, and this

reading has indeed been effectuated in certain cases, although for independent reasons. Boyd v. United

States, 116 U.S. 616 (1886); Gouled v. United States, 255 U.S. 298 (1921), overruled by Warden v.

Hayden, 387 U.S. 294 (1967); but see id. at 303 (reserving the question whether ‘‘there are items of

evidential value whose very nature precludes them from being the object of a reasonable search and

seizure.’’) changes on its passage through the Congress, and it is possible that the changes reflected

more than a modest significance in the interpretation of the relationship of the two clauses. Madison’s

introduced version provided ‘‘The rights to be secured in their persons, their houses, their papers, and

their other property, from all unreasonable searches and seizures, shall not be violated by warrants

issued without probable cause, supported by oath or affirmation, or not particularly describing the

places to be searched, or the persons or things to be seized.’’ 8 As reported from committee, with an

inadvertent omission corrected on the floor, 9 the section was almost identical to the introduced

version, and the House defeated a motion to substitute ‘‘and no warrant shall issue’’ for ‘‘by warrants

issuing’’ in the committee draft. In some fashion, the rejected amendment was inserted in the language

before passage by the House and is the language of the ratified constitutional provision. 10 As noted

above, the noteworthy disputes over search and seizure in England and the colonies revolved about the

character of warrants. There were, however, lawful warrantless searches, primarily searches incident to

arrest, and these apparently gave rise to no disputes. Thus, the question arises whether the Fourth
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Amendment’s two clauses must be read together to mean that the only searches and seizures which are

‘‘reasonable’’ are those which meet the requirements of the second clause, that is, are pursuant to

warrants issued under the prescribed safeguards, or whether the two clauses are independent, so that

searches under warrant must comply with the second clause but that there are ‘‘reasonable’’ searches

under the first clause which need not comply with the second clause. 11 This issue has divided the Court

for some time, has 1202 AMENDMENT 4—SEARCHES AND SEIZURES 12 Approval of warrantless

searches pursuant to arrest first appeared in dicta in several cases. Weeks v. United States, 232 U.S. 383,

392 (1914); Carroll v. United States, 267 U.S. 132, 158 (1925); Agnello v. United States, 269 U.S. 20, 30

(1925). Whether or not there is to be a rule or a principle generally preferring or requiring searches

pursuant to warrant to warrantless searches, however, has ramifications far beyond the issue of

searches pursuant to arrest. United States v. United States District Court, 407 U.S. 297, 320 (1972). 13

Compare Marron v. United States, 275 U.S. 192 (1927), with Go-Bart Importing Co. v. United States, 282

U.S. 344 (1931), and United States v. Lefkowitz, 285 U.S. 452 (1932). 14 331 U.S. 145 (1947). 15Trupiano

v. United States, 334 U.S. 699, 705 (1948). See also McDonald v. United States, 335 U.S. 451 (1948). 16

United States v. Rabinowitz, 339 U.S. 56, 66 (1950). 17 Chimel v. California, 395 U.S. 752, 761 (1969).

18Terry v. Ohio, 392 U.S. 1, 20 (1968). In United States v. United States District Court, 407 U.S. 297, 321

(1972), Justice Powell explained that the ‘‘very heart’’ of the Amendment’s mandate is ‘‘that where

practical, a governmental search and seizure should represent both the efforts of the officer to gather

evidence of wrongful seen several reversals of precedents, and is important for the resolution of many

cases. It is a dispute which has run most consistently throughout the cases involving the scope of the

right to search incident to arrest. 12 While the right to search the person of the arrestee without a

warrant is unquestioned, how far afield into areas within and without the control of the arrestee a

search may range is an interesting and crucial matter. The Court has drawn a wavering line. 13 In Harris

v. United States, 14 it approved as ‘‘reasonable’’ the warrantless search of a four-room apartment

pursuant to the arrest of the man found there. A year later, however, a reconstituted Court majority set

aside a conviction based on evidence seized by a warrantless search pursuant to an arrest and adopted

the ‘‘cardinal rule that, in seizing goods and articles, law enforcement agents must secure and use

search warrants wherever reasonably practicable.’’ 15 This rule was set aside two years later by another

reconstituted majority which adopted the premise that the test ‘‘is not whether it is reasonable to

procure a search warrant, but whether the search was reasonable.’’ Whether a search is reasonable, the

Court said, ‘‘must find resolution in the facts and circumstances of each case.’’ 16 However, the Court

soon returned to its emphasis upon the warrant. ‘‘The [Fourth] Amendment was in large part a reaction

to the general warrants and warrantless searches that had so alienated the colonists and had helped

speed the movement for independence. In the scheme of the Amendment, therefore, the requirement

that ‘no Warrants shall issue, but upon probable cause,’ plays a crucial part.’’ 17 Therefore, ‘‘the police

must, whenever practicable, obtain advance judicial approval of searches and seizures through a

warrant procedure.’’ 18 Exceptions to searches under warrants were to AMENDMENT 4—SEARCHES

AND SEIZURES 1203 acts and the judgment of the magistrate that the collected evidence is sufficient to

justify invasion of a citizen’s private premises or conversation.’’ Thus, what is ‘‘reasonable’’ in terms of a

search and seizure derives content and meaning through reference to the warrant clause. Coolidge v.

New Hampshire, 403 U.S. 443, 473–84 (1971). See also Davis v. Mississippi, 394 U.S. 721, 728 (1969);

Katz v. United States, 389 U.S. 347, 356–58 (1967); Warden v. Hayden, 387 U.S. 294, 299 (1967). 19

Chimel v. California, 395 U.S. 752, 762–64 (1969) (limiting scope of search incident to arrest). See also

United States v. United States District Court, 407 U.S. 297 (1972) (rejecting argument that it was

‘‘reasonable’’ to allow President through Attorney General to authorize warrantless electronic

surveillance of persons thought to be endangering the national security); Katz v. United States, 389 U.S.

347 (1967) (although officers acted with great self-restraint and reasonably in engaging in electronic

seizures of conversations from telephone booth, self-imposition was not enough and magistrate’s
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judgment required); Preston v. United States, 376 U.S. 364 (1964) (warrantless search of seized

automobile not justified because not within rationale of exceptions to warrant clause). There were

exceptions, e.g., Cooper v. California, 386 U.S. 58 (1967) (warrantless search of impounded car was

reasonable); United States v. Harris, 390 U.S. 234 (1968) (warrantless inventory search of automobile).

20See, e.g., Almeida-Sanchez v. United States, 413 U.S. 266 (1973), Justices Stewart, Douglas, Brennan,

and Marshall adhered to the warrant-based rule, while Justices White, Blackmun, and Rehnquist, and

Chief Justice Burger placed greater emphasis upon the question of reasonableness without necessary

regard to the warrant requirement. Id. at 285. Justice Powell generally agreed with the former group of

Justices, id. at 275 (concurring). 21 E.g., G.M. Leasing Corp. v. United States, 429 U.S. 338, 352–53 (1977)

(unanimous); Marshall v. Barlow’s, Inc., 436 U.S. 307, 312 (1978); Michigan v. Tyler, 436 U.S. 499, 506

(1978); Mincey v. Arizona, 437 U.S. 385, 390 (1978) (unanimous); Arkansas v. Sanders, 442 U.S. 743, 758

(1979); United States v. Ross, 456 U.S. 798, 824–25 (1982). 22 E.g., Chambers v. Maroney, 399 U.S. 42

(1970) (warrantless search of automobile taken to police station); Texas v. White, 423 U.S. 67 (1975)

(same); New York v. Belton, 453 U.S. 454 (1981) (search incident to arrest); United States v. Ross, 456

U.S. 798 (1982) (automobile search at scene). On the other hand, the warrant-based standard did

preclude a number of warrantless searches. E.g., Almeida-Sanchez v. United States, 413 U.S. 266 (1973)

(warrantless stop and search of auto by roving patrol near border); Marshall v. Barlow’s, Inc., 436 U.S.

307 (1978) (warrantless administrative inspection of business premises); Mincey v. Arizona, 437 U.S. 385

(1978) (warrantless search of home that was ‘‘homicide scene’’). 23Of the 1992 Justices, only Justice

Stevens has frequently sided with the warrants-with-narrow-exceptions approach. See, e.g., Illinois v.

Rodriguez, 497 U.S. 177, be closely contained by the rationale undergirding the necessity for the

exception, and the scope of a search under one of the exceptions was similarly limited. 19 During the

1970s the Court was closely divided on which standard to apply. 20 For a while, the balance tipped in

favor of the view that warrantless searches are per se unreasonable, with a few carefully prescribed
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exceptions. 21 Gradually, guided by the variable expectation of privacy approach to coverage of the

Fourth Amendment, the Court broadened its view of permissible exceptions and of the scope of those

exceptions. 22 By 1992, it was no longer the case that the ‘‘warrants-withnarrow-exceptions’’ standard

normally prevails over a ‘‘reasonableness’’ approach. 23 Exceptions to the warrant requirement have

1204 AMENDMENT 4—SEARCHES AND SEIZURES 189 (Justice Stevens joining Justice Marshall’s dissent);

New Jersey v. T.L.O., 469 U.S. 325, 370 (1985) (Justice Stevens dissenting); California v. Acevedo, 500

U.S. 565, 585 (1991) (Justice Stevens dissenting). 24See various headings infra under the general

heading ‘‘Valid Searches and Seizures Without Warrants.’’ 25 New York v. Burger, 482 U.S. 691 (1987).

26 Illinois v. Rodriguez, 497 U.S. 177 (1990). 27Maryland v. Buie, 494 U.S. 325 (1990). 28 United States v.

Verdugo-Urquidez, 494 U.S. 259, 265 (1990). multiplied, tending to confine application of the

requirement to cases that are exclusively ‘‘criminal’’ in nature. And even within that core area of

‘‘criminal’’ cases, some exceptions have been broadened. The most important category of exception is

that of administrative searches justified by ‘‘special needs beyond the normal need for law

enforcement.’’ Under this general rubric the Court has upheld warrantless searches by administrative

authorities in public schools, government offices, and prisons, and has upheld drug testing of public and

transportation employees. 24 In all of these instances the warrant and probable cause requirements are

dispensed with in favor of a reasonableness standard that balances the government’s regulatory interest

against the individual’s privacy interest; in all of these instances the government’s interest has been

found to outweigh the individual’s. The broad scope of the administrative search exception is evidenced

by the fact that an overlap between law enforcement objectives and administrative ‘‘special needs’’

does not result in application of the warrant requirement; instead, the Court has upheld warrantless

inspection of automobile junkyards and dismantling operations in spite of the strong law enforcement

component of the regulation. 25 In the law enforcement context, where search by warrant is still the

general rule, there has also been some loosening of the requirement. For example, the Court has shifted
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focus from whether exigent circumstances justified failure to obtain a warrant, to whether an officer had

a ‘‘reasonable’’ belief that an exception to the warrant requirement applied; 26 in another case the

scope of a valid search ‘‘incident to arrest,’’ once limited to areas within the immediate reach of the

arrested suspect, was expanded to a ‘‘protective sweep’’ of the entire home if arresting officers have a

reasonable belief that the home harbors an individual who may pose a danger. 27 Another matter of

scope recently addressed by the Court is the category of persons protected by the Fourth Amendment—

who constitutes ‘‘the people.’’ This phrase, the Court determined, ‘‘refers to a class of persons who are

part of a national community or who have otherwise developed sufficient connection with [the United

States] to be considered part of that community.’’ 28 The Fourth Amendment therefore does not apply

to the search and seizure by AMENDMENT 4—SEARCHES AND SEIZURES 1205 29 19 Howell’s State Trials

1029, 1035, 95 Eng. Reg. 807, 817–18 (1765). 30 Boyd v. United States, 116 U.S. 616, 627 (1886); Adams

v. New York, 192 U.S. 585, 598 (1904). 31Thus, the rule that ‘‘mere evidence’’ could not be seized but

rather only the fruits of crime, its instrumentalities, or contraband, turned upon the question of the right

of the public to possess the materials or the police power to make possession by the possessor unlawful.

Gouled v. United States, 255 U.S. 298 (1921), overruled by Warden v. Hayden, 387 U.S. 294 (1967). See

also Davis v. United States, 328 U.S. 582 (1946). Standing to contest unlawful searches and seizures was

based upon property interests, United States v. Jeffers, 342 U.S. 48 (1951); Jones v. United States, 362

U.S. 257 (1960), as well as decision upon the validity of a consent to search. Chapman v. United States,

365 U.S. 610 (1961); Stoner v. California, 376 U.S. 483 (1964); Frazier v. Culp, 394 U.S. 731, 740 (1969).

32 277 U.S. 438 (1928). See also Goldman v. United States, 316 U.S. 129 (1942) (detectaphone placed

against wall of adjoining room; no search and seizure)