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Fourth Amendment Search and Seizure

The advent of technology and information has increased the public exposure to interactions between citizens and law enforcement. This has resulted in the additional scrutiny and misconceptions regarding citizen’s rights when encountered by law enforcement. This article is in no way an attempt to be an exhaustive view of the discussed topic. The subject matter is much too broad and constantly reviewed by courts. However, this article is a basic overview of the rights afforded to citizens by the Fourth Amendment.

The Foundation of the Fourth Amendment.

These rights come from the foundation of the Fourth Amendment to the United States Constitution. The Fourth Amendment states the “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.” There is a great deal of law discussed in this singe sentence. This one sentence addresses topics including, searches of persons and property, seizures of persons and property, detentions, arrests, the sufficiency of warrants, the validity of warrants, the scope of warrants, evidence, police observations, police mindset, the extent of personal privacy, and more. The United States has spent literally hundreds of years developing and interpreting this single sentence. This Amendment has been used to discuss privacy when making a call from a phone booth. More recently, it has been used to determine whether Apple can defy the government when asked to release customer text messages. This article will generally discuss the Fourth Amendment fundamentals of reasonable suspicion and probable cause.

Reasonable Suspicion and Probable Cause.

The difference between the two terms is that probable cause means there is concrete evidence of a crime, whereas reasonable suspicion is open to broader interpretation. Generally, in order to detain an individual for the purpose of conducting a lawful search, law enforcement must only show reasonable suspicion. Reasonable suspicion is a reasonable presumption that a crime has been, is being, or will be committed. It is a reasonable belief based on facts or circumstances and is informed by a police officer’s training and experience. Reasonable suspicion is seen as more than a guess or hunch but less than probable cause. This suspicion gives law enforcement the authority to detain. Even if there is no suspicion, law enforcement may continue to question a citizen. Any answers by the citizen will be deemed as voluntary information.

A citizen may courteously ask “officer am I free to go?” If the officer says “yes”, then the citizen may end the interaction. If a citizen is not free to go, he is being detained and the officer may be developing probable cause for an arrest. In this instance, then the citizen may assert the right to remain silent and ask to see a lawyer. Probable cause is the logical belief, supported by facts and circumstances, that a crime has been, is being, or will be committed. Probable cause allows law enforcement to seize property or arrest a citizen. Probable cause to seize property exists when facts and circumstances known to the officer would lead a reasonable person to believe that the item is contraband, is stolen, or constitutes evidence of a crime. Probable cause is also required to obtain a warrant.

The Remedy for Fourth Amendment Violations.

Often, at the point of contact between law enforcement and citizen, these rules regarding reasonable suspicion and probable cause may not be followed. If law enforcement oversteps the search and seizure rights of a citizen, it is not advised for the citizen to attempt to rectify the situation at the time of the violation. The proper remedy when these rights have been violated is known as the exclusionary rule. The exclusionary rule holds that any evidence found as the result of a violation of search and seizure rights cannot be used as evidence to prosecute the citizen for the alleged crime. This exclusion will not automatically happen. The citizen or his attorney must alert the court that evidence should be excluded. It is important to remember that even if law enforcement violates a search or seizure right, yet the evidence would have been found even if there were no violation, the evidence may still be used against the citizen. In Florida, a probable cause hearing is conducted in every criminal case. At this hearing, the presiding judge will review the facts to make sure that probable cause existed for a legal arrest.