Search, Seizure, and Privacy

By Darien A. McWhirter | Go to book overview

CHAPTER two
Protecting Property and Privacy

DISCUSSION

The fundamental task in interpreting any provision of the Bill of Rights is to determine exactly what the particular amendment protects. In cases involving the Fourth Amendment, the Court has had difficulty with this because the amendment is ambiguous. Over time the Supreme Court has concluded that the amendment protects property in some circumstances, privacy in other circumstances, and neither property nor privacy in other circumstances. Deciding when property or privacy interests are important enough to be protected has not been easy.

While the Fourth Amendment appears on the surface to be a simple statement of when and where government may "search and seize," it turns out to be anything but simple. First, the amendment does not outlaw all searches and seizures, only "unreasonable" searches and seizures, and it does not provide any real guidelines as to what is unreasonable. Second, the amendment states "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." Is the list "persons, houses, papers, and effects" intended to be exhaustive of the items covered by the amendment or simply to convey an idea of the kinds of things that are to be protected? Third, the amendment states that warrants shall only be issued if they are supported by "probable cause." What does "probable cause" mean? Fourth, does the amendment mean that searches and seizures may only take place if a warrant is first obtained, or does it simply mean that if a warrant is obtained, because a warrant is needed in a particular situation, then the warrant must fulfill the requirements spelled out in the amendment? The Supreme Court did not

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