THE ORIGIN OF THE FOURTH AMENDMENT

  
THE ORIGIN OF THE FOURTH AMENDMENT
Today, it is easy to forget where many of our freedoms come from. It is also dangerous to turn a blind eye to history. Civilizations, military commanders, and leaders of nations have ignored history and human behavior with devastating results.
Perhaps the most important freedoms we enjoy are embedded in the Fourth Amendment. The Fourth Amendment to the United States Constitution was added as part of the Bill of Rights on December 15, 1791. It protects us from the unreasonable searching of our homes and some areas of private property. The 4th Amendment specifically provides:
“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.”
The Founders believed that freedom from government intrusion into one’s home was a natural right (one granted from God) and fundamental to liberty. The idea that citizens should be protected from unreasonable searches and seizures originated in England hundreds of years ago. In 1604, Sir Edward Coke first identified this right. He said that “The house of every one is to him as his castle and fortress, as well for his defence against injury and violence as for his repose.”
During the Colonial era, the King of England looked at the American colonies as a financial investment. Britain passed numerous revenue collection bills aimed at generating as much money from the colonists as possible. Obviously, the colonists resented this act by the King and began smuggling operations to circumvent the custom taxes imposed by the British Crown.
In response, King George began the use of “writs of assistance.” These were legal search warrants that were extremely broad and general in scope. British agents could obtain a writ of assistance to search any property they believed might contain contraband goods. They could enter someone’s property or home without notice and without a reason. Agents could interrogate anyone and force their cooperation. These searches and seizures became an egregious affront to the people of the colonies. They would also be one the precipitating factors leading to the American Revolution and the eventual forming of our Constitution.
Since it became part of the Constitution, many common-sense exceptions to the 4th Amendment right to have a properly executed search warrant issued before a search or seizure of private property can be conducted. They are too numerous to list in this column. However, two common examples are (1) a police officer may conduct a pat down search of someone if he or she has observed someone engaging in behavior that would give the officer reasonable, articulable suspicion that a crime has or is being committed; and (2) if a police officer sees someone committing a crime, or believes that he or she has probable cause to suspect someone has committed a crime, the officer may arrest the suspect without a warrant.
Today, the most common arguments in criminal cases surround the Fourth Amendment. We have vehicles, phones, computers, text messaging, Facebook, and numerous other forms of technology that did not exist in the 1700’s. Judges must rule on contemporary issues as modern technology surfaces.
But, the analysis is the same today as it was over 200 years ago. The search and seizure of data from a smartphone must be reasonable under the Fourth Amendment just as the search and seizure of handwritten documents in a barn in 1820 would have had to be reasonable.
Looking back at the reasoning behind liberties in cultures helps to preserve freedoms. It is only when we become disinterested or even indifferent to our Founders that we take a dangerous path toward civilizational decline.
We cannot forget that our freedoms come from natural law, the courage of our Founders, and the words in a very old document that still apply today; the United States Constitution.