Growing up, I learned bits and pieces of how the government worked through US Government and Politics classes, or civics courses. They helped me identify what rights I had as an American. Last semester, I took an introductory course to criminal justice in America which made me very interested in law. I enjoyed telling my friends about the ins and outs of how criminal law worked and was surprised to find that many of them didn’t know their basic privacy rights they held as a resident of the US. So, following that up, I wanted to share with you some important pieces of information I believe every American should know regarding their 4th Amendment rights.
The Bill of Rights is made up of the first 10 amendments to the US Constitution, which was ratified in 1788 and contains the essential rights that every American has. According to the Constitution of the United States of America, Amendment IV states that “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.”
In simpler terms, the 4th Amendment protects you and states that you will not be subject to searches and seizures in a place with a reasonable expectation of privacy without a warrant. Let’s break that down a little bit further.
Reasonable Expectation of Privacy
What is a reasonable expectation of privacy?
This is exactly what it sounds like: a place where one expects to have a right to privacy. Homes or places of residence have a reasonable expectation of privacy. This extends to apartments and dorms on campus as well!
Search and seizures can only be conducted by government officials and they must have a valid search warrant. There are four requirements in order to obtain a search warrant:
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There must be probable cause to issue a warrant or make an arrest. Probable cause requires a greater than 50% certainty rate that which an officer believes a crime has been committed. This is a much higher standard than that of reasonable suspicion (which is typically used in “stop and frisk” scenarios.)
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The warrant must specifically state the place to be searched and which items to be seized. For example, if the warrant only specifies the living room to be searched, authorities are not allowed to search other rooms.
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The officer who filed the warrant must have done so in good faith. This means that the officer must genuinely believe this information is true to the best of their knowledge.
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The warrant must be signed by a neutral and detached magistrate (judge) who is impartial to the case.
Exceptions for Warrantless Searches
There are a few exceptions, in which case warrantless searches are allowed. These include:
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Exigent Circumstances
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According to Cornell Law School, exigent circumstances are defined as, “Circumstances that would cause a reasonable person to believe that entry (or other relevant prompt action) was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts.” This means that if there is an immediate threat to public safety, which requires the intervention of an officer, or reason to believe the suspect may flee, a warrant for entry, search or arrest is not required. Officers can continue pursuit of a suspect if that suspect enters private property. For this to apply however, the circumstance cannot have been created by the officer.
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Stop and Frisk
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Reasonable suspicion by an officer is sufficient enough in order to stop an individual and pat them down. These are called Terry stops, named after the court case Terry v. Ohio (1968) in which the Supreme Court ruled that the 4th Amendment rights of an individual were not violated in stop and frisk searches on the streets if there is reasonable suspicion. Reasonable suspicion, although less than probable cause, must be based on “specific and articulable facts,” and cannot simply be a hunch. In order to arrest this individual however, there must be probable cause. So, for example, if something was found upon this individual during the pat-down that linked them to a crime, that would then be the reliable evidence leading to the necessary probable cause to make an arrest.
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Items in Plain View
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If there is an item in plain view of the officer, they are able to seize it. The officer however, must have a lawful presence in this area. They cannot illegally enter a premise and then claim the plain view doctrine. A good example would be if you were pulled over while driving and the officer sees something in the back of your car. This is where plain view would apply, leading to probable cause. Plain view also extends to all 5 senses!
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Search Incident to Lawful Arrest
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After a lawful arrest has occurred, officers can search the person and their immediate surrounds without a warrant. This is done to confirm if the arrestee has any contraband within their immediate vicinity.
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Special Circumstances
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These are specific to things beyond the force of normal law enforcement. It includes things like airports and border crossings, along with people on parole or probation.
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Automobile Searches
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The Supreme Court concluded that “for the purposes of the Fourth Amendment, there is a constitutional difference between houses and cars.” It is difficult and unrealistic for officers to obtain a warrant every time they wish to search a vehicle. The officer must have probable cause that there may be contraband in the vehicle, in order to be allowed to search it without a warrant. Keep in mind, reasonable suspicion is all that is required for a stop though.
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Consent
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Any officer that is given consent to a search, does not require probable cause. Consent must be obtained without the use of coercion or force, however, the Supreme Court has also ruled that police officers are not required to inform people of their right to say no to a search. Officers are legally allowed to lie to you, and it is up to you to know what your rights are. (They cannot lie about having legal papers – such as a warrant).
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If you live in the dorms, an apartment, or a house on campus, all of this applies to you. You reserve all your 4th Amendment rights. In the dorms, your University Housing lease states that a House Fellow can enter your room only for health and safety purposes and immediate threats to safety. Police however cannot enter the dorm (or an apartment) without having obtained a warrant. This can be bypassed if a resident in the room gives consent. However, if there are two people in the room, and one gives consent, while the other does not give consent, the officer is then not allowed to enter. If there is only one person present in the room or house who gives consent, then the consent stands.
As for living in an apartment or any rented property, according to the State of Wisconsin in the state’s statute Wis. Stat. Ann. §704.05(2), your landlord may enter your premises with advanced notice to inspect or make repairs within reasonable daytime hours. They are also allowed to show your premise to prospective tenants. Similar to officers with exigent circumstances, landlords may enter your premises if they believe there is a direct threat to safety or “entry is necessary to preserve or protect the premises.”
A lot of people on campus don’t know what their rights are when it comes to privacy. Situations like this can arise at any time, without warning. When faced with a problem regarding your own privacy, you should be armed with the necessary knowledge to make an informed decision. Knowing your rights can help you exercise them when needed and live with the principals of freedom and liberty!