The Incredible Shrinking 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.

                 Amendment IV, United States Constitution

As the United States Supreme Court noted in 1891:


No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.


In 1914, the Court for the first time held that “in a federal prosecution, the Fourth Amendment barred the use of evidence secured through an illegal search and seizure.” This sanction, as it has been deemed by the high Court, this “exclusionary rule” was extended to the states in 1961 in Mapp v. Ohio.

You can almost feel his conviction, as Justice Clark writes:


The ignoble shortcut to conviction left open to the State tends to destroy the entire system of constitutional restraints on which the liberties of the people rest. Having once recognized that the right to privacy embodied in the Fourth Amendment is enforceable against the States, and that the right to be secure against rude invasions of privacy by state officers is, therefore, constitutional in origin, we can no longer permit that right to remain an empty promise. Because it is enforceable in the same manner and to like effect as other basic rights secured by the Due Process Clause, we can no longer permit it to be revocable at the whim of any police officer who, in the name of law enforcement itself, chooses to suspend its enjoyment.


Then it started…..the undoing.

In 1968, the Court decided that the police can stop a motorist WITHOUT probable cause if they have an articulable reasonable suspicion that the person has, is, or is about to break the law. If the State convinces the trier of fact that such “articulable reasonable suspicion” existed, then evidence seized is admissible. Terry v. Ohio.

Decision after decision has sought to weaken the exclusionary rule: there’s the “reasonable reliance on a search warrant” later found to be invalid exception (United States v. Leon (1984)); the “warrant held invalid as a result of judge’s clerical error” exception (Massachusetts v. Sheppard (1984)); the “warrantless administrative searches performed in good-faith reliance on a statute later declared unconstitutional” exception (Illinois v. Krull (1987)); the “negligence” exception (Herring v. United States (2009)); and the “reasonable mistake of law” exception (Heien v. North Carolina (2014)). The Supreme Court also held that an uncorroborated anonymous tip of reckless driving can be the basis for police to stop a car, where police observe no violation of the law. Navarette v. California (2014).

But then – a glimmer of hope.

In Rodriguez v. United States (2015), the Court held that the police may not extend an otherwise-completed traffic stop, absent reasonable suspicion to support the investigation of the new crime. In Riley v. California (2014), it held that police must get a warrant before searching a cell phone of an arrested person. And, in Missouri v. McNeely (2013), it held that in most cases police would need to get a warrant before seizing an individuals blood in an OWI case.

Then this happened. In its last week of the current session, last week, the Supreme Court removed two more chinks to the Fourth Amendment’s armor.

On June 20, 2016, in Utah v. Strieff, the high Court ruled that if an officer arbitrarily stops a person without cause, and then discovers a warrant for the person, that the evidence seized pursuant to the arrest will not be suppressed. Justice Thomas’ writing for the majority held that the officer’s “finding” of the warranted “attenuated” the connection between the admittedly unlawful investigatory stop and the drug-related evidence seized from defendant during search incident to arrest…for the warrant…resulting from the unlawful stop…!

Justice Sotomayor wrote a blistering dissent, noting that:

Although many Americans have been stopped for speeding or jaywalking, few may realize how degrading a stop can be when the officer is looking for more. This Court has allowed an officer to stop you for whatever reason he wants—so long as he can point to a pretextual justification after the fact. That justification must provide specific reasons why the officer suspected you were breaking the law, but it may factor in your ethnicity, where you live, what you were wearing, and how you behaved. The officer does not even need to know which law you might have broken so long as he can later point to any possible infraction—even one that is minor, unrelated, or ambiguous.[Emphasis supplied, Internal citations omitted].

* * * * *

By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.


Three days later, while we were still reeling, Birchfield v. North Dakota came down. The court upheld statutes that make it a crime to refuse to submit to a warrantless breath alcohol test after a person has been arrested, even where police officers have plenty of time to obtain a warrant. It found that a breath alcohol test is a valid “search incident to arrest” despite language in Riley limiting the scope of searches incident to an arrest, and despite the holding of McNeely, that if police can get a warrant before getting a blood alcohol test, then they have to get a warrant. Justice Sotomayor dissented from this portion of the decision, joined by Justice Ginsburg.

Perhaps the only redeeming aspect of the decision, is the “compromise” according to Justice Thomas’ dissent from it, finding that a blood alcohol test is NOT a valid search incident to arrest and DOES require a warrant. As a result of this part of the opinion, from this date forward, any consent obtained for a blood test based on an advice form stating that refusal carries a possible jail sentence is invalid, and any hospital blood test from an unconscious suspect obtained without first getting a warrant is likely subject to suppression (in Louisiana, there are other accepted statutory exceptions).