Fourth Amendment

What does the Fourth Amendment mean?

The Fourth Amendment is a fail-safe, like the rest of the Bill of Rights. The Fourth Amendment is a superfluous restraint on federal power. The Fourth Amendment makes explicit that the federal government cannot conduct unreasonable searches and seizures and cannot conduct searches without a warrant issued upon probable cause.

In the early twentieth century, the Supreme Court began to apply this superfluous restraint on federal power against the state governments via its selective Incorporation Doctrine. How do you take a superfluous restraint on federal power and turn it into a substantive individual right? By making up the new law out of thin air. This relatively modern legal perversion has taken the Fourth Amendment – a superfluous restraint on federal power – and turned it into a weapon the federal government wields against the states and local self governance.

Example why the Fourth Amendment matters today?

The Exclusionary Rule

Crime Scene

Exclusionary Rule can exclude critical, probative evidence.

A good example of why the Fourth Amendment matters today is the judicial creation of a doctrine called the “Exclusionary Rule.” The Exclusionary Rule excludes evidence from a defendant’s criminal trial if the evidence was uncovered by police officers in violation of the post-1914 Supreme Court’s “interpretation” of the Fourth Amendment.

Under common law, and under the 100+ years of life under the original Fourth Amendment, illegally obtained evidence of a defendant’s guilt was not excluded from trial. Uncovering evidence of a defendant’s guilt was a legitimate defense against accusations the search that uncovered the evidence was in violation of the defendant’s rights. The common law’s emphasis was on justice. Consequences of an unjustified search only arose if the search was without basis and did not prove a suspect’s guilt. At that point the victim of the unjustified search would have legal recourse against the government or agency that violated that person’s rights.

Exclusionary Rule and Incorporation Against the States

In 1914 (National Safe Deposit Co. v. Stead, 1914), the Supreme Court upended the common law, created the Exclusionary Rule and applied it in federal cases. In 1961 (Mapp v. Ohio, 1961), the Fourth Amendment and the Exclusionary Rule were deemed to be weapons of the federal judiciary to wield against the states. Never mind each state had its own rules of evidence that could be updated and modified by elected representatives. With the stroke of a pen, the Supreme Court rewrote state rules of evidence and procedure in all fifty states and created situations where probative evidence could be excluded from criminal trials.

Today, tens of thousands of criminals are set free each year by the Exclusionary Rule. Some statistics indicate half of these criminals will be rearrested again for similar crimes within 2 to 5 years. If you or someone you know is the victim of a crime, just know that if the police don’t follow rules made up out of thin air by the Supreme Court, the criminal can be set free due to the exclusion of critical evidence.

Whether the Exclusionary Rule is good or bad policy is a separate question. The important question is, who should decide what the law is? The Constitution and Bill of Rights reserve that power to the states and the people of those states to decide through their elected representatives.

Closing Note on the Exclusionary Rule

This website does not advocate police officers barging into private residences searching for evidence of crimes. The point being made is that the Fourth Amendment does not apply against the states and does not authorize federal judges to create law out of thin air. Moreover, it seems crazy to create law out of thin air, with no legal or historical basis, that protects criminals at the expense of victims and the public. Criminals should not have evidence of their crimes excluded from state courts because Federal judges do not respect the Constitution. In addition, police and other government authorities who violate the rights of innocent people should be harshly punished.

United States Constitution – 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.