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Freeman 2 4 0 SEARCH WARRANTS AND THE FOURTH AMENDMENT The Fourth Amendment has figured in more Supreme Court cases than any other part of
Freeman
SEARCH WARRANTS AND THE
FOURTH AMENDMENT
The Fourth Amendment has figured in more
Supreme Court cases than any other part of the Con
stitution. It 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, and no Warrants shall issue, but
upon probable cause, supported by Oath or
affirmation, and particularly describing the
place to be searched, and the person or things
to be seized. Emphasis added
Courts consider a search reasonable if:
the police have probable cause to believe that
they can find evidence that the suspect commit
ted a crime and
a judge issues a search warrant.
A search warrant is an order signed by a judge
or a magistrate. It authorizes police officers or fed
eral agents to search for specific objects or materials
eg illegal narcotics at a clearly defined location
eg the premises at Brown Street at a specific
time eg between : PM and : PM Police
officers obtain warrants by providing a judge with
information that they have gathered.
At trial, the traditional standards of establishing
guilt are reasonable doubt or the preponderance
of evidence. For a search warrant, the standards
are much more lenient. If the judge believes that
the information established probable cause to con
duct a search, he or she will issue a warrant. If the
court determines that the extent of the search was
more thorough or intrusive than the details stated
in the search warrant, it may disallow the evidence
obtained by the search at trial.
The term probable cause is highly abstract and
the courts have long tried to come up with a com
plete definition. Generally, law enforcement officials
must have trustworthy evidence that would make a
reasonable person think it likely that the proposed
arrest or search is justified.
Wong Sun v US US and Illinois v Gates,
US
The Fourth Amendment protection against
unreasonable searches and seizures was adopted
as a protection against the widespread invasions of
privacy experienced by American colonists at the
hands of the British government. Socalled writs
of assistance gave royal officers broad discretion to
conduct searches of the homes of private citizens,
primarily as a way of discovering violations of strict
British customs laws. This practice led to a unique
awareness among our Founding Fathers of the threat
to individual liberty and privacy that is created by
unchecked government search powers.
Evidence seized in violation of the Fourth Amend
ment cannot be used against the defendant in a
criminal prosecution. This doctrine is known as the
exclusionary rule and the evidence itself is referred
to as the fruit of the poisonous tree. The judge will
exclude this evidence, but the case can continue
using other evidence. If evidence that was properly
gathered establishes the defendants guilt beyond a
reasonable doubt, a judge or jury can still convict
him of the crime.
The Fourth Amendment protects only against
unreasonable searches by agents of government as
opposed to privately conducted searches. Searches
conducted at the request of or with the participa
tion of the government are covered under of the
Fourth Amendment, under the principle of agency.
The Supreme Court has held in numerous cases that
the Fourth Amendment protects against unreason
able searches and seizures conducted by govern
ment officials but not by private parties acting in
a private capacity. It is obvious, though, that if a
private individual breaks into a house or office to
gather evidence, the court can still prosecute him for
any criminal actions.
UnIted StateS V JaRRett
In early an anonymous Turkish physician
known only as Unknownuser, obtained access
to computers via a Trojan horse program that he
attached to a picture he posted to a newsgroup
Mapp v Ohio, US
Coolidge v New Hampshire, US
See, eg Coolidge v New Hampshire, US and
United States v Jacobsen, US
Computer Hackers and Search and Seizure
frequented by persons interested in pornography.
A Trojan horse is a seemingly innocent program
containing additional hidden code that allows the
unauthorized collection, exploitation, falsification, or
destruction of data. When individuals downloaded
the picture, a Trojan horse backdoor program was
secretly installed on the downloaders hard drive.
This program allowed Unknownuser to gain access
to the computer, examine files, and record key
strokes, all without the downloaders knowledge or
consent.
On July Unknownuser sent an unsolic
ited email to the Police Department in Montgom
ery, Alabama, USA, informing the department that
I found a child molester on the Net. The email
included an at Need summary on this article as soon as possible
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