What is the Fourth Amendment?

The Fourth Amendment and its impact on criminal cases

The Fourth Amendment provides a variety of important rights relevant to criminal prosecutions and defenses.  It protects against arbitrary arrests, requires law enforcement to obtain warrants, and protects against various other ways the government could spy on a private citizen.

The Fourth Amendment’s exact language is:

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.

If you face a criminal prosecution, it is certainly important to hire a criminal defense attorney.  That attorney’s first step when analyzing the case might be to check for Fourth, Fifth or Sixth Amendment violations.  Those issues, if they exist, could be the basis for a pre-trial motion.  And while all motions are different, remedies could include exclusion of evidence or the dismissal of the case against you.  Obviously those are desirable results for any defendant in a criminal action.

Contact Van Severen Law Office if you face a criminal charge.  Our defense attorneys will analyze your case for trial defenses, constitutional defects, or other issues that could result in a favorable disposition in your case.  You can reach us 24/7 at (414) 270-0202.

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Fourth Amendment searches

Searches are one of the ways criminal cases involve the 4th Amendment.

Initially, 4th Amendment case law revolved around a citizen’s property rights.  A citizen’s property rights become involved when the government physically intruded on “houses, papers, or effects” for the purpose of finding information (a search).  Early 4th cases focused on the actual intrusion into an individual’s home.  Eventually the law expanded to include things like wiretaps.

4th Amendment rights expanded in Katz v. United States (1967).  That case broadened 4th Amendment rights to include privacy.  The Katz case revolved around a simple question: Does a search occur when a microphone is attached to the outside of a public phone booth?  The court found that the government violated Katz’ reasonable expectation of privacy.   Therefore, they should have obtained a warrant.

Smith v. Maryland (1979)

In Smith v. Maryland, the Supreme Court developed a two-prong test to determine whether a search had occurred:

  • Firstly, did the defendant have a reasonable expectation of privacy; and
  • Secondly, does society accept this expectation of privacy as reasonable?

In other words, was there a subjective expectation of privacy, and was it reasonable?

Terry stops

Certain situations do not require law enforcement to obtain a warrant before conducting a search.  Specifically, if they have a reasonable suspicion of criminal activity, even if it falls short of probable cause necessary for an arrest, they may conduct a Terry stop.  Under Terry v. Ohio (1968), cops can conduct limited warrantless searches of suspects.

Terry case law concluded that police officer witnesses who observe “unusual conduct” and reasonably believe “that criminal activity may be afoot,” that the suspicion person has a weapon and that the person is presently dangerous to the officer or others, may result in a pat-down search to determine whether the person is carrying a weapon.  To conduct a frisk, officers must point to specific and articulable facts which, taken together with rational inferences from those facts, warrant their actions.  Florida v. Royer (1983) established that such a search must be temporary, and questioning must be limited to the purpose of the stop.

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Your Fourth Amendment rights are important. Hire a top criminal defense attorney to protect from illegal police conduct.

Fourth Amendment seizures

Secondly, the Fourth Amendment prohibits unreasonable seizures of any person, their home (including curtilage), or property without a warrant.  A seizure occurs when there is a “meaningful interference with an individual’s possessory interests in that property” (United States v. Jacobsen (1984)).  The Fourth Amendment also protects against the unreasonable seizure of both property and people.

Government questioning of an individual in a public place is not automatically a seizure.  Voluntary answers to such questions are not protected by the Fourth Amendment, and can certainly be used by prosecutors.  Restraining an individual’s movement is an important component of seizures.

  • United States v. Mendenhall (1980) – A person is seized only when, by physical force or show of authority, the individual’s freedom of movement is restrained, and because of the surrounding circumstances, a reasonable person would not believe he was free to leave.
  • Torres v. Madrid (2021) – A person is seized following the use of physical force with intent to restrain, even if the person manages to escape.  And finally:
  • Florida v. Bostick (1991) – As long as police don’t convey the message that compliance with requests is required, the police contact is a “citizen encounter” that falls outside the Fourth Amendment.  Freedom to disregard police questioning results in an encounter that does not implicate the 4th Amendment.


Although the word “arrest” does not appear in the 4th Amendment, understanding its interaction with the amendment is of fundamental importance.  An arrest, after all, is a seizure of the person.

But when does an arrest occur?  In California v. Hodari D. (1991), the Supreme Court of the United States addressed this issue.  There were two issues in the case, one of which is applicable to our discussion:

  • Has a person who is not under the physical control of a police officer been “seized” under the Fourth Amendment when the officer is chasing that person?

The answer is no.  A Fourth Amendment seizure requires some sort of physical force with lawful authority, or submission to an assertion of authority.

Finally, a valid arrests leads to another important implication: the search incident to arrest.

Searches incident to arrest

As we’ve previously described, an arrest is a seizure.  But what kind of searches can police conduct after this kind of seizure?  We call theses searches, searches incident to arrest, and there’s certainly law developed that discusses these searches.

Originally recognized in Arizona v. Gant, the United States Supreme Court discusses searches incident to arrest.  Police arrested Mr. Gant based on a warrant for driving with a suspended license.  After arresting Mr. Gant, police searched his vehicle and eventually charged him with possession of cocaine and possession of drug paraphernalia.

The Supreme Court held that police may search the passenger compartment of a vehicle, incident to a recent occupant’s arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search, or that the vehicle contains evidence of the offense at arrest.  Accordingly, because Mr. Gant’s arrest was beyond what was needed to complete the service of the warrant against him, the search was invalid.

Contact some of Wisconsin’s best criminal defense attorneys for help

The 4th Amendment is relevant in a huge portion of criminal cases.  Certainly traffic-related offenses, like OWIs, involve stops of vehicles (seizure).  Drug cases could involve searches.  And in nearly all criminal cases, police officers conduct an arrest (seizure).  Hiring a defense attorney to review these actions is important, as a violation could lead to suppression of evidence against you.  And when we suppress evidence, it’s harder for the government to obtain a conviction against you.

At Van Severen Law Office, our criminal defense attorneys are some of the best in Wisconsin.  No matter the charge you’re facing, we’ve filed 4th Amendment pre-trial motions and won.  We would like to look at your case to determine whether police violated your rights.  Contact us immediately at (414) 270-0202 and let’s figure out how to fight your case.

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