American Government Politics Term Paper

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American Government Politics. Discussed is the fourth amendment and the current policies of searches and seizures. Four sources used. Footnotes.

Fourth Amendment

Americans hold very dear the Bill of Rights. Among the ten amendments that make up the Bill of Rights is the Fourth, one many refer to as the most ambiguous of the all the amendments. Search and seizure law is drawn from the Fourth and over the years the Supreme Court has come to view that its main purpose is the protection of a citizen's property and privacy. However, according to the conclusion of the Court, the Fourth Amendment does not "protect all property interests or apply to all situations where people might wish to protect their privacy." Perhaps, never has this amendment felt more threatened than today. The attacks on the World Trade Center on September 11th, spurred the White House Administration to create the office of Homeland Security and pass the Homeland Security Act, an act many feel treads on citizens' rights protected by the Bill of Rights, in particular Fourth Amendment. This paper discusses the history of the Fourth Amendment, the amendment itself and whether the rights covered are threatened today.

During the late 18th century, the use of 'general warrants' and 'writs of assistance,' were extremely unpopular with the citizens of England and the American colonies.

These warrants were government documents used as licenses to search any building, whether home or business, and seldom used for actual crime evidence, such as murder or such. Rather, these warrants were used by police and customs officers to search for "traitorous writings against the king of England or smuggled goods that legally belonged to the king because customs duties had not been paid." The main reason for the warrants was to create immunity for government officials from lawsuits for trespassing. Such writs and warrants were frequently used in the American colonies to search homes and businesses for smuggled goods. In 1761, James Otis, Jr. sued customs officials on behalf of sixty-three Boston merchants in an effort to stop the use of such practices.

His argument lasted five hours and included the famous line, "A man's house is his castle...and whilst he is quiet, he is as well guarded as a prince in his castle." Although, he lost the case, it stirred passionate feelings against the use of such practices. John Adams wrote that Otis' lawsuit really started the American Revolution. The English Parliament passed statues limiting the use of warrants and writs in England after the American Revolution.

When the young United States failed to operate under a confederation, a Constitution was drafted and passed by states only after objecting states were given assurances that a bill of rights would be added. Thus, ten of the twelve amendments drafted by James Madison was passed by Congress and ratified by the states, becoming the United States' Bill of Rights. At the time there was little debate about the meaning of the Fourth Amendment. Madison had written:

The rights of the people to be secured in their persons, their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized."

As it was passed and ratified, the amendment reads:

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."

The changes appear to have been made merely to read better than to alter the intention of meaning. The main changes included "their other property" to "effects" and to change "or" to "and." Madison had said that a warrant must "either describe the places to be searched 'or' the persons or things to be seized," whereas, "the final version said the warrant must describe the place to be searched 'and' the persons or things to be seized." Many, through the years, have debated the reasons why Madison's phrasing was changed and whether the intent of Congress was to expand the scope of the amendment.

Because there are no records of the congressional debate to support any interpretation, the ambiguity of the Fourth Amendment has raised many questions through the years. Did the change from 'or' to 'and' mean that a warrant was needed only in searches and seizures on private property, a house or building? Are there circumstances and situations when a warrant is not needed? And when it states that "persons, houses, papers, and effects," does that include businesses and warehouses? Since Otis' lawsuit had concerned businesses and warehouses, why had Congress not included those in the final draft? Many argue that perhaps Congress was more concerned with protecting personal privacy than businesses.

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The United States Supreme Court was left the task of answering these questions. It was a hundred years before the Court handed down its first decision interpreting the Fourth Amendment. Because of Otis' lawsuit and its effect on the public at the time and due to the fact that this pre-Revolutionary piece has so often been quoted by the Court along with Otis' impact on John Adams, the Court assumes that Congress intended the Fourth to included businesses and warehouses, although they are not listed specifically, just as wagons and carriages are not listed. It is assumed that such items are included in 'effects.'

Through the years, the political and ideological affiliation of the Supreme Court justices has been a factor in how they voted regarding search and seizure law. The more liberal justices, during the 1920's and 1930's, often dissented from the conservative majority, favoring instead more "deference to the right of the people to be free from unreasonable searches and seizures." However, history shows that even during the 1940's when liberal Democrats dominated or the 1980's during the conservative Republican era, there has always been great disagreement concerning how far protection should go against unreasonable searches and seizures. Political historians believe that the media has created more stir regarding the issues of ideological differences than is justified. In 1886 and 1914, the conservative Republican Court handed down decisions that were "very expansive in their desire to protect people from unreasonable searches and seizures." One could argue that the justices of the 1920's were just as untrue to the previous court decisions as the Warren Court of the 1950's and 1960's were to the Court of the 1920's. Moreover, decisions that were later modified or overturned were done by the same justices that had handed them down in the first place, such as the Warren Court and the Burger Court. Therefore, it is erroneous to suggest that any changes in the Court's decisions regarding search and seizure were due to the political makeup of the Court.

Through the years, there has been passionate debate regarding how much the Fourth Amendment should limit the power of law enforcement's search for criminal evidence. It was not until 1961 that the Supreme Court really tackled this debate, deciding that the Fourth Amendment was applicable to the states by the Fourteenth Amendment, which guarantees equal protection of the law to every citizen and provides that "life, liberty, or property" can only be taken following due process of law. In the 1961 case of Mapp v. Ohio, the Supreme Court decided not only that the Fourth Amendment was applicable to the states but also that it required judges at all levels of government to make use of the exclusionary rule...a rule that states t if something has been seized by the police in violation of the Fourth Amendment, it cannot be used as evidence against the person whose rights were violated."

Due to the exclusionary rule, judges were pressed to allow convicted felons to go free if the evidence used for conviction had violated the Fourth Amendment. The 1960's and 1970's saw outcries of protest from the media, as well as politicians concerning the release of murderers due to 'legal technicality.' The Supreme Court, branded as 'handcuffing the police' responded that the "dictates of the Fourth Amendment amounted to more than a legal technicality - they were part of the Bill of Rights." However, the Court had left the law enforcement confused regarding the area of search and seizure. Just what could they do or not do?

Law enforcement was not clear as to when they needed probable cause without a warrant or when a search was legal without either probably cause or a warrant. Although, many wanted Congress to establish some uniform code of criminal investigation procedure, it had no power to interpret the Bill of Rights, only the Supreme Court could do that. In 1966, the Supreme Court did clear up a great deal of confusion regarding confessions.….....

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