Submitted by William Elder.
“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.”
Boy, is it tough to lay down laws about communications in the early Nineteenth for application in the Twenty-First Century. “Search and seizure” or the “probable cause” amendment, to which the Fourth Amendment is often shortened, like so much of American jurisprudence, has its roots in English Common Law— long before electronic devices. Common because prior judicial decisions— as opposed to specific statute rulings— are recognized as general guides for current decisions across all English courts making of them precedents. As an English colony, America was brought into that system and it was made a foundation for American jurisprudence by James Madison and Thomas Jefferson in 1789. Because the British had so flagrantly ignored this part of their own English law during the Revolutionary Period, the Fourth Amendment was cemented into our Bill of Rights in 1791, almost as a matter of course.
This Amendment also bans evidentiary fishing searches and seizures by authorities of citizens and their property, requiring instead a specific warrant, upon demonstrated probable cause, and stating just what the search is looking for and where it is likely to be found. In 1914, the U.S. Supreme Court unanimously ruled in Weeks v. United States that any evidence obtained by federal law enforcement officers in violation of the Fourth Amendment could not be used in federal criminal proceedings.
Mapp vs Ohio, in 1961, extended the Supreme Court’s ruling that the exclusion of such evidence obtained by such methods applies also in state courts. A judicial fistfight ensued. The Fourth and Fourteenth Amendments were invoked. Justice Clark reasoned “the exclusionary rule is an essential part of both the Fourth and Fourteenth Amendments is not only the logical dictate of prior cases, but it also makes very good sense. There is no war between the Constitution and common sense.” He reversed the Supreme Court of Ohio’s judgment against Dolly Mapp (a colorful case involving Ohio anti-pornography laws). Justice John Marshall Harlan II and three others disagreed, arguing the “principle of privacy which is at the core of the Fourth Amendment” should only apply. Stay tuned.