The 4^th Amendment to the U.S. constitution provides that the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.

It also provides that no warrants shall be issued, 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 roots of the second clause -- the probable cause requirement -- lie in English and American colonial history.

Prior to the framing of our Constitution by the founding fathers, the government had virtually unlimited power to believe, right or wrong, that any illegal items they were looking for would be found.

In England, this all-purpose power took the form of what were called general warrants; in colonial America, they were called writs of assistance.

To protect against the abuses inherent in this kind of power, the Framers added a probable cause requirement.

The PC requirement is an example of the procedural law's attempt to balance, or accommodate, competing interests.

On the one hand, it protects from arbitrary intrusions into liberty and privacy, but on the other hand, it gives sufficient leeway to government officials by not being as strong of a standard as proof beyond a reasonable doubt.

Supreme Court case law has indicated that rumor, mere suspicion, and even "strong reason to suspect" are not equivalent to probable cause.

Over the years, at least three definitions have emerged as the best statements:

Probable cause is where known facts and circumstances, of a reasonably trustworthy nature, are sufficient to justify a man of reasonable caution or prudence in the belief that a crime has been or is being committed.

--Draper v. US (1959)

Probable cause is what would lead a person of reasonable caution to believe that something connected with a crime is on the premises of a person or on persons themselves.

nexus is the connection between PC, the person's participation, and elements of criminal activity; determining nexus is the job of a judicial official, and it's almost always required in cases of search warrants, not arrest warrants

Probable cause is the sum total of layers of information and synthesis of what police have heard, know, or observe as trained officers.

--Smith v. U.S. (1949)

http://caselaw.findlaw.com/data2/californiastatecases/a077757.pdf.

The fourth Amendment is applied to the states through the Due Process clause of the 14^th Amendment.

The same standards of reasonableness and probable cause apply to both state and federal law enforcement activities.

The vast majority of supreme court cases dealing with search and seizures are decided based on the reasonableness of the search or seizure.

It is important to note that the 4^th Amendment only governs conduct of federal and state agents.

It does not govern the conduct of private citizens who are not acting as government agents.

Example: an ex-girlfriend may conduct a search of a boyfriends apartment and turn the evidence over to the police—the evidence is admissible.

The 4^th Amendment only covers our national community.

It does not cover the search of a person’s residence in another country, for example.

Since an arrest is a seizure, the fourth Amendment also covers arrests.

The amendment is, however, more often thought of as a limitation on the power of police to search and seize evidence.

The primary reason for this is that an Illegal arrest is not a bar to prosecution; tainted evidence, however, cannot be used at trial.

Ask 3 questions:

Is the fourth amendment applicable? (plain view, for example, is not)

If the 4^th is applicable, has it been complied with? (If so, the evidence is good)

If the fourth amendment is applicable, and has not been complied with, what sanctions will the court impose?

Prior to Katz v. US, the property approach was the traditional method used in deciding what constitutes a search.

This approach was rejected in Katz in favor of a privacy approach.

In Katz, federal agents intercepted Katz’s telephone conversations by the use of an electronic listening device attached to the outside of a public telephone booth.

The prosecution argued that there was no search of a person, house, papers, or effects, and therefore no coverage by the 4^th Amendment.

The government also contended that there was no seizure since the voice is an intangible item.

The Court rejected the arguments of the government and stated that the Fourth Amendment protected people, not places.

The court also stated "what a person seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."

A search is unconstitutional if the person has a reasonable expectation of privacy in that place.

The expectation of privacy must be reasonable.

Reasonableness includes the requirement that it must be an expectation that the people are willing to accept.

The courts have required that individuals be protective of their privacy interests.

For example, had an undercover police agent dressed as a bum been standing near the telephone while Katz was making his telephone calls, the agents could testify as to what she had heard.

Under these facts, Katz would have willfully exposed the contents of his conversation by talking within hearing distance of someone else.

The SC has interpreted the 4^th protection of the home to include the area immediately surrounding the house—the curtilage.

The area outside the curtilage, which is often referred to as the open fields area is not protected by the 4^th Amendment.

The Supreme Court has described the curtilage as "the area to which extends the intimate activity associated with the sanctity of a person’s home and the privacies of life."

Four factors to be used in determining if an area is within the curtilage of a home:

Proximity of the area to the home?

Within the same enclosure as the home?

Nature of the use of the area?

Steps taken to prevent view of area by passersby?

In this case the court ruled that a barn was not part of the curtilage because it was out away from the house and not behind the privacy fence.

There was no indication that the barn was used for the intimate activities associated with the home

No steps had been taken to hide the barn from view (the fence was designed to hold cattle, not provide privacy)

The entry and examination of residential premises is not a search if the premises have been abandoned.

The formal test as to whether the premises have been abandoned is not whether all formal property rights have been relinquished, but whether the party retained a reasonable expectation of privacy in the place allegedly abandoned.

The 4^th requires PC before a warrant may be issued to search a place or seize a person (arrest)

As the court once stated "sufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment."

SC:

"Probable cause exists where the facts and circumstances with [the arresting officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed"

The 4^th states only that probable cause is needed before a warrant may be issued.

The SC generally has applied the same standards of PC for arrests without a warrant.

In a close case, the court may uphold an arrest with a warrant where they would not uphold an arrest without a warrant.

Some have interpreted this to mean the presence of the warrant creates the assumption that the arrest was legal.

The basic test for probable cause to search is the same as that for arrest with the added requirement of a reasonable belief that the property to be seized will be found an a particular place or on a particular person.

The following general rules for PC apply to both search and arrest:

Probable cause may be based on hearsay information

The phrase "person of reasonable caution" or "ordinary prudent and cautious person" does not refer to a person with special legal training.

It refers to the average person "on the street", who, under the circumstances, would believe that the individual being arrested had committed the offense or that items to be seized would be found in that particular place.

The experience of the police officer may be considered in determining whether the officer had PC.

What may be insufficient to establish PC to an untrained person may be sufficient to establish for a specially trained officer.

"Reasonable Ground" and "probable cause" are used interchangeably in many courts

Probable cause requires an "honest and reasonable" belief

Proof beyond a reasonable doubt is not required—only that it is more probable that not, that is, more than 50% certainty that the person has committed a crime or that the items to be seized will be found in a certain place.

Probable Cause must exist before the search or the arrest.

A search or arrest cannot be justified by the facts which are discovered during the search or arrest.

For example, you cannot justify a search of a person by the fact that during the search drugs were discovered on her.

Probable Cause may be established by

1. the officer’s own knowledge of certain facts and circumstances

2. information given by informants

3. information plus corroboration

If the information on which PC is based is provided by an informant, additional corroboration is normally required.

This is based on the questionable status of informants: The informant’s information may be corroborated by a showing that the informant has been reliable in the past or gives a precise description to the alleged wrongdoing.

The court has applied the "totality of the circumstances analysis" in informant cases to determine if there is sufficient corroboration to constitute probable cause.

Under this analysis, the court looks at all the facts to determine if sufficient corroboration is present to establish PC

Probable cause may be required in the following four basic situations:

Arrests with warrant

Arrests without a warrant

Searches and seizures with warrant

Searches and seizures without warrant