FOURTH AMENDMENT
The Fourth Amendment to the U.S. Constitu-
tion 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 American Revolution was fought, in
part, to create a system of government in which
the RULE OF LAW would reign supreme. The rule
of law is often identified with the old saying that
the United States is a nation of laws and not of
men. Under the rule of law, the actions of gov-
ernment officials are prescribed by the princi-
ples and laws that make up the U.S. legal system
and do not reflect the ARBITRARY whims and
caprices of the government officials themselves.
A distinction is sometimes drawn between
power and authority. Law enforcement officers
are entrusted with the powers to conduct inves-
tigations, to make arrests, and occasionally to
use lethal force in the line of duty. But these
powers must be exercised within the parameters
authorized by the law. Power exercised outside
of these legal parameters transforms law
enforcers into lawbreakers, as happened when
Los Angeles police officer Laurence Powell was
convicted for using excessive force against ROD-
NEY KING, who had been stopped for speeding.
Powell repeatedly struck King with his night-
stick even though King was in a submissive posi-
tion, lying prone on the ground.
The Fourth Amendment was intended to
create a constitutional buffer between U.S. citi-
zens and the intimidating power of law enforce-
ment. It has three components. First, it
establishes a privacy interest by recognizing the
right of U.S. citizens to be “secure in their per-
sons, houses, papers, and effects.” Second, it pro-
tects this privacy interest by prohibiting
SEARCHES AND SEIZURES that are “unreason-
able” or are not authorized by a warrant based
upon probable cause. Third, it states that no
warrant may be issued to a law enforcement offi-
cer unless that warrant describes with particu-
larity “the place to be searched, and the persons
or things to be seized.”
The Framers drafted the Fourth Amend-
ment in response to their colonial experience
with British officials, whose discretion in col-
lecting revenues for the Crown often went
unchecked. Upon a mere suspicion held by
British tax collectors or their informants, colo-
nial magistrates were compelled to issue general
warrants, which permitted blanket door-to-
door searches of entire neighborhoods without
limitation as to person or place. The law did not
require magistrates to question British officials
regarding the source of their suspicion or to
make other credibility determinations.
The writ of assistance was a particularly
loathsome form of general warrant. The name of
this writ derived from the power of British
authorities to enlist local peace officers and colo-
nial residents who might “assist” in executing a
particular search. A writ of assistance lasted for
the life of the king or queen under whom it was
issued, and it applied to every officer and subject
in the British Empire. In essence, such a writ was
a license for customs officers tracking smugglers
and illegally imported goods.
Colonial opposition to general warrants was
pervasive and kinetic. In Paxton’s Case (also
known as the WRITS OF ASSISTANCE CASE), 1
Quincy 51 (Mass. 1761), JAMES OTIS, appearing
on behalf of colonists who opposed the issuance
of another writ of assistance, denounced general
warrants as instruments of “slavery,” “villainy,”
and “arbitrary power.” These writs, Otis contin-
ued, were “the most destructive of English lib-
erty” because they placed the freedom of every
person “in the hands of a petty officer” (as
quoted in O’Rourke v. City of Norman, 875 F.2d
1465 [10th Cir. 1989]). In order to be valid, Otis
