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Stephen P. Haws

Search & Seizure Law

The Fourth Amendment: Just a Technicality?

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So, what part of the Fourth Amendment do you have a problem with?

Actually, no real American does have a problem with it. The Fourth Amendment, which protects us all from unreasonable searches and seizures by governmental entities, is one of the greatest legal protections in the history of mankind. It is difficult to imagine an America without it. Without it, there would be no America.

Americans do not have a problem with the Fourth Amendment. Rather, many appear to have a problem with the remedy or punishment upon a violation of this sacred text: Exclusion of illegally obtained evidence in criminal cases.

I understand. It is often gut wrenching to see a person escape justice by excluding evidence on a technicality -- the "technicality" being a violation of our Fourth Amendment.

I do not accept that a violation of the Fourth Amendment is a mere technicality. It is a serious offense, a violation of sacred law. Unchecked violations would stab into the very heart of our civilization. Think back to school and history class. Much of history class dealt with people being oppressed by their own rulers and governments. Although crime has always been with us, I cannot recall much history as dealing with crime. Governmental oppression and misconduct is more devastating to society than ordinary crime. Just look at some recent examples: Nazi Germany, the rise of Communist countries, Iraq and on and on.

I view the violation of the Fourth Amendment as being just as serious as, and often more serious than, a violation our criminal laws.

But what should be the remedy or punishment for a violation of the Fourth Amendment? Should there be a remedy or punishment to deter governmental misconduct? Or is the Fourth Amendment a mere paper right without teeth?

There could be no remedy or punishment. Police and other governmental agencies could be on the "honor system" not to violate the Fourth Amendment. Yea, right. The law libraries are full of cases containing violations, often blatant violations, of the Fourth Amendment. From reading the cases, it seems to me that some in law enforcement really think of the Fourth Amendment as a mere technicality or impediment. It seems to me that some have never seen a search or seizure they did not like. In virtually every case where a violation of the Fourth Amendment was found, someone on the prosecution side was attempting to justify the illegal search or seizure.

Instead of excluding evidence we could put offending police officers in jail, perhaps in a cell right next to the defendant. But this would not be fair to law enforcement officers who, because of the nature of their jobs, are the most likely offenders of the Fourth Amendment. Nor is it in society's best interest to jail its officers when they are needed on our streets. Furthermore, the jail remedy might deter law enforcement to the extent that searches and seizures are not conducted.

Instead of excluding evidence we could simply be satisfied with the civil remedy available to those whose civil rights are violated. A problem I have with this, however, is that society's interest in safeguarding its Fourth Amendment right would depend on the whim and ability of individuals in bringing civil rights lawsuits. Allowing the matter of illegal search and seizure to be heard in a criminal case brought by the prosecution makes it much more likely to be heard.

The best argument for the remedy of exclusion of evidence is that it works better than other remedies in deterring police and governmental misconduct. It is also the most equitable remedy, since exclusion of illegally obtained evidence places the prosecution in the same position it would have been in if no illegal search or seizure had taken place.

See the United States Supreme Court decision in Mapp v. Ohio (courtesy of Find Law) noting that other remedies had failed. As our high court stated:

"[T]he purpose of the exclusionary rule 'is to deter -- to compel respect for the constitutional guaranty in the only effectively available way -- by removing the incentive to disregard it.' "

The court also noted, "Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence."

Look how hard the police and prosecution fought in the O. J. Simpson criminal case to protect the evidence from exclusion. Without exclusion, would the prosecution or police have cared about Fourth Amendment violations? There is no better deterrent to police violation of the Fourth Amendment.

Please send me your solution for violations of the Fourth Amendment or any other comments you may have.