Fourth Amendment: Unlawful vs. Lawful Search

Updated on October 7, 2016

The fourth amendment was created to protect individuals from unreasonable searches. The fourth amendment protects "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" (Cornell Law website, U.S. Constitution- Fourth Amendment, 2011) Over the years, the rules set forth in the fourth amendment have been displayed and used to protect individuals in unlawful searches.

In Katz v. US 389 U.S. 347, 361, (1967), it is determined that a "search is constitutional if it does not violate a person's reasonable or legitimate expectations of privacy. (FindLaw website, KATZ v. UNITED STATES, 1967) The biggest issue with this case was that the conversation was listened to by the FBI in a telephone booth. While the telephone booth is a public unit surrounded by a glass enclosure, a reasonable expectation of privacy was anticipated because Katz entered into the telephone booth and closed the door, assuming that everything that took place inside the telephone booth was a private matter. From Katz v US, we can determine that, even if a computer is found in a public place, it cannot be searched without a warrant as privacy is expected in both public and personal spaces.

In US v. Ross 456 U.S. 798, 822-23 (1982), it is noted that computers are viewed in a similar manner as briefcases, footlockers, suitcases, or any other closed container; thus the expectation of privacy is there. In the case of United States v. Ross, the police were told about a man described as “Bandit” who was selling drugs out of his vehicle. The police found the vehicle and tracked it until the driver got in and drove away. They then pulled over the vehicle and searched it, finding a bag in the trunk. The officers opened the bag, finding heroin, and arrested the driver. The decision of the court was reversed because, although the police officers had the right to search the car due to circumstances leading up to the arrest, they had no right to search the closed containers within the vehicle. (Findlaw website, United States v. Ross, 456 U.S. 798, 1982, 2012)

"A Seizure of property occurs when there is some meaningful interference with an individual's possessory interests in that property" (Justia website, US v Jacobsen 466 U;S. 109, 113, 1984) In the case of United States v. Jacobsen, it was found unconstitutional to obtain a search warrant for a property based on an illegal search of a package. The key note in this case is whether or not obtaining a chemical testing on the materials found in a private search were against the boundaries necessary for a search warrant.

The exception for unwarranted searches falls under the border search exception rule. In Almeida-Sanchez v. United States - 413 U.S. 266 (1973), the Mexican immigrant had his vehicle searched 26 miles from the border of Mexico while traveling on and east-to-west bound highway. There was no clear indication that Almeida-Sanchez crossed the border into the country, and there was no probable cause for the search to take place as required under the Carroll doctrine. (Justia website, Almeida-Sanchez v. United States - 413 U.S. 266, (1973)) This case defines the Immigration and Nationality Act, which states a reasonable distance for search of vehicles from the border to be within 100 air miles. Although the border search exception allows unwarranted searches without probable cause, they cannot perform x-rays or strip searches unless there is a reasonable suspicion that the traveler is concealing contraband. This is notable in the case of United States v. Roberts, 86 F.Supp.2d 678 (S.D. Tex. 2000) when a customer service agent specified that Roberts was going to fly to Paris carrying six disks containing child pornography. After a routine search uncovered the six diskettes, it created probably cause for further searching of Robert's luggage and belongings. In another case, US v Montoya De Hernandez (1985), Rosa Elvira Montoya de Hernandez claimed the search performed on her was unconstitutional regarding the fourth amendment rights. Upon arriving in Los Angeles, the customs inspectors believed Montoya de Hernandez was smuggling drugs into the country based on her abdominal bulge. They performed a strip search, which uncovered two sets of undergarments lined with paper towels. They were then convinced that she was smuggling drugs and detained the woman. During her period of being detained, she produced eighty-eight balloons filled with cocaine during bowel movements. (Justia website, United States v. Montoya De Hernandez, 473 U.S. 531 (1985), 2012)

From all of these cases, we can determine a variety of things. The fourth amendment is in full effect to prevent any unwarranted search if there is no probable cause, regardless of the place where the search takes place is public or private. (Katz v. United States (1967)) If probable cause is presented, additional measures can be taken to seize any item, so long as the item is not in a closed container. The closed container rule is not completely in effect when it comes to the border search exception if there is probable cause, as noted in United States v. Roberts (2000) and United States v. Montoya De Hernandez (1985). If no probable cause is presented for the border search exception, there is no jurisdiction for an unwarranted search (Almeida-Sanchez v. United States (1973))

The fourth amendment requires any search performed must be done with a warrant. Some examples of probable cause are reasonable suspicion or information obtained from an informant. A search warrant may not be required if the search and seizure process does not expand from the scope of a private search procedure.


Cornell Law website. (2011) U.S. Constitution- Fourth Amendment. Retrieved Feb. 10, 2012


FindLaw website. (2012) KATZ v. UNITED STATES, 1967. Retrieved Feb. 10, 2012 from

Findlaw (2012) United States v. Roberts, 86 F.Supp.2d 678 (S.D. Tex. 2000). Retrieved Feb. 10,

2012 from

Findlaw Website. (2012) United States v. Ross, 456 U.S. 798, 1982. Retrieved Feb. 10, 2012


Justia website (2012) Almeida-Sanchez v. United States - 413 U.S. 266, 1973. Retrieved Feb. 10,

2012 from

Justia website. (2010) US v Jacobsen 466 U;S. 109, 113, 1984. Retrieved Feb. 10, 2012 from

Justia Wesbite. (2012) United States v. Montoya De Hernandez, 473 U.S. 531 (1985). Retrieved

Feb. 10, 2012 from


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