The Rights of These United States: The Fourth Amendment

What protection does the fourth amendment give us?  It’s the one that protects us from unlawful search and seizure, reading as “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.”4thamendment

The fourth amendment is a direct response to the English Writ of Assistance. In a very small nut shell the fourth amendment right protects our homes from law enforcement agencies barging in and taking our stuff simply because they feel like it or think that it is suspicious materiel. In the last century this has been modified to some extent. It now covers our persons and personal property as well as our communication devices. But I digress: let us look at the fourth like I have for the preceding three.

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…” as is the nut shell. Law enforcement cannot go into our homes and search or seize our property. This also extends to all of our personal effects with certain new congressional acts this has somewhat changed. I am not going to go into the litany of Acts i.e. the Patriot Act that have affected this but I will simply give some examples. If you are suspected of being a terrorist of any sort, then none of your communications are considered private. The federal, state, and local law enforcement can and will be listening and reading all of your communications.

nixonpeaceDidn’t we have a President that was almost impeached for illegal wire taps? Yup, President Nixon. That’s right folks: what he did/covered up in the Watergate [scandal], would have been legal in America today. On a side note, we have a Presidential Candidate (Hillary Rodham Clinton) that broke all kinds of laws and statues. But the FBI Director decided that there was no intent to harm America. I’m not sure when “intent” started to matter when dealing with classified materiel or the lives of Service Members (4 lost their lives due to her negligence), not to mention this little thing called OPSEC (Operational Security). But hey she is a Presidential Candidate. So let’s forget the fact that she blatantly disregarded basic principles of OPSEC. Or the fact that if it was some lowly Private in the Army that did the same thing that she did he/she would have been tried and convicted of Espionage or Treason and spent the rest of his/her natural life in Leavenworth federal penitentiary or in Guantanamo bay.

Aerial photograph of the old United States Disciplinary Barracks at Fort Leavenworth, Kan. (Photo courtesy of the U.S. Army Combined Arms Center Research Library)
Aerial photograph of the old United States Disciplinary Barracks at Fort Leavenworth, Kan. (Photo courtesy of the U.S. Army Combined Arms Center Research Library)

In short, sure, let’s have a double standard. Let’s allow a Presidential Candidate to do whatever they want but slam the little guy. That’s cool. I like it when my supposed leaders are held to a lesser standard than I am. It’s really fun. Ok, ok let’s get back to the 4th amendment.

“…no Warrants shall issue, but upon probable cause, supported by Oath or affirmation…” what this should translate into for most of us is this: a judge can’t issue a warrant (a search or arrest warrant) without “probable cause” that is supported by a legal sworn statement. When this was first ratified by the states the statement could be made by mostly anyone. Nowadays this has changed. The only people that can make a statement like this are those that have witnessed illicit items or behaviors, or law enforcement personnel.

That “probable cause” part is a little trickier. The definition of probable cause is right smack dab in the middle of the infamous gray area. What would be defined as probable cause for you and I is often times vastly different than what a judge would think is probable cause. I have a friend that is on the SAPD (San Antonio Police Department) and I asked him how he would define probable cause. He defined it as this “probable cause is when there is a reasonable belief a crime is committed. This applies to evidence also when it is believed the evidence of a crime is present at a location” (friend chose to remain anonymous). Now this brings in what is reasonable and what is not. For this I must bring in another theory use in law, “the reasonable person standard”. What is the reasonable person standard? It is a standard that is very useful insomuch that if you put any reasonable person in a given situation would they act in the same manner as the person in question. In this instance if a reasonable person was shown all of the evidence regarding the issuance of a warrant would they believe that the person or evidence would be at that location. If they would then the warrant is issued, if not then the warrant is not issued.

“…and particularly describing the place to be searched, and the persons or things to be seized.” Okay, so now we have a specific restriction on warrants. Not only does a warrant have to be based on reasonable suspicion or probable cause and supported by an oath or affirmation it now has to be specific in what is being searched for and the location of the search. If a warrant is issued it must state what they are looking for and where they are going to look. Let’s use a board game for this example. In “Clue” to win the game you must say I think it was the Butler in the Library with the Candle Stick, right? Well, it’s the same thing for a warrant. It must say I think the “murder weapon, a .45 caliber semi-automatic pistol” is hidden in the residence at 1234 Street name Drive. Then it must be supported by a lot of evidence and sworn to by an Officer. Only then can a judge issue and sign off on a search warrant.

All of this boils down to one simple thing: A persons’ home is their castle and it must be respected as such. Without this Constitutional amendment our homes and all of our communications would be subject to search and seizure without cause. What kind of sense does that make? How could we as American citizens possibly hope to have a safe and secure life without this amendment? We can’t. With Congressional acts like the Patriot Act and the like our homes and our lives are not secure. I for one am totally in favor of repealing the Patriot Act and all other acts that give the government such broad and sweeping powers. I am also against our political leaders being above the law of this land. If I am subject to a law, then so are they. What makes them better than me? Or you? Nothing. They still put their pants on the same way we do (one leg at a time). In fact, the leaders of our great nation should be held to a higher standard than we are. Since when did a President, Senator, or Congressmen become so important as to be above the law? I don’t know but they should be held to the same standard that we as American Citizens are. The 4th amendment protects us from illegal search and seizure of our persons, homes, automobiles, and all communications; so long as we are living like we should be. Basically, don’t break the law or conduct yourself in a suspicious manner and your stuff will be safe.

   

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