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One of our most valuable constitutional rights as American citizens is not actually a positive right, like the right to bear arms, or the right to vote. Instead, it’s the right against something- specifically, the right not to have our homes or persons searched by the government unless there’s good reason for it. 

To put it differently, the value of the right arises not in what it allows us to do, but in what it prevents the government from doing. This right comes directly from the Fourth Amendment. This post will discuss the 4th Amendment and how Courts deal with the violation of a citizen’s 4th Amendment rights.


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.


For over two hundred years scholars have interpreted that language. Read it for yourself, but on its face this is what it seems to say:

  1. the government can’t search my house or person (or arrest me, for that matter) unless they have a warrant;
  2. They can’t get a warrant to do any of those things unless it’s reasonable. 
  3. It’s not reasonable to do any of those things unless there’s probable cause to do them.

That’s also the gist of how the Supreme Court has interpreted the language. Of course, there are exceptions to these general rules (and, in some cases, exceptions to those exceptions), but the big takeaways from the language of the Fourth Amendment are as follows: persons and houses are protected against search and seizure unless there is a warrant (which requires probable cause). 


Notice what the Fourth Amendment does not address: there’s no mention of what a person can do to protect against the violation of his Fourth Amendment rights. More to the point, there’s no mention of the consequences or remedy if a person’s Fourth Amendment Rights are violated. So, the Constitution says law enforcement is required to follow certain rules when conducting arrests or searches, but the Constitution doesn’t say anything about what should happen when those rules get broken. Clearly that’s a problem and for a long time it went unaddressed. Then, from 1914 to 1961, the Supreme Court issued opinions that gave (somewhat) clear answers to what should happen when the rules are broken. 


The Supreme Court’s answer to the question in 3 was what is frequently called the Exclusionary Rule. Simply put, evidence obtained in violation of a person’s 4th Amendment rights will be excluded from that person’s trial. Of course, this is a big deal. If you get stopped and arrested for possession of marijuana and it turns out that the stop was in violation of the Fourth Amendment, the marijuana can be excluded from your trial. Because the state then can’t prove that you possessed marijuana, they will be forced to dismiss the case. Possession of marijuana is one example but there are plenty of others: Possession of an improper identification, minor in possession of alcohol, the list goes on. 


There’s still one scenario we haven’t talked about. What happens when you get illegally searched and law enforcement doesn’t end up finding anything illegal? Your rights have been violated but unfortunately there’s not much that can be done. This is true even if you end up getting charged with a different crime. You can sue in federal court for violation of your constitutional rights but such suits are expensive and often very difficult to win. It’s important to remember that the exclusionary rule is only helpful when there’s (a) an illegal search that uncovers (b) evidence of a crime.


The Fourth Amendment is incredibly complicated. Successfully excluding evidence based on violations of the Fourth Amendment requires experience, expertise, and specific facts. Furthermore, the right time to discuss whether an officer has violated your rights is almost never when you’re interacting with the officer. If you’ve been charged with a crime or written a citation and would like to discuss the circumstances with an attorney, call and arrange for a consultation today.