Gale Encyclopedia Of American Law 3Rd Edition Volume 4 P53 docx

where the case might have been brought in the
first place. Thu s, the court to which the case is
transferred must also have jurisdiction over the
matter. Unlike a forum non conveniens motion,
a transfer request may be made by either party
and does not require that the action be
dismissed and then reinstituted in the new
court. In addition, to obtain a transfer, the
requesting party needs to show a lesser degree of
inconvenience than that required before a court
will grant a forum non conveniens motion. For
example, federal law provides that a case may be
transferred from one federal forum to another
“[f]or the convenience of parties and witnesses”
and “ in the interest of justice” (28 U.S.C.A. §
1404(a) (West Supp. 1995)). But, since transfers
are limited to courts within the same system or
state, a defendant who wants to change from a
federal forum to a state court, or to a court in
another country, or from a state court of one
state to a state court of another state, must still
bring a motion to dismiss the action based on
forum non conveniens.
FURTHER READINGS
Barron, Jerome A., and C. Thomas Dienes. 2000. First
Amendment Law in a Nutshell. Eagan, MN: West.
Black, Henry Campbell. 2001. Black’s Law Dictionary. Eagan,
MN: West.
Gunnarsson, Helen W. 2003. “Breathing New Life Into
Forum Non Conveniens?” Illinois Bar Journal 91
(October). Available online at />IBJ/oct03lj/p486.htm; website home page: http://www.

isba.org (accessed July 25, 2009).
FORWARDING FEE
A payment of money made by one attorney who
receives a client to another attorney who referred
the client.
The Code of
PROFESSIONAL RESPONSIBILITY,
which has been established by the
AMERICAN BAR
ASSOCIATION
to regulate the professional conduct
of attorneys, proscribes the payment of forward-
ing fees—sometimes called referral fees—to an
attorney who has merely secured the employ-
ment of another attorney without rendering any
services or assuming any responsibility to the
client in the matter. An apportionment of
reasonable fees between attorneys is proper only
when the client is cognizant of, and consents to,
this arrangement, and when the allocation is in
proportion to the services rendered and the
responsibility assumed by each attorney.
The Code of Professional Responsibility has
been adopted by many state bar associations. If
an attorney accepts a forwarding fee without
providing any services, or undertaking any
responsibility, the bar association may institute
disciplinary proceedings against the individual
for his or her unethical behavior.
FOUNDATION

A permanent fund established and maintained by
contributions for charitable, educational, religious,
research, or other benevolent purposes. An institu-
tion or association given to rendering financial aid
to colleges, schools, hospitals, and charities and
generally supported by gifts for such purposes.
The founding or building of a college or hospital.
The incorporation or endowment of a college or
hospital is the foundation, and those who endow it
with land or other property are the founders.
Preliminary questions to a witness to establish
admissibility of evidence. Laying a foundation is a
prerequisite to the admission of evidence at trial. It
is established by testimony that identifies the
evidence sought to be admitted and connects it
with the issue in question.
FOUR CORNERS
The document i tself; t he f ace of a written instrument.
The term is ordinarily included in the
phrase within the four corners of the document,
which denotes that in ascertaining the legal
significance and consequences of the document,
the parties and the court can only examine its
language and all matters encompassed within it.
Extraneous information concerning the docu-
ment that does not appear in it—within its four
corners—cannot be evaluated.
FOURTEENTH AMENDMENT
The FOURTEENTH AMENDMENT to the U. S. Constitu-
tion reads:

Section 1. All persons born or naturalized in
the United States, and subject to the
JURISDIC-
TION
thereof, are citizens of the United States
and of the State wherein they reside. No State
shall make or enforce any law which shall
abridge the privileges or immunities of
citizens of the United States; nor shall any
State deprive any person of life, liberty, or
property, without
DUE PROCESS OF LAW; nor
deny to any person within its jurisdiction the
EQUAL PROTECTION of the laws.
Section 2. Representatives shall be appor-
tioned among the several States according
to their respective numbers, counting the
whole number of persons in each State,
excluding Indians not taxed. But when the
right to vote at any election for the choice of
electors for President and Vice
PRESIDENT OF
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
FOURTEENTH AMENDMENT 509
THE UNITED STATES, Representatives in Con-
gress, the Executive and Judicial officers of a
State, or the members of the Legislature
thereof, is denied to any of the male
inhabitants of such State, being twenty-one
years of age, and citizens of the United States,

or in any way abridged, except for participa-
tion in rebellion, or other crime, the basis of
representation therein shall be reduced in the
proportion which the number of such male
citizens shall bear to the whole number of
male citizens twenty-one years of age in such
State.
Section 3. No person shall be a Senator or
Representative in Congress, or
ELECTOR of
President and
VICE PRESIDENT, or hold any
office, civil or military, under the United
States, or under any State, who, having
previously taken an oath, as a member of
Congress, or as an officer of the United
States, or as a member of any State legisla-
ture, or as an executive or judicial officer of
any State, to support the
CONSTITUTION OF THE
UNITED STATES
, shall have engaged in INSURREC-
TION
or rebellion against the same, or given
aid or comfort to the enemies thereof. But
Congress may by a vote of two-thirds of each
House, remove such disability.
Section 4. The validity of the public debt of
the United States, authorized by law, includ-
ing debts incurred for payment of pensions

and bounties for services in suppressing
insurrection or rebellion, shall not be ques-
tioned. But neither the United States nor any
State shall assume or pay any debt or
obligation incurred in aid of insurrection or
rebellion against the United States, or any
claim for the loss or
EMANCIPATION of any
slave; but all such debts, obligations and
claims shall be held illegal and void.
Section 5. The Congress shall have power to
enforce, by appropriate legislation, the pro-
visions of this article.
The Fourteenth Amendment, ratified in
1868, has generated more lawsuits than any other
provision of the U.S. Constitution. Section 1 of
the amendment has been the centerpiece of most
of this litigation. It makes “All persons born or
naturalized in the United States” citizens of the
United States and citizens of the state in which
they reside. This section also prohibits state
governments from denying persons within their
jurisdiction the privileges or immunities of U.S.
citizenship, and guarantees to every such person
due process and equal protection of the laws.
The Supreme Court has ruled that any state law
that abridges
FREEDOM OF SPEECH, freedom of RE-
LIGION
, the right to trial by jury, the RIGHT TO

COUNSEL
, the right against SELF-INCRIMINATION,the
right against unreasonable searches and seizures,
or the right against cruel and unusual punish-
ments will be invalidated under section 1 of the
Fourteenth Amendment. This holding is called
the
INCORPORATION DOCTRINE.
Sections 2 to 5 have been the subject of far
fewer lawsuits. Some of these sections seem
anachronistic today because they reflect the im-
mediate concerns of the Union’s political leader-
ship following the North’s victory over the South
in the Civil War (1861–65). Section 2, for exam-
ple, penalized any state that attempted to abridge
the
VOTING rights of its black male residents by
reducing the state’s representation in Congress
(no female resident of any race was afforded the
CONSTITUTIONAL right to vote in the United States
until 1920). Section 3 prohibited from holding
state or
FEDERAL office any person who engaged in
“insurrection or rebellion” or otherwise gave “aid
or comfort to the enemies” during the Civil War.
Section 4 reaffirmed the United States’ commit-
ment to pay its Civil War debt, while declaring
all debts and obligations incurred by the Con-
federate government “illegal and void.” Section 5
enabled, and continues to enable, Congress to

pass “appropriate legislation” to enforce the
provisions of the Fourteenth Amendment.
The Fourteenth Amendment was drafted to
alleviate several concerns harbored by many U.S.
citizens prior to its
RATIFICATION. The most ob-
vious concern related to the status of the recently
freed slaves. Five years before hostilities com-
menced in the Civil War, the Supreme Court
declared that people of African descent living in
the United States were not “citizens” of the
United States, but merely members of a “sub-
ordinate and inferior class of human beings”
deserving no constitutional protection what-
soever (
DRED SCOTT V. SANDFORD, 60 U.S. [19 How.]
393, 15 L. Ed. 691 [1856]). The Fourteenth
Amendment vitiated the Supreme Court’s hold-
ing in Dred Scott by making all blacks “born or
naturalized in the United States” full-fledged
citizens entitled to the same constitutional rights
provided for every other U.S. citizen.
The racist attitudes expressed in Dred Scott
also manifested themselves after the Civil War.
In 1865 the southern states began enacting the
BLACK CODES, which deprived African Americans
of many basic rights afforded to white Amer-
icans, including the right to travel, bear arms,
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
510 FOURTEENTH AMENDMENT

own property, make contracts, peaceably as-
semble, and testify in court. The Black Codes
also authorized more severe punishments for
African Americans than would be imposed on
white persons for committing the same criminal
offense. The Fourteenth Amendment offered an
antidote to these discriminatory laws by
guaranteeing to members of all races “due
process of law,” which requires the legal system
to provide fundamentally fair trial procedures,
and “equal protection of the laws,” which
requires the government to treat all persons
with equal concern and respect.
Dred Scott was not the only Supreme Court
decision that influenced the framers of the
Fourteenth Amendment. Barron v. City of
Baltimore, 32 U.S. (7 Pet.) 243, 8 L. Ed. 672
(1833), also played a significant role. This case
involved a Maryland wharf owner who brought
a lawsuit against the city of Baltimore for
violating the Fifth Amendment’s
EMINENT DO-
MAIN
Clause, which prohibits the government
from taking private property without “just
compensation.” Baltimore defended against
the wharf owner’s lawsuit by arguing that the
FIFTH AMENDMENT only provides relief against
action taken by the federal government and
offers no protection against state governments

or their political subdivisions. The Supreme
Court agreed with Baltimore.
Writing for the Court, Chief Justice
JOHN
MARSHALL
asserted that the Constitution created
the federal government, and the provisions of
the Constitution were designed to regulate the
activity of the federal government. The people
of each state enacted their own constitution,
Marshall contended, to regulate the activities of
their state and local governments. Thus, Mar-
shall reasoned that the U.S. Constitution
operates only as a limitation on the powers of
the federal government, unless one of its
provisions expressly restricts the powers of state
governments, as does Article I, Section 10.
Article I, Section 10, provides that “[n]o
State shall enter into any Treaty, Alliance, or
Confederation,” or “pass any
BILL OF ATTAINDER,
ex post facto Law, or Law impairing the
Obligation of Contracts.” This wording, Mar-
shall maintained, demonstrates that the Framers
understood the type of clear and unequivocal
language that must be used to make a provision
of the federal Constitution binding on the
states. Because the first eight amendments to the
Constitution do not contain language that
restricts the powers of state governments,

Marshall concluded that the
BILL OF RIGHTS was
inapplicable to the states.
The Supreme Court’s decision in Barron
weighed heavily on the mind of
JOHN BINGHAM,the
Republican representative from Ohio who was
the primary architect of Section 1 of the
Fourteenth Amendment. Bingham said he “not-
ed certain words in the opinion of Marshall”
when he was “reexamining that case of Barron.”
The chief justice, Bingham stressed, denied the
wharf owner’s claim because the Framers of the
Bill of Rights, unlike the Framers of Article I,
Section 10, had not chosen the type of explicit
language that would clearly make the Bill of
Rights applicable to state governments. “Acting
upon” Marshall’s “suggestion” in Barron, Bing-
ham said, he “imitated” the Framers of Article I,
Section 10: “As [these Framers had written] ‘no
state shall pass any Bill of
ATTAINDER ‘I
prepared the provision of the first section of the
fourteenth amendmen t.”
Bingham’s remarks shed light on the Su-
preme Court’s decision to make most of the
provisions contained in the Bill of Rights
applicable to state governments through the
doctrine of incorporation. Under this doctrine,
the Supreme Court has ruled that every protec-

tion contained in the Bill of Rights—except for
the right to bear arms, the right to
INDICTMENT by
GRAND JURY, the right to trial by jury in civil cases,
and the right against quartering soldiers—must
be protected by state governments under the
Equal Protection and Due Process Clauses of the
Fourteenth Amendment.
The Supreme Court has explained that each
of these incorporated rights is “deeply rooted in
the nation’s history” and “fundamental” to the
concept of “ordered liberty” represented by the
Due Process Clause (Palko v. Connecticut, 302
U.S. 319, 58 S. Ct. 149, 82 L. Ed. 288 [1937] ).
Any state that denies one of these rights is
violating its duty to provide the “equal protec-
tion of the laws” guaranteed to the residents of
every state by the Fourteenth Amendment.
Although a state may provide more consti-
tutional protection to its residents than is
conferred by the Bill of Rights, the Fourt eenth
Amendment prohibits any state from provi ding
less protection. For example, the Supreme
Court upheld the constitutionality of sobriety
checkpoints, which authorize police officers to
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
FOURTEENTH AMENDMENT 511
stop motor vehicles to determine if the driver
has been consuming alcohol, regardless of
whether the stop was based on probable cause

or made pursuant to a
SEARCH WARRANT as
required by the
FOURTH AMENDMENT (Michigan v.
Sitz, 496 U.S. 444, 110 S. Ct. 2481, 110 L. Ed. 2d
412 [1990]). The Minnesota Supreme Court
reached the opposite conclusion, invalidating
arrests made during traffic stops at sobriety
checkpoints because they did not comport with
the state’ s constitutional provisions prohibiting
unreasonable searches and seizures (Ascher v.
COMMISSIONER of Public Safety, 519 N.W.2d 183
[Minn. 1993]).
Whereas the Due Process and Equal Protec-
tion Clauses have given rise to a panorama of
legal claims such as the sobriety checkpoint
cases, the
PRIVILEGES AND IMMUNITIES Clause has
produced only a few lawsuits since the end of
the 1800s. Like most other legal terms in the Bill
of Rights, the phrase privileges or immunities is
not defined in the Constitution. Nor does the
phrase possess a meaning that is self-evident.
However, some insight into the meaning of the
Privileges and Immunities Clause may be
gleaned from statements made by the man
who drafted it, Congressman Bingham.
Bingham said the “privileges and immuni-
ties of citizens of the United States are
chiefly defined in the first eight amendments to

the Constitution of the United States These
eight articles never were limitations upon
the power of the states until made so by the
Fourteenth Amendment” (quoted in Adamson
v. California, 332 U.S. 46, 67 S. Ct. 1672, 91 L.
Ed. 1903 [1947][Murphy, J., dissenting]).
Senator Jacob Howard echoed these thoughts,
stating that “these privileges and immunities,
whatever they may be—for they are not and
cannot be fully defined in their entire extent and
precise nature—[include] personal rights
such as the freedom of speech and of the
press, [and] the right of the people to peaceably
assemble and petition the government for
REDRESS of grie vances.” Similarly, Representative
JAMES WILSON made it clear that the “privileges
and immunities of the citizens of the United
States” include “[f]reedom of religious opinion”
and “freedom of speech and press.”
Notwithstanding the statements made by
these congressmen, the Supreme Court has
limited the application of the Fourteenth
Amendment’s Privileges and Immunities Clause
to provide only negligible protection against the
state and federal governments. In the
SLAUGHTER-
HOUSE CASES, 83 U.S. (16 Wall.) 16, 21 L. Ed. 268
(1873), a group of New Orleans butchers
brought a lawsuit to invalidate a Louisiana law
that granted a monopoly to a local slaughter-

house. The butchers alleged that the state-
chartered monopoly violated their “privileges
and immunities” to pursue gainful employment
free from unlawful restraints.
In an extremely narrow reading of the
Fourteenth Amendment, the Supreme Court
rejected the butchers’ argument. The Court held
that the Privileges and Immunities Clause
protects only rights derived from U.S. citizenship,
such as the right to
HABEAS CORPUS and interstate
travel and not rights derived from state law, such
as the common-law rights of tort and property
asserted by the New Orleans butchers. The
Supreme Court has neither overruled its decision
in the Slaughter-House cases nor expanded its
narrow
INTERPRETATION of the Privileges and
Immunities Clause. Most constitutional scholars
have since pronounced this clause a dead letter.
If the Supreme Court has provided a more
conservative interpretation of the Privileges and
Immunities Clause than envisioned by the Fra-
mers of the Fourteenth Amendment, it has
provided a more liberal interpretation of the
Equal Protection Clause. In
BROWN V. BOARD OF
EDUCATION
, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed.
873 (1954), the Supreme Court ruled that the

doctrine of “separate but equal,” in which the
black and white races were segregated in public
schools and other places of public accommoda-
tion, was “inherently unequal” and denied Afri-
can Americans “equal protection of the laws.”
The
AMBIT of the Equal Protection Clause was
later enlarged by the Supreme Court beyond
racial segregation to cover an assortment of
gender
DISCRIMINATION claims asserted by women.
The Court made these rulings in spite of
EVIDENCE that racial segregation was prevalent at
the time the Fourteenth Amendm ent was
adopted and that women were treated like
second-class citizens during most of the nine-
teenth century. In 1868, for example, racial
segregation of public schools was permitted
throughout the South and in eight northern
states. The gallery of the U.S. Senate was itself
segregated by race during the debate of the
Equal Protection Clause. During the first half of
the nineteenth century, every state proscribed
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
512 FOURTEENTH AMENDMENT
married women from devising a will, owning or
inheriting property, entering into a contract, or
exercising almost any other basic civil right
afforded to women in the modern United
States. Indeed, the

COMMON LAW recognized no
existence for married women independent from
their husbands. By
MARRIAGE, the HUSBAND AND
WIFE
became one person in law, and that person
was the husband.
Thus, the Framers’ original understanding of
the Fourteenth Amendment has not provided a
useful yardstick to measure the Supreme Court’s
interpretation of the Due Process and Equal
Protection Clauses. Since the mid-1940s, the
Supreme Court has strayed further from the
Framers’ original understanding, recognizing
controversial privacy rights to use contraceptives
(
GRISWOLD V. CONNECTICUT, 381 U.S. 479, 85 S. Ct.
1678, 14 L. Ed. 2d 510 [1965]), obtain abortions
prior to the third trimester of pregnancy (
ROE V.
WADE, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147
[1973]), and view obscene pornographic material
in the privacy of one’s own home (Stanley v.
Georgia, 394 U.S. 557, 89 S. Ct. 1243, 22 L. Ed. 2d
542 [1969]). In 1996 the Supreme Court held that
the Equal Protection Clause had been violated by
an amendment to the Colorado constitution
prohibiting legislative, judicial, or executive
action at the state or local level from protecting
homosexual persons from discrimination in

ROMER V. EVANS, 517 U.S. 620, 116 S. Ct. 1620,
134 L. Ed. 2d 855 (1996).
The Supreme Court has extended the reach
of the Fourteenth Amendment to private actors
when they become so entwin ed with state or
local government that they become, in effect,
state actors. In Brentwood Academy v. Tennessee
Secondary School Athletic Association, 531 U.S.
288, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001), the
Court held that a state athletic association was
so closely connected with the public schools as
to become a state actor. The association sought
to curtail the alleged football recruiting abuses
of Brentwood Academy, a private school with a
very successful football program.
Brentwood Academy sued the association
and alleged that it had violated the Fourteenth
Amendment. The association was not a part of
state government, but the Supreme Court held
that the state had delegated authority to regulate
school athletic programs to the organization.
The Court applied the general principle where
there is such a “close nexus between the State
and the challenged action,” seemingly private
behavior “may be fairly treated as that of the
State itself.”
FURTHER READINGS
Amar, Akhil Reed. 1992. “The Bill of Rights and the
Fourteenth Amendment.” Yale Law Journal 101.
Available online at />Amar1.html; website home page:

(accessed July 25, 2009).
Curtis, Michael Kent. 1993. “The 1859 Crisis over Hinton
Helper’s Book, The Impending Crisis: Free Speech,
Slavery, and Some Light on the Meaning of the First
Section of the Fourteenth Amendment.” Chicago-Kent
Law Review 68.
———. 1990. No State Shall Abridge: The Fourteenth
Amendment and the Bill of Rights. Durham: Duke Univ.
Press.
Rierson, Sandra L. 1994. “Race and Gender Discrimination:
A Historical Case for Equal Treatment under the
Fourteenth Amendment.” Duke Journal of Gender Law
and Policy 1.
Stone, Lawrence. 1990. The Family, Sex, and Marriage in
England 1500–1800. New York: Penguin.
CROSS REFERENCE
Gay and Lesbian Rights.
FOURTH AMENDMENT
The FOURTH AMENDMENT to the U.S. Constitution
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 Fourth Amendment to the U.S. Consti-
tution protects citizens from unreasonable

searches and seizures, requiring authorities to
obtain warrants for such searches or seizures by
showing probable cause.
The Americ an 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 government
officials are prescribed by the principles 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
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
FOURTH AMENDMENT 513
are entrusted with the powers to condu ct
investigations, 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
these legal parameters transforms law enforcers
into lawbreakers, as happened when Los
Angeles police officer Laurence Powell was
convicted for using excessive force against
RODNEY KING, who had been stopped for
speeding. Powell repeatedly struck King with
his nightstick even though King was in a
submissive position, lying prone on the ground.

The Fourth Amendment was intended to
create a constitutional buffe r between U.S.
citizens and the intimidating power of law
enforcement. It has three components. First, it
establishes a privacy interest by recognizing the
right of U.S. citizens to be “secure in their
persons, houses, papers, and effects.” Second, it
protects this privacy interest by prohibiting
searches and seiz ures that are “unreasonable” or
are not authorized by a warrant based upon
probable cause. Third, it states that no warrant
may be issued to a law enforcement officer
unless that w arrant describes with particularity
“the place to be searched, and the persons or
things to be seized.”
Colonial Background
The Framers drafted the Fourth Amendment in
response to their colonial experience with
British officials, whose discretion in co llecting
revenues for the Crown often went unchecked.
Upon a mere suspicion held by British tax
collectors or their informants, colonial magis-
trates 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 regard-
ing 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
colonial 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 offi cers tracking
smugglers and ille gally 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 “arbi-
trary power.” These writs, Otis continued, were
“the most destructive of English liberty” 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 railed, a warrant must be
“directed to specific officers, and to search certain
houses” for particular goods and may only be
granted “upon oath made” by a government
official “that he suspects such goods to be
concealed in those very places he desires to
search” (as quoted in Illinois v. Krull, 480 U.S.

340, 107 S. Ct. 1160, 94 L. Ed. 2d 364 [1987]).
Although Otis lost the case, his arguments
fueled angry colonial crowds that subsequently
interfered with British customs and revenue
agents who attempted to seize miscellaneous
goods pursuant to general warrants. Some
provincial courts began declining to issue writs
of assistance, and other courts issued writs with
greater specificity. Colonial newspapers com-
plained that British officers were ransacking the
colonists’ houses, violating the sanctity of their
bedrooms, and plundering their privacy under
the auspices of general warrants. On the night
before the
DECLARATION OF INDEPENDENCE was
published,
JOHN ADAMS cited the “argument
concerning the Writs of Assistance as the
commencement of the controversy between
Great Britain and America.”
The American Revolution answered the
questions surrounding writs of assistance, but
the Fourth Amendment raised other questions in
the newly founded republic. If a police officer’s
suspicion is no longer sufficient to obtain a
SEARCH
WARRANT
, as it was in colonial America, where
should the line be drawn separating suspicion
from probable cause? Although general warrants

are now clearly prohibited, how detailed must
warrants be to pass constitutional muster? The
Fourth Amendment expressly forbids “unrea-
sonable” searches and seizures, but what criteria
should be considered in evaluating the reason-
ableness of a search? The Fourth Amendment
also leaves open the question of who should
review warrant applications—the judiciary or
some other branch of government. The answers
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
514 FOURTH AMENDMENT
to these questions were explored and developed
in criminal litigation over the following two
centuries.
The Exclusionary Rule
Fourth Amendment questions arise during
criminal litigation in the context of a suppres-
sion hearing. This hearing is prom pted by a
DEFENDANT who asks the court to review the
method by which the police obtained
EVIDENCE
against him or her and to determine whether
that evidence survives constitutional scrutiny. If
the evidence was obtained in violation of the
Fourth Amendment, it usually will be excluded
from trial, which means the prosecution will be
unable to present it to the jury. The legal
doctrine under which illegally obtained evi-
dence is suppressed is known as the
EXCLUSION-

ARY RULE
, and its purpose is to deter police
misconduct and to protect defendants from it.
The exclusionary rule requires the suppres-
sion not only of evidence that was the direct
product of illegal police work but also of any
evidence that is derived from a tainted source.
The suppression of tainted
DERIVATIVE EVIDENCE,
also known as
FRUIT OF THE POISONOUS TREE,
typically occurs when the police obtain a
confession after an illegal arrest or pursuant to
an unconstitutional search. Although the man-
ner in which the confession itself was obtained
may have been perfectly constitutional, the
confession is still suppressed because the law
does not permit the government, which the
prosecution represents at a criminal trial, to
benefit from its own misconduct.
Government Searches Only
Before a court may exclude any evidence, it first
must determine whether the Fourth Amend-
ment applies to the case under consideration.
Two requirements must be met before a
particular search or seizure will give rise to
Fourth Amendment protection. First, the search
or seizure must have been conducted by a
government agent or pursuant to government
direction. Thus, the actions of state and federal

law enforcement officers or private persons
working with law enforcement officers are
subject to the strictures of the Fourth Amend-
ment. Bugging, wire tapping, and other related
eavesdropping activities performed by purely
private citizens, such as private investigators, do
not receive Fourth Amendment protection.
Reasonable Expectation of Privacy
Second, a defendant must be able to demon-
strate that he or she had a “reasonable
expectation of privacy” in the place that was
searched or the thing that was seized (Katz v.
United States, 389 U.S. 347, 88 S. Ct. 507, 19 L.
Ed. 576 [1967]). In Katz, the U.S. Supreme
Court explained that “[w]hat a person know-
ingly exposes to the public, even in his own
home or office, is not a subject of Fourth
Amendment protection But what he seeks to
preserve as private, even in an area accessible to
the public, may be constitutionally protected.”
Applying this principle, the Court has ruled
that U.S. citizens maintain a reasonable expec-
tation of privacy in the
CURTILAGE immediately
surrounding their home, but not in the “open
fields” and “wooded areas” extending beyond
this area (Hester v. United States, 265 U.S. 57, 44
S. Ct. 445, 68 L. Ed. 898 [1924]). A person may
have a reasonable expectation of privacy in the
automobile that he or she is driving, but not in

items that are in “plain view” from outside the
vehicle (Coolidge v. New Hampshire, 403 U.S.
443, 91 S. Ct. 2022, 29 L. Ed. 564 [ 1971]). Nor
do people have reasonable expectations of
privacy in personal characteristics (United States
v. Dionisio, 410 U.S. 1, 93 S. Ct. 764, 35 L. Ed.
2d 67 [1973]). Thus, the police may require
individuals to give handwriting and voice
exemplars as well as fingerprint samples,
without complying with the Fourth Amend-
ment’s warrant or reasonableness requirements.
In Minnesota v. Carter, 525 U.S. 83, 119 S.
Ct. 469, 142 L. Ed. 2d 373 (1998), the U.S.
Supreme Court considered whether a police
officer who had looked in an apartment window
through a gap in a closed window blind had
violated the privacy of the drug dealers in the
apartment because they had an expectation of
privacy that is protected by the Fourth Amend-
ment. The Court held that the police officer had
not violated the Fourth Amendment because
the occupants of the apartment had not had an
expectation of privacy. This was due to the fact
the drug dealers had merely used the apartment
to consummate business transac tions and that
they had no personal relationship with the
occupant of the apartment.
However, the high court looked at the issue
differently when the drug courier’s
CONTRABAND

was discovered on a bus by an officer who
thought that a bag felt peculiar. In Bond v.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
FOURTH AMENDMENT 515
United States,, 529 U.S. 334, 120 S. Ct. 1462, 146
L. Ed.2d 365 (2000), the Court ruled that police
cannot squeeze the luggage of bus passengers in
order to try to find illegal drugs. The ruling
forces law enforcement to modify the way they
inspect luggage and packages that are carried by
or in the custody of an individual.
Technology and the Fourth Amendment
The U.S. Supreme Court has made clear that
there are limits to high-tech government
snooping when the government has the ability
to use sophisticated technology to monitor
criminal suspects. In Kyllo v. United States,
533 U.S. 27, 121 S. Ct. 2038, 150 L. Ed. 2d 94
(2001), the Court ruled that police could not
use evidence obtained through the use of
thermal imaging without first obtaining a search
warrant. It declared that a warrantless search
would be regarded as “presumptively unreason-
able” and that the evidence that the search
produced will be
INADMISSIBLE at trial. The police
had received a tip that Danny Kyllo was growing
marijuana inside his home. Because marijuana
cultivation requires the use of high-intensity
lamps, police used a thermal imager to scan

Kyllo’s residence. The imager detects infrared
radiation, which is invisible to the naked eye.
The machine converts the radiation into images
based on relative warmth. The police conducted
the scan across the street from Kyllo’s home,
accomplishing the task in just a few minutes.
The scan disclosed that one part of his house
was substantially hotter than any other unit in
his triplex. Based on the scan, utility bills, and
tips from informants, police secured a search
warrant and found that Kyllo had indeed been
growing marijuana.
The U.S. Supreme Court noted that the
degree of privacy guaranteed by the Fourth
Amendment had been affected by technological
developments. The question became “what
limits this power of technology to shrink
the realm of guaranteed privacy.” In its view,
individuals had a “minimum expectation of
privacy” that the interiors of their homes were
not subject to warrantless police searches.“Thus,
the use of”sense-enhancing technology“that
could obtain information that would otherwise
only be obtainable by a physical search
constituted a”search. Accordingly, any informa-
tion obtained by the thermal imager was the
product of a search. The Court’s analysis led to
the legal conclusion that such a search was
unreasonable and that it could be justified only
if it were made pursuant to a warrant.

The increasing popularity of the
INTERNET
across all sectors of society has created a new
universe of cases in which the Fourth Amend-
ment and technology intersect. In short, courts
have applied the same rules governing searches
and seizures outside the world of the Internet
and computer technology to searches and
seizures of information arising from computer
and Internet usage. Thus, courts have found
that users who communicate to others via chat
rooms, electronic bulletin boards, or peer-to-
peer (P2P) technology do not enjoy a reason-
able expectation of privacy in those commu-
nications, because the substance of those
communications are made open to other
members of the public. Courts have also held
that Internet users enjoy no expectation of
privacy when they access the Internet from a
computer that is being monitored, which is
typically the case at public access terminals,
including public libraries and prisons. Based on
this rationale, some courts have found that
email users have no expectation of privacy
because email is the subject of communication
between two or more people. However, some
courts disagree, finding a reasonable expecta-
tion of privacy even fo r employees who work at
companies that openly monitor their email
(Brown-Criscuolo v. Wolfe, 601 F. Supp. 2d 441

[D. Conn 2009]). Email, like mail sent through
the air and hand delivered by a postal carrier, is
a private matter between the sender and
recipient, these courts have found.
Whereas courts have not ruled directly on
the issue of whether users enjoy a reasonable
expectation of privacy in their Internet searches,
this issue has been approached from two angles,
the perspective of the end user searching the
Internet and the perspective of Internet com-
pany providing the user with a search engine to
conduct the search. End users enjoy a reason-
able expectation of privacy from government
searches of Internet files stored on their hard
drive, courts have found, if users have taken
action to safeguard their computers from access
by others. Users can do this simply by
password-protecting their computers.
The law is less settled on the issue of
whether Internet search companies may assert
the privacy interests of their users when the
government is requesting search information
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
516 FOURTH AMENDMENT
from the company. In Gonzales v. Google, 234 F.
R.D. 674 (N.D. Cal. 2006), the U.S. government
subpoenaed Google to obtain thousands of
search queries entered by its users and thou-
sands of Uniform Resource Locators (URLs)
produced by Google searches. The government

sought the information to help it determin e
whether blocking and filtering software effec-
tively excluded pornog raphic and obscene
materials from Internet searches when the
software was installed by parents but the
Internet was searched by children. The U.S.
district court for the Northern District of
California held that customer trust in Google
would be compromised if Google were forced to
divulge the search queries entered by its users.
Thus, the court compelled Google to provide a
random sampling of 50,000 URLs but did not
require Google to disclose any user search
queries.
Gonzales v. Google is sometimes cited for the
court’s finding that “Google’s own privacy
statement indicates that Google users could
not reasonably expect Google to guard the
query log from disclosure to the Government.’
Yet it is important to remember that Google’s
privacy statement defines “personal informa-
tion” as “information that you [the customer]
provide to us [Google] which personally
identifies you, such as your name, email address
or billing information, or other data which can
be reasonably linked to such information by
Google.” Although the court hinted that it
might be unreasonable for users to expect
Google to keep their search information private,
the court also said that consumer confidence in

Google would be unnecessarily eroded if Google
were forced to divulge personal information
about its customers. Gonzales v. Google was the
first case to come before the courts on this
subject, but it was assumed that it would not be
the last.
Even when Internet users have established
an expectation of privacy in their search
information, law enforce ment may still seek to
monitor those searches pursuant to a lawfully
executed search warrant. Internet surveillance
can be accomplished via software known as
Carnivore/DCS1000. The software is basically
an online version of a wiretap and is housed on
a computer and connected to an Internet
service provider (ISP) such as AOL, Earthlink,
or Prodigy. The ISP provides law enforcement
with an access point containing all traffic from
the suspect. Using a one-way tapping device, all
data at the access point is copied. Carnivore/
DCS1000 then filters the copied data, sniffing
out and retrieving so-called packets of informa-
tion that are authorized by search warrants
while theoretically rejecting all extraneous data.
As with other criminal investigations, police
must establish probable cause that the suspect is
engaged in criminal activity before a court will
issue a search warrant to use the software in a
particular case. Police use of the Carnivore/
DCS1000 software had not been challenged in

court as of summer 2009.
Warrantless Searches
Once a court has determ ined that the Fourth
Amendment is an issue in a particular case, it
next must decide whether law enforcement
complied with the amendment’s requirements.
When making this decision, a court begins with
the premise that the Constitution expresses a
preference for searches made pursuant to a
warrant (Mincey v. Arizona, 437 U.S. 385, 98 S.
Ct. 2408, 57 L. Ed. 2d 290 [1978]). Searches
performed without a warrant are pre sumptively
invalid, and evidence seized during a warrant-
less search is suppressed unless the search was
reasonable under the circumstances.
The U.S. Supreme Court has ruled that
warrantless searches may be deemed reasonable
in four situations. First, no warrant is required
for searches incident to a lawful arrest (United
States v. Watson, 423 U.S. 411, 96 S. Ct. 820, 46
L. Ed. 2d 598 [1976]). If a police officer has
probable cause to believe that a crime has
occurred, the Fourth Amendment permits the
officer to arrest the suspect and to conduct a
search of the suspect’s person and clothing and
of all areas within the suspect’s immediate
reach. Second, a police officer who possesses an
“articulable” and “reasonable” suspicion that an
automobile has violated a state or local traffic
law may stop the driver and conduct a search of

the vehicle’s interior, including the glove
compartment (Delaware v. Prouse, 440 U.S.
648, 99 S. Ct. 1391, 59 L. Ed. 2d 660 [1979] ).
The trunk of a vehicle cannot be searched unless
an officer has probable cause to believe that it
contains contraband or the instrumentalities of
criminal activity.
Third, an officer who reasonably believes
“that criminal activity may be afoot” in a public
place may stop an individual who is suspected
of wrongdoing and “conduct a carefully limited
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
FOURTH AMENDMENT 517
search of [the suspect’s] outer clothing” for
WEAPONS that may be used against the officer
(Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 21 L.
Ed. 889 [1968]). Fourth, officers who are in “hot
pursuit” of “fleeing felons” or are gathering
“evanescent” evidence (evidence that could
readily disappear—e.g., blood samples from
drunken drivers) are also permitted to act
without first obtaining a search warrant.
These four exceptions to the warrant
requirement are based on the need to facilitate
law enforcement during unforeseen or emer-
gency circumstances in which crimina l activity
is strongly suspected but police officers lack
sufficient time to complete an application for a
search warrant and to testify before a magis-
trate. These exceptions also reflect a need to

protect police officers from hidden weapons
and to preserve evidence that easily could be
destroyed or compromised.
Another exception to the warrant require-
ment, though one not recognized as of 2009 by
the Supreme Court, is for the warrantle ss
extraction of DNA samples from convicted
felons. The DNA Analysis Backlog Elimination
Act (42 U.S.C. 4135a[d&]) requires the collec-
tion of DNA samples by the U.S. probation
office from individuals on probation,
PAROLE,or
supervised release, who have been convicted of
certain qualifying federal offenses, including all
felonies. Under the act, DNA samples are sent
to the FBI laboratory for inclusion in the
Combined DNA Index System (CODIS). DNA
records may be used only for law enforcement
identification purposes by criminal justice
agencies in judicial proceedings and for criminal
defense purposes. DNA records are expunged
from CODIS when a
CONVICTION is overturned,
no charge is filed, charges have been dismissed,
or the charge resulted in
ACQUITTAL. The statute
does not require any suspicion that the person
from whom the sample is taken will commit or
has committed an offense other than the one for
which he or she is under government supervi-

sion, and the sample need not be taken to aid in
the investigation of any particular crime. Many
states have similar laws. Whereas the U.S.
Supreme Court has not assessed the constitu-
tionality of the warrantless extraction of DNA
from convicted felons, all of the federal circuits
and most state courts have upheld their validity
against federal Fourth Amendment challenges
and various state constitutional challenges.
The Warrant Requirement
When law enforcement does obtain a warrant
before conducting a search, the warrant must
comply with Fourth Amendment requirements
before evidence from the search will be
ADMISSI-
BLE
in court. A warrant may be defective if it is
not supported by probable cause that is
established by a detailed, sworn statement made
by a law enforcement officer appearing before a
magistrate.
No definition of probable cause has ever
satisfied both prosecutors and defense attorneys.
But the U.S. Supreme Court has stated that
probable cause exists where “the facts and
circumstances within [the police officer’s] knowl-
edge” are of a “reasonably trustworthy” basis to
“warrant a man of reasonable caution” to believe
that an offense has been or is about to be
committed (Carroll v. United States, 267 U.S. 132,

45 S. Ct. 280, 69 L. Ed. 543 [1925]). Probable
cause can be established by out-of-court state-
ments of reliable police in formants even though
the credibility of those statements cannot be
tested by a magistrate (Illinois v. Gates, 462 U.S.
213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 [1983]).
However, probable cause will not be found where
the only evidence of criminal activity is an
officer’s “good in formation” or “belief” ( Aguilar
v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d
723 [1964]).
The Fourth Amendment requires not only
that search warrants be support ed by probable
cause but also that they “particularly” describe
the person or place to be searched. A warrant
must provide enough detail so that an “officer
with the search warrant can, with reasonable
effort, ascertain and iden tify the place [or
person] intended” (Steele v. United States, 267
U.S. 498, 45 S. Ct. 414, 69 L. Ed. 757 [1925] ).
For most residences, a street address usually
satisfies the particularity requirement. However,
if a warrant designates an apartment complex,
hotel, or other multiple-unit building, the
warrant must describe the specific sub-unit that
will be searched. When a warrant designates
that a person will be searched , it must include a
description that provides enough detail so that
the suspect’s identity can be ascertained with
reasonable certainty.

Probable cause must be established by testi-
mony made under oath by a law enforcement
officer appearing before a magistrate. The testi-
mony can be oral or written, and it cannot contain
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
518 FOURTH AMENDMENT