Fourth Amendment

The Fourth Amendment (Amendment IV) to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause. It was adopted as a response to the abuse of thewrit of assistance, which is a type of general search warrant, in the American Revolution. Search and seizure (including arrest) should be limited in scope according to specific information supplied to the issuing court, usually by a law enforcement officer, who has sworn by it. The Fourth Amendment applies to the states by way of the Due Process Clause of the Fourteenth Amendment.
TextThe 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.

History of adoption

English law

Like many other areas of American law, the Fourth Amendment finds its roots in English legal doctrine. Sir Edward Coke, in Semayne's case (1604), famously stated: "The house of every one is to him as his castle and fortress, as well for his defence against injury and violence as for his repose." Semayne's Caseacknowledged that the King did not have unbridled authority to intrude on his subjects' dwellings but recognized that government agents were permitted to conduct searches and seizures under certain conditions when their purpose was lawful and a warrant had been obtained. 

The 1760s saw a growth in the intensity of litigation against state officers, who, using general warrants, conducted raids in search of materials relating to John Wilkes' publications attacking both government policies and the King himself. The most famous of these cases involved John Entick, whose home was forcibly entered by the King's Messenger Nathan Carrington, along with others, pursuant to a warrant issued by George Montagu-Dunk, 2nd Earl of Halifax authorizing them “to make strict and diligent search for . . . the author, or one concerned in the writing of several weekly very seditious papers intitled, ‘The Monitor or British Freeholder, No 257, 357, 358, 360, 373, 376, 378, and 380,’″ and seized printed charts, pamphlets and other materials. In the resulting case, Entick v. Carrington (1765), Charles Pratt, 1st Earl Camden ruled that the search and seizure was unlawful as the warrant authorized the seizure of all of Entick's papers, not just the criminal ones and the warrant lacked probable cause to even justify the search. Entick established the English precedent that the executive is limited in intruding on private property by common law. 

Colonial America

In Colonial America, legislation was explicitly written to enforce English revenue gathering policies on customs. Until 1750, all handbooks for justices of the peace, the issuers of warrants, contained or described only general warrants. William Cuddihy, Ph.D. in his dissertation entitled The Fourth Amendment: Origins and Original Meaning,  claims there existed a "colonial epidemic of general searches." According to him, until the 1760s, a "man's house was even less of a legal castle in America than in England" as the authorities possessed almost unlimited power and little oversight.

In 1756, the colony of Massachusetts enacted legislation that barred the use of general warrants. This represented the first law in American history curtailing the use of seizure power. Its creation largely stemmed from the great public outcry over the Excise Act of 1754, which gave tax collectors unlimited powers to interrogate colonists concerning their use of goods subject to customs and permitted the use of a general warrant known as a writ of assistance, allowing them to search the homes of colonists and seize “prohibited and uncustomed” goods. 

A crisis erupted over the writs of assistance on December 27, 1760 when the news of King George II's October 23 death arrived in Boston. All writs automatically expired six months after the death of the King and would have had to be re-issued under the name of the new King, George III, to remain valid. 

In mid-January 1761, a group of over 50 merchants represented by James Otis, petitioned the court to have hearings on the issue. During the five hour hearing on February 23, 1761, Otis vehemently denounced English colonial policies, including their sanction of general warrants and writs of assistance.  John Adams, who was present in the courtroom when Otis spoke, viewed these events as "the spark in which originated the American Revolution.”  However, the court ruled against Otis. 

Because of the name he had made for himself in attacking the writs, Otis was elected to the Massachusetts colonial legislature and helped pass legislation requiring that special writs of assistance be “granted by any judge or justice of the peace upon information under oath by any officer of the customs” and barring all other writs. The governor overturned the legislation, finding it contrary to British law and parliamentary sovereignty. 

Seeing the danger general warrants presented, the Virginia Declaration of Rights explicitly forbade the use of general warrants. This prohibition became precedent for the Fourth Amendment: 

That general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive and ought not to be granted. 

Article XIV of the Massachusetts Declaration of the Rights written by John Adams and enacted in 1780 as part of the Massachusetts Constitution added the requirement that all searches must be “reasonable” and served as the basis for the language of the Fourth Amendment: 

Every subject has a right to be secure from all unreasonable searches, and seizures of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure: and no warrant ought to be issued but in cases, and with the formalities, prescribed by the laws. 

Applicability

The Fourth Amendment has been held to mean that generally a warrant must be judicially sanctioned for a search or an arrest. In order for such a warrant to be considered reasonable, it must be supported by probable cause and be limited in scope according to specific information supplied by a person (usually a law enforcement officer) who has sworn by it and is therefore accountable to the issuing court. However, a dissenting school of thought often found in the opinions of Justice Antonin Scalia is that searches must simply be "reasonable," and the warrant requirement has been overly emphasized.

The Fourth Amendment applies to governmental searches and seizures, but not those done by private citizens or organizations who are not acting on behalf of a government. The Bill of Rightsoriginally only restricted the federal government. However, in Mapp v. Ohio, 367 U.S. 643 (1961), the Supreme Court ruled that the Fourth Amendment applies to the states by way of the Due Process Clause of the Fourteenth Amendment. Moreover, all state constitutions contain an analogous provision. 

Federal jurisdiction regarding criminal law was narrow, until the late 19th century when the Interstate Commerce Act and Sherman Antitrust Act were passed. As federal criminal jurisdiction expanded to include other areas, such as narcotics, more questions about the Fourth Amendment came to the Supreme Court. 

The Supreme Court ruled that some searches and seizures may violate the reasonableness requirement under the Fourth Amendment, even if a warrant is supported by probable cause and is limited in scope. Conversely, the Court has approved routine warrantless seizures, for example "where there is probable cause to believe that a criminal offense has been or is being committed." Thus, the reasonableness requirement and the warrant requirement are somewhat different.

The reasonableness requirement applies not just to a search in combination with a seizure, but also to a search without a seizure, as well as to a seizure without a search. 

Definition of "search"

A threshold question in Fourth Amendment jurisprudence is whether a search has occurred. If no search occurred, then the Fourth Amendment does not apply.

In Katz v. United States, 389 U.S. 347 (1967), the Supreme Court ruled that a search occurs when 1) a person expects privacy in the thing searched and 2) society believes that expectation isreasonable.

In Katz, the Supreme Court ruled that a search had occurred when the government wiretapped a telephone booth.  The Court's reasoning was that 1) Charles Katz expected that his phonebooth conversation would not be broadcast to the wider world and 2) society believes that expectation is reasonable.

In United States v. Jones, 565 U. S. ____ (2012), the Supreme Court ruled that, in addition to the Katz standard, a search occurs when law enforcement trespasses on the searched person's property. In Jones, law enforcement officers had attached a GPS device on a car's exterior without Antoine Jones's consent. The Court concluded that Jones was a bailee to the car, because the car's owner had regularly permitted him to use the car, and so had a property interest in the car. 

Stop and frisk

Under Terry v. Ohio 392 U.S. 1 (1968), law enforcement officers are permitted to conduct a limited warrantless search on a level of suspicion less than probable cause under certain circumstances. In Terry, the Supreme Court ruled that when a police officer witnesses "unusual conduct" that leads that officer to reasonably believe "that criminal activity may be afoot", that the suspicious person has a weapon and that the person is presently dangerous to the officer or others, the officer may conduct a "pat-down search" (or "frisk") to determine whether the person is carrying a weapon. To conduct a frisk, officers must be able to point to specific and articulatory facts which, taken together with rational inferences from those facts, reasonably warrant their actions. A vague hunch will not do. Such a search must be temporary and questioning must be limited to the purpose of the stop (e.g., officers who stop a person because they have reasonable suspicion to believe that the person was driving a stolen car, cannot, after confirming that it is not stolen, compel the person to answer questions about anything else, such as the possession of contraband). 

Seizure

The Fourth Amendment proscribes unreasonable seizure of any person, person's home (including its curtilage) or personal property without a warrant. A seizure of property occurs when there is "some meaningful interference with an individual's possessory interests in that property",  such as when police officers take personal property away from an owner to use as evidence, or when they participate in an eviction. The Amendment also protects against unreasonable seizure of their persons, including a brief detention. 

A seizure does not occur just because the government questions an individual in a public place. The exclusionary rule would not bar voluntary answers to such questions from being offered into evidence in a subsequent criminal prosecution. The person is not being seized if his freedom of movement is not restrained. The government may not detain an individual even momentarily without reasonable, objective grounds, with few exceptions. His refusal to listen or answer does not by itself furnish such grounds. 

A person is seized within the meaning of the Fourth Amendment only when, by means of physical force or show of authority, his freedom of movement is restrained and, in the circumstances surrounding the incident, a reasonable person would believe that he was not free to leave.  As long as the police do not convey a message that compliance with their requests is required, the courts will usually consider the police contact to be a "citizen encounter" which falls outside the protections of the Fourth Amendment.  If a person remains free to disregard questioning by the government, there has been no intrusion upon the person's liberty or privacy under the Fourth Amendment — there has been no seizure. 

Exceptions

The government may not detain an individual even momentarily without reasonable and articulable suspicion, with a few exceptions. In Delaware v. Prouse, 440 U.S. 648 (1979), the Supreme Court ruled that, absent articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable.

Where society's need is great and no other effective means of meeting the need is available, and intrusion on people's privacy is minimal, certain discretionless checkpoints toward that end may briefly detain motorists. In United States v. Martinez-Fuerte, 428 U.S. 543 (1976), the Supreme Court allowed discretionless immigration checkpoints. In Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990), the Supreme Court allowed discretionless sobriety checkpoints. In Illinois v. Lidster, 540 U.S. 419 (2004), the Supreme Court allowed focused informational checkpoints. However, in City of Indianapolis v. Edmond, 531 U.S. 32 (2000), the Supreme Court ruled that discretionary checkpoints or general crime-fighting checkpoints are not allowed.

Another exception is at borders and ports of entry.

Roadblocks may be used to capture a particular fleeing criminal or locate a bomb. 

Arrest

When a person is arrested and taken into police custody, they have been seized (e.g., a reasonable person who is handcuffed and placed in the back of a police car would not think they were free to leave). A person subjected to a routine traffic stop on the other hand, has been seized, but is not "arrested" because traffic stops are a relatively brief encounter and are more analogous to a Terry stop than to a formal arrest.  A police officer does not have the authority to arrest someone for refusing to identify himself when he is not suspected of committing a crime, unless state law says otherwise. A search incidental to an arrest that is not permissible under state law does not violate the Fourth Amendment, if the arresting officer has probable cause. 

Arrest by a citizen

The Fourth Amendment does not apply to a seizure or an arrest by private citizens. However, many states have passed laws that regulate the specific circumstances in which a private citizen may arrest another. Typically, a private person can make an arrest when: (1) a misdemeanor amounting to a public nuisance is being committed; or (2) a felony has been committed, and the arresting citizen has reasonable cause to believe that the person arrested committed it.

Warrant

Under the Fourth Amendment, law enforcement must receive written permission from a court of law, or otherwise qualified magistrate, to lawfully search and seize evidence while investigatingcriminal activity. A court grants permission by issuing a writ known as a warrant. A search or seizure is generally unreasonable and unconstitutional if conducted without a valid warrant  and the police must obtain a warrant whenever practicable. Searches and seizures without a warrant are not considered unreasonable if one of the specifically-established and well-delineatedexceptions to the warrant requirement applies. 

Probable cause

 

When police conduct a search, the amendment requires that the warrant establishes probable cause to believe that the search will uncover criminal activity or contraband. They must have legally sufficient reasons to believe a search is necessary. In Carroll v. United States, 267 U.S. 132 (1925), the Supreme Court stated that probable cause to search is a flexible, common-sense standard. To that end, the Court ruled in Dumbra v. United States, 268 U.S. 435 (1925), that the term probable cause means "less than evidence that would justify condemnation," reiteratingCarroll's assertion that it merely requires that the facts available to the officer would "warrant a man of reasonable caution" in the belief that specific items may be contraband or stolen property or useful as evidence of a crime. It does not demand any showing that such a belief be correct or more likely true than false. A "practical, non-technical" probability that incriminating evidence is involved is all that is required.  In Illinois v. Gates, 462 U.S. 213 (1983), the Supreme Court ruled that the reliability of an informant is to be determined based on the "totality of the circumstances."

At common law, a police officer could arrest an individual if that individual committed a misdemeanor in the officer's presence or if the officer had probable cause to believe that the individual committed a felony. For misdemeanors, probable cause to believe that a wrongdoer committed a misdemeanor is not sufficient for an arrest—the police officer has to actually witness the misdemeanor. 

The standards of probable cause differ for an arrest and a search. The government has a probable cause to make an arrest when "the facts and circumstances within their knowledge and of which they had reasonably trustworthy information" would lead a prudent person to believe that the arrested person had committed or was committing a crime.  Probable cause to arrest must exist before the arrest is made. Evidence obtained after the arrest may not apply retroactively to justify the arrest. 

Exclusionary rule

One way courts enforce the Fourth Amendment is through the use of the exclusionary rule. The rule provides that evidence obtained through a violation of the Fourth Amendment is generally notadmissible by the prosecution during the defendant's criminal trial.

 

The Court adopted the exclusionary rule in Weeks v. United States, 232 U.S. 383 (1914), prior to which all evidence, no matter how seized, could be admitted in court. Additionally, inSilverthorne Lumber Co. v. United States, 251 U.S. 385 (1920) and Nardone v. United States, 308 U.S. 338 (1939), the Court ruled that tips resulting from illegally obtained evidence are also inadmissible in trials as "fruit of the poisonous tree". The rule serves primarily to deter police officers from willfully violating a suspect's Fourth Amendment rights. The rationale behind the exclusionary rule is that if the police know evidence obtained in violation of the Fourth Amendment cannot be used to convict someone of a crime, they will not violate it. In Wolf v. Colorado, 338U.S. 25 (1949), the Court rejected incorporation of the exclusionary rule by way of the Fourteenth Amendment. Later, in Mapp v. Ohio, 367 U.S. 643 (1961), the Court explicitly overruled Wolfand made the Fourth Amendment (including the exclusionary rule) applicable in state proceedings as an essential part of criminal procedure.

Limitations

In United States v. Calandra, 414 U.S. 338 (1974), the Supreme Court ruled that grand juries may use allegedly illegally obtained evidence in questioning witnesses because "the damage to that institution from the unprecedented extension of the exclusionary rule outweighs the benefit of any possible incremental deterrent effect."  The issue of illegality of search should be adjudged in a subsequent proceeding, after the defendant has been indicted. In United States v. Leon, 468 U.S. 897 (1984), the Supreme Court, applying the "good faith" rule, ruled that evidence seized by officers relying in good faith on a warrant was still admissible, even though the warrant was later found to be defective. Evidence would be excluded, however, if an officer dishonestly or recklessly prepared an affidavit to seek a warrant, the issuing magistrate abandoned his neutrality, or the warrant lacked sufficient particularity. 

The Leon case applies only to search warrants. The Supreme Court ruled in Arizona v. Evans, 514 U.S. 1 (1995) and Herring v. United States (2009), that the exclusionary rule does not apply to evidence found due to negligence regarding a government database, as long as the arresting police officer relied on that database in "good faith" and that the negligence was not pervasive. In Davis v. United States, 131 S.Ct. 2419 (2011), the Supreme Court ruled that the exclusionary rule does not apply to a Fourth Amendment violation resulting from a reasonable reliance on binding appellate precedent.  To what extent the "good faith" exception applies to warrantless seizures in other contexts remains unclear.

The rule has been held not to apply in the following circumstances:

• probation or parole revocation hearings; tax hearings; 
• deportation hearings; 
• military discharge proceedings;  child protective proceedings; 
• sentencing hearings; 
• evidence seized from a common carrier; 
• evidence collected by U.S. Customs agents;   
• evidence seized outside the United States; 
• evidence illegally seized by a "private actor" (i.e., not a governmental employee);  
• illegally seized evidence used to impeach the defendant's testimony. 

Under Rakas v. Illinois, 439 U.S. 128 (1978), a defendant has standing to object to the admission of unconstitutionally seized evidence only if such seizure violated that defendant's Fourth Amendment rights. In other words, a defendant may not assert another person's rights.

In Rakas, the Court ruled that a passenger in a car which he does not own has standing to contest the stop of the car and a search of *his* person, but he usually lacks standing to contest a search of the car. He would have standing to challenge the search of the car, if he is the owner of that car. However, that rule was modified by Brendlin v. California, 551 U.S. 249 (2007), in which the Court ruled that all occupants of a car are "seized" for purposes of the Fourth Amendment during a traffic stop, not just the driver. Therefore, a passenger in a vehicle subject to a traffic stop is thereby "detained" for purposes of the Fourth Amendment, thus allowing the passenger to contest the legality of the traffic stop.

In Segura v. United States, 468 U.S. 796 (1984), the Supreme court ruled that evidence illegally found without a search warrant is admissible if the evidence is later found and legally seized based on information independent of the illegal search.

In Nix v. Williams, 467 U.S. 431 (1984), the Supreme Court ruled that evidence illegally seized without a search warrant is admissible if the prosecution can prove the evidence would have been found and seized by legal means not based on evidence or information illegally seized.

Exceptions to the warrant requirement

Courts have developed a number of exceptions to the warrant requirement:

Consent

If a party gives consent to a search, a warrant is not required, even if the party is unaware of their right to refuse to cooperate. There are exceptions and complications to the rule, including the scope of the consent given, whether the consent is voluntarily given, and whether an individual has the right to consent to a search of another's property. 

Plain view

If an officer is lawfully present, he may seize objects that are in "plain view". However, the officer must have had probable cause to believe that the objects are contraband. 

Open fields

Similarly, "open fields" such as pastures, open water, and woods may be searched without a warrant, on the ground that conduct occurring therein would have no reasonable expectation of privacy.

 

The doctrine was first articulated by the Supreme Court in Hester v. United States, 265 U.S. 57 (1924), which stated that “the special protection accorded by the Fourth Amendment to the people in their ‘persons, houses, papers, and effects,’ is not extended to the open fields." The decision was rendered on the ground that "open fields are not a 'constitutionally protected area' because they cannot be construed as "persons, houses, papers, [or] effects.

 

In Oliver v. United States, 466 U.S. 170 (1984), the police ignored a "no trespassing" sign and a fence, trespassed onto the suspect's land without a warrant, followed a path for hundreds of feet, and discovered a field of marijuana. The Supreme Court ruled that no search had taken place, because there was no privacy expectation regarding an open field:

open fields do not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance. There is no societal interest in protecting the privacy of those activities, such as the cultivation of crops, that occur in open fields. 

Curtilage

While open fields are not protected by the Fourth Amendment, the curtilage, or outdoor area immediately surrounding the home, is protected. Courts have treated this area as an extension of the house and as such subject to all the privacy protections afforded a person’s home (unlike a person's open fields) under the Fourth Amendment. However, courts have held aerial surveillance of curtilage not to be included in the protections from unwarranted search so long as the airspace above the curtilage is generally accessible by the public.

An area is curtilage if it "harbors the intimate activity associated with the sanctity of a man's home and the privacies of life."  Courts make this determination by examining "whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by." Theoretically, many structures might extend the curtilage protection to the areas immediately surrounding them. The courts have gone so far as to treat a tent as a home for Fourth Amendment purposes in the past.  It is possible that the area immediately surrounding a tent (or any structure used as a home) might be considered curtilage.

Despite this broad interpretation, the courts seem willing to find areas to be outside of the curtilage if they are in any way separate from the home (by a fence, great distance, other structures, even certain plants). 

Exigent circumstance

There are also "exigent circumstances" exceptions to the warrant requirement. Exigent circumstances arise when the law enforcement officers have reasonable grounds to believe that there is an immediate need to protect their lives, the lives of others, their property, or that of others, the search is not motivated by an intent to arrest and seize evidence, and there is some reasonable basis, to associate an emergency with the area or place to be searched. 

Motor vehicle

 

The Supreme Court also held that individuals in automobiles have a reduced expectation of privacy, because vehicles generally do not serve as residences or repositories of personal effects. Vehicles may not be randomly stopped and searched; there must be probable cause or reasonable suspicion of criminal activity. Items in "plain view" may be seized; areas that could potentially hide weapons may also be searched. With probable cause, police officers may search any area in the vehicle. However, they may not extend the search to the vehicle's passengers without probable cause to search those passengers or consent from the passenger(s) to search their persons or effects.

 

In Arizona v. Gant, 556 U.S. ___ (2009), the Supreme Court ruled that a law enforcement officer needs a warrant before searching a motor vehicle after an arrest of an occupant of that vehicle, unless at the time of the search the person being arrested is unsecured and within reaching distance of the passenger compartment of the vehicle or police officers have reason to believe that the evidence for the crime for which the person is being arrested will be found in the vehicle. 

Searches incident to a lawful arrest

Another common law rule—that permitting searches incident to an arrest without warrant—has been applied in American law. The rule permitting searches incident to a lawful arrest has a lengthy common law history.  The justification for such a search is to prevent the arrested individual from destroying evidence or using a weapon against the arresting officer. In Trupiano v. United States, 334 U.S. 699 (1948), the Supreme Court held that "a search or seizure without a warrant as an incident to a lawful arrest has always been considered to be a strictly limited right. It grows out of the inherent necessities of the situation at the time of the arrest. But there must be something more in the way of necessity than merely a lawful arrest." In United States v. Rabinowitz, 339 U.S. 56 (1950), the Court reversed its previous ruling, holding that the officers' opportunity to obtain a warrant was not germane to the reasonableness of a search incident to an arrest. The decision suggested that any area within the "immediate control" of the arrestee could be searched, but it did not define the term. In deciding Chimel v. California, 395 U.S. 752(1969), the Supreme Court elucidated its previous decisions. It held that when an arrest is made, it is reasonable for the officer to search the arrestee for weapons and evidence.

 

Similarly, it was held that it is reasonable for the officer to search the area within the arrestee's immediate control, which is the area from which the defendant may gain access to a weapon or evidence. A warrentless search of the room in which the arrest is made is therefore permissible. However, other rooms may not be searched absent a search warrant or other exigent circumstances, as the arrestee would be unlikely to access weapons or evidence in those rooms at the time of arrest.

Border search exception

Searches conducted at the United States border or the equivalent of the border (such as an international airport) may be conducted without a warrant or probable cause subject to the "border-search" exception.^[73] Most border searches may be conducted entirely at random, without any level of suspicion, pursuant to U.S. Customs and Border Protection plenary search authority. However, searches that intrude upon a traveler's personal dignity and privacy interests, such as strip and body cavity searches, must be supported by "reasonable suspicion."^[74] The U.S. Courts of Appeals for the Fourth and Ninth circuits have ruled that information on a traveler's electronic materials, including personal files on a laptop computer, may be searched at random, without suspicion.^[75]

 

Other exceptions

In New Jersey v. T. L. O., 469 U.S. 325 (1985), the Supreme Court ruled that searches in public schools do not require warrants, as long as the searching officers have reasonable grounds for believing that the search will result in the finding of evidence of illegal activity. However, in Safford Unified School District v. Redding, 557 U.S. __ (2009), the Court ruled that school officials violated the Fourth Amendment when they strip searched a 13 year old girl based only on a student claiming to have received drugs from that student. 

Similarly, in Samson v. California, 547 U.S. 843 (2006), the Court ruled that government offices may be searched for evidence of work-related misconduct by government employees on similar grounds. Searches of prison cells are subject to no restraints relating to reasonableness or probable cause or searches undertaken as a condition of parole.

In a memo dated March 14, 2003, an official in the Bush administration stated "... our Office recently concluded that the Fourth Amendment had no application to domestic military operations". The administration believed that any search or surveillance conducted by the National Security Agency of US citizens communicating with foreign nationals abroad was immune to a Fourth Amendment challenge.  To protect the telecommunication carriers cooperating with the US government from legal action, the Congress passed a bill updating the Foreign Intelligence Surveillance Act of 1978 to permit this type of surveillance. 

In August 2008, the Foreign Intelligence Surveillance Court of Review ruled that the President and the Congress had the authority to wiretap international phone calls and intercept e-mail messages without a specific court order. 

The Supreme Court has not ruled on post-9/11 airport security procedures, but the Ninth Circuit ruled in United States. v. Aukai that "airport screening searches, like the one at issue here, are constitutionally reasonable administrative searches because they are conducted as part of a general regulatory scheme in furtherance of an administrative purpose, namely, to prevent the carrying of weapons or explosives aboard aircraft, and thereby to prevent hijackings." 

Computers and privacy

Over the last decade, courts adjudicated whether the government can access evidence of illegal activity stored on digital technology without violating the Fourth Amendment.

Many cases discuss whether incriminating evidence stored by an employee in workplace computers is protected under the reasonable expectation of privacy. In a majority of cases, employees do not have a reasonable expectation of privacy for electronic communications at work. However, one federal court held that employees can assert the attorney-client privilege with respect to certain communications on company laptops. 

On January 30, 2007, the United States Court of Appeals for the Ninth Circuit in United States v. Ziegler, 497 F.3d 890 reversed its earlier August 2006 decision upon a petition for rehearing. In contrast to the earlier decision, the Court acknowledged that an employee has a right to privacy in his workplace computer. The court also found that an employer can consent to searches and seizures that would otherwise be illegal. 

      In Ziegler, an employee had viewed at work websites of child pornography. His employer noticed the conduct, made copies of the hard drive, and gave the FBI the employee's computer. At his criminal trial, Ziegler filed a motion to suppress the evidence on the ground that the government violated the Fourth Amendment rights. The Ninth Circuit allowed the lower court to admit the evidence. After reviewing the relevant Supreme Court opinions on a reasonable expectation of privacy, the court acknowledged that Ziegler had a reasonable expectation of privacy at his office and on his computer. However, the court found that the employer could consent to a government search of the computer without infringing on the Ziegler's Fourth Amendment rights.

On March 11, 2010, the United States Court of Appeals for the Eleventh Circuit ruled, in Rehberg v. Paulk, 598 F.3d 1268, that a person does not have a reasonable expectation of privacy in an e-mail once any copy of the communication is delivered to a third party. 

On December 14, 2010, in United States v. Warshak, the United States Court of Appeals for the Sixth Circuit ruled that a person has a reasonable expectation of privacy in his emails and that the government violated Warshak's Fourth Amendment rights by compelling his internet service provider to turn over his emails without first obtaining a warrant based upon probable cause. 

On January 3, 2011, in The People v. Gregory Diaz, the Supreme Court of California ruled for allowing warrantless search by the police of suspects' cell phones at the time of the arrest, on the grounds of preventing destruction of evidence such as text messages 

the loss of privacy upon arrest extends beyond the arrestee's body to include “personal property... immediately associated with the person of the arrestee” at the time of arrest.  this loss of privacy entitles police not only to “seize” anything of importance they find on the arrestee's body  , but also to open and examine what they find.

Economic freedom

Economic freedom is a term used in economic and policy debates. As with freedom generally, there are various definitions, but no universally accepted concept of economic freedom.  One major approach to economic freedom comes from classical liberal and right-libertarian traditions emphasizing free markets and private property, while another extends the welfare economics study of individual choice, with greater economic freedom coming from a "larger" (in some technical sense) set of possible choices.  Other conceptions of economic freedom include freedom from want and the freedom to engage in collective bargaining. 

The free market viewpoint defines economic liberty as the freedom to produce, trade and consume any goods and services acquired without the use of force, fraud or theft. This is embodied in the rule of law, property rights and freedom of contract, and characterized by external and internal openness of the markets, the protection of property rights and freedom of economic initiative.  There are several indices of economic freedomthat attempt to measure free market economic freedom. Empirical studies based on these rankings have found higher living standards, economic growth, income equality, less corruption and less political violence to be correlated with higher scores on the country rankings.

Institutions of economic freedom

Rule of law

Free market advocates argue that the principle of the rule of law both requires, and is required for economic freedom. Friedrich Hayek argued that the certainty of law contributed to the prosperity of the West more than any other single factor. Other important principles of the rule of law are the generality and equality of the law, which require that all legal rules apply equally to everybody. These principles can be seen as safeguards against severe restrictions on liberty, because they require that all laws equally apply to those with political and coercive power as well as those who are governed. Principles of the generality and equality of the law exclude special privileges and arbitrary application of law, that is laws favoring one group at the expense of other citizens.  According to Friedrich Hayek, equality before the law is incompatible with any activity of the government aiming to achieve the material equality of different people. He asserts that a state's attempt to place people in the same (or similar) material position leads to an unequal treatment of individuals and to a compulsory redistribution of income. 

Private property rights

According to the free market view, a secure system of private property rights is an essential part of economic freedom. Such systems include two main rights: the right to control and benefit from property and the right to transfer property by voluntary means. These rights offer people the possibility of autonomy and self-determination according to their personal values and goals. Economist Milton Friedman sees property rights as "the most basic of human rights and an essential foundation for other human rights." With property rights protected, people are free to choose the use of their property, earn on it, and transfer it to anyone else, as long as they do it on a voluntary basis and do not resort to force, fraud or theft. In such conditions most people can achieve much greater personal freedom and development than under a regime of government coercion. A secure system of property rights also reduces uncertainty and encourages investments, creating favorable conditions for an economy to be successful.  Empirical evidence suggests that countries with strong property rights systems have economic growth rates almost twice as high as those of countries with weak property rights systems, and that a market system with significant private property rights is an essential condition for democracy. According to Hernando de Soto, much of the poverty in the Third World countries is caused by the lack of Western systems of laws and well-defined and universally recognized property rights. De Soto argues that because of the legal barriers poor people in those countries can not utilize their assets to produce more wealth. 

Pierre Proudhon, a socialist and anarchist thinker, argued that property is both theft and freedom.  Many leftists dispute that private property means "economic freedom" and believe in a system where people can lay claim to things based on personal use. 

Freedom of contract

Freedom of contract is the right to choose one's contracting parties and to trade with them on any terms and conditions one sees fit. Contracts permit individuals to create their own enforceable legal rules, adapted to their unique situations. Parties decide whether contracts are profitable or fair, but once a contract is made they are obliged to fulfill its terms, even if they are going to sustain losses by doing so. Through making binding promises people are free to pursue their own interests. The main economic function of contracts is to provide transferability of property rights. Transferability largely depends on the enforceability of contracts, which is enabled by the judicial system. In Western societies the state does not enforce all types of contracts, and in some cases it intervenes by prohibiting certain arrangements, even if they are made between willing parties. However, not all contracts need to be enforced by the state. For example, in the United States there is a large number of third-party arbitration tribunals which resolve disputes under private commercial law.  Negatively understood, freedom of contract is freedom from government interference and from imposed value judgments of fairness. The notion of "freedom of contract" was given one of its most famous legal expressions in 1875 by SirGeorge Jessel MR:

If there is one thing more than another public policy requires it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts when entered into freely and voluntarily shall be held sacred and shall be enforced by courts of justice. Therefore, you have this paramount public policy to consider – that you are not lightly to interfere with this freedom of contract.

”

The doctrine of freedom of contract received one of its strongest expressions in the US Supreme Court case of Lochner v New York which struck down legal restrictions on the working hours of bakers.  

Critics of the classical view of freedom of contract argue that this freedom is illusory when the bargaining power of the parties is highly unequal, most notably in the case of contracts between employers and workers. As in the case of restrictions on working hours, workers as a group may benefit from legal protections that prevent individuals agreeing to contracts that require long working hours. In its West Coast Hotel Co. v. Parrish decision in 1937, overturning Lochner, the Supreme Court cited an earlier decisions

“

The legislature has also recognized the fact, which the experience of legislators in many States has corroborated, that the proprietors of these establishments and their operatives do not stand upon an equality, and that [p394] their interests are, to a certain extent, conflicting. The former naturally desire to obtain as much labor as possible from their employes, while the latter are often induced by the fear of discharge to conform to regulations which their judgment, fairly exercised, would pronounce to be detrimental to their health or strength. In other words, the proprietors lay down the rules and the laborers are practically constrained to obey them. In such cases, self-interest is often an unsafe guide, and the legislature may properly interpose its authority.

”

From this point on, the Lochner view of freedom of contract has been rejected by US courts. 

Economic and political freedom

Some free market advocates argue that political and civil liberties have simultaneously expanded with market-based economies, and present empirical evidence to support the claim that economic and political freedoms are linked. 

In Capitalism and Freedom (1962), Friedman developed the argument that economic freedom, while itself an extremely important component of total freedom, is also a necessary condition for political freedom. He commented that centralized control of economic activities was always accompanied with political repression. In his view, voluntary character of all transactions in a free market economy and wide diversity that it permits are fundamental threats to repressive political leaders and greatly diminish power to coerce. Through elimination of centralized control of economic activities, economic power is separated from political power, and the one can serve as counterbalance to the other. Friedman feels that competitive capitalism is especially important to minority groups, since impersonal market forces protect people from discrimination in their economic activities for reasons unrelated to their productivity. 

Austrian School economist Ludwig von Mises argued that economic and political freedom were mutually dependent: "The idea that political freedom can be preserved in the absence of economic freedom, and vice versa, is an illusion. Political freedom is the corollary of economic freedom. It is no accident that the age of capitalism became also the age of government by the people." 

In The Road to Serfdom, Hayek argued that "Economic control is not merely control of a sector of human life which can be separated from the rest; it is the control of the means for all our ends."  Hayek criticized socialist policies as the slippery slope that can lead to totalitarianism. 

Gordon Tullock has argued that "the Hayek-Friedman argument" predicted totalitarian governments in much of Western Europe in the late 20th century - which did not occur. He uses the example of Sweden, in which the government at that time controlled 63 percent of GNP, as an example to support his argument that the basic problem with The Road to Serfdom is "that it offered predictions which turned out to be false. The steady advance of government in places such as Sweden has not led to any loss of non-economic freedoms." While criticizing Hayek, Tullock still praises the classical liberal notion of economic freedom, saying, "Arguments for political freedom are strong, as are the arguments for economic freedom. We needn’t make one set of arguments depend on the other." 

Indices of economic freedom

 

The annual surveys Economic Freedom of the World (EFW) and Index of Economic Freedom (IEF) are two indices which attempt to measure the degree of economic freedom in the world's nations. The EFW index, originally developed by Gwartney, Lawson and Block at the Fraser Institute  was likely the most used in empirical studies as of 2000.  The other major index, which was developed by The Heritage Foundation and The Wall Street Journal appears superior for data work, although as it only goes back to 1995, it is less useful for historical comparisons. 

According to the creators of the indices, these rankings correlate strongly with higher average income per person, higher income of the poorest 10%, higher life expectancy, higher literacy, lower infant mortality, higher access to water sources and less corruption. The people living in the top one-fifth of countries enjoy an average income of $23,450 and a growth rate in the 1990s of 2.56 percent per year; in contrast, the bottom one-fifth in the rankings had an average income of just $2,556 and a -0.85 percent growth rate in the 1990s. The poorest 10 percent of the population have an average income of just $728 in the lowest ranked countries compared with over $7,000 in the highest ranked countries. The life expectancy of people living in the highest ranked nations is 20 years longer than for people in the lowest ranked countries. 

Higher economic freedom, as measured by both the Heritage and the Fraser indices, correlates strongly with higher self-reported happiness. 

Erik Gartzke of the Fraser Institute estimates that countries with a high EFW are significantly less likely to be involved in wars, while his measure of democracy had little or no impact. 

The Economic Freedom of the World score for the entire world has grown considerably in recent decades. The average score has increased from 5.17 in 1985 to 6.4 in 2005. Of the nations in 1985, 95 nations increased their score, seven saw a decline, and six were unchanged. Using the 2008 Index of Economic Freedom methodology world economic freedom has increased 2.6 points since 1995. 

Members of the World Bank Group also use Index of Economic Freedom as the indicator of investment climate, because it covers more aspects relevant to the private sector in wide number of countries. 

The nature of economic freedom is often in dispute. Robert Lawson, the co-author of EFW, even acknowledges the potential shortcomings of freedom indices: "The purpose of the EFW index is to measure, no doubt imprecisely, the degree of economic freedom that exists." He likens the recent attempts of economists to measure economic freedom to the initial attempts of economists to measure GDP: "They [macroeconomists] were scientists who sat down to design, as best they could with the tools at hand, a measure of the current economic activity of the nation. Economic activity exists and their job was to measure it. Likewise economic freedom exists. It is a thing. We can define and measure it." Thus, it follows that some economists,socialists and anarchists contend that the existing indicators of economic freedom are too narrowly defined and should take into account a broader conception of economic freedoms.

Critics of the indices (e.g. Thom Hartmann) also oppose the inclusion of business-related measures like corporate charters and intellectual property protection.  John Miller in Dollars & Sensehas stated that the indices are "a poor barometer of either freedom more broadly construed or of prosperity." He argues that the high correlation between living standards and economic freedom as measured by IEF is the result of choices made in the construction of the index that guarantee this result. For example, the treatment of a large informal sector (common in poor countries) as an indicator of restrictive government policy, and the use of the change in the ratio of government spending to national income, rather than the level of this ratio. Hartmann argues that these choices cause the social democratic European countries to rank higher than countries where the government share of the economy is small but growing. 

Economists Dani Rodrik and Jeffrey Sachs have separately noted that there appears to be little correlation between measured economic freedom and economic growth when the least free countries are disregarded, as indicated by the strong growth of the Chinese economy in recent years. Morris Altman found that there is a relatively large correlation between economic freedom and both per capita income and per capita growth. He argues that this is especially true when it comes to sub-indices relating to property rights and sound money, while he calls into question the importance of sub-indices relating to labor regulation and government size once certain threshold values are passed.  John Miller further observes that Hong Kong and Singapore, both only "partially free" according to Freedom House, are leading countries on both economic freedom indices and casts doubt on the claim that measured economic freedom is associated with political freedom. However, according to the Freedom House, "there is a high and statistically significant correlation between the level of political freedom as measured by Freedom House and economic freedom as measured by the Wall Street Journal/Heritage Foundation survey." 

Choice sets and economic freedom

Amartya Sen and other economists have considered economic freedom in terms of the set of economic choices available to individuals.

Positive and negative freedom

The differences between alternative views of economic freedom have been expressed in terms of Isaiah Berlin's distinction between positive freedom and negative freedom. Classical liberals favour a focus on negative freedom as did Berlin himself. By contrast Amartya Sen argues for an understanding of freedom in terms of capabilities to pursue a range of goals.  One measure which attempts to assess freedom in the positive sense is Goodin, Rice, Parpo, and Eriksson's measure of discretionary time, which is an estimate of how much time people have at their disposal during which they are free to choose the activities in which they participate, after taking into account the time they need to spend acquiring the necessities of life. 

Freedom from want

Franklin D. Roosevelt included freedom from want in his Four freedoms speech. Roosevelt stated that freedom from want "translated into world terms, means economic understandings which will secure to every nation a healthy peacetime life for its inhabitants-everywhere in the world". In terms of US policy, Roosevelt's New Deal included economic freedoms such as freedom of trade union organisation, as well as a wide range of policies of government intervention and redistributive taxation aimed at promoting freedom from want. Internationally, Roosevelt favored the policies associated with the Bretton Woods Agreement which fixed exchange rates and established international economic institutions such as the World Bank and International Monetary Fund.

Herbert Hoover saw economic freedom as a fifth freedom, which secures survival of Roosevelt's Four freedoms. He described economic freedom as freedom "for men to choose their own calling, to accumulate property in protection of their children and old age, [and] freedom of enterprise that does not injure others." 

Freedom of association and unions

The Philadelphia Declaration (enshrined in the constitution of the International Labour Organization ) states that "all human beings, irrespective of race, creed or sex, have the right to pursue both their material well-being and their spiritual development in conditions of freedom and dignity, of economic security and equal opportunity". The ILO further states that "The right of workers and employers to form and join organizations of their own choosing is an integral part of a free and open society."

Civil and political rights

Civil and political rights are a class of rights based upon birthright into a polity or designation otherwise of human rights. They ensure a citizen's ability to fully participate in the civil and political life of the state without discrimination or political repression, and protect the freedom of classes of persons and individuals from unwarranted infringement into those rights by governments, private organizations, and other entities.

Civil rights include the ensuring of peoples' physical and mental integrity, life and safety; protection from discrimination on grounds such as physical or mental disability, gender, religion, race, national origin, age, status as a member of the uniformed services, sexual orientation, or gender identity;  and individual rights such as privacy, the freedoms of thought and conscience, speech and expression, religion, the press, andmovement.

Political rights include natural justice (procedural fairness) in law, such as the rights of the accused, including the right to a fair trial; due process; the right to seek redress or a legal remedy; and rights of participation in civil society and politics such as freedom of association, the right to assemble, the right to petition, the right of self-defense, and the right to vote.

Civil and political rights form the original and main part of international human rights.  They comprise the first portion of the 1948 Universal Declaration of Human Rights (with economic, social and cultural rights comprising the second portion). The theory of three generations of human rights considers this group of rights to be "first-generation rights", and the theory of negative and positive rights considers them to be generally negative rights.

The phrase "civil rights" is a translation of Latin ius civis (rights of citizens). Roman citizens could be either free (libertas) or servile (servitus), but they all had rights in law.  After the Edict of the Milan in 313, these rights included the freedom of religion.  Roman legal doctrine was lost during the Middle Ages, but claims of universal rights could still be made based on religious doctrine. According to the leaders of Kett's Rebellion (1549), "all bond men may be made free, for God made all free with his precious blood-shedding." 

In the 17th century, English common law judge Sir Edward Coke revived the idea of rights based on citizenship by arguing that Englishmen had historically enjoyed such rights. The English Bill of Rights was adopted in 1689. The Virginia Declaration of Rights, by George Mason and James Madison, was adopted in 1776. The Virginia declaration is the direct ancestor and model for theU.S. Bill of Rights (1789).

In early 19th century Britain, the phrase "civil rights" most commonly referred to the problem of legal discrimination against Catholics. In the House of Commons support for the British civil rights movement was divided, many more largely known politicians supported the discrimination towards Catholics. Independent MPs (such as Lewis Eves and Matthew Mountford) applied pressure on the larger parties to pass the civil rights act of the 1920s.

In the 1860s, Americans adapted this usage to newly freed blacks. Congress enacted civil rights acts in 1866, 1871, 1875, 1957, 1960, 1964, 1968, and 1991.

Protection of rights

T.H. Marshall Notes that civil rights were among the first to be recognized and codified, followed later by political rights and still later by social rights. In many countries, they are constitutional rights and are included in a bill of rights or similar document. They are also defined in international human rights instruments, such as the 1948 Universal Declaration of Human Rights and the 1967 International Covenant on Civil and Political Rights.

Civil and political rights need not be codified to be protected, although most democracies worldwide do have formal written guarantees of civil and political rights. Civil rights are considered to benatural rights. Thomas Jefferson wrote in his A Summary View of the Rights of British America that "a free people   their rights as derived from the laws of nature, and not as the gift of theirchief magistrate."

The question of to whom civil and political rights apply is a subject of controversy. In many countries, citizens have greater protections against infringement of rights than non-citizens; at the same time, civil and political rights are considered to be universal rights that apply to all persons.

Other rights

Custom also plays a role. Implied or unenumerated rights are rights that courts may find to exist even though not expressly guaranteed by written law or custom; one example is the right to privacy in the United States, and the Ninth Amendment explicitly shows that there are other rights that are also protected.

The United States Declaration of Independence says that people have unalienable rights including "Life, Liberty, and the pursuit of Happiness". It is considered by some that the sole purpose of government is the protection of life, liberty and property.  The right to self-defense is used as a defense of the 2nd Amendment right to bear arms.

Civil rights movement

 

Civil rights guarantee equal protection under the law. When civil and political rights are not guaranteed to all as part of equal protection of laws, or when such guarantees exist on paper but are not respected in practice, opposition, legal action and even social unrest may ensue.

Civil Rights movements began as early as 1848 in the USA with such documents as the Declaration of Sentiment.  Consciously modeled after the Declaration of Independence, the Declaration of Rights and Sentiments became the founding document of the American women's movement, and it was adopted at the Seneca Falls Convention, July 19 and 20, 1848  

The civil rights movement was a worldwide political movement for equality before the law occurring between approximately 1950 and 1980. The movement had a legal and constitutional aspect, and resulting in much law-making at both national and international levels. It also had an activist side, particularly in situations where violations of rights were widespread. Movements with the proclaimed aim of securing observance of civil and political rights included:

• the US civil rights struggle in the 1960s in the United States, where rights of black citizens had been violated;
• the Northern Ireland Civil Rights Association, formed in 1967 following failures in this province of the United Kingdom to respect the Catholic minority's rights; and
• movements in many Communist countries, such as Charter 77 in Czechoslovakia.

Most civil rights movements relied on the technique of civil resistance, using nonviolent methods of struggle, to achieve their aims.  In some countries, struggles for civil rights were accompanied, or followed, by civil unrest and even armed rebellion. While civil rights movements over the last 60 years have resulted in an extension of civil and political rights, the process was long and tenuous in many countries, and many of these movements did not achieve or fully achieve their objectives.

Problems and analysis

Questions about civil and political rights have frequently emerged. For example, to what extent should the government intervene to protect individuals from infringement on their rights by otherindividuals, or from corporations — e.g., in what way should employment discrimination in the private sector be dealt with?

Political theory deals with civil and political rights. Robert Nozick and John Rawls expressed competing visions in Nozick's Anarchy, State, and Utopia and Rawls' A Theory of Justice. Other influential authors in the area include Wesley Newcomb Hohfeld and Jean Edward Smith.