Essays on the Fourth and Fifth Amendment

“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 be issued, but upon probable cause, supported by Oath or affirmation and particularly describing the place to be searched, and the person or things to be seized.” (http://caselaw.lp.findlaw.com)
The pre-colonial origins of the fourth amendment are in the 1760s when the English government incarcerated printers for printing critical material. Basing their warrants on little evidence, 49 officials were arrested over three days. The printers in turn sued the government and a year later the courts ruled the warrants illegal. Each plaintiff was awarded 300 pounds sterling in damages. Chief Justice Pratt set a precedent with this large amount of money claiming it was “exemplary damages.”
In the 1914 the U.S. Supreme Court created the exclusionary rule which created a new meaning for the fourth amendment. Even though the fourth amendment states clearly how evidence is obtained, it does not state what is admissible. The exclusionary rule states that evidence seized in a manner that violates a defendant’s constitutional rights is inadmissible. The rule began with early cases such as Adams v. New York (1904) and Boyd v. United States. Their decisions would not be used for another ten years in Weeks v. United States. While being arrested, Fremont Weeks’ home was simultaneously being searched. The papers seized from his home were gained without a warrant. Weeks was convicted of using mail to transport lottery tickets.

Because he had protested the use of illegally gained material before the trial, the Supreme Court reopened the case. They unanimously decided to overturn the case on the grounds that Weeks had protested the use of his letters before the trial. The conviction was set aside because the trial had violated the Fourth Amendment.

The exclusionary rule only applied in federal cases. A conflict arose in federal cases where state officers had seized evidence. On May 23, 1957, an informant called the police and told them where to find a bombing suspect and other contraband. Cleveland police arrived at the home and demanded entry to the house. Mapp refused to let them enter without a warrant. Eventually the house was surrounded by police who claimed to have a warrant, but would not procure it for Mapp’s attorney. The police stormed the house, arrested Mapp, and seized allegedly obscene books and photographs. The result of Mapp v. Ohio (1961) was a 7 year sentence for violating obscenity laws.

The Supreme Court overturned the case and ruled by a narrow margin that the federal exclusionary rule should also apply to state courts. Justice Tom Clark stated, “The ignoble shortcut to conviction left open to the State tends to destroy the entire system of constitutional restraints on which the liberties of the people rest.”

Since its inception, the exclusionary rule has been questioned, criticized, and expounded. Its largest argument is that the guilty often get away because of improper evidence seizure. As technology advanced, the Supreme Court made special cases. In the Olmsted Case (1928), wire tapping was examined as constitutional and in accordance with the exclusionary rule. A 5-4 vote claimed that there was no physical trespass and the evidence has been obtained by hearing. The same applied to non-electronic surveillance such as “bugging”. There is also the “plain view” ruling that states an officer of the law can seize an object in plain view if it is believed to be contraband.

One thing that the first amendment implies is a freedom from fear. The individual has no fear of the government suppressing their right to speak out. They are free to assemble peaceably without fear of reprisal. The planning that goes into it sometimes takes place in a private place such as a home or business. The fourth amendment is responsible for securing that freedom from fear. The organization that goes into “the exercise thereof” is free from scrutiny. The documents, letters and plans are not subject to a random raid by the police in search of something dangerous.

Also, there is the freedom to report to the police without fear. Freedom of speech carries its significance in the fourth amendment by allowing an individual to report suspicious behavior. It is likely that the police will not have power to search, but the right remains. Citizens have the right to express “probable cause” without fear of retaliation.

No person shall be held to answer for a capitol, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject of the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty , or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The earliest known form of indictment in England began with Henry II. In 1166 he empowered the Assize of Clarendon which created a 12 man panel. “The Grand Assize, as it ws known, was comprised of the local gentry, relying on personal knowledge and local rumor to report alleged cases of misconduct.” Often the trial was by ordeal, which sometimes involved throwing a bound person into the water. If he floated he was guilty, if he sank he was innocent. It was five hundred years until this method was challenged by a grand jury.

English common law also had a double jeopardy clause. In only applied to capital felonies however, and only after an acquittal or conviction. Neither was it free from abuse from the Crown. The colony of Massachusetts was the first to include a double jeopardy clause in their state constitution. When James Madison proposed the Fifth Amendment the wording was very exact so that double jeopardy would not be abused by the government.

The due process of law clause was taken from chapter 29 of the Magna Carta. Most of the state constitutions had “law of the land” wording. When the Constitution was ratified Madison’s different wording was ratified without any indication to what it meant exactly. ” It pacified public apprehensions, bowed toward Magna Carta, and reinforced specific rights such as trial by jury.”