Drafting and Applying the Fourth Amendment

The Fourth Amendment's protection against unreasonable searches and seizures did not originally apply to limit the actions of state and local government officials. Its adoption was in response to debates over the ratification of the Constitution in 1787.

The debates in 1787 over the ratification of the proposed constitution to replace the Articles of Confederation pitted the Anti-Federalists, such as Luther Martin, Richard Henry Lee, and Patrick Henry, against Federalists, who included Alexander Hamilton, John Jay, and James Madison. The former feared that the new national government would be too powerful and potentially threaten individual liberty and the rights of states. One criticism levied specifically was that the Constitution lacked a bill of rights that would limit the new national government. In response, Alexander Hamilton in Federalist Paper Number 84 asserted that a bill of rights was not necessary because the national government would not have the power to restrict individual rights. While Hamilton and the Federalists won ratification, they lost the debate over a bill of rights.

As a condition of securing ratification of the Constitution, James Madison promised to introduce a bill of rights in Congress as amendments to the Constitution. In 1789, James Madison offered seventeen amendments in the House of Representatives. This number was reduced to twelve, and ten of these, once ratified in December 1791, became the Bill of Rights. Given that the amendments were offered in response to Anti-Federalist fears of the national government, they were not directed toward limiting the power of the state governments. Among the amendments Madison proposed was one that would have extended several rights, including trial by jury in criminal cases, to the states, but the Senate rejected it. The evidence suggests that what is now the Fourth Amendment was not originally intended by James Madison or Congress to apply to the states.

This interpretation was reinforced in Justice Marshall's opinion in Barron v. Baltimore (1833). At issue in that case was whether the Fifth Amendment's just compensation clause applied as a limitation upon state governments. According to Marshall,

Marshall thus rejected arguments that provisions of the national Bill of Rights limited state governments.

Even though the Supreme Court effectively rejected application of the Fourth Amendment to the states, not all such values lacked state protection. Virginia, considered the model for the Bill of Rights, and many other states did have their own bills of rights—called “declarations of rights”—that included provisions similar to those found in the Fourth Amendment. When Madison drafted his seventeen amendments, he largely pulled them from existing state constitutions. Moreover, prior to the Civil War, judges in several state court decisions, interpreting their state's bills of rights, ruled that the Fourth Amendment applied as a limit on their governments. In Banks v. Farwell, 21 Pick. 156 (Mass. 1838), the Massachusetts Supreme Court ruled that the warrant requirements of the Fourth Amendment were applicable to the states. Similarly, in Larthet v. Forgay, 2 La. Ann. 524 (1847), [Page 24]and in Opinion of the Justices of the Superior Court of Judicature (N.H. 1852), courts in Louisiana and New Hampshire declared the Fourth Amendment as a limitation upon their state governments. Despite these rulings, the Barron precedent established for the federal courts that the Fourth Amendment did not limit the actions of individual states. States and their courts were free to disregard or apply the Fourth Amendment as they chose.

The Fourteenth Amendment, Incorporation, and the Due Process Revolution

Given Barron, states could disregard the warrant requirements of the Fourth Amendment if their own bill of rights did not have a similar limitation.

Arguably, Article IV, section 2 of the Constitution also contains a potentially significant clause that seems to guard individual rights. The privileges and immunities clause states that “[t]he citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” Supreme Court Justice Bushrod Washington (George Washington's nephew) opined while writing as a circuit court judge in Corfield v. Coryell, 6 F.Cas. 546 (1823), that these rights extended to protection of life and liberty. Yet the focus of Washington's comments was more on economic rights that citizens enjoy across states and less on criminal due process.

The process of making the Bill of Rights, including the Fourth Amendment, applicable to the states really began with the adoption of the Fourteenth Amendment. This amendment, proposed in Congress by Rep. John Bingham of Ohio on June 13, 1866, and ratified on July 28, 1868, extended constitutional protections to the recently freed slaves. The Fourteenth Amendment also overturned the Supreme Court decision in Dred Scott v. Sandford, 60 U.S. 393 (1857), which had declared that African Americans could never be citizens. Section 1 of the amendment had three critical provisions: a privileges or immunities clause, a due process clause, and an equal protection clause.

Some argued that the privileges or immunities clause served either to protect the rights Justice Washington described in Corfield against state encroachment or to serve as a broader platform for reversing Barron to apply the entire Bill of Rights to the states. However, in the Slaughterhouse Cases, 83 U.S. 36 (1873), the Court rejected these claims, ruling that the privileges or immunities clause did not protect individuals from state encroachment on the Bill of Rights. It also effectively ruled against the idea that the Bill of Rights applied to the states. In reaching this conclusion, it was consistent with Barron. In dissent, Justice Joseph P. Bradley wrote,

The privileges or immunities clause did not extend the Bill of Rights to the states. But the Fourteenth Amendment contained another clause—due process—that proved to be more promising. In Hurtado v. California, 110 U.S. 516 (1884), the Court addressed whether the due process clause applied the provisions of the Fifth Amendment to states. Hurtado, like Barron, rejected claims that the protections of the Fifth Amendment extended to restrictions on states. Writing for the Court, Justice Thomas Matthews declared that due process

Yet not every act of a legislature is law, according to Matthews:

Hurtado appeared again to doom application of the Bill of Rights to states. Yet concern with economic rights in the post–Civil War era led to the emergence of legal doctrines such as liberty of contract and economic or substantive due process. These theories contended that the federal and, more importantly, state governments were limited in their ability to regulate the economy and interfere with property rights. Cases such as Munn v. Illinois, 94 U.S. 113 (1877), and Muglar v. Kansas, 123 U.S. 623 (1887), revealed a concern for the protection of property and economic rights. This focus on property and economic rights finally paid off in Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 (1897), in which the Court, under Chief Justice Melville Fuller, issued the first decision incorporating the Bill of Rights to apply to the states via the Fourteenth Amendment's due process clause.

While Chicago, Burlington & Quincy Railroad is the first instance of incorporation, more famous is the decision in Gitlow v. New York, 268 U.S. 652 (1925). Benjamin Gitlow had been indicted for the statutory crime of criminal anarchy under a 1902 New York state law. The Supreme Court upheld his conviction against claims that the state law violated his First Amendment free speech rights. In dissent, Justice Oliver Wendell Holmes Jr., joined by Louis Brandeis, declared: “The general principle of free speech, it seems to me, must be taken to be included in the Fourteenth Amendment, in view of the scope that has been given to the word ‘liberty’ as there used.”

Gitlow's significance resides in a statement in Justice Edward Sanford's majority opinion:

After Gitlow, the question became, What rights were so important that they were deemed fundamental and should thus apply to the states? Several theories emerged.

One theory was that due process does not incorporate any of the Bill of Rights to the states. This position was rejected in Chicago, Burlington & Quincy Railroad.

A second answer is the total incorporation thesis. This is the position that the due process clause incorporates all of the Bill of Rights provisions to apply to the states. Justice Hugo Black in his dissent in Adamson v. California, 332 U.S. 46 (1947), argued this:

Justice Black is still identified as the main proponent of this view. To defend his claim, his dissent offered an analysis of the debates on the passage of the Fourteenth Amendment. Attached to Black's dissent was a long, detailed appendix discussing the debates and adoption of the Fourteenth Amendment. It was meant to support his legal claim that the Fourteenth Amendment stood for total incorporation of the Bill of Rights.

There may, of course, be important rights—the right to privacy, for example—that are not articulated in the Bill of Rights but that justices think should apply equally to state and national governments. Justices who hold this view are thus said to favor what might be called “incorporation plus.”

Yet another answer or approach to how the Bill of Rights applies to the states is selective incorporation. This assertion that the due process clause incorporates only some provisions of the Bill of Rights is the path the Court has taken.

But which rights should be incorporated? Are all of them of equal value and weight, or do some deserve more protection? Is there a hierarchy to Bill of Rights provisions? The Court initially seemed to say yes.

In Palko v. State of Connecticut, 302 U.S. 319 (1937), Justice Benjamin Cardozo turned back claims that the self-incrimination clause of the Fifth Amendment applied to the states:

Thus, the holding in Palko is that the only provisions of the Bill of Rights that are applicable to the states through the due process clause of the Fourteenth Amendment are those that are of the very essence of a scheme of ordered liberty. Some provisions of the Bill of Rights seem, then, to be of more importance than others. This claim appeared to demarcate some provisions as enjoying a greater constitutional status than others.

In Cantwell v. Connecticut, 310 U.S. 296 (1940), the Court seemed to follow the logic of Holmes's dissent in Gitlow in finding that the concept of liberty articulated in the First Amendment also includes freedom of religion. Cantwell was the first case to apply to the states the religious guarantees in the First Amendment and to include these in the definition of “liberty” in the Fourteenth Amendment. Freedom of religion, like freedom of speech, cannot be made subject to prior restraint by governmental authority.

Criminal due process decisions have been central to the incorporation of the Bill of Rights. In Powell v. Alabama, 287 U.S. 45 (1932), the Court ruled that the right to counsel provision of the Sixth Amendment applies to the states. Powell, the first “Scottsboro case,” applied to the states the guarantee of counsel provision of the Sixth Amendment only under some situations, which were present in this case. As the Court stated in Betts v. Brady, 316 U.S. 455 (1942), another Sixth Amendment case involving right to counsel, due process only protects actions to ensure “essential fairness,” which includes the guarantee of a fair jury trial. Not until Gideon v. Wainwright, 372 U.S. 335 (1963), did the Court apply this guarantee of counsel in the Sixth Amendment to all cases in the state courts, capital and noncapital alike.

Throughout the twentieth century, but specifically under Chief Justice Earl Warren, the Supreme Court incorporated many provisions of the Bill of Rights, especially those dealing with criminal due process and defendants' rights, to limit states. Yet no clear pattern or rationale seemed to emerge to explain the logic of incorporation. In Duncan v. Louisiana, 391 U.S. 145 (1968), Justice Byron White summed up the tests for determining whether a right is protected by the Fourteenth Amendment:

Applying these tests, the first eight amendments of the Bill of Rights, except for the Third Amendment (quartering of troops), the Seventh Amendment (right to jury trials), and the Fifth Amendment (grand jury provisions), are incorporated to apply to the states through the Fourteenth Amendment's due process clause.

Incorporation and the Fourth Amendment

Incorporation of the Fourth Amendment to apply to the states began with Weeks v. United States (1914). In that case, police officials in Missouri arrested Fremont Weeks without a warrant on charges of mail fraud and proceeded to search his residence. A subsequent search was then undertaken by the police and a federal marshal. They secured several papers as a result of the search that were turned over to the U.S. [Page 27]government. The federal government then prosecuted Weeks for mail fraud. He charged in appeal that the search had been illegal and that his Fourth Amendment rights had been violated in that the warrantless search was unconstitutional.

The Supreme Court reversed the conviction. In doing so, Justice William R. Day, writing for the Court, recounted the history of the Fourth Amendment in terms of prompting privacy and personal security. He concluded that the seized papers could not be used to convict Weeks.

Weeks formulated what has come to be known as the exclusionary rule. This rule states that evidence obtained from an illegal search and seizure cannot be used to convict an individual of a crime. In this case, the United States was barred from using the illegally obtained evidence.

Weeks only barred the use of illegally obtained evidence in federal court when the search was undertaken by federal officials. The Court's decision did not forbid the use of this type of evidence in state court, and it did not apply to situations in which state officials obtained the evidence and turned it over to federal officials. The Court also did not say that the Fourth Amendment applied to the states. This is what the Court declared in Wolf v. Colorado (1949).

At issue in Wolf was a warrantless search of a physician's office by state officials who had seized his appointment book and list of patients. Wolf had been convicted of performing abortions in violation of the law. He appealed his conviction, charging that the search was illegal. The Supreme Court addressed two questions: whether the Fourth Amendment applied to the states and whether the exclusionary rule also applied and therefore rendered the evidence obtained from the warrantless search illegal to use.

Writing for the Court, Justice Felix Frankfurter affirmed Wolf's conviction. Frankfurter first addressed the question of whether the Fourth Amendment applied to the states. He ruled that it did. However, he rejected the total incorporation argument that the due process clause simply made applicable to the states the first eight amendments of the Bill of Rights. Instead, he argued that only certain rights that are more fundamental should apply to the states. Specifically, he stated,

In other words, the Fourth Amendment, the need to be secure against unreasonable searches and seizures, was so core to the concept of ordered liberty that due process demanded its application to the states.

Yet the same was not true about the exclusionary rule. In rejecting its application to the states, Frankfurter surveyed state court decisions prior to and after Weeks. He noted that thirty-one states had refused to apply the exclusionary rule in their own jurisdictions. He took this as evidence that states did not believe the exclusionary rule was a necessary tool to address illegal searches, that common-law tort remedies and lawsuits were sufficient, and therefore there was no need to incorporate it along with the Fourth Amendment.

In Rea v. United States (1956), a 5–4 majority invoked the supervisory power of the Supreme Court to prohibit federal officers from presenting, in state cases, evidence obtained in violation of the Fourth Amendment. In this case, after illegally obtained evidence was rejected in federal court, a U.S. narcotics officer sought to use it in a state proceeding. After his conviction in state court, the defendant appealed, and eventually the Supreme Court heard the case. It then used its supervisory power under the Federal Rule of Criminal Procedure to prohibit federal officers from seeking to introduce this evidence into a state court proceeding. Rea thus did not formally incorporate the exclusionary rule to the states, but it took another step in that direction.

In a pair of cases, Elkins v. United States (1960) and in Rios v. United States (1960), the Court overruled Weeks, holding in these cases that evidence illegally seized by state officers could not be used in a federal prosecution. However, the Court did not apply the exclusionary rule to the states. In fact, technically it could not do so since the case did not involve state prosecutions. These decisions took an even closer step toward the incorporation of the exclusionary rule.

In Wong Sun v. United States (1963), the Warren Court strengthened the exclusionary rule, introducing the concept known as the “fruit of the poisonous tree” doctrine. In this ruling, illegally obtained evidence of narcotics and a confession were excluded based on the fact that both were obtained from illegal police searches. The poisonous fruit doctrine stated not only any primary evidence but also any secondary evidence gathered as a result thereof must be excluded from trials when the cause of the evidence could not be purged from illegal actions on the part of the police.

Finally, Wolf was overturned by Mapp v. Ohio (1961). In this case, Cleveland, Ohio, police officers requested entrance to the Dollree Mapp residence in order to search for a fugitive who was reportedly hiding in her home. The police also believed that a large amount of obscene paraphernalia was hidden there. When Mapp asked to see a warrant, the police waved a piece of paper, which she grabbed and stuffed down her blouse. It was not a warrant. The officers proceeded to enter the house forcefully without a warrant and searched the entire residence from basement to second floor. The obscene materials were discovered in the course of that search, and the defendant was ultimately convicted for possession of them. The use of this evidence in the state court was then challenged, and the Supreme Court overturned the conviction.

Writing for the Court, Justice Tom C. Clark reviewed the history of incorporation, describing the Court's struggle to determine which provisions of the Bill of Rights should apply to the states. He also discussed the Court's precedents regarding the Fourth Amendment and efforts to clarify when the exclusionary rule applied and to what level of government. He concluded,

According to Clark, it was illogical to apply the exclusionary rule to one level of government but not another. Such a practice encouraged disrespect for the Constitution and, as its prior decisions revealed, made it difficult to establish a coherent line describing which rights were more necessary or more fundamental than others to protecting liberty and respecting privacy. Thus, Mapp brought to a conclusion a legal process of Fourth Amendment incorporation that had begun with Weeks.

The Fourth Amendment Postincorporation

Mapp v. Ohio may have completed the incorporation of the Fourth Amendment to the states, but it did not end the controversy regarding the wisdom of the exclusionary rule. There is little indication that the Supreme Court would unincorporate either the exclusionary rule or the Fourth Amendment. However, various decisions under the Burger, Rehnquist, and Roberts Courts have created numerous exceptions to warrant requirements. For example, warrantless searches are permitted if incidental to arrest, for border searches, and if one is engaged in hot pursuit of a suspect. Moreover, the Court has ruled that while illegally obtained evidence cannot be used to convict an individual, such evidence is admissible in grand jury proceedings, for sentencing, and to impeach a witness. The Court has also decided that illegally obtained evidence need not be excluded from court if it would inevitably have been discovered, if it is independently corroborated by legal means, or if the search were done in good faith and the warrant was otherwise defective. The precedents in these decisions are applicable both to the federal and state governments.

Finally, as the Supreme Court has drawn limits on what the Fourth Amendment prohibits, some, such as former Justice William Brennan and Oregon chief justice Hans Linde, have argued that states should use their own constitutions to offer protections for defendants that are greater than offered by the Fourth Amendment. Proponents of this idea herald judicial [Page 29]federalism as a way to take the legal concepts of incorporation and cement them in state law. In incorporating the exclusionary rule into a state bill of rights, state supreme courts potentially insulate their decisions from Supreme Court review, thereby offering protections for their citizens in their own courts that may not be available at the federal level. Thus, this process of “reverse incorporation” means that the application of the Fourth Amendment to the states is not over but, instead, is occurring in a different venue.

Further Reading