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The Fourth Amendment Abroad
The Fourth Amendment of the United States Constitution protects persons against “unreasonable searches and seizures.” The Fourth Amendment has significantly influenced an international consensus that individual privacy and dignity are vital human rights that require explicit and vigorous protection. The widespread adoption of Fourth Amendment jurisprudence is a cogent example of “legal transplanting,” a term that legal historian Alan Watson used to describe how countries borrow and adapt foreign laws to reform domestic legal systems. However, other nations have not indiscriminately grafted Fourth Amendment principles to their laws, instead critically selecting which of the Amendment's protections best fit their own political and social structures. Nations with fairly recent constitutions have tended to adopt broader conceptions of protection against government intrusion that respect long-standing cultural understandings of “the human yearning for privacy” (Dash 2004, 8). Some, notably Canada and South Africa, have developed even more robust protection for individuals in their search and seizure law than has the United States with the Fourth Amendment. Americans, meanwhile, seem increasingly willing to forfeit some Fourth Amendment protections in favor of crime control, particularly in the wake of the September 11, 2001, terrorist attacks.
Global Antecedents to the Fourth Amendment
Sources as diverse as the Bible, the Quran, and Roman law view the home as sacred and proscribe intrusions into the home. The Code of Hammurabi, among the world's oldest comprehensive legal codes, demanded in Article 21 that “[i]f a man makes a breach into a house, one shall kill him in front of the breach, and bury him in it.” Viewing one's home and property as inviolable is thus an ancient idea, but restricting governmental authority to search for and seize evidence of crime was not part of the early conception of individual rights. The Quran protects people's homes and privacy, but the ancient Islamic laws bear little resemblance to modern search and seizure law. The Roman Code of Justinian inspired the adage that a “man's home is his castle;” the earlier Roman scribe Cicero had expressed similar beliefs that the home was sacred, writing, “What is more inviolable, what better defended by religion than the house of a citizen. … This place of refuge is so sacred to all men, that to be dragged from thence is unlawful” (quoted in Lasson 1937, 15). Roman law did have procedures for private citizens to seek judicial permission to enter another's home to retrieve stolen items, but public officials were not so restricted. Not even the Magna Carta of England (1215), regarded as an inspiration for individual rights in the U.S. Constitution, promised security from the Crown entering homes to search for and seize evidence, although it contained concepts recognizable in the U.S. Constitution's Fifth and Fourteenth Amendment due process clauses. History offers scant proof that governments respected individuals' privacy interests in searching or seizing property or that citizens necessarily expected government officials to show constraint in conducting searches. Thus, the Fourth Amendment's protections were born of modern demands for individual privacy, rather than any understanding that such protections were enforceable against government officials.
The Fourth Amendment's Origins
Although the Magna Carta was silent about search and seizure protections, this celebrated document inspired lawyers to challenge the Crown's practice of searching homes and businesses to collect revenue. These searches were often conducted without proof that the subject of the search had failed to pay taxes or possessed contraband. Those general searches grew more invasive during King Henry VIII's reign, when the king empowered a special commission to search homes and businesses for evidence of disloyalty to the king's newly established Church of England. A noted jurist of the time, Sir Edward Coke, protested the general searches because they were conducted without suspicion of wrongdoing or were based on evidence given by unnamed informants. In his treatise on common law, Coke noted that the Crown issued such warrants “upon a bare surmise to break any man's house to search for a felon, or for stolen goods” (Coke 1628–1644/1817, Vol. 4, 176). Despite Coke's efforts, 150 years would pass before another protest against general warrants would galvanize colonial America to challenge their use.
In 1763, an anonymous writer produced and distributed a pamphlet in England criticizing a treaty negotiated by the king's ministers. England's King George III, angered by the criticism, ordered that the author and his papers and books be seized as seditious libel. The king also ordered that the homes of anyone suspected of printing the material be searched. The warrants issued under George III's order did not specify which homes were to be searched or which items could be seized. A politician and several printers were arrested, and evidence was seized from their homes, prompting lawsuits that attracted national attention. The national debate about general warrant searches reached Parliament. In a speech in the House of Commons attacking the searches, member William Pitt declared that “[t]he poorest man may, in his cottage, bid defiance to all the forces of the Crown” (Lasson 1937, 49–50).
News of Pitt's speech resonated throughout colonial America. In an attempt to raise revenue for England, royal customs agents had been searching colonists' homes and businesses under general warrants looking for evidence of contraband or tax evasion. The colonists hated these warrants because (1) they authorized searches of private property for taxable goods but the colonists had no corresponding right to parliamentary representation, (2) they were executed by customs agents who were viewed as functionaries but who acted with wide discretion, and (3) they were considered to be an offensive invasion into the sanctuary of people's homes. The general warrants and writs of assistance were among the grievances that eventually sparked the American Revolution in 1776. After the Revolutionary War, the former colonists surprisingly did not outlaw general warrants in the original constitution. The reason for the omission is unclear. Some delegates at the constitutional convention may have believed that an independent judiciary was a sufficient check against any executive branch attempts to issue general warrants or that enumerating some rights might suggest the exclusion of others. The former colonists may have considered general warrants so odious that it was unnecessary explicitly to prohibit them. Moreover, every state already outlawed general warrants, so it may have been considered unnecessary to include another prohibition in the new federal constitution. However, some political leaders, the Anti-Federalists, opposed creating a strong national government after the American Revolution, fearing that a central government would eventually suppress individual liberties. They therefore pressed for inclusion of individual rights in the Constitution, including protections against unchecked law enforcement discretion, and Congress began preparing a bill of rights.
The Fourth Amendment and the World Today
Without mechanisms to enforce the Fourth Amendment's guarantees, the guarantee, as constitutional drafter James Madison (1788) noted of all written constitutions, is a mere “parchment barrier” (97). In the United States, the Supreme Court crafted the exclusionary rule, which excludes or suppresses trial evidence garnered through improper police procedure, as the primary enforcement mechanism to deter police misconduct in gathering evidence. The exclusionary rule is among the most controversial of Supreme Court criminal procedure doctrines, and recent court decisions reflect a growing disenchantment with suppression of evidence as the primary Fourth Amendment remedy. Perhaps recognizing American ambivalence toward the automatic (or presumptive) exclusionary rule, most nations have declined to adopt it. Instead, other nations have made suppression discretionary or advanced justifications other than deterrence to justify evidence exclusion. In turn, these trends may be influencing the U.S. Supreme Court to recast Fourth Amendment enforcement as discretionary rather than automatic. While the Fourth Amendment may have provided the seed for international search and seizure laws, rule adaptation between the United States and the rest of the world may no longer be as one-way as once believed, as shown for instance by Sanchez-Llamas v. Oregon (2006), in which the Court observed that “the automatic exclusionary rule applied in our courts is still ‘universally rejected’ by other countries.” Since 2006, versions of the exclusionary rule are appearing in new constitutions and criminal codes around the world, and conversely, U.S. jurisprudence is drifting toward a less rigid analysis of evidence exclusion when police have illegally seized evidence. U.S. Supreme Court decisions such as Herring v. United States (2009) and Hudson v. Michigan (2006) have already echoed the worldwide inclination toward flexibility in judicial discretion when balancing individual privacy rights against law enforcement interests.
Western Europe
Europeans considered the issue of suppressing unlawfully obtained evidence as proof of guilt long before the U.S. Supreme Court crafted the exclusionary rule. Nevertheless, the Fourth Amendment's exclusionary rule did not take root in the inquisitorial trial systems in Europe, which value truth and full fact-finding above protecting individual trial rights. In an inquisitorial system, tangible evidence is generally admissible when it is reliable and relevant. While several Western European nations' search and seizure protections equal (or exceed) Fourth Amendment guarantees, these countries are less committed to the necessity or effectiveness of an exclusionary rule. When there are claims of impropriety in physical evidence collection, these countries employ alternative methods of police discipline and deterrence. (As in most countries, the rules for oral confessional evidence, which could be extracted through torture, are stronger and may require evidence suppression.) Finally, several Western European countries (including the Netherlands and Switzerland) have explicit privacy rights in their constitutions that are based largely on corresponding provisions in the European Convention on Human Rights.
France
Like the Fourth Amendment and the U.S. Constitution, the right to privacy is not written in the French Constitution but has been read into the text by its courts. France's search and seizure rules are established in its criminal code. Its search and seizure law, under an inquisitorial legal system, is far less restrictive of law enforcement than that in the United States. For example, there is no requirement of probable cause, and many searches are authorized without judicial approval. However, French courts may suppress unlawfully obtained evidence under a “nullity” doctrine that guides evidence suppression in narrowly defined circumstances.
Germany
Germany has a long-standing doctrine governing suppression of improperly obtained evidence, Beweisverwertungsverbote, but has no written exclusionary rule for physical evidence in its constitution or criminal procedure laws, leaving the issue of exclusion to the judiciary. Nevertheless, the German Constitution guarantees a right to privacy that is valued so highly that German judges may even exclude evidence obtained by civilians. And, unlike Fourth Amendment jurisprudence, Germany's courts evaluate the overall fairness of the trial rather than deterrence of police misconduct to justify evidence exclusion. One scholar notes that
the approach of German jurisprudence is rather similar to the reasoning of French or English judges when it comes to the decision whether to exercise discretion to exclude evidence. The following aspects are considered: the severity of the breach versus the gravity of the offence imposed; the effect of the breach on the credibility of the evidence; the “technical” nature of the breach, following the assumption that the application of the correct procedure leads to lawfully obtained evidence. (Gless 2010, 705)
Italy
Of the civil law Western European nations, Italy's search and seizure law perhaps has the strongest correlation to the Fourth Amendment. In 1988, Italy shifted from an inquisitorial model to an adversarial model of criminal trials, incorporating many Anglo-American procedural rights along the way. The Italian Criminal Procedure Code outlines the duties of the police during a search and seizure, has many of the restrictions on warrantless searches that have developed in Fourth Amendment jurisprudence, and has an exclusionary rule to suppress evidence obtained in violation of the Code. The Code does contain a “weapons exception” that may permit broad search powers whenever police believe that a weapon is in a place. Such an exception may have the effect of diluting the exclusionary rule for physical evidence found during such searches.
Spain
Like Italy, Spain has robust search and seizure protection in its Constitution and has specifically adopted a rule of exclusion for improperly obtained evidence. The Spanish Constitution prohibits entering a home without consent or a warrant unless officers see the crime and trace the perpetrator to the premises. The Code of Criminal Procedure further provides that “evidence obtained either directly or indirectly in contravention of fundamental rights and liberties will be of no effect;” this includes evidence gathered in violations of rights guaranteed by the Constitution. This provision for exclusion, called a nullity, requires that the evidence is struck from the record and may not be used during the criminal prosecution. Like its Continental neighbors, Spain does not use deterrence as a justification for the nullity rule. Spain instead uses disciplinary procedures or criminal charges to discipline officers guilty of police misconduct.
England and the Commonwealth of Nations
Early English common law, as noted above, did not require exclusion of unlawfully obtained tangible evidence at criminal trials, using money damages instead as the enforcement mechanism against unlawful searches and seizures. The early English criminal justice system valued the admission of relevant and reliable evidence over the propriety of how officers acquired it. As one English court stated in R. v. Leatham (1861), “It matters not how you get [evidence]; if you steal it even, it would be admissible in evidence.” Then, in 1984, Parliament passed the Police and Criminal Evidence Act (PACE), which codified common-law evidentiary rules. PACE authorized judges to exclude “evidence [that] would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it” (§ 78). Just as in the common law, evidence can also be excluded if it is more prejudicial than probative—that is, if a jury is more likely to find guilt not because of the substance of the evidence but because it prejudices jurors as to the defendant's propensity to do the charged crime. Some of the Commonwealth nations, such as Scotland and the Caribbean nations, follow England's rights-balancing approach. Finally, English courts scrutinize the admission of improperly obtained confessional evidence more carefully than the admission of tangible evidence.
Australia
Until the 1970s, Australia followed the English common law's reluctance to suppress improperly obtained physical evidence unless the evidence would affect the fairness of the trial. Australia's courts changed their position in the case of Bunning v. Cross, 141 CLR 54 (1978), which suggested five factors for judges to weigh evidence admissibility: (1) the police officers' degree of culpability in the illegal search or seizure, (2) whether the illegality affected reliability of the evidence, (3) whether the evidence might have easily been obtained by lawful means, (4) the seriousness of the charge, and (5) whether the police action breached a specific legislative intent to prohibit misconduct. In 1995, Australia adopted its uniform Evidence Acts, which give judges discretion to exclude unlawfully obtained evidence using the guidelines in Bunning v. Cross.
Canada
Before Canada adopted its Charter of Rights and Freedoms in 1982, criminal courts largely followed the English practice of admitting relevant evidence, and thus evidence was rarely suppressed because of police misconduct. When Canada enacted the Charter of Rights and Freedoms, it expressly incorporated the Fourth Amendment's protections against unreasonable searches and seizures. Thus, Canada's search and seizure rules, in text and practice, are the closest to the U.S. model with an important addition: The Canadian Charter expressly provides for a discretionary exclusionary rule. Canada, unlike the United States, expressly grounded its exclusionary rule in preserving judicial integrity. These changes may have shielded Canada's exclusionary rule from becoming as controversial as it has been in the United States.
New Zealand
New Zealand's search and seizure protection in its Bill of Rights provides that “[e]veryone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.” New Zealand's Bill of Rights, however, is not supreme law as is the U.S. Constitution but is instead a part of the collection of laws that make up the country's constitutional structure. New Zealand's courts have wide discretion to admit or refuse evidence, and like its neighbor Australia, New Zealand has no codified exclusionary rule. New Zealand courts use a reasonableness test to determine if questioned police conduct requires evidence suppression, evaluating law enforcement actions through examining the “time, place and circumstances” of the search. The courts then balance the interests of victims, society, and law enforcement against the individual's privacy interests. The issue of reasonableness is considered independently from whether the officers' actions actually contravened written law. Thus, as scholar Scott Optican points out, a search in New Zealand can be found “legal and unreasonable” or “illegal and reasonable.” Despite the courts' wide judicial latitude, New Zealand's judges have been conservative thus far in suppressing tangible evidence in cases of police wrongdoing.
South Africa
South Africa and seventeen other African nations (as of this writing) are members of the Commonwealth of Nations. While South Africa's constitutional search and seizure provisions incorporate the Fourth Amendment's text, South Africa's provisions exceed the rights afforded by most nations. Unlike those of other Commonwealth nations and the United States, the 1996 South African Constitution explicitly protects the right to privacy, providing that “[e]veryone has the right to privacy, which includes the right not to have—(a) their person or home searched; (b) their property searched; (c) their possessions seized; or (d) the privacy of their communications infringed” (§ 14). The South African Constitution also has an exclusionary rule, modeled on Canada's Charter, that requires evidence suppression “if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice.” The South African laws' explicit focus on individual privacy rights indicates the country's commitment to maintaining close regulation of law enforcement power, and South Africa's Criminal Procedure Act and the Police Service Act codify many issues that may be left to judicial discretion in other countries.
Israel
Israel does not have a comprehensive written constitution, but its Knesset (Parliament) has passed a series of eleven basic laws that it plans to incorporate eventually into a single constitution. The Israeli bill of rights, called the Basic Law: Human Dignity and Liberty, guarantees individual rights to privacy, dignity, and protection from nonconsensual premises and internal body searches. The Knesset based these statutory search and seizure protections on Canada's Charter of Rights and Freedoms, which in turn was influenced by the Fourth Amendment. Israel's search and seizure protections are limited by any “law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required” (§ 8). As of yet, Israeli courts have not settled on an overarching interpretation of search and seizure protections since the passage of the Basic Law right provisions in the late 1990s. However, some of the early cases show hesitancy to suppress physical evidence because of police procedural transgressions.
Muslim-Majority Countries
A quarter of the world's population resides in countries where Islam is the predominate religion. These countries include much of the Middle East and countries in North and Central Africa, Central and South Asia, and Southern Europe (because these countries have geopolitical ties through membership in Islamic organizations, they are considered together here even though they are geographically distant). Not all Muslim-majority countries recognize Islam as a state religion, but in this geographically diverse set of nations, the power of Islamic law cannot be disregarded. Many Muslim-majority countries have adopted criminal procedure rules that forbid unlawful government intrusions on property and privacy, grounded in principles that can be found in ancient Islamic jurisprudence. Criminal procedure rules in some of the Islamic states largely conform to international legal norms expressed in the regional and international human rights agreements that the countries have signed. For example, Nigeria's Constitution includes a right to privacy as other constitutions do, although it expressly acknowledges the jurisdiction of Shari'a (Islamic law) courts in its Constitution. Some Muslim-majority countries, such as Turkey, have gone a step further in specifically ordering punishment for police officers who conduct unlawful searches, although the evidence gained from such a search may not be suppressed.
Islamic law supports modern notions of the privacy of the home. Islamic law is grounded in the interpretations of divine law found in the Quran and the Sunna, the record of sayings and teachings of the Prophet Mohammed. The Quran forbids entering a home without permission and “spying” on people in their homes and in that way is comparable to the Fourth Amendment in its concerns about intrusions on privacy. Classical Islamic jurisprudence ordered exclusion of wrongfully obtained evidence under some circumstances, but the Quran's prohibitions against unauthorized entry into homes and spying were not historically linked to evidence exclusion. The precedents that provide the strongest substantiation in Islamic jurisprudence for evidentiary exclusion “might be more accurately read as establishing a balancing test for suppressing evidence that results from search and seizure violations, rather than a Fourth-Amendment-like exclusionary rule” (Reza 2009, 763). This balancing test is echoed in the U.S. Supreme Court's recent Fourth Amendment decisions that weigh the societal costs of suppression against the officers' blameworthiness in the Fourth Amendment violation and the likelihood of a deterrent effect on police conduct. While there is conflicting evidence about the influence of the Quran and the Sunna as a foundation for search and seizure rules in the Muslim world, the sacred texts are far from irrelevant. The Islamic texts could provide arguments to legitimize criminal procedure rights if governments try to change or dispense with those rights.
Asia
The Fourth Amendment has had influence on Asian countries like Japan and Korea, where U.S. military occupation helped to shape the constitutional framework, while India's approach to searches and seizures reflects the legacy of British rule. China and Taiwan, which lack these legacies of Western colonial or military rule, have moved in the direction of penalizing police officers or excluding improperly attained evidence in recent years.
People's Republic of China
The People's Republic of China implemented a new constitution in 1982 as part of its efforts toward socialist modernization, but it has no constitutional protection against unlawful search and seizure. China's 1997 Criminal Procedure Law also did not exclude illegally obtained evidence and thus had little impact on police professionalism. Recently, however, China has reformed its criminal procedure rules, partially in response to internationally publicized examples of police misconduct. In one case, a Chinese man was released from prison in 2010 after serving ten years for killing a neighbor. The Chinese defendant had confessed to the neighbor's murder after being beaten and tortured during a police interrogation. A decade later, the neighbor belatedly but fortuitously turned up alive and well. After the reappearance of the “victim,” Chinese courts surprised observers by not just ordering the man's release but also implementing two new rules of evidence to require exclusion of confessions obtained by torture and coercion. Five government organizations, the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of State Security, and the Ministry of Justice, joined to promulgate procedures to handle physical evidence in death-penalty cases and to redress the admissibility of confessions obtained by using torture. The 2010 Evidence Exclusion Rules do not require evidence exclusion, but they do provide that if police misconduct in collecting that evidence would impact the fairness of the trial, that evidence may not be the basis of a conviction. China's efforts to liberalize its criminal procedure rules on coerced confessions may spark interest in further reforms toward suppressing improperly seized tangible and documentary evidence.
Taiwan
Taiwan dramatically reformed its criminal justice system after a long period of authoritarian rule. Taiwan amended its Code of Criminal Procedure in 1997 to afford rights to criminal defendants. In 1998, Taiwan's Supreme Court announced a discretionary exclusionary rule that judges may “exclude illegally obtained evidence when they believed that admitting the evidence would impair justice and fairness” (Lewis 2011, 649). Taiwan later codified this rule in its Criminal Procedure Code, which requires balancing individual rights against the public interest in admitting tainted evidence. While the changes to the Criminal Procedure Code are relatively recent, the impacts of the changes in the judicial system are already noticeable. In 2002, Taiwan again amended its Code, changing from an inquisitorial to a modified adversarial judicial system and shifting warrant powers from prosecutors to judges.
India
India's search and seizure rules operate in much the same way as the Fourth Amendment does, but India does not have a specific constitutional provision governing searches, nor does it have an exclusionary rule. The Constitution of India once had a constitutional provision that gave citizens a “right to hold and enjoy property,” but it was repealed in 1978. India's Code of Criminal Procedure instead has a statutory requirement that two citizen-witnesses be present during searches to deter police misconduct. These civilian observers, called panch witnesses, serve to verify that searches are properly executed. Indian law also allows the owner of searched property to be present during the search, except under circumstances where it is impracticable to do so.
Just as under English law, India's judges are reluctant to suppress relevant evidence. In Khet Singh vs. Union of India (2002), the Supreme Court of India considered a defendant's claim that drug evidence should be suppressed because the proper procedures for seizure and processing of evidence did not occur as outlined in India's narcotics statutes. In Singh, the Court outlined the law of evidence exclusion:
So far as India is concerned its law of evidence is modelled on the rules of evidence which prevailed in English Law, and Courts in India and in England have consistently refused to exclude relevant evidence merely on the ground that it is obtained by illegal search or seizure.
The Court in Singh concluded that absent “complete defiance of the law and procedure. … [or] any possibility of the evidence collected likely to have been tampered with or interpolated during the course of such search or seizure,” physical evidence is unlikely to be suppressed because of law enforcement lapses in following procedural rules. However, India's courts may be prepared to exclude evidence in cases of grave police misconduct.
Japan
Japan's Constitution and Criminal Procedure Code were written during the Allied occupation of Japan after World War II, and its search and seizure laws predictably resemble the Fourth Amendment. As with the Fourth Amendment's exclusionary rule, enforcement of Japan's search and seizure protection is a judicial rule. In 1978, in Japan v. Hashimoto, 32 Keishu 1672, the Japanese Supreme Court established an exclusionary rule known as the “theory of relative exclusion.” In grounding its decision as a tool to deter officers from violating the warrant procedures in the criminal procedure code, the Court stated, “Using illegally seized material as evidence would be harmful from the standpoint of controlling illegal searches in the future, and should be rejected as evidence for the case” (cited in Cho, 1998). Japan's theory of relative exclusion decides suppression issues by balancing the seriousness of the violation against the possibility that suppression will deter future transgressions. Like courts in other countries, Japanese courts are reluctant to reverse convictions when police illegally seize physical evidence, typically finding that the police misconduct is not serious or that no deterrence goal will be met by evidence exclusion.
The Republic of Korea (South Korea)
A year after the democratization of the Republic of Korea in 1987, a new constitution was enacted that was influenced by the U.S. Constitution. Korea may have been influenced to use the U.S. Constitution as a model by early attempts to establish a Korean Declaration of Independence and by contact with American military personnel. In 1988, Korea created a Constitutional Court, such as France and Germany have, to independently review constitutional issues. In articles 12, 16, 17, and 18, the Korean Constitution guarantees “personal liberty” and requires warrants for searches that are not committed in the presence of a police officer or where evidence destruction is at issue. Reportedly, search warrants require little evidentiary showing and are almost automatic for prosecutors to obtain. The constitutional and statutory search and seizure provisions do not expressly prohibit unreasonable searches but instead those that are unlawful under its criminal code. Korea has no official doctrine to suppress involuntary confessions or unlawfully seized physical evidence under an exclusionary rule.
Central and South America
Since the 1990s, more than fifteen countries in Central and South America have transitioned to democratic governance. At the same time, many countries in the region (Argentina, Bolivia, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Nicaragua, Paraguay, Peru, and Venezuela) have changed from inquisitorial criminal procedure systems to adversarial ones. While the United States has been only one of many models for democratic governments in Latin America (and not the most important one, as Latin America looked to continental Europe as a closer structural model for criminal procedure), the Fourth Amendment's principles have diffused to these countries' emerging search and seizure laws. Mexico is also considering a more open criminal justice system under influence from its northern and southern neighbors.
Argentina
Argentina's 1853 Constitution was explicitly modeled on and even in places directly translated from the U.S. Constitution and the Bill of Rights. During the years of autocratic and military rule, however, Argentina's Constitution had little force in limiting police search and seizure powers. Then, in 1994, Argentina amended its constitution and Code of Criminal Procedure, incorporating features of the European continental legal structure. Argentina's current criminal procedure code has an exclusionary rule that appears to operate similarly to the U.S. model: Illegally seized evidence may be suppressed subject to the doctrines of inevitable discovery and independent source. Unlike under the Fourth Amendment, evidence suppression in Argentina is subject to the discretion of the trial judge. How much impact the search and seizure rules have on police discretion is difficult to discern, however, as many Argentinian court decisions are unreported and much of the law is made at the state, rather than the federal, level.
Brazil
After decades of being governed by military dictatorships, Brazil adopted a new, democratic constitution in 1988. Brazil's Constitution guarantees the right to privacy and bars searches of homes except when there is consent, there are exigent circumstances, or a warrant has been issued. In 2008, Brazil extended its constitutional search and seizure protections to include an exclusionary rule in its Code of Criminal Procedure. Brazil's exclusionary rule requires suppression of evidence derived from illegal searches but incorporates the Fourth Amendment's inevitable discovery and independent source doctrines to save the admissibility of some evidence.
Chile
Discarding the remnants of military commander Augusto Pinochet's oppressive regime, a democratic Chile significantly amended its 1980 Constitution in 2005. Chile's democratic government shifted to an adversarial legal system and enacted bold legal reforms, guided by German experts on criminal procedure. The Chilean constitution ensures the inviolability of the home and of private communication. It is not yet clear whether the Fourth Amendment's enforcement mechanism, the exclusionary rule, will feature prominently in Chilean jurisprudence as it has in the German model, but some discussions have begun about mechanisms for suppression of physical evidence.
Central and Eastern Europe
When democratic governance emerged in Russia and in former Soviet-bloc states in Central and Eastern Europe, the new regimes revolutionized their countries' criminal procedure systems. Countries including Bulgaria, Hungary, Georgia, Poland, Russia, and Slovenia sought assistance from international lawyers (including the American Bar Association's Central and East European Law Initiative, or CEELI) to reform their constitutions and criminal codes. These countries were also influenced by the requirements for European Union membership and sought to conform their laws to the European Convention on Human Rights. These countries face challenges because many of the Eastern European legal systems were based in civil rather than common law, with trials being inquisitorial rather than adversarial. Nevertheless, several of these countries created criminal justice schemes that shifted some search warrant powers from prosecutors to judges and provided for jury trials in certain cases. As part of those initiatives, these countries guarantee privacy rights against improper search and seizure. Examples include the Czech Republic's Charter of Fundamental Rights and Freedoms 1992, article 12; the Constitution of the Republic of Georgia, article 20 (1995); and the Constitution of the Republic of Poland, articles 47, 48, and 50. A few codes also exclude evidence at criminal proceedings when police officers have procured it illegally; one such is the Constitution of the Russian Federation (1993), article 50.
However, there is not yet a clear picture of how the evidence exclusion provisions are working. In Russia, Bulgaria, Hungary, and Slovenia, the exclusion provisions are blunt proscriptions on the use of illegally obtained evidence, perhaps with an expectation that the judiciary would interpret such rules to make them workable. Implementing blanket proscriptions without guidance has raised questions in those countries about what type and level of severity of police misconduct requires exclusion.
Conclusion
Understanding how the Fourth Amendment's protections differ at home and abroad requires one to consider how countries define the right meant to be protected and the goal to be achieved. While much of the divergence in individual privacy rights between the United States and other countries undoubtedly relates to historical, structural, and cultural differences, some of the differences lie in the contrast between the U.S. deterrence-based model and other nations' choices to justify such rights on the basis of preserving judicial integrity. Those choices are a product of hard-won lessons about the difficulties inherent in America's deterrence-based model. The level of search and seizure protections and justifications continues to be developed, as many nations have statutory and constitutional provisions that were enacted within the last few decades, as opposed to the Fourth Amendment's 220-year history. How the nascent search and seizure provisions around the world will operate in practice remains to be seen.
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