ERIC Identifier: ED363526
Publication Date: 1993-05-00
Author: Leming, Robert S.
Source: ERIC Clearinghouse for Social Studies/Social Science Education Bloomington IN.

Teaching about the Fourth Amendment's Protection against Unreasonable Searches and Seizures. ERIC Digest.

The Fourth Amendment states, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." With the passage of the U.S. Bill of Rights in 1791, (Amendments I-X of the U.S. Constitution), Americans had protection against unreasonable searches and seizures by the federal government. The understanding and interpretation of ideas expressed in the Fourth Amendment have been influenced by historical events, technological inventions, and changes in thinking about the meaning of the provisions in the amendment.

UNDERSTANDING AND INTERPRETING SEARCHES AND SEIZURES.

What is a search? What is a seizure?

What constitutes a search was clearly outlined in one of the earliest Fourth Amendment cases. Decided in 1886, Boyd v. United States involved a federal customs statute that required businessmen (involved in importing goods) to choose between producing invoices and record books during a government inspection or having the imported goods confiscated by custom officials. Justice Joseph P. Bradley, delivering the opinion of the Court, struck down the customs statute and in doing so, widened the scope of the Fourth Amendment. He argued, "It is not the breaking of a man's doors and the rummaging of his drawers that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty and private property, where that right has never been forfeited by his conviction of some public offense."

Justice Bradley's interpretation of the Fourth Amendment was reshaped by three technological developments that occurred during the later part of the 19th century. The telephone, the microphone, and instantaneous photography all created new ways to conduct searches and seizures. In light of these new inventions, the questions for the Court became whether or not the use of these devices constituted a search and, if they did, were the searches reasonable.

In the 1928 landmark case of Olmstead v. United States, the Court was given the opportunity to decide the constitutionality of wiretapping by the FBI. In a split decision, the Court ruled that a wiretap was not a search and seizure within the meaning of the Fourth Amendment, therefore, the FBI's actions were constitutional.

The Olmstead decision helped define the meaning and scope of the Fourth Amendment for the next forty years. However, in 1967 the Court decided Katz v. United States, in which it reversed the Olmstead decision. Katz had been convicted of illegal gambling based on evidence gathered using a wiretap placed in a public telephone booth. Conversations between Katz and his gambling associates were overheard and recorded by the FBI. Justice Stewart, writing for the majority, stated, "The Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a 'search and seizure' within the meaning of the Fourth Amendment." In Katz, the Court defined a "search" as any governmental intrusion into something in which a person has a reasonable expectation of privacy and "seizure" as taking into possession, custody, or control.

THE MEANING OF "UNREASONABLE" IN THE FOURTH AMENDMENT.

The question of what is "unreasonable" was first dealt with at the federal level in the 1914 case of Weeks v. United States and nearly fifty years later at the state level in the 1961 case of Mapp v. Ohio. In Weeks, the Court argued that evidence gathered in an illegal manner, without probable cause or without a search warrant, should be excluded from court proceedings. In part, this exclusionary rule was adopted to prevent abuses by the police and other government officials. The logic followed that if police understand that evidence seized in a manner that violates any of the provisions of the Fourth Amendment will be excluded from court proceedings, they will less likely conduct searches without warrants or without probable cause. The Weeks decision only affected federal courts, and two-thirds of the state courts rejected the exclusionary rule, claiming the rule placed unnecessary burdens on the police and the rule favored the guilty.

In the 1961 case of Mapp v. Ohio, the U.S. Supreme Court expanded the rights of the accused by applying the exclusionary rule to all criminal trials, both federal and state. Ms. Mapp had been sentenced to a year in jail for possessing pornographic materials seized in a search of her apartment. The police entered her apartment without a valid warrant, searching for a fugitive from justice and illegal gambling slips. The state attorneys argued that no matter how incorrectly the police behaved, their actions did not change the facts in the case. Ms. Mapp was guilty of possessing pornographic materials, therefore, her conviction should stand. The State also argued that the U.S. Supreme Court should allow local government to handle police excesses in their own way.

The U.S. Supreme Court disagreed with the state of Ohio and would not tolerate such an abuse of power exhibited by the Cleveland police. The Court's decision ensured that all citizens were afforded Fourth Amendment protection against "unreasonable searches and seizures" by all levels of governmental officials.

During the past thirty years many exceptions to the provisions outlined in the Fourth Amendment have been approved by the U.S. Supreme Court. In many situations, warrantless searches have been upheld by the Court. In addition, a number of exceptions to the Exclusionary Rule have also been approved. The constant changes in our thinking about and interpretation of the meaning of the Fourth Amendment illustrates the continuous evolving struggle of a citizenry trying to balance the democratic principles of securing and protecting individual rights with the promoting of public order and the common welfare.

METHODS FOR TEACHING THE FOURTH AMENDMENT.

An effective method of teaching Fourth Amendment ideas and issue is to use case studies, like the Katz and Mapp cases. The case study method is effective because students learn to analyze a legal case by participating in class discussions, taking sides, stating points of view, and formulating and evaluating decisions. The case study method includes the following steps:

* Review the facts in the case.

* Determine the main constitutional issue in the case.

* Examine alternative arguments on each side of the issue in the case.

* Consider the decision (both the majority opinion and dissenting opinions, if any) and legal reasoning in the case.

* Assess the implications and the significance of the case in constitutional history.

Information for creating Fourth Amendment case study lessons can be derived from the official record of U.S. Supreme Court decisions, UNITED STATES REPORTS. Standard reference books are useful sources of information on important Supreme Court cases. For example, a reliable source is THE OXFORD COMPANION TO THE

SUPREME COURT OF THE UNITED STATES.

In addition to the case study method, a moot court is an effective strategy that involves students participating as petitioners, respondents, and justices in a U.S. Supreme Court simulation. Students acting as attorneys prepare written arguments and present three-to-five-minute statements to panels of students participating as justices. The justices are responsible for rendering a decision and writing brief majority or minority opinions. In addition to helping students understand the facts, arguments, constitutional issue, and the decision in a case, a moot court helps students understand the process involved in obtaining justice.

Another effective teaching method is a simulated congressional hearing. The best example of this strategy in practice is "We the People...the Citizen and the Constitution." This national program is coordinated by the Center for Civic Education and is funded through the U.S. Department of Education. Students involved in the congressional hearings compete at the congressional district, state, and national levels. Entire classes broken into six groups prepare for hearings by studying the historical roots and modern day applications of democratic principles that are included in the Constitution and Bill of Rights. The hearings require students to formulate written statements presented orally to a panel of judges and to answer probing questions that require students to formulate verbal responses based on their understanding of the issues and their ability to apply democratic principles to modern-day examples. A simulated congressional hearing could be designed to test students' understanding of Fourth-Amendment issues.

A final teaching method that involves students in learning constitutional principles is the use of Constitution-based scripted trials. A scripted trial involves students in the trial process through their participation as a judge, a bailiff, attorneys, witnesses, and jurors. Because the trial is scripted, key issues and information about the central issues of the case are introduced to the participants through the testimony of witnesses and the questions posed by the attorneys. After hearing and evaluating the evidence presented during the trial, students are asked to interpret the law and make decisions that effect the innocence or guilt of the defendant. Students are also encouraged to apply what they have learned through their participation in the scripted trial to new situations. An example of a Constitution-based scripted trial is Indiana v. Jamie L. Curtis, 1992. This scripted trial, published by the Social Studies Development Center and the Indiana State Bar Association, asks students to consider the reasonableness of a search of a student's book-bag.

The participants learn to apply a two-pronged test devised by the U.S. Supreme Court in the 1985 New Jersey v. T.L.O. case. The test suggests that both the inception and the scope of the search must be based on a reasonable suspicion.

REFERENCES AND ERIC RESOURCES

The following list of resources includes references used to prepare this Digest. The items followed by an ED number are available in microfiche and/or paper copies from the ERIC Document Reproduction Service (EDRS). For information about prices, contact EDRS, 7420 Fullerton Road, Suite 110, Springfield, Virginia 22153-2852; telephone numbers are (703) 440-1400 and (800) 443-3742. Entries followed by an EJ number, annotated monthly in CURRENT INDEX TO JOURNALS IN EDUCATION (CIJE), are not available through EDRS. However, they can be located in the journal sections of most libraries by using the bibliographic information provided, requested through Interlibrary Loan, or ordered from UMI or ISI reprint services.

Aldridge, Kathy, and Jeanne Wray. "Students' Constitutional Rights." UPDATE ON LAW-RELATED EDUCATION 12 (Winter 1988): 30-33. EJ 368 161.

Anderson, Charlotte, and Charles Williams. "Supreme Court Docket: Drug Testing and the Fourth Amendment." SOCIAL EDUCATION 53 (April-May 1989): 229-232. EJ 391 389.

Armonda, Stacy, Marshall Croddy, and Diana Hess, et. al. THE DRUG QUESTION. Chicago, IL: Constitutional Rights Foundation, 1991.

Chandler, Ralph C., et. al. THE CONSTITUTIONAL LAW DICTIONARY. Santa Barbara, CA: ABC-Clio, Inc., 1985: 155-194.

Hall, Kermit, et. al. THE OXFORD COMPANION TO THE SUPREME COURT OF THE UNITED STATES. New York: Oxford University Press, 1992.

Leming, Robert S. INDIANA V. JAMIE L. CURTIS. Bloomington, IN: Social Studies Development Center, Indiana University, 1992. ED number will be assigned.

Patrick, John J. CONSTITUTIONALISM IN EDUCATION FOR DEMOCRACY: THE CONTINUING RELEVANCE OF ARGUMENTS ON CONSTITUTIONAL GOVERNMENT OF THE AMERICAN FOUNDING ERA. Paper presented at the Mershon Center Conference on Education for Democracy, The Ohio State University, Columbus, OH, March 4-7, 1993. ED number will be assigned.

Quigley, Charles N., et. al. WE THE PEOPLE... Calabasas, CA: Center for Civic Education, 1987. ED 292 692.

Rossow, Lawrence F. SEARCH AND SEIZURE IN THE PUBLIC SCHOOLS. Topeka, KS: National Organization on Legal Problems of Education, 1987. ED 281 305.

Shattuck, John H. F. "Freedom from Unreasonable Search." In RIGHT OF PRIVACY. Skokie, IL: National Textbook Company in conjunction with the American Civil Liberties Union, 1977.

Westin, A. PRIVACY AND FREEDOM. New York: Atheneum, 1967: 338-39.

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