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
UNDERSTANDING AND INTERPRETING SEARCHES AND SEIZURES.
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
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
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.
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
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.
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
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
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
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
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.