The 4th amendment to the United States Constitution is part of the Bill of Rights, and protects against unlawful search and seizure, as a skilled criminal defense lawyer Phoenix AZ relies on can explain. The text of the Constitution reads, “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.”

The History of the 4th Amendment

While the 4th amendment was written as a result of colonial experiences, its basis goes back to English common law. Dating back to the early 1600s, there was a tradition in England, including in case law, that a “man’s house is his castle,” such as expressed by Semayne’s Case from 1603.

  • This case discussed both the right of the homeowner to defend from illegal entry, even by government agents, as well as the right of those agents to be authorized to enter based on the King’s process.
  • While this falls far short of the 4th amendment’s protections, the genesis of the amendment is visible here in the principle that a homeowner has the right to defend their home from unauthorized entry.

About a hundred years after Semayne’s Case there was another, very famous and relevant case in England was Entick v. Carrington which was regarding general warrants that did not require specific cause, but were rather regarding all material related to a separate case. The English Supreme Court ruled that kind of warrant invalid because it didn’t give an accounting of what was needed to pursue justice. Instead, it was used to access all of a person’s papers rather than the ones relevant to what was being investigated. There was no showing or declaration of probable cause.

Writs of Assistance

In the American colonies, the issue was with a specific subcategory of general warrant known as, “writs of assistance.” These writs were used to prevent smuggling, by allowing English authorities to enter any business or home and seize smuggled goods. A writ, once issued, was valid through the life of a monarch, and six months beyond that. Following the death of George II, the writs were challenged in the colonies by James Otis. Otis lost, but the arguments he made influenced the future 4th amendment.

Birth of the Basic Principles of the 4th Amendment

The first explicit mention of freedom from unreasonable searches and seizures was from Samuel Adams in Boston, in 1772. The document The Rights of the Colonists and a List of Infringements and Violations of Rights was part of the lead up to the Revolutionary War, and was enumerating the rights the colonists had. While the 4th Amendment was over a decade away, the principles it contains were part of the makeup of the political scene of Revolutionary America.

As with much of the Constitution, the 4th amendment has a long backstory that led it to becoming a significant part of the document which forms the basis of the United States’ legal system. Over 400 years of history, starting in English common law, have led to the way we interpret the amendment today.

Lorona | Mead

Thanks to our friends our friends and contributors from Lorona | Mead for their insight into the fourth amendment and its effect on criminal cases.