The fourth amendment to the United States Constitution states that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." The United States Supreme Court has held that in order to protect this right, evidence obtained by an unreasonable search and seizure conducted by agents of any governmental body in the United States may be suppressed in any criminal proceeding by a defendant whose rights were invaded by the search. In each case the crucial issue becomes one of defining and determining what constitutes an unreasonable search and seizure. The test established by the Court is whether an unauthorized physical encroachment within a constitutionally protected area was made. This article first includes an examination of the Supreme Court's decisions using this test. The indiscriminate use or non-use of local and common law standards in the Court's application of the rule has rendered the results very inharmonious, and the results in any future case where the test is applied unpredictable at best. Second, an examination is made of three lines of cases or routes which the lower federal courts have followed in determining which areas are within the fourth amendment's protection from unauthorized encroachments; the purpose is to ascertain which route is the most conducive to decisions which follow the spirit as well as the letter of the fourth amendment guarantees. Third, what constitutes an unauthorized encroachment is determined. Most of the decisions have been based upon the common law distinctions of tort and real property, distinctions which have not been defined to any extent by the Supreme Court. Lastly, a recent case in the federal court of appeals is examined to see why there is a need for the Supreme Court to establish some workable standards in this area. In conclusion, it is shown that the present test should be delineated in a specific manner to insure uniformity and certainty in its application by all courts. Additional standards necessary to insure that the fourth amendment guarantee of a right of privacy is an actual, rather than a theoretical, right are also delineated.
Charles H. Rogers,
The Fourth Amendment and Evidence Obtained by a Government Agent's Trespass,
42 Neb. L. Rev. 166
Available at: http://digitalcommons.unl.edu/nlr/vol42/iss1/7