Arizona and the Fourth Amendment, U.S. Constitution

by Bill Golden and

A permanent resident alien is entitled to constitutional protection, and specifically the protection of the Fourth Amendment of the U.S. Constitution.

For all Americans, knowledge of the U.S. Constitution is important — probable cause, reasonable suspicion, search and seizure all have highly defined meanings.

Below are two important constitutional challenges that are relevant to Arizona’s recently passed law SB1070:

Landon v. Plasencia, 459 U.S. 21, 32-4 (1982):
‘[O]nce an alien gains admission to our country and begins to develop the ties that go with permanent residence, his constitutional status changes accordingly.’ Bottomline: Legal aliens (immigrants) have full protection of the U.S. Constitution.

Terry v. Ohio, 392 U.S. 1, 392 U.S. 1 (1968):
As for how reasonable suspicion plays a role in checking someone’s identification, the courts acknowledges that this is a tricky area of law. However, the bottom line is that the police are ultimately held to an objective justification reviewable by the courts.

“It is quite plain that the Fourth Amendment governs “seizures” of the person which do not eventuate in a trip to the station house and prosecution for crime – “arrests” in traditional terminology. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has “seized” that person. … This Court has held in [392 U.S. 1, 18] the past that a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope. … The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts [392 U.S. 1, 22] available to the officer at the moment of the seizure or the search “warrant a man of reasonable caution in the belief” that the action taken was appropriate?”

The 4th Amendment to the United States Constitution was added as part of the Bill of Rights on December 15, 1791. It deals with protecting people from the searching of their homes and private property without properly executed search warrants.

The 4th Amendment reads like this:

    “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 4th Amendment requires that in order for a government official, such as a police officer, to search a person’s home, business, papers, bank accounts, computer or other personal items, in most cases, he must obtain a search warrant signed by the proper authority, which usually means by a judge.

In order for a warrant to be issued, someone must affirm to the judge that he has a reasonable belief that a crime has been committed and that by searching the premises of a particular location, he believes he will find evidence that will verify the crime. The person submitting this information to the judge is usually a police officer. The police officer does not have to be correct in his assumption, he just has to have a reasonable belief that searching someone’s private property will yield evidence of the crime.

The judge then reviews the information and if he also believes that the information the officer has submitted shows probable cause, he will issue the warrant. In order for the warrant to be good, it must identify the place and the particular items or persons that are to be seized if they are found. A warrant is not a general order that can be used to search for anything, anywhere the officer wants. It is very specific about what is being looked for and where the officer can look for it.

Learn more about Fourth Amendment, U.S. Constitution

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