History of the Fourth Amendment of The U.S. Constitution.........................1-3

Standard for reasonableness........................................................................3-5

Exigent Circumstance and their Limitations................................................5-6

Summary....................................................................................................6

The actual beginning of the Bill of Rights, have their roots in the abuses of the Colonists

by the Governmental Monarchy of England. The Mayflower occupants were coming to

the "New World" in flight of religious persecution by the government. A person needs to

have a General understanding of the Political climate of the time in order to understand

how the government could be involved in "Religious Persecution."

In the United Kingdom today, the Monarch is the Head of the State Church. The State

Church prior to King Henry XIII was the Christian Church of Rome that is known today

as the Roman Catholic Church. Prior to Henry XIII, the Pope of the Roman Church was

very influential in political matters because the King was a member of the Church in a

position subordinate to the Church leaders. This gave the Pope of the Roman Church a lot

of political power which it had enjoyed since Constantine the Great had made Christianity:

The State Church of the Holy Roman Empire. In November of 1534 C.E., the English

Parliament declared the King of England the "Supreme Head of the Church of England"

and renounced that Pope Clement VII had authority over the Christians of England; This

includes their Governing Officials. This means that, when the early Mayflower group

were having Theological disagreements with the Church of England, they were also having

a disagreement with the Monarchy.

"Every man's home is his castle" was a maxim that had been set forth in the English Law

from early on. ⁽¹⁾

One of the most forceful expressions of the maxim was that of

William Pitt in Parliament in 1763: ''The poorest man may in his cottage bid

defiance to all the force of the crown. It may be frail--its roof may shake--the wind

may blow through it--the storm may enter, the rain may enter--but the King of

England cannot enter--all his force dares not cross the threshold of the ruined

tenement.'' The Parliament of that time recognized the individual's Right to

security in his own home without the exception of the Government. ⁽²⁾

This was

cited in a civil action Entick v. Carrington. Entick was an associate of a John

Wilkes who was a critic of the King and his policies. Entick' home was forced

into, his desks were broken into, and many printed documents and pamphlets were

seized to prove him, Wilkes and others, as libelous against the King. The suit was

filed against Carrington and three other Government Officials and Entick was the

victor. The decision rendered that the General Warrant that had been issued on

this search went against the "Genius of the Law of England" and lacked Probable

Cause which is still today the standard in the United States. In addition, there was

a requirement to document and record all of the items seized. This was not done.

These cases aforementioned, are the landmark cases in the English Law that were the

framework of the Fourth amendment of the U.S. Constitution. The early group on the

Mayflower could be held and charged for libel and slander for being critical of the King's

Theology and practices. These cases sited here are cases that occurred after the

Mayflower had landed so, the early Colonists did not have these protections in England

prior to sailing to the New World. The founding Fathers of the United States had cited 27

Biblical violations of the people by the King and consequently wrote the Declaration of

Independence. They believed in Rights that were given Divinely to the people and not of

the Government. This is stated in the beginning of the Declaration of Independence and

reads as follows: "We hold these truths to be self-evident, that all men are created

equal, that they are endowed by their Creator with certain unalienable Rights, that

among these are Life, Liberty and the pursuit of Happiness." After the Declaration

of Independence and the United States Constitution was written and signed, on

March 4, 1789 the Congress of the United States believed it necessary to write and

ratify ten amendments to the Constitution in order to clarify the "unalienable

Rights" aforementioned in the Declaration of Independence. The fourth of these

ten amendments was to ensure every person the Right to not suffer an

unreasonable search and/or seizure of their person or property by the Government

Standards for reasonableness

The two most key points of the Fourth Amendment is the word unreasonable and

the context that it is protection from the government. The Governmental Official

that violates any of the Rights of a person is liable to them civilly under the title 42

U.S.C. Section1983. It specifies that the Governmental Official must be acting

under the "Color of Law". This deals with Law Enforcement personnel and not a

mere governmental employee. All others are governed under the laws against

trespass, privacy violation, and theft. Entry into the domicile of a person, without

their permission, is an unlawful entry unless otherwise justified by written law

whether it by Legislated Code or Judicial Decision.

The reasonableness of an entry is measured against the standards of Probable Cause

and the Reasonable and Prudent standard that is cited in many of our Laws today .

All standards of proof in the Law are measured against the Reasonable and Prudent

standard. A description of this standard is: That which a reasonable and prudent

person believes is to be proven. For example: The level of proof required to prove

a person guilty in a Court of Law is the "Beyond a Reasonable Doubt". The

reasonable here refers to that which a reasonable and prudent person would believe

is doubtful. In "Probable Cause" the reasonable and prudent would have to believe

that the fact tested is probable. This reasonable and prudent person is to be a

person that is picked out of Society without special expertise or knowledge about

the fact(s) being tested. The standard of Probable Cause is the Standard given in the

Fourth Amendment and added is that it be supported upon a sworn Oath and

Affirmation. So no Warrant of Search and/or Seizure can be issued by a magistrate

without a sworn affidavit that contains information that would lead a reasonable

and prudent person to believe that the place and items to be searched and seized are

probably in the place given and their seizure is reasonable. But there are exceptions

to the requirement of the Warrant necessitated in the Fourth Amendment. These

exceptions are called "exigent circumstances". These are circumstances in which a

reasonable and prudent person would say that the situation and facts surrounding it

warrants action of the Government in a time span that does not allow for a Warrant

to be issued. Under exigent circumstances a person acting under the "color of law"

may Search and Seize a person and/or their property without a Warrant. These

searches and seizures have their limitations and these limitations are usually defined

and redefined by Judicial Review and Decision.

Exigent Circumstances and their Limitations

Exigent circumstances are the times when a Reasonable and Prudent person

considers the situation to be of a nature when the Rights of the individual are

outweighed by the consequences of inaction of the Government. These

circumstances are including: Life saving and rescue, evidence will be destroyed,

evidence will be concealed, prevent the escalation of the situation, to retrieve any

evidence in plain view, or to perform a duty required by Law Administratively.

Life safety and rescue are the reasonable and prudent person's expectation of

emergency response personnel. When the official reasonably believes the safety of

themselves or another is in danger, the entry to stop the threat is justified. This can

include chasing a person into their own home to restrain them before they can

retrieve a weapon that the reasonable person believes they intend to obtain. An

emergency response person can enter to obtain or protect evidence of a crime if it is

plain view, could be moved prior to the issuance of a warrant, or the destruction of

the evidence is probable. The Administrative duty is like the duty for the Fire

Department to determine the Cause and Origin of a fire incident according to UCA

53-7-210. If the Fire Scene is vacated by fire personnel prior to this duty's

satisfaction, the investigator needs to have the an Administrative Warrant issued to

authorize re-entry as reasonable. A Warrant less search or seizure is always

reviewed in a Court of Law in the Pre-trial hearing. If the action taken is deemed

to be outside the reasonable and prudent standard, the search is invalid, and all of

the evidence that results from it are suppressed. ⁽³⁾In such a review, an Officer acting

upon a tip from an informant entered a domicile without permission or a warrant,

forced entry into the suspected drug dealer's bedroom, and tried to retrieve drugs

from the suspect's mouth as he was trying to swallow the evidence. He took the

suspect to the hospital and had his stomach lavaged to retrieve to bags of a

controlled substance. The Court reversed a conviction on this search and seizure

because the Officer's actions were grossly intrusive and shocked the conscience of

the Court; Even though exigent circumstances existed because the suspect was

destroying evidence. If the actions of the Official seem to be grossly unreasonable,

the Official can be liable for a ⁽⁴⁾Civil Rights Violation, whether damages to the

violated occur or not. ⁽⁵⁾The Law also adds that the party that prevails will have their

legal costs paid for by the defeated.

Summary

The Rights outlined in the Bill of Rights are centered around the idea that God gave

them and not the government. This means that only the giver of the Rights can take

them away. The Biblical rules that gave these Rights also gave the authority of the

governing authorities to punish the wrongdoer if the facts were established with

greater than a minimum of two witnesses. If the Government respects these Rights

as if they will account to a higher Authority, the Rights can protect the people from

abuse. Exigent circumstances are the situations that a reasonable and prudent

person consider an "emergency" and require action that subverts the Rights of the

individual for the sake of safety or Justice. Exigent circumstances are always

reviewed to see how emergent they were, what the consequences for non-action

would have been, and if the Official use the least intrusive means to accomplish the

objective of the search and/or seizure. The balance between the exigent

circumstances and their limits are always being weighed. The situation is always

being examined to see if a warrant could have been obtained and the Officer's

attempts to get one. If the Officer has the opportunity to get a warrant, he has the

obligation to get it. Consent to search and/or seize from the person having control

or an honest ⁽⁶⁾apparent authority to give consent is viewed as good as a warrant

provided the consent was free and voluntary. This system was designed to protect

the innocent from wrongful intrusion and unfortunately also protects some of the

guilty. The definitions and applications of our Rights will be forever debated,

reviewed, discussed and changed. Hopefully, we will never lose site of why they

are their and should remain. Warrant less entry into the property of another should

never be considered lightly, but it must be done in true exigent circumstances to

keep us safe and bring Justice to those who are deserving of it.

1. 5 Coke's Rep. 91a, 77 Eng. Rep. 194 (K.B. 1604).

2. 19 Howell's State Trials 1029, 95 Eng. 807 (1705).

3. Rochin v. California 342 U.S. 165 (1952)

4. U.S.C. 42 Section 1983

5. U.S.C. 42 Section 1988

6. Illinois v. Rodriguez 497 U.S. 177 (1990)