Watertown – Fourth Amendment Exceptions


Joshua Mostyn practices law in Northwest Arkansas and is a past recipient of the TC & Rosemary Carlson Memorial Award for Constitutional Law studies at the University of Arkansas School of Law.

Joshua Mostyn practices law in Northwest Arkansas and is a past recipient of the TC & Rosemary Carlson Memorial Award for Constitutional Law studies at the University of Arkansas School of Law.

Writing for the United States Supreme Court in 1971 Justice Stewart quoted himself: “[T]he most basic constitutional rule in this area is that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well delineated exceptions. The exceptions are ‘jealously and carefully drawn,’ and there must be ‘a showing by those who seek exemption that the exigencies of the situation made that course imperative. ‘(T)he burden is on those seeking the exemption to show the need for it. In times of unrest” … “this basic law and the values that it represents may appear unrealistic or ‘extravagant’ to some. But the values were those of the authors of our fundamental constitutional concepts. In times not altogether unlike our own they won—by legal and constitutional means in England, and by revolution on this continent—a right of personal security against arbitrary intrusions by official power. If times have changed, reducing everyman’s scope to do as he pleases in an urban and industrial world, the changes have made the values served by the Fourth Amendment more, not less, important.” Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971)(quoting his earlier opinion in Katz V. United States, 389 U.S. 347 (1967)).


On April 19, 2013 the city of Watertown, Massachusetts was “locked down” by law enforcement agencies searching for the Boston Marathon Bombing terror suspect Dzhokhar Tsarnaev.  Citizens of Watertown were asked to stay inside their homes and to allow only properly identified law enforcement officers to enter. Since then, a video has emerged showing police raiding houses that day, forcing citizens outside of their homes with arms raised, while government agents entered and searched the residences for Tsarnaev.

To the dismay of many Americans, these police actions seem unusual and even unconstitutional. But are they really?

The Fourth Amendment to the United States Constitution only asserts 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, 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.” No Warrants being issued in the Boston Bombing case, the operable word to analyze is “unreasonable.”

The High Court holds that the Fourth Amendment protects people (not places) from warrantless searches where 1) a person has an expectation of privacy, and 2) that expectation is one which society believes is reasonable. Katz at 361. The citizens of Watertown clearly have an expectation of privacy in their homes, and the rest of the country agrees that expectation is reasonable. But just as Justice Stewart expressed in Coolidge, certain exceptions to the Warrant requirement of the Fourth Amendment do exist. Warrantless searches are justified when–in special circumstances–they are deemed reasonable. The Fourth Amendment, after all, doesn’t give citizens assurances against “reasonable” searches. Like other protections afforded in the Constitution, the Fourth’s are not absolute.

There are several exceptions to the Warrant requirement. For example, the government can search any vehicle entering the country. And there is no need to obtain a warrant if consent has been granted to search a person’s own property or to search property that has been abandoned. There are also administrative exceptions and dispensations for those on probation and parole. Below are some more common exceptions:

Searches Incident to Arrest/Custodial Searches
In a post-arrest context, an officer may conduct a thorough search of the person and the immediate area, United States v. Robinson, 414 U.S. 218 (1973), including his car, Arizona v. Gant, 556 U.S. 332 (2009), permitting officers to look for weapons within the reach of the arrestee and to prevent escape or destruction of evidence.

Protective Sweep
Officers reasonably believing that they may be in danger can conduct a protective sweep in the areas immediately adjoining a place of arrest. Maryland v. Buie, 494 U.S. 325 (1990). For instance, if officers believe there to be an accomplice hiding in the next room waiting for an opportunity to attack, they may search that room in any place the accomplice may be.

Inventory Searches/Automobile Searches
Police may search an impounded vehicle to catalog its contents…to protect the owner’s property, of course! Florida v. Wells, 495 U.S. 1 (1990). And during a stop predicated upon probable cause where the officer suspects the transportation of contraband, he may search the vehicle without obtaining a warrant. Carroll v. United States, 267 U.S. 132 (1925).

Stop & Frisk
This exception has been heavily scrutinized in recent years, but dates to the late 1960’s. Generally, with an articulable suspicion, officers may pat down a suspect without a search warrant in order to protect themselves and bystanders from immediate threats posed by concealed weapons. Terry v. Ohio, 392 U.S. 1 (1968).

Open fields
Justice Oliver Wendell Holmes, Jr., rationalized for the Court in a famous 1924 case that land outside the home wasn’t protected from search, as it does not meet the definition of “persons, houses, papers, or effects,” those articles enumerated as specially protected in the Fourth Amendment. Hester v. United States, 265 U.S. 57 (1924). Later courts would uphold this decision, but refine the holding not to include the curtilage, or land immediately surrounding the home in which a person’s intimate activities are associated. Oliver v. United States, 466 U.S. 170, 180 (1984).

Plain View
The Plain View Doctrine is one of the prevailing exceptions to the Fourth Amendment. If an agent is lawfully present and inadvertently views contraband, a warrant is not needed to seize the contraband. Coolidge at 2026. This exception has far reaching implications. An officer simply returning a found pet or attempting in good faith to execute a lawful arrest warrant in a third-party’s home, could inadvertently view contraband, confiscate it and arrest the homeowner.  Evidence gathered in this way is not subject to exclusion in a criminal trial. More concerning to Watertown residents is that police may base their probable cause affidavits for new warrants upon things they saw in plain view during the raids.

But under what exception may have the government legally and constitutionally raided the Watertown homes?

Exigent Circumstances
When “the need for effective law enforcement” (such as chasing a suspect through a home in “hot pursuit”) outweighs the interests being protected (such as privacy), an exigent circumstance exists, dispensing with the governmental need to obtain a search warrant. Johnson v. United States, 333 U.S. 10, 14-15 (1948). The interest in the sanctity of the home typically outweighs the governmental interests, Payton v. New York, 445 U.S. 573, 603 (1980); however, when the exigencies of a situation make it imperative for law enforcement to act quickly, courts have waived warrant requirements. McDonald v. United States, 335 U.S. 451 (1948).

Courts allow warrantless entry into homes quite often. When police have good reason to believe that evidence will be destroyed (such as intentionally by fire), no warrant is required to enter and protect it. Coolidge. A “community caretaker” exception exists to allow  responders to enter and aid victims or to fight and investigate the cause of fires. Brigham City v. Stuart, 547 U.S. 398 (1943). Courts have also waived the warrant requirement when it is believed (due to the heinousness of the underlying crime necessitating the search) that life is at risk and that the threat is imminent. Payton.

But no matter what, the government may not create its own exigencies. Mincey v. Arizona, 437 U.S. 385 (1978). The legality of the actions by authorities in Watertown, Massachusetts hinges upon a determination of what information was available to government agents at the time of the lock down and its reliability. Law enforcement certainly had a reason to believe that many lives were in danger from the future detonation of explosive devices. If law enforcement also had a reason to believe where Tsarnaev was hiding, although the area encompassed a four-block radius, the burden of obtaining individualized search warrants and the potential aftermath from a second or third attack may have significantly outweighed the obligation to preserve the privacy interests of this limited number of citizens.

Current Fourth Amendment jurisprudence affirms the constitutionality of the searches. But the justification presents a slippery slope nevertheless. How many blocks would it have been reasonable to lock down and search door to door? Ten? Twenty? How about a two mile radius? Or ten? What if the potential threat had been radioactive or nuclear? What precisely is “UNREASONABLE” anyway?

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