86 PART oNE • THE AMERiCAN sYsTEM
The Fourth Amendment protects against unreasonable searches and seizures and provides
that a judge may issue a search warrant to a police officer only on probable cause (a dem-
onstration of facts that permit a reasonable belief that a crime has been committed). The
courts must determine what constitutes an “unreasonable” search and seizure.
The reasoning behind the exclusionary rule is that it forces police officers to gather
evidence properly, in which case their due diligence will be rewarded by a conviction.
Nevertheless, the exclusionary rule has always had critics who argue that it permits guilty
persons to be freed because of innocent procedural errors by the police.
This rule was first extended to state court proceedings in a 1961 United States
Supreme Court decision, Mapp v. Ohio.^49 In this case, the Court overturned the convic-
tion of Dollree Mapp for the possession of obscene materials. Police found pornographic
books in her apartment after searching it without a search warrant and despite her refusal
to let them in. Under the Fourth Amendment, search warrants must describe the persons
or things to be seized. However, officers are entitled to seize items not mentioned in the
search warrant if the materials are in “plain view” and reasonably appear to be contra-
band or evidence of a crime.^50
During the past several decades, the Supreme Court has diminished the scope of the
exclusionary rule by creating exceptions to its applicability. For example, in 1984 the Court
held that illegally obtained evidence could be admitted at trial if law enforcement person-
nel could prove that they would have obtained the evidence legally anyway.^51 The Court
has also created a “good faith” exception to the exclusionary rule. In 2009, for example,
the Court found that the good faith exception applies when an officer makes an arrest
based on an outstanding warrant in another jurisdiction, even if the warrant in question
was based on a clerical error.^52Civil Liberties versus security issues
As former Supreme Court justice Thurgood Marshall once said, “Grave threats to lib-
erty often come in times of urgency, when constitutional rights seem too extravagant
to endure.” Not surprisingly, antiterrorist legislation since the attacks on September 11,
2001, has eroded certain basic rights, in particular the Fourth Amendment protections
against unreasonable searches and seizures.The usA Patriot Act. The most significant piece of antiterrorism legislation, the USA
Patriot Act, was passed in 2001 and renewed in 2006. Many in government believed that
a lack of cooperation among government agencies was a major reason for the failure to
anticipate the 9/11 attacks. One goal of the Patriot Act was to lift such barriers to coop-
eration. Under the Patriot Act, law enforcement officials can also secretly search a sus-
pect’s home and monitor a suspect’s Internet activities, phone conversations, and financial
records. The government can even open a suspect’s mail. While many believe that the
Patriot Act is a necessary safety measure to prevent future terrorist attacks, others argue
that it endangers civil liberties.“Roving” Wiretaps. One civil liberties issue involves “roving” wiretaps. Previously,
only specific telephone numbers, cell phone numbers, or computers could be tapped.49. 367 U.S. 643 (1961).
- Texas v. Brown, 460 U.S. 730 (1983); and Horton v. California, 496 U.S. 128 (1990).
- Nix v. Williams, 467 U.S. 431 (1984).
- Herring v. United States, 555 U.S. 135 (2009).
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