Gilmer & Giglio


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The Fourth Amendment's Protections for Criminal Defendants

The Fourth Amendment to the United States Constitution is found in the Bill of Rights and, along with several others we’ll talk about over the next few weeks, provides protections for individuals against intrusions by the government. The Fourth Amendment provides:

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.

This requires that a law enforcement agency (or other government agency) that wants to search a person’s home or property must show probable cause that evidence of a crime exists within that location. Further, it says that the government may not seize a person’s property without also showing probable cause to believe that it is evidence of or proceeds from a crime. Any warrant, in order to be constitutionally valid, must also describe the place to be searched and the description must be clear, and it must describe the property, or the person in the case of an arrest warrant, to be taken or arrested.

This requirement of probable cause, along with the prohibition against unreasonable searches and seizures means that the government must show, to the satisfaction of a reviewing judge, that they have more than just a suspicion that evidence of a crime is going to be located at the location. A person also may not be arrested except upon a showing of probable cause.

The effect of this Amendment on criminal prosecutions in Louisiana can be seen in many procedures our courts follow:

In Louisiana, if a person is arrested without a warrant, a judge must review the arrest information within 72 hours (exclusive of legal holidays) to determine whether there was probable cause to effectuate that arrest. If there was, then the case may proceed. If not, then the arrestee must be released.

Defendants who believe that they or their property have been searched unlawfully or absent probable cause may file a motion to suppress the results of the search and the Supreme Court has held that if those searches were conducted without probable cause, the evidence cannot be used against the Defendant.

Check back with us next week for our favorite legal and law-related movies in celebration of Louisiana Film Prize Weekend!

Constitution Day!

Constitution Day is tomorrow, September 17. It celebrates the day in 1787 that the Constitution of the United States was ratified.

For the next month or so, we will be taking one day each week to commemorate an amendment to the US Constitution that has an impact on our daily practice of law. On September 23, we will discuss the Fourth Amendment’s prohibition against unreasonable searches and seizures and requirements that warrants issue only upon probable cause and with specific descriptions of the property to be searched and seized or the person to be arrested. (Then we’ll be taking a break here in the middle to celebrate the Louisiana Film Prize and Prize Fest Weekend on October 16 with a list of our favorite movies about the law. Viva!). On October 7 we’ll resume our regularly scheduled programming to discuss the Fifth Amendment’s requirement that a case be instituted by grand jury, its protections against double jeopardy and self-incrimination, and due process requirements. On October 14, we’ll discuss the trial rights established by the Sixth Amendment, including: the right to a speedy trial, a public trial, an impartial jury, to confront one’s accusers, and to an attorney. Finally, on October 21, we’ll discuss the Eighth Amendment’s prohibitions against excessive bail, excessive fines, and cruel and unusual punishment.

As a preview to all of that, we’d like to remind everyone of the preamble to the Constitution, the language that starts off the document that establishes and defines the powers and limitations of our government:

We the People of the United States of America, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Join us in the coming weeks as we look to those parts of the Bill of Rights that we celebrate every day in our criminal defense practice.