Since the late 19th Century, many courts and commentators have vigorously debated the interpretation and application of the 4th Amendment. One unresolved question simply asks: what is the relationship between its two clauses? The 4th Amendment begins by making a sweeping and defiant assertion about the private rights of individual persons, and it ends in precise and legalistic language describing the conditions under which a warrant may be obtained. The first clause declares 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.” The second clause specifies that “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 second clause is fairly clear and uncontroversial. But there have been many heated debates over the meaning of the first clause and its relationship to the second clause.
Some people have argued that the second clause (outlining the conditions under which a warrant must be obtained) of the amendment was simply meant to provide guidance for determining whether or not searches and seizures are deemed “unreasonable” under the first clause. But the story is more complicated than that. There have always been situations in which no warrant was required in order to validate a search or seizure. But which situations ought to qualify for an exception to the warrant requirement?
Other significant disputes have arisen over the years. For example, when an official gives an oath or affirmation to obtain a warrant, what should be sufficient to establish “probable cause”? And do new surveillance technologies fall under the restrictions of the 4th Amendment?
While all of these issues have caused controversy and confusion, the question that has sparked the most heated debate over the 4th Amendment has been, and continues to be: What should be done with incriminating evidence if it was obtained through an unreasonable search?