In an earlier post we introduced the subject of how the concept of due process interacts with the Oklahoma criminal justice system. In this post we will cover in more detail your due process rights are observed, starting with the protections built into the U.S. Constitution and court decisions that have interpreted that document.

The drafters of the U.S. Constitution, as well as legislators in the newly independent states, were well aware of how a powerful central government was capable of abusing that power to persecute its perceived enemies under the guise of the criminal justice system. The first 10 amendments to the Constitution, also known as the Bill of Rights, were written to help ensure that many of the repressive tactics that contributed to the American Revolution would not be permitted to the federal government.

Although not all of the amendments that comprise the Bill of Rights are related to procedural due process, the 4th, 5th, 6th and 8th Amendments are directly connected to it. We will briefly cover each of these amendments going forward, starting with the 4th Amendment.

Protection against unreasonable searches and seizures

This amendment safeguards against unreasonable searches and seizures of persons and property, and except for situations that courts have carved out as exceptions (see below) requires the use of search and arrest warrants based on probable cause. Evidence gathered by the police in violation of the 4th Amendment cannot be used against you; courts have referred to this exclusion as the “fruit of the poisonous tree” rule.

Some characteristics of the 4th Amendment include:

• As with due process rights overall, it protects against government action and not actions of private individuals.
• It is not a prohibition on all searches and seizures. To qualify for its protection, you must have a reasonable expectation of privacy in the place or the item that the police seek to seize. As a general rule, you have a reasonable expectation of privacy in your body, your personal property, your home and your office. You also have a limited expectation of privacy in your car, but as we have observed earlier in the various “automobile exceptions” there are circumstances in which police may perform a search of you vehicle without a warrant.
• What constitutes a “search or seizure” depends on the immediate circumstances. For example, if a police officer stops you on the street and starts asking you questions, that is not a search or a seizure (and conversely you are not obligated to answer any of those questions). But if the officer seeks to search your clothing or personal effects without a warrant, then he must have at least a reasonable suspicion in advance that you have been engaged in some criminal activity, or the 4th Amendment will exclude anything he may find.
• If a police officer has probable cause to believe that you have committed a crime, then he can arrest you without having to obtain an arrest warrant first. Or, if you have committed a misdemeanor crime in the officer’s presence no arrest warrant is needed. But unless the officer is in “hot pursuit” of someone who has committed a felony and is trying to flee, any arrest in a private place will ordinarily require the issuance of an arrest warrant.

This post provides only a summation of some of the more salient features and considerations of the 4th Amendment and its due process protections. As such, you should not take it as a comprehensive examination of the topic, nor as any kind of legal advice. If you are in need of legal counsel, contact the Hunsucker Legal Group.