Module 11: The Fourth Amendment

The Fourth Amendment protects us from unreasonable search and seizures of our person, our house, our papers, and our effects. In many cases, this amendment governs our interactions with the police. Before the government—including police officers—can search your home or seize your property, it needs a good reason. This is the big idea behind the Fourth Amendment’s warrant requirement. The government needs particularized suspicion—a reason that’s specific to each suspect—before it can get a warrant. Broadly speaking, our Constitution says that the police should only be able to invade a person’s rights to privacy, property, or liberty if they have a specific reason to think that the suspect has done something wrong.

Learning Objectives

1. Describe the origins of the Fourth Amendment and the Founding generation’s vision for this provision.
2. Discuss how the Supreme Court has interpreted the Fourth Amendment over time.
3. Describe how the Fourth Amendment contributes to debates about individual privacy.
4. Analyze how the Supreme Court has applied the Fourth Amendment to new technologies.
5. Identify current areas of debate over the Fourth Amendment.

11.1 Activity: Can They Do That?

• Student Instructions
• Teacher Notes

Purpose
Before the government can search your home or seize your property, it needs a good reason. This is the big idea behind the Fourth Amendment’s warrant requirement. In this activity, you will learn about the Fourth Amendment, its keywords, and its defining concepts.

Process
Read the text of the Fourth Amendment and answer the following questions as a group:

• What is a search?
• What is a seizure?
• How do you know if a search or seizure is “reasonable” or “unreasonable”?
• What is a warrant?
• What counts as “papers”?
• What are “effects”?

Launch
Ask the class to brainstorm their definition of the word “privacy.”

• What is privacy?
• Where do we have privacy?
• Why is privacy important?

Have the entire class read the text of the Fourth Amendment.

Ask the entire class to define the following terms and ideas found in the Fourth Amendment. Take notes because you will complete the key terms in a future activity.

• What is a search?
• What is a seizure?
• How do you know if a search or seizure is “reasonable” or “unreasonable”?
• What is a warrant?
• What counts as “papers”?
• What are “effects”?

Activity Synthesis
As a group, examine the meaning of the word “privacy.” Ask students the following questions and discuss.

• Is the word “privacy” in the Fourth Amendment?
• Does the Fourth Amendment protect privacy? If so, how?

Activity Extension (optional)
Now that students have begun to be exposed to the text of the Fourth Amendment and some of its key concepts, ask them to write a short journal entry with these prompts.

• Where in your life do you come into contact with a government official or agent?
• Have you personally experienced an invasion of your privacy by someone in the government?
• What about in other parts of your life?
• What about on social media?

11.2 Video Activity: The Fourth Amendment History

• Student Instructions
• Teacher Notes

Purpose
In this activity, you will learn more about the stories and history that led the Founding generation to add the Fourth Amendment to the Constitution. From there, you will explore how the Supreme Court has interpreted the Fourth Amendment over time.

Process
Watch the following video about the history of the Fourth Amendment.

Identify any areas that are unclear to you or where you would like further explanation. Be prepared to discuss your answers in a group and to ask your teacher any remaining questions.

Launch
Give students time to watch the video and answer the questions.

Activity Synthesis
Have students share their responses in small groups and then discuss as a class.

Activity Extension (optional)
Have students write a 3-5 sentence summarizing their understanding of the Fourth Amendment protections at this point in the module.

11.2 Video Reflection: The Fourth Amendment

11.3 Activity: A Reasonable Expectation of Privacy

• Student Instructions
• Teacher Notes

Purpose
To qualify as a “search” for Fourth Amendment purposes, a government official (often a police officer) must violate someone’s constitutionally protected “reasonable expectation of privacy.” In this activity, you will explore the concept of privacy in different settings.

Process
Evaluate the short privacy scenarios in the Activity Guide: A Reasonable Expectation of Privacy worksheet.

Be prepared to answer questions related to your choices.

Launch
Ask the following questions and then discuss them briefly before starting the worksheet.

• What is privacy?
• How do expectations of privacy shape Fourth Amendment cases?

Activity Synthesis
When all students have completed the evaluation, provide directions for the Activity Guide: A Reasonable Expectation of Privacy.

• Create a line in the classroom (or other instructional space)—either along a wall, chalkboard, on the floor, or digitally.
• Place a sign or card that reads “High” at one end of the line, one that reads “Medium” at the midpoint, and one that reads “Low” at the opposite end (signs can also include the corresponding statements below).
• Read out loud the scenarios (you may choose some or all of the scenarios). Students should move to a corresponding spot along the line according to how they think it ranks on a spectrum of “reasonable expectation of privacy.”
• Ask individual students why they chose to stand where they did.
• You can spend five minutes on this activity, or an entire class period.
• The amount of discussion and the depth of follow-up questions is up to your discretion.

Activity Extension (optional)
Some suggested follow-up questions for this activity include:

1. Why did you choose to stand in that place?
2. What is the rationale for why the police would want to search in that situation?
3. What is the rationale for why the public would want the police to search in that situation?
4. Why would we expect privacy for ourselves and others in that particular situation?
5. What facts would be necessary to change your answer from high to low? From low to high?
6. What generalizations can you make about where we have a reasonable expectation of privacy, and where we do not?
7. Do you agree with the Supreme Court’s use of the reasonable expectation of privacy as part of its analysis in Fourth Amendment cases? What are the strengths of this approach? What are its weaknesses?
8. How should courts reconcile differing views about expectations of privacy?

11.3 Activity Guide: A Reasonable Expectation of Privacy

11.4 Activity: Fourth Amendment Interactive Constitution Common Interpretation Essay

• Student Instructions
• Teacher Notes

Purpose
In this activity, you will get a better understanding of key terms of the Fourth Amendment and read how two top scholars explain the Fourth Amendment’s text, history, and case law.

Process
Review the words below in the Activity Guide: Key Terms - Fourth Amendment worksheet about the Fourth Amendment’s key terms.

• Search
• Seizure
• Privacy
• Reasonable
• Warrant
• Probable cause
• Exclusionary rule
• Third-party doctrine

Then, read the Fourth Amendment Common Interpretation Essay by Barry Friedman and Orin Kerr.

Fourth Amendment: Search and Seizure

• Text of the Constitution
• Common Interpretation

Finally, paraphrase the key terms in the Activity Guide: Key Terms - Fourth Amendment worksheet in your own words or give examples from the essay. Hint: If you have any trouble, check out the video again for extra information on each term and note the timestamp for future help.

Launch
Before beginning the activity, students list words that come to mind when they think of the Fourth Amendment. Whenever relevant (or helpful), they can connect the list of words in this activity to concepts of digital privacy.

• Search
• Seizure
• Privacy
• Reasonable
• Warrant
• Probable cause
• Exclusionary Rule
• Third-Party Doctrine

Activity Synthesis
Have students complete the Activity Guide: Key Terms worksheet and list where in the video these terms can be found. Next, have students read the Fourth Amendment Common Interpretation Essay by Barry Friedman and Orin Kerr and then paraphrase the key terms. Remind students to reference the video for help if needed and note the timestamp in the video where they can find the terms for future activities.

11.4 Activity Guide: Key Terms - Fourth Amendment

11.5 Activity: Fourth Amendment Supreme Court Cases

• Student Instructions
• Teacher Notes

Purpose
The Supreme Court usually considers Fourth Amendment cases starting with a basic question, “Was there a search or a seizure?” If so, the Court must ask whether the search or seizure was reasonable. If not, then the search or seizure violates the Fourth Amendment. In this activity, you will explore landmark decisions by the Supreme Court interpreting the Fourth Amendment.

Process
Read the Supreme Court case excerpt that has been assigned to you and answer the following questions in the Case Brief: Fourth Amendment Supreme Court Cases worksheet:

• Who are the people associated with the case?
• What is the issue at hand?
• What was the outcome in the case?
• What reasons did the Court give for its decision?
• How did this change the way the Court interprets the Fourth Amendment?

Review your answers as a group and make sure each group member can summarize the answers for their classmates.

Launch
Divide the class into groups and assign a case to each group.

• Olmstead v. United States (1928)
• Mapp v. Ohio (1961)
• Katz v. United States (1967)
• Terry v. Ohio (1968)
• Carpenter v. United States (2008)

Groups will review the Case Brief: Fourth Amendment Supreme Court Cases worksheet and case excerpts from the Founders’ Library and complete the worksheet.

Have students share and jigsaw cases together to develop their understanding of the Fourth Amendment case law. A jigsaw technique is a method of organizing classroom activity that makes students dependent on each other to succeed. It breaks classes into groups that each assemble a piece of an assignment and synthesize their work when finished. Review how the cases are connected and what new ideas come out with each case. Assign a student to list these overarching ideas on the board or type up and project.

Activity Synthesis
Once the case jigsaw is complete, have students engage in a constitutional conversation on the following question.

• Can the government track you 24 hours a day, seven days a week, for an entire month, using your cell phone data and location information without a warrant?

Questions to facilitate discussion:

• Do you sign over all of your information to cell phone companies when you buy a plan and agree to the terms of agreement?
• When your apps track you, can the cell phone companies provide this data to the police without a warrant?