Fourth Amendment Lesson Plan for High School Kids Lucky Enough to Be Studying the Fourth Amendment

By Don Murray, Esq.

Introduction

When I was in high school, I remember reviewing the United States Constitution in various social studies classes.  Going through the Bill of Rights, the Fourth Amendment, famously to my memory "protected us against illegal searches and seizures".  This is how I would remember it, anyway.  Knowing what I now know, that generalization really taught me nothing about what the Fourth Amendment really was about, and taught me less than nothing about how it might operate in the real world. 

Of course the Fourth Amendment protects us from nothing.  It is a bunch of words on a piece of paper.  These words, in order to protect us, must mean something concrete, and that concrete meaning must be enforced against someone who tries to do something to me.  Who are these words meant to be protecting me from exactly, and under what circumstances?  And when is it decided whether the rules were broken, and by whom, and does it matter?  These are the nitty gritty questions that went unasked by me at the time, not because I might not have been interested in the answers, but because I didn't understand enough to ask the questions.

This suggested supplement for social studies teachers who are looking for new ways to inspire interest in the Bill of Rights among their students is meant to help to ask and answer these important questions in a way that I think would have been engaging.  Rather than simply dictating the answers to these questions, I present fact patterns followed by questions to consider that will help the students, perhaps led by the teacher, perhaps not, find their way to the answers.  In the end, through this process of analysis of particular fact patterns, similar to typical first year law school classes, students will arrive at an understanding of the material on their own.

I have broken this down, using the Fourth Amendment as an example, into five separate and important parts.  Each part asks a crucial question about the Fourth Amendment and each part seeks to illustrate the answers through fact patterns and questions that expose the topic in the context of the real world of criminal court and how it all really works.  The topics to be covered are as follows:

  1. Part One - To Whom Does the Fourth Amendment Apply?
  2. Part Two - What is the Fourth Amendment Really About?
  3. Part Three - What Happens if there is a violation of the Fourth Amendment?
  4. Part Four - Who Decides if there is a violation of the Fourth Amendment, and How?
  5. Part Five - When is the decision made about whether there is a violation of the Fourth Amendment and why is that important?

Part One is on this page.  Parts Two through Five will follow on separate pages as they are prepared and completed.  Check back for updates as the Parts become available.

 

Part one - to whom does the fourth amendment apply?

 

Before considering this, students should read the Fourth Amendment to the United States Constitution.

 

Basic Fact Pattern

Jack is 21 years old, living at home and going to college.  Inside Jack's bedroom, underneath his bed, Jack keeps a metal safe for his most prized possessions.  Whenever he leaves his room for the day, he locks the bedroom door and places a sign on the door that says, "Keep out.  Unauthorized entry is prohibited."  Today, just prior to leaving for school, Jack removed the safe from under his bed, put a small bag of marijuana inside the safe, closed the safe, locked the safe, and returned the safe to its place under his bed.  Marijuana is illegal in the state where Jack lives.

JACK LEAVES FOR SCHOOL...

Jack leaves for school.  After Jack leaves for school, a grizzly bear escapes from the local zoo, which happens to be about a mile from Jack's house.  The grizzly bear finds its way to Jack's house, enters through the back patio door, which Jack left open by mistake, and begins to rummage through the house looking for food.  Eventually the bear finds its way upstairs, breaks down Jack's door with a swipe of its massive paw and begins to tear apart Jack's room.  After upending Jack's bed, the bear finds the safe and is driven mad by the strange smell coming from inside the safe.  It beats and batters the safe for so long and so hard that eventually the safe breaks open, and the bag of marijuana is exposed.  Just at this moment, local police, responding to the call about the escaped bear and strange noises coming from Jack's house, arrive at the scene with a zoo trainer who tranquilize the bear and bring it back to the zoo.  While there with the zoo trainer, the police notice the bag of marijuana on the ground in what was left of Jack's room.  When Jack returns home that evening, the police are there and ask him if this is his room, or what was left of it.  When Jack says yes, the police arrest Jack for possession of marijuana, and bring him to court, where the prosecutor charges him with criminal possession of marijuana.

You are Jack's lawyer and you are looking for some way to help Jack with this.  You remember back in high school something about the Fourth Amendment.  Do you think Jack has an argument that his rights under the Fourth Amendment were violated?

Questions to consider...

Who (or what) actually located the marijuana?  Should it matter?  Why should it matter?

Who is the Fourth Amendment written to protect us against?

Is the Fourth Amendment written to protect us against the random actions of escaped grizzly bears?  Did the framers of the Constitution write the Fourth Amendment because they were worried about the embarrassing things that zoo animals might uncover if they got into our bedrooms?

CHANGE THE FACTS A LITTLE...JACK's MOM COMES HOME INSTEAD

What if there were no grizzly bear?  What if, after Jack left for school, Jack's mom came back home from work, went upstairs, took her favorite ax, and cut her way into Jack's room.  After getting into Jack's room, Jack's mom then tears Jack's room apart looking for whatever she can find.  She turns over the mattress, sees the safe, and says, "AHA!".  She grabs the safe, takes her crowbar and manages to get inside the safe where she finds Jack's bag of marijuana.  She promptly calls the police, who come right over.  When Jack arrives home, the police arrest Jack and take him to Court on criminal possession of marijuana charges.

MORE QUESTIONS

Does this change the argument at all?  Would there be a 4th Amendment argument here because it was a person who found the marijuana instead of an animal?  After all, Jack did lock the door, which his mother ignored.  Jack did post a sign against unauthorized entry, which his mother ignored.  The safe was under Jack's bed, a most private place where most people would expect a certain amount of privacy.  And the marijuana was in a safe - further showing that Jack intended the contents of the safe to be private.  So with all of that, surely then Jack would have an argument that he has a 4th Amendment claim about how the marijuana was found, right?

Once again, however, consider what the framers were doing when they created the 4th Amendment.  Who were they worried about?  Were they worried about Jack's mom?  Or anyone's mother?  Was the 4th Amendment meant to protect us from our mothers any more than the 4th Amendment was meant to protect us against the actions of marauding Grizzly bears?

CHANGE THE FACTS AGAIN - THE FBI ARRIVE

What if there were no grizzly bear, and Jack's mother stayed  at work.  But this time, after Jack left for school, two FBI agents walked by Jack's house.  As they walked by the house, FBI Agent Smith says to FBI Agent Jones, "Did you see that kid who just left this house?  He was wearing a green jacket.  I read on the internet that kids who wear green jackets are sometimes criminals.  I'll bet if we look around this house, we might find something illegal."  Agent Smith's partner, Agent Jones, agrees.  Agent Smith and Jones then proceed to break down the door to Jack's house, and they spend the rest of the day ripping the house apart looking for stuff.  Eventually, at about the time that Jack returns to see his house in a shambles, Agent Smith finds the safe and uses his gun to get it open, recovering the bag of marijuana.  Jack is honest and tells the FBI that the room with the safe in it was his room, and the the agents arrest Jack for criminal possession of marijuana (federal offense version).

MORE QUESTIONS

Do you think that now Jack would have an argument that Agents Jones and Smith violated his 4th Amendment rights?  If so, what is the difference between Agents Jones and Smith and Jack's mother or the Grizzly bear?  What is it about Agent Smith and Jones that is significant?  

Who do Agent Smith and Jones work for?  

What is the FBI?

Why might that be important?

 
donmurraynyc.gif

This is Don Murray.  I don't pretend to be a teacher, although it is something that has always interested me.  Now that I actually know a thing or two about something, I rather like the idea of helping to teach people about it. 

I have been explaining principles of criminal law to non lawyers for 27 years, so I feel like it is something I can do. 

Here is my idea for a way to present lessons about the Fourth Amendment in a way that would have appealed to me, anyway, when I was in high school. 

I would be happy to speak to high school classes about topics in criminal law, and have done so several times over the years, although not as much as I might like. 

If you are a teacher and think you might like a guest speaker criminal defense lawyer to give some real world insight into how the lofty principles of the Constitution play out in the "real world" your kids are no doubt always talking about, feel free to contact me.  I would be happy to help.


 

THE KEY IDEA: The Fourth Amendment was written to protect us against the GOVERNMENT!

Grizzly bears (usually) do not work for the Government.  Your mom doesn't work for the Government (in her capacity as your mother in your house).  Therefore, Grizzly bears and your mom can't violate the Fourth Amendment.

The very first question that you have to ask, before you can even begin to talk about a violation of the 4th Amendment, is WHO DID THE SEARCHING OR SEIZING THAT YOU ARE COMPLAINING ABOUT?  If the answer isn't a Government agent (usually a law enforcement agent, like the FBI) then you don't have a Fourth Amendment issue.

This principle is called STATE ACTION, where "state" is meant like "government", so it includes federal government and state government.  There must be STATE ACTION before there is a FOURTH AMENDMENT claim.  The fourth amendment doesn't protect you from grizzly bears or your mom.  The Fourth Amendment protects you from the actions of government agents.

Therefore, as a lawyer examining a real live case, if you think there might be a Fourth Amendment issue, you have to be sure that the evidence that you think was recovered illegally was recovered because of the actions of government agents.  Otherwise, you don't even get started. 

(Food for thought - Suppose Jack is detained in a store by a store security guard for shoplifting and the store security guard recovers the allegedly stolen property by rummaging through Jack's pockets.  When the police arrive, the security guard hands the police the property he recovered.  Do you think that there could be a Fourth Amendment issue here?  Where is the STATE ACTION?  What if the store security guard is paid by the store only and is an employee of the store?  How are the security guard's actions STATE ACTIONS?  Would it make any difference if the store security held a security guard license?  Would that make the security guard a STATE ACTOR?)  This is a real world issue that comes up and has been the subject of quite a bit of debate among lawyers and judges.

 

And this will REALLY blow your mind

It wasn't a coincidence that I used FBI agents in the example above where we concluded that there was a Fourth Amendment issue presented.  FBI stands for "Federal" Bureau of Investigation.  A super precise understanding of the Fourth Amendment would be that it protects us from FEDERAL Government action, not from STATE Government action.   The framers of the Constitution were worried about the new FEDERAL Government, and were seeking to make sure that this new FEDERAL Government did not take on the power of a King.  They were not only not worried about STATE Governments so much, they built the Constitution to protect State's rights in many respects.  Therefore, as originally written, the Fourth Amendment was only meant to apply to actions of the FEDERAL Government.  At the time, there was no FBI and in fact, the Framers of the Constitution would likely have been horrified at the notion of a Federal police force.

Therefore, a super technical and precise view of the Fourth Amendment (worthy of a law student) would be that strictly speaking, if we replaced Agents Smith and Jones of the FBI with Agents Smith and Jones of the local state police, the Fourth Amendment would NOT APPLY to them.

Wait, what?  You mean state police can just rummage around houses without violating the great Fourth Amendment?

The current answer to this question is NO.  The reason it is currently NO, is that the Fourteenth Amendment has a teeny tiny "due process" clause that says that the states cannot deprive citizens of "due process".  This teeny tiny due process clause has been interpreted to INCORPORATE many important Constitutional principles, including the FOURTH AMENDMENT.  In other words, our Supreme Court has decided that Fourteenth Amendment "due process" includes everything that is meant by the Fourth Amendment.  Therefore, currently, the Fourth Amendment DOES apply to state government action, but super-hyper-technically, the Fourth Amendment applies to state government action only "through" the Fourteenth Amendment.  

(In case you are thinking, but wait a minute, the grizzly bear found the marijuana, but the police saw it there and used it.  Why should they be allowed to use that since it was unfair that the grizzly bear ripped Jack's bedroom apart?  Nice try, but the law doesn't require the police to avert their gaze from illegal things that they observe in the normal course of their duties.  The police had every right to be there trying to solve the problem of the escaped grizzly bear.  As long as the police had every right to be where they were, they are perfectly allowed to investigate evidence of crimes that they observe.  This is the job of a police officer.  So in this case it would be Jack's bad luck.  When you keep illegal things in secret places, one of the risks that you take on is that everything will not go as you plan and that the secret places will become not secret places.  Now if you believe that the FBI trained a grizzly bear and directed that it go into Jack's house, and you have evidence to support this belief, that could be a different story...)