where the case might have been brought in the first place. Thu s, the court to which the case is transferred must also have jurisdiction over the matter. Unlike a forum non conveniens motion, a transfer request may be made by either party and does not require that the action be dismissed and then reinstituted in the new court. In addition, to obtain a transfer, the requesting party needs to show a lesser degree of inconvenience than that required before a court will grant a forum non conveniens motion. For example, federal law provides that a case may be transferred from one federal forum to another “[f]or the convenience of parties and witnesses” and “ in the interest of justice” (28 U.S.C.A. § 1404(a) (West Supp. 1995)). But, since transfers are limited to courts within the same system or state, a defendant who wants to change from a federal forum to a state court, or to a court in another country, or from a state court of one state to a state court of another state, must still bring a motion to dismiss the action based on forum non conveniens. FURTHER READINGS Barron, Jerome A., and C. Thomas Dienes. 2000. First Amendment Law in a Nutshell. Eagan, MN: West. Black, Henry Campbell. 2001. Black’s Law Dictionary. Eagan, MN: West. Gunnarsson, Helen W. 2003. “Breathing New Life Into Forum Non Conveniens?” Illinois Bar Journal 91 (October). Available online at http://www.isba.org/ IBJ/oct03lj/p486.htm; website home page: http://www. isba.org (accessed July 25, 2009). FORWARDING FEE A payment of money made by one attorney who receives a client to another attorney who referred the client. The Code of PROFESSIONAL RESPONSIBILITY, which has been established by the AMERICAN BAR ASSOCIATION to regulate the professional conduct of attorneys, proscribes the payment of forward- ing fees—sometimes called referral fees—to an attorney who has merely secured the employ- ment of another attorney without rendering any services or assuming any responsibility to the client in the matter. An apportionment of reasonable fees between attorneys is proper only when the client is cognizant of, and consents to, this arrangement, and when the allocation is in proportion to the services rendered and the responsibility assumed by each attorney. The Code of Professional Responsibility has been adopted by many state bar associations. If an attorney accepts a forwarding fee without providing any services, or undertaking any responsibility, the bar association may institute disciplinary proceedings against the individual for his or her unethical behavior. FOUNDATION A permanent fund established and maintained by contributions for charitable, educational, religious, research, or other benevolent purposes. An institu- tion or association given to rendering financial aid to colleges, schools, hospitals, and charities and generally supported by gifts for such purposes. The founding or building of a college or hospital. The incorporation or endowment of a college or hospital is the foundation, and those who endow it with land or other property are the founders. Preliminary questions to a witness to establish admissibility of evidence. Laying a foundation is a prerequisite to the admission of evidence at trial. It is established by testimony that identifies the evidence sought to be admitted and connects it with the issue in question. FOUR CORNERS The document i tself; t he f ace of a written instrument. The term is ordinarily included in the phrase within the four corners of the document, which denotes that in ascertaining the legal significance and consequences of the document, the parties and the court can only examine its language and all matters encompassed within it. Extraneous information concerning the docu- ment that does not appear in it—within its four corners—cannot be evaluated. FOURTEENTH AMENDMENT The FOURTEENTH AMENDMENT to the U. S. Constitu- tion reads: Section 1. All persons born or naturalized in the United States, and subject to the JURISDIC- TION thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without DUE PROCESS OF LAW; nor deny to any person within its jurisdiction the EQUAL PROTECTION of the laws. Section 2. Representatives shall be appor- tioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice PRESIDENT OF GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FOURTEENTH AMENDMENT 509 THE UNITED STATES, Representatives in Con- gress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participa- tion in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. Section 3. No person shall be a Senator or Representative in Congress, or ELECTOR of President and VICE PRESIDENT, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legisla- ture, or as an executive or judicial officer of any State, to support the CONSTITUTION OF THE UNITED STATES , shall have engaged in INSURREC- TION or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability. Section 4. The validity of the public debt of the United States, authorized by law, includ- ing debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be ques- tioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or EMANCIPATION of any slave; but all such debts, obligations and claims shall be held illegal and void. Section 5. The Congress shall have power to enforce, by appropriate legislation, the pro- visions of this article. The Fourteenth Amendment, ratified in 1868, has generated more lawsuits than any other provision of the U.S. Constitution. Section 1 of the amendment has been the centerpiece of most of this litigation. It makes “All persons born or naturalized in the United States” citizens of the United States and citizens of the state in which they reside. This section also prohibits state governments from denying persons within their jurisdiction the privileges or immunities of U.S. citizenship, and guarantees to every such person due process and equal protection of the laws. The Supreme Court has ruled that any state law that abridges FREEDOM OF SPEECH, freedom of RE- LIGION , the right to trial by jury, the RIGHT TO COUNSEL , the right against SELF-INCRIMINATION,the right against unreasonable searches and seizures, or the right against cruel and unusual punish- ments will be invalidated under section 1 of the Fourteenth Amendment. This holding is called the INCORPORATION DOCTRINE. Sections 2 to 5 have been the subject of far fewer lawsuits. Some of these sections seem anachronistic today because they reflect the im- mediate concerns of the Union’s political leader- ship following the North’s victory over the South in the Civil War (1861–65). Section 2, for exam- ple, penalized any state that attempted to abridge the VOTING rights of its black male residents by reducing the state’s representation in Congress (no female resident of any race was afforded the CONSTITUTIONAL right to vote in the United States until 1920). Section 3 prohibited from holding state or FEDERAL office any person who engaged in “insurrection or rebellion” or otherwise gave “aid or comfort to the enemies” during the Civil War. Section 4 reaffirmed the United States’ commit- ment to pay its Civil War debt, while declaring all debts and obligations incurred by the Con- federate government “illegal and void.” Section 5 enabled, and continues to enable, Congress to pass “appropriate legislation” to enforce the provisions of the Fourteenth Amendment. The Fourteenth Amendment was drafted to alleviate several concerns harbored by many U.S. citizens prior to its RATIFICATION. The most ob- vious concern related to the status of the recently freed slaves. Five years before hostilities com- menced in the Civil War, the Supreme Court declared that people of African descent living in the United States were not “citizens” of the United States, but merely members of a “sub- ordinate and inferior class of human beings” deserving no constitutional protection what- soever ( DRED SCOTT V. SANDFORD, 60 U.S. [19 How.] 393, 15 L. Ed. 691 [1856]). The Fourteenth Amendment vitiated the Supreme Court’s hold- ing in Dred Scott by making all blacks “born or naturalized in the United States” full-fledged citizens entitled to the same constitutional rights provided for every other U.S. citizen. The racist attitudes expressed in Dred Scott also manifested themselves after the Civil War. In 1865 the southern states began enacting the BLACK CODES, which deprived African Americans of many basic rights afforded to white Amer- icans, including the right to travel, bear arms, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 510 FOURTEENTH AMENDMENT own property, make contracts, peaceably as- semble, and testify in court. The Black Codes also authorized more severe punishments for African Americans than would be imposed on white persons for committing the same criminal offense. The Fourteenth Amendment offered an antidote to these discriminatory laws by guaranteeing to members of all races “due process of law,” which requires the legal system to provide fundamentally fair trial procedures, and “equal protection of the laws,” which requires the government to treat all persons with equal concern and respect. Dred Scott was not the only Supreme Court decision that influenced the framers of the Fourteenth Amendment. Barron v. City of Baltimore, 32 U.S. (7 Pet.) 243, 8 L. Ed. 672 (1833), also played a significant role. This case involved a Maryland wharf owner who brought a lawsuit against the city of Baltimore for violating the Fifth Amendment’s EMINENT DO- MAIN Clause, which prohibits the government from taking private property without “just compensation.” Baltimore defended against the wharf owner’s lawsuit by arguing that the FIFTH AMENDMENT only provides relief against action taken by the federal government and offers no protection against state governments or their political subdivisions. The Supreme Court agreed with Baltimore. Writing for the Court, Chief Justice JOHN MARSHALL asserted that the Constitution created the federal government, and the provisions of the Constitution were designed to regulate the activity of the federal government. The people of each state enacted their own constitution, Marshall contended, to regulate the activities of their state and local governments. Thus, Mar- shall reasoned that the U.S. Constitution operates only as a limitation on the powers of the federal government, unless one of its provisions expressly restricts the powers of state governments, as does Article I, Section 10. Article I, Section 10, provides that “[n]o State shall enter into any Treaty, Alliance, or Confederation,” or “pass any BILL OF ATTAINDER, ex post facto Law, or Law impairing the Obligation of Contracts.” This wording, Mar- shall maintained, demonstrates that the Framers understood the type of clear and unequivocal language that must be used to make a provision of the federal Constitution binding on the states. Because the first eight amendments to the Constitution do not contain language that restricts the powers of state governments, Marshall concluded that the BILL OF RIGHTS was inapplicable to the states. The Supreme Court’s decision in Barron weighed heavily on the mind of JOHN BINGHAM,the Republican representative from Ohio who was the primary architect of Section 1 of the Fourteenth Amendment. Bingham said he “not- ed certain words in the opinion of Marshall” when he was “reexamining that case of Barron.” The chief justice, Bingham stressed, denied the wharf owner’s claim because the Framers of the Bill of Rights, unlike the Framers of Article I, Section 10, had not chosen the type of explicit language that would clearly make the Bill of Rights applicable to state governments. “Acting upon” Marshall’s “suggestion” in Barron, Bing- ham said, he “imitated” the Framers of Article I, Section 10: “As [these Framers had written] ‘no state shall pass any Bill of ATTAINDER ‘I prepared the provision of the first section of the fourteenth amendmen t.” Bingham’s remarks shed light on the Su- preme Court’s decision to make most of the provisions contained in the Bill of Rights applicable to state governments through the doctrine of incorporation. Under this doctrine, the Supreme Court has ruled that every protec- tion contained in the Bill of Rights—except for the right to bear arms, the right to INDICTMENT by GRAND JURY, the right to trial by jury in civil cases, and the right against quartering soldiers—must be protected by state governments under the Equal Protection and Due Process Clauses of the Fourteenth Amendment. The Supreme Court has explained that each of these incorporated rights is “deeply rooted in the nation’s history” and “fundamental” to the concept of “ordered liberty” represented by the Due Process Clause (Palko v. Connecticut, 302 U.S. 319, 58 S. Ct. 149, 82 L. Ed. 288 [1937] ). Any state that denies one of these rights is violating its duty to provide the “equal protec- tion of the laws” guaranteed to the residents of every state by the Fourteenth Amendment. Although a state may provide more consti- tutional protection to its residents than is conferred by the Bill of Rights, the Fourt eenth Amendment prohibits any state from provi ding less protection. For example, the Supreme Court upheld the constitutionality of sobriety checkpoints, which authorize police officers to GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FOURTEENTH AMENDMENT 511 stop motor vehicles to determine if the driver has been consuming alcohol, regardless of whether the stop was based on probable cause or made pursuant to a SEARCH WARRANT as required by the FOURTH AMENDMENT (Michigan v. Sitz, 496 U.S. 444, 110 S. Ct. 2481, 110 L. Ed. 2d 412 [1990]). The Minnesota Supreme Court reached the opposite conclusion, invalidating arrests made during traffic stops at sobriety checkpoints because they did not comport with the state’ s constitutional provisions prohibiting unreasonable searches and seizures (Ascher v. COMMISSIONER of Public Safety, 519 N.W.2d 183 [Minn. 1993]). Whereas the Due Process and Equal Protec- tion Clauses have given rise to a panorama of legal claims such as the sobriety checkpoint cases, the PRIVILEGES AND IMMUNITIES Clause has produced only a few lawsuits since the end of the 1800s. Like most other legal terms in the Bill of Rights, the phrase privileges or immunities is not defined in the Constitution. Nor does the phrase possess a meaning that is self-evident. However, some insight into the meaning of the Privileges and Immunities Clause may be gleaned from statements made by the man who drafted it, Congressman Bingham. Bingham said the “privileges and immuni- ties of citizens of the United States are chiefly defined in the first eight amendments to the Constitution of the United States These eight articles never were limitations upon the power of the states until made so by the Fourteenth Amendment” (quoted in Adamson v. California, 332 U.S. 46, 67 S. Ct. 1672, 91 L. Ed. 1903 [1947][Murphy, J., dissenting]). Senator Jacob Howard echoed these thoughts, stating that “these privileges and immunities, whatever they may be—for they are not and cannot be fully defined in their entire extent and precise nature—[include] personal rights such as the freedom of speech and of the press, [and] the right of the people to peaceably assemble and petition the government for REDRESS of grie vances.” Similarly, Representative JAMES WILSON made it clear that the “privileges and immunities of the citizens of the United States” include “[f]reedom of religious opinion” and “freedom of speech and press.” Notwithstanding the statements made by these congressmen, the Supreme Court has limited the application of the Fourteenth Amendment’s Privileges and Immunities Clause to provide only negligible protection against the state and federal governments. In the SLAUGHTER- HOUSE CASES, 83 U.S. (16 Wall.) 16, 21 L. Ed. 268 (1873), a group of New Orleans butchers brought a lawsuit to invalidate a Louisiana law that granted a monopoly to a local slaughter- house. The butchers alleged that the state- chartered monopoly violated their “privileges and immunities” to pursue gainful employment free from unlawful restraints. In an extremely narrow reading of the Fourteenth Amendment, the Supreme Court rejected the butchers’ argument. The Court held that the Privileges and Immunities Clause protects only rights derived from U.S. citizenship, such as the right to HABEAS CORPUS and interstate travel and not rights derived from state law, such as the common-law rights of tort and property asserted by the New Orleans butchers. The Supreme Court has neither overruled its decision in the Slaughter-House cases nor expanded its narrow INTERPRETATION of the Privileges and Immunities Clause. Most constitutional scholars have since pronounced this clause a dead letter. If the Supreme Court has provided a more conservative interpretation of the Privileges and Immunities Clause than envisioned by the Fra- mers of the Fourteenth Amendment, it has provided a more liberal interpretation of the Equal Protection Clause. In BROWN V. BOARD OF EDUCATION , 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954), the Supreme Court ruled that the doctrine of “separate but equal,” in which the black and white races were segregated in public schools and other places of public accommoda- tion, was “inherently unequal” and denied Afri- can Americans “equal protection of the laws.” The AMBIT of the Equal Protection Clause was later enlarged by the Supreme Court beyond racial segregation to cover an assortment of gender DISCRIMINATION claims asserted by women. The Court made these rulings in spite of EVIDENCE that racial segregation was prevalent at the time the Fourteenth Amendm ent was adopted and that women were treated like second-class citizens during most of the nine- teenth century. In 1868, for example, racial segregation of public schools was permitted throughout the South and in eight northern states. The gallery of the U.S. Senate was itself segregated by race during the debate of the Equal Protection Clause. During the first half of the nineteenth century, every state proscribed GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 512 FOURTEENTH AMENDMENT married women from devising a will, owning or inheriting property, entering into a contract, or exercising almost any other basic civil right afforded to women in the modern United States. Indeed, the COMMON LAW recognized no existence for married women independent from their husbands. By MARRIAGE, the HUSBAND AND WIFE became one person in law, and that person was the husband. Thus, the Framers’ original understanding of the Fourteenth Amendment has not provided a useful yardstick to measure the Supreme Court’s interpretation of the Due Process and Equal Protection Clauses. Since the mid-1940s, the Supreme Court has strayed further from the Framers’ original understanding, recognizing controversial privacy rights to use contraceptives ( GRISWOLD V. CONNECTICUT, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 [1965]), obtain abortions prior to the third trimester of pregnancy ( ROE V. WADE, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 [1973]), and view obscene pornographic material in the privacy of one’s own home (Stanley v. Georgia, 394 U.S. 557, 89 S. Ct. 1243, 22 L. Ed. 2d 542 [1969]). In 1996 the Supreme Court held that the Equal Protection Clause had been violated by an amendment to the Colorado constitution prohibiting legislative, judicial, or executive action at the state or local level from protecting homosexual persons from discrimination in ROMER V. EVANS, 517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996). The Supreme Court has extended the reach of the Fourteenth Amendment to private actors when they become so entwin ed with state or local government that they become, in effect, state actors. In Brentwood Academy v. Tennessee Secondary School Athletic Association, 531 U.S. 288, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001), the Court held that a state athletic association was so closely connected with the public schools as to become a state actor. The association sought to curtail the alleged football recruiting abuses of Brentwood Academy, a private school with a very successful football program. Brentwood Academy sued the association and alleged that it had violated the Fourteenth Amendment. The association was not a part of state government, but the Supreme Court held that the state had delegated authority to regulate school athletic programs to the organization. The Court applied the general principle where there is such a “close nexus between the State and the challenged action,” seemingly private behavior “may be fairly treated as that of the State itself.” FURTHER READINGS Amar, Akhil Reed. 1992. “The Bill of Rights and the Fourteenth Amendment.” Yale Law Journal 101. Available online at http://www.saf.org/LawReviews/ Amar1.html; website home page: http://www.saf.org (accessed July 25, 2009). Curtis, Michael Kent. 1993. “The 1859 Crisis over Hinton Helper’s Book, The Impending Crisis: Free Speech, Slavery, and Some Light on the Meaning of the First Section of the Fourteenth Amendment.” Chicago-Kent Law Review 68. ———. 1990. No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights. Durham: Duke Univ. Press. Rierson, Sandra L. 1994. “Race and Gender Discrimination: A Historical Case for Equal Treatment under the Fourteenth Amendment.” Duke Journal of Gender Law and Policy 1. Stone, Lawrence. 1990. The Family, Sex, and Marriage in England 1500–1800. New York: Penguin. CROSS REFERENCE Gay and Lesbian Rights. FOURTH AMENDMENT The FOURTH AMENDMENT to the U.S. Constitution reads: 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. The Fourth Amendment to the U.S. Consti- tution protects citizens from unreasonable searches and seizures, requiring authorities to obtain warrants for such searches or seizures by showing probable cause. The Americ an Revolution was fought, in part, to create a system of government in which the RULE OF LAW would reign supreme. The rule of law is often identified with the old saying that the United States is a nation of laws and not of men. Under the rule of law, the actions of government officials are prescribed by the principles and laws that make up the U.S. legal system and do not reflect the arbitrary whims and caprices of the government officials themselves. A distinction is sometimes drawn between power and authority. Law enforcement officers GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FOURTH AMENDMENT 513 are entrusted with the powers to condu ct investigations, to make arrests, and occasionally to use lethal force in the line of duty. But these powers must be exercised within the parameters authorized by the law. Power exercised outside these legal parameters transforms law enforcers into lawbreakers, as happened when Los Angeles police officer Laurence Powell was convicted for using excessive force against RODNEY KING, who had been stopped for speeding. Powell repeatedly struck King with his nightstick even though King was in a submissive position, lying prone on the ground. The Fourth Amendment was intended to create a constitutional buffe r between U.S. citizens and the intimidating power of law enforcement. It has three components. First, it establishes a privacy interest by recognizing the right of U.S. citizens to be “secure in their persons, houses, papers, and effects.” Second, it protects this privacy interest by prohibiting searches and seiz ures that are “unreasonable” or are not authorized by a warrant based upon probable cause. Third, it states that no warrant may be issued to a law enforcement officer unless that w arrant describes with particularity “the place to be searched, and the persons or things to be seized.” Colonial Background The Framers drafted the Fourth Amendment in response to their colonial experience with British officials, whose discretion in co llecting revenues for the Crown often went unchecked. Upon a mere suspicion held by British tax collectors or their informants, colonial magis- trates were compelled to issue general warrants, which permitted blanket door-to-door searches of entire neighborhoods without limitation as to person or place. The law did not require magistrates to question British officials regard- ing the source of their suspicion or to make other credibility determinations. The writ of assistance was a particularly loathsome form of general warrant. The name of this writ derived from the power of British authorities to enlist local peace officers and colonial residents who might assist in executing a particular search. A writ of assistance lasted for the life of the king or queen under whom it was issued, and it applied to every officer and subject in the British Empire. In essence, such a writ was a license for customs offi cers tracking smugglers and ille gally imported goods. Colonial opposition to general warrants was pervasive and kinetic. In Paxton’s case (also known as the WRITS OF ASSISTANCE CASE), 1 Quincy 51 (Mass. 1761), James Otis, appearing on behalf of colonists who opposed the issuance of another writ of assistance, denounced general warrants as instruments of “slavery,”“villainy,” and “arbi- trary power.” These writs, Otis continued, were “the most destructive of English liberty” because they placed the freedom of every person “in the hands of a petty officer” (as quoted in O’Rourke v. City of Norman, 875 F.2d 1465 [10th Cir. 1989]). In order to be valid, Otis railed, a warrant must be “directed to specific officers, and to search certain houses” for particular goods and may only be granted “upon oath made” by a government official “that he suspects such goods to be concealed in those very places he desires to search” (as quoted in Illinois v. Krull, 480 U.S. 340, 107 S. Ct. 1160, 94 L. Ed. 2d 364 [1987]). Although Otis lost the case, his arguments fueled angry colonial crowds that subsequently interfered with British customs and revenue agents who attempted to seize miscellaneous goods pursuant to general warrants. Some provincial courts began declining to issue writs of assistance, and other courts issued writs with greater specificity. Colonial newspapers com- plained that British officers were ransacking the colonists’ houses, violating the sanctity of their bedrooms, and plundering their privacy under the auspices of general warrants. On the night before the DECLARATION OF INDEPENDENCE was published, JOHN ADAMS cited the “argument concerning the Writs of Assistance as the commencement of the controversy between Great Britain and America.” The American Revolution answered the questions surrounding writs of assistance, but the Fourth Amendment raised other questions in the newly founded republic. If a police officer’s suspicion is no longer sufficient to obtain a SEARCH WARRANT , as it was in colonial America, where should the line be drawn separating suspicion from probable cause? Although general warrants are now clearly prohibited, how detailed must warrants be to pass constitutional muster? The Fourth Amendment expressly forbids “unrea- sonable” searches and seizures, but what criteria should be considered in evaluating the reason- ableness of a search? The Fourth Amendment also leaves open the question of who should review warrant applications—the judiciary or some other branch of government. The answers GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 514 FOURTH AMENDMENT to these questions were explored and developed in criminal litigation over the following two centuries. The Exclusionary Rule Fourth Amendment questions arise during criminal litigation in the context of a suppres- sion hearing. This hearing is prom pted by a DEFENDANT who asks the court to review the method by which the police obtained EVIDENCE against him or her and to determine whether that evidence survives constitutional scrutiny. If the evidence was obtained in violation of the Fourth Amendment, it usually will be excluded from trial, which means the prosecution will be unable to present it to the jury. The legal doctrine under which illegally obtained evi- dence is suppressed is known as the EXCLUSION- ARY RULE , and its purpose is to deter police misconduct and to protect defendants from it. The exclusionary rule requires the suppres- sion not only of evidence that was the direct product of illegal police work but also of any evidence that is derived from a tainted source. The suppression of tainted DERIVATIVE EVIDENCE, also known as FRUIT OF THE POISONOUS TREE, typically occurs when the police obtain a confession after an illegal arrest or pursuant to an unconstitutional search. Although the man- ner in which the confession itself was obtained may have been perfectly constitutional, the confession is still suppressed because the law does not permit the government, which the prosecution represents at a criminal trial, to benefit from its own misconduct. Government Searches Only Before a court may exclude any evidence, it first must determine whether the Fourth Amend- ment applies to the case under consideration. Two requirements must be met before a particular search or seizure will give rise to Fourth Amendment protection. First, the search or seizure must have been conducted by a government agent or pursuant to government direction. Thus, the actions of state and federal law enforcement officers or private persons working with law enforcement officers are subject to the strictures of the Fourth Amend- ment. Bugging, wire tapping, and other related eavesdropping activities performed by purely private citizens, such as private investigators, do not receive Fourth Amendment protection. Reasonable Expectation of Privacy Second, a defendant must be able to demon- strate that he or she had a “reasonable expectation of privacy” in the place that was searched or the thing that was seized (Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 576 [1967]). In Katz, the U.S. Supreme Court explained that “[w]hat a person know- ingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Applying this principle, the Court has ruled that U.S. citizens maintain a reasonable expec- tation of privacy in the CURTILAGE immediately surrounding their home, but not in the “open fields” and “wooded areas” extending beyond this area (Hester v. United States, 265 U.S. 57, 44 S. Ct. 445, 68 L. Ed. 898 [1924]). A person may have a reasonable expectation of privacy in the automobile that he or she is driving, but not in items that are in “plain view” from outside the vehicle (Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 564 [ 1971]). Nor do people have reasonable expectations of privacy in personal characteristics (United States v. Dionisio, 410 U.S. 1, 93 S. Ct. 764, 35 L. Ed. 2d 67 [1973]). Thus, the police may require individuals to give handwriting and voice exemplars as well as fingerprint samples, without complying with the Fourth Amend- ment’s warrant or reasonableness requirements. In Minnesota v. Carter, 525 U.S. 83, 119 S. Ct. 469, 142 L. Ed. 2d 373 (1998), the U.S. Supreme Court considered whether a police officer who had looked in an apartment window through a gap in a closed window blind had violated the privacy of the drug dealers in the apartment because they had an expectation of privacy that is protected by the Fourth Amend- ment. The Court held that the police officer had not violated the Fourth Amendment because the occupants of the apartment had not had an expectation of privacy. This was due to the fact the drug dealers had merely used the apartment to consummate business transac tions and that they had no personal relationship with the occupant of the apartment. However, the high court looked at the issue differently when the drug courier’s CONTRABAND was discovered on a bus by an officer who thought that a bag felt peculiar. In Bond v. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FOURTH AMENDMENT 515 United States,, 529 U.S. 334, 120 S. Ct. 1462, 146 L. Ed.2d 365 (2000), the Court ruled that police cannot squeeze the luggage of bus passengers in order to try to find illegal drugs. The ruling forces law enforcement to modify the way they inspect luggage and packages that are carried by or in the custody of an individual. Technology and the Fourth Amendment The U.S. Supreme Court has made clear that there are limits to high-tech government snooping when the government has the ability to use sophisticated technology to monitor criminal suspects. In Kyllo v. United States, 533 U.S. 27, 121 S. Ct. 2038, 150 L. Ed. 2d 94 (2001), the Court ruled that police could not use evidence obtained through the use of thermal imaging without first obtaining a search warrant. It declared that a warrantless search would be regarded as “presumptively unreason- able” and that the evidence that the search produced will be INADMISSIBLE at trial. The police had received a tip that Danny Kyllo was growing marijuana inside his home. Because marijuana cultivation requires the use of high-intensity lamps, police used a thermal imager to scan Kyllo’s residence. The imager detects infrared radiation, which is invisible to the naked eye. The machine converts the radiation into images based on relative warmth. The police conducted the scan across the street from Kyllo’s home, accomplishing the task in just a few minutes. The scan disclosed that one part of his house was substantially hotter than any other unit in his triplex. Based on the scan, utility bills, and tips from informants, police secured a search warrant and found that Kyllo had indeed been growing marijuana. The U.S. Supreme Court noted that the degree of privacy guaranteed by the Fourth Amendment had been affected by technological developments. The question became “what limits this power of technology to shrink the realm of guaranteed privacy.” In its view, individuals had a “minimum expectation of privacy” that the interiors of their homes were not subject to warrantless police searches.“Thus, the use of”sense-enhancing technology“that could obtain information that would otherwise only be obtainable by a physical search constituted a”search. Accordingly, any informa- tion obtained by the thermal imager was the product of a search. The Court’s analysis led to the legal conclusion that such a search was unreasonable and that it could be justified only if it were made pursuant to a warrant. The increasing popularity of the INTERNET across all sectors of society has created a new universe of cases in which the Fourth Amend- ment and technology intersect. In short, courts have applied the same rules governing searches and seizures outside the world of the Internet and computer technology to searches and seizures of information arising from computer and Internet usage. Thus, courts have found that users who communicate to others via chat rooms, electronic bulletin boards, or peer-to- peer (P2P) technology do not enjoy a reason- able expectation of privacy in those commu- nications, because the substance of those communications are made open to other members of the public. Courts have also held that Internet users enjoy no expectation of privacy when they access the Internet from a computer that is being monitored, which is typically the case at public access terminals, including public libraries and prisons. Based on this rationale, some courts have found that email users have no expectation of privacy because email is the subject of communication between two or more people. However, some courts disagree, finding a reasonable expecta- tion of privacy even fo r employees who work at companies that openly monitor their email (Brown-Criscuolo v. Wolfe, 601 F. Supp. 2d 441 [D. Conn 2009]). Email, like mail sent through the air and hand delivered by a postal carrier, is a private matter between the sender and recipient, these courts have found. Whereas courts have not ruled directly on the issue of whether users enjoy a reasonable expectation of privacy in their Internet searches, this issue has been approached from two angles, the perspective of the end user searching the Internet and the perspective of Internet com- pany providing the user with a search engine to conduct the search. End users enjoy a reason- able expectation of privacy from government searches of Internet files stored on their hard drive, courts have found, if users have taken action to safeguard their computers from access by others. Users can do this simply by password-protecting their computers. The law is less settled on the issue of whether Internet search companies may assert the privacy interests of their users when the government is requesting search information GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 516 FOURTH AMENDMENT from the company. In Gonzales v. Google, 234 F. R.D. 674 (N.D. Cal. 2006), the U.S. government subpoenaed Google to obtain thousands of search queries entered by its users and thou- sands of Uniform Resource Locators (URLs) produced by Google searches. The government sought the information to help it determin e whether blocking and filtering software effec- tively excluded pornog raphic and obscene materials from Internet searches when the software was installed by parents but the Internet was searched by children. The U.S. district court for the Northern District of California held that customer trust in Google would be compromised if Google were forced to divulge the search queries entered by its users. Thus, the court compelled Google to provide a random sampling of 50,000 URLs but did not require Google to disclose any user search queries. Gonzales v. Google is sometimes cited for the court’s finding that “Google’s own privacy statement indicates that Google users could not reasonably expect Google to guard the query log from disclosure to the Government.’ Yet it is important to remember that Google’s privacy statement defines “personal informa- tion” as “information that you [the customer] provide to us [Google] which personally identifies you, such as your name, email address or billing information, or other data which can be reasonably linked to such information by Google.” Although the court hinted that it might be unreasonable for users to expect Google to keep their search information private, the court also said that consumer confidence in Google would be unnecessarily eroded if Google were forced to divulge personal information about its customers. Gonzales v. Google was the first case to come before the courts on this subject, but it was assumed that it would not be the last. Even when Internet users have established an expectation of privacy in their search information, law enforce ment may still seek to monitor those searches pursuant to a lawfully executed search warrant. Internet surveillance can be accomplished via software known as Carnivore/DCS1000. The software is basically an online version of a wiretap and is housed on a computer and connected to an Internet service provider (ISP) such as AOL, Earthlink, or Prodigy. The ISP provides law enforcement with an access point containing all traffic from the suspect. Using a one-way tapping device, all data at the access point is copied. Carnivore/ DCS1000 then filters the copied data, sniffing out and retrieving so-called packets of informa- tion that are authorized by search warrants while theoretically rejecting all extraneous data. As with other criminal investigations, police must establish probable cause that the suspect is engaged in criminal activity before a court will issue a search warrant to use the software in a particular case. Police use of the Carnivore/ DCS1000 software had not been challenged in court as of summer 2009. Warrantless Searches Once a court has determ ined that the Fourth Amendment is an issue in a particular case, it next must decide whether law enforcement complied with the amendment’s requirements. When making this decision, a court begins with the premise that the Constitution expresses a preference for searches made pursuant to a warrant (Mincey v. Arizona, 437 U.S. 385, 98 S. Ct. 2408, 57 L. Ed. 2d 290 [1978]). Searches performed without a warrant are pre sumptively invalid, and evidence seized during a warrant- less search is suppressed unless the search was reasonable under the circumstances. The U.S. Supreme Court has ruled that warrantless searches may be deemed reasonable in four situations. First, no warrant is required for searches incident to a lawful arrest (United States v. Watson, 423 U.S. 411, 96 S. Ct. 820, 46 L. Ed. 2d 598 [1976]). If a police officer has probable cause to believe that a crime has occurred, the Fourth Amendment permits the officer to arrest the suspect and to conduct a search of the suspect’s person and clothing and of all areas within the suspect’s immediate reach. Second, a police officer who possesses an “articulable” and “reasonable” suspicion that an automobile has violated a state or local traffic law may stop the driver and conduct a search of the vehicle’s interior, including the glove compartment (Delaware v. Prouse, 440 U.S. 648, 99 S. Ct. 1391, 59 L. Ed. 2d 660 [1979] ). The trunk of a vehicle cannot be searched unless an officer has probable cause to believe that it contains contraband or the instrumentalities of criminal activity. Third, an officer who reasonably believes “that criminal activity may be afoot” in a public place may stop an individual who is suspected of wrongdoing and “conduct a carefully limited GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FOURTH AMENDMENT 517 search of [the suspect’s] outer clothing” for WEAPONS that may be used against the officer (Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 21 L. Ed. 889 [1968]). Fourth, officers who are in “hot pursuit” of “fleeing felons” or are gathering “evanescent” evidence (evidence that could readily disappear—e.g., blood samples from drunken drivers) are also permitted to act without first obtaining a search warrant. These four exceptions to the warrant requirement are based on the need to facilitate law enforcement during unforeseen or emer- gency circumstances in which crimina l activity is strongly suspected but police officers lack sufficient time to complete an application for a search warrant and to testify before a magis- trate. These exceptions also reflect a need to protect police officers from hidden weapons and to preserve evidence that easily could be destroyed or compromised. Another exception to the warrant require- ment, though one not recognized as of 2009 by the Supreme Court, is for the warrantle ss extraction of DNA samples from convicted felons. The DNA Analysis Backlog Elimination Act (42 U.S.C. 4135a[d&]) requires the collec- tion of DNA samples by the U.S. probation office from individuals on probation, PAROLE,or supervised release, who have been convicted of certain qualifying federal offenses, including all felonies. Under the act, DNA samples are sent to the FBI laboratory for inclusion in the Combined DNA Index System (CODIS). DNA records may be used only for law enforcement identification purposes by criminal justice agencies in judicial proceedings and for criminal defense purposes. DNA records are expunged from CODIS when a CONVICTION is overturned, no charge is filed, charges have been dismissed, or the charge resulted in ACQUITTAL. The statute does not require any suspicion that the person from whom the sample is taken will commit or has committed an offense other than the one for which he or she is under government supervi- sion, and the sample need not be taken to aid in the investigation of any particular crime. Many states have similar laws. Whereas the U.S. Supreme Court has not assessed the constitu- tionality of the warrantless extraction of DNA from convicted felons, all of the federal circuits and most state courts have upheld their validity against federal Fourth Amendment challenges and various state constitutional challenges. The Warrant Requirement When law enforcement does obtain a warrant before conducting a search, the warrant must comply with Fourth Amendment requirements before evidence from the search will be ADMISSI- BLE in court. A warrant may be defective if it is not supported by probable cause that is established by a detailed, sworn statement made by a law enforcement officer appearing before a magistrate. No definition of probable cause has ever satisfied both prosecutors and defense attorneys. But the U.S. Supreme Court has stated that probable cause exists where “the facts and circumstances within [the police officer’s] knowl- edge” are of a “reasonably trustworthy” basis to “warrant a man of reasonable caution” to believe that an offense has been or is about to be committed (Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 [1925]). Probable cause can be established by out-of-court state- ments of reliable police in formants even though the credibility of those statements cannot be tested by a magistrate (Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 [1983]). However, probable cause will not be found where the only evidence of criminal activity is an officer’s “good in formation” or “belief” ( Aguilar v. Texas, 378 U.S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 [1964]). The Fourth Amendment requires not only that search warrants be support ed by probable cause but also that they “particularly” describe the person or place to be searched. A warrant must provide enough detail so that an “officer with the search warrant can, with reasonable effort, ascertain and iden tify the place [or person] intended” (Steele v. United States, 267 U.S. 498, 45 S. Ct. 414, 69 L. Ed. 757 [1925] ). For most residences, a street address usually satisfies the particularity requirement. However, if a warrant designates an apartment complex, hotel, or other multiple-unit building, the warrant must describe the specific sub-unit that will be searched. When a warrant designates that a person will be searched , it must include a description that provides enough detail so that the suspect’s identity can be ascertained with reasonable certainty. Probable cause must be established by testi- mony made under oath by a law enforcement officer appearing before a magistrate. The testi- mony can be oral or written, and it cannot contain GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 518 FOURTH AMENDMENT . of government in which the RULE OF LAW would reign supreme. The rule of law is often identified with the old saying that the United States is a nation of laws and not of men. Under the rule of. that a bag felt peculiar. In Bond v. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FOURTH AMENDMENT 515 United States,, 529 U.S. 3 34, 120 S. Ct. 146 2, 146 L. Ed.2d 365 (2000), the Court ruled. CODES, which deprived African Americans of many basic rights afforded to white Amer- icans, including the right to travel, bear arms, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 510 FOURTEENTH