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THE FOURTH AMENDMENT - ISAIAH AND DAKOTA

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Synopsis | The Evolution Of The Fourth Amendment By Thomas N. Mcinnis
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Synopsis | The Evolution Of The Fourth Amendment By Thomas N. Mcinnis - Video

SEARCH AND SEIZURE History and Scope of the Amendment

History .--Few provisions of the Bill of Rights grew so directly out of the experience of the colonials as the Fourth Amendment, embodying as it did the protection against the utilization of the ''writs of assistance.'' But while the insistence on freedom from unreasonable searches and seizures as a fundamental right gained expression in the Colonies late and as a result of experience, 1 there was also a rich English experience to draw on. ''Every man's house is his castle'' was a maxim much celebrated in England, as was demonstrated in Semayne's Case, decided in 1603. 2 A civil case of execution of process, Semayne's Case nonetheless recognized the right of the homeowner to defend his house against unlawful entry even by the King's agents, but at the same time recognized the authority of the appropriate officers to break and enter upon notice in order to arrest or to execute the King's process. Most famous of the English cases was Entick v. Carrington, 3 one of a series of civil actions against state officers who, pursuant to general warrants, had raided many homes and other places in search of materials connected with John Wilkes' polemical pamphlets attacking not only governmental policies but the King himself. 4

Entick, an associate of Wilkes, sued because agents had forcibly broken into his house, broken into locked desks and boxes, and seized many printed charts, pamphlets and the like. In an opinion sweeping in terms, the court declared the warrant and the behavior it authorized subversive ''of all the comforts of society,'' and the issuance of a warrant for the seizure of all of a person's papers rather than only those alleged to be criminal in nature ''contrary to the genius of the law of England.'' 5 Besides its general character, said the court, the warrant was bad because it was not issued on a showing of probable cause and no record was required to be made of what had been seized. Entick v. Carrington, the Supreme Court has said, is a ''great judgment,'' ''one of the landmarks of English liberty,'' ''one of the permanent monuments of the British Constitution,'' and a guide to an understanding of what the Framers meant in writing the Fourth Amendment. 6

In the colonies, smuggling rather than seditious libel afforded the leading examples of the necessity for protection against unreasonable searches and seizures. In order to enforce the revenue laws, English authorities made use of writs of assistance, which were general warrants authorizing the bearer to enter any house or other place to search for and seize ''prohibited and uncustomed'' goods, and commanding all subjects to assist in these endeavors. The writs once issued remained in force throughout the lifetime of the sovereign and six months thereafter. When, upon the death of George II in 1760, the authorities were required to obtain the issuance of new writs, opposition was led by James Otis, who attacked such writs on libertarian grounds and who asserted the invalidity of the authorizing statutes because they conflicted with English constitutionalism. 7 Otis lost and the writs were issued and utilized, but his arguments were much cited in the colonies not only on the immediate subject but also with regard to judicial review.

Scope of the Amendment .--The language of the provision which became the Fourth Amendment underwent some modest changes on its passage through the Congress, and it is possible that the changes reflected more than a modest significance in the interpretation of the relationship of the two clauses. Madison's introduced version provided ''The rights to be secured in their persons, their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.'' 8 As reported from committee, with an inadvertent omission corrected on the floor, 9 the section was almost identical to the introduced version, and the House defeated a motion to substitute ''and no warrant shall issue'' for ''by warrants issuing'' in the committee draft. In some fashion, the rejected amendment was inserted in the language before passage by the House and is the language of the ratified constitutional provision. 10

As noted above, the noteworthy disputes over search and seizure in England and the colonies revolved about the character of warrants. There were, however, lawful warrantless searches, primarily searches incident to arrest, and these apparently gave rise to no disputes. Thus, the question arises whether the Fourth Amendment's two clauses must be read together to mean that the only searches and seizures which are ''reasonable'' are those which meet the requirements of the second clause, that is, are pursuant to warrants issued under the prescribed safeguards, or whether the two clauses are independent, so that searches under warrant must comply with the second clause but that there are ''reasonable'' searches under the first clause which need not comply with the second clause. 11 This issue has divided the Court for some time, has seen several reversals of precedents, and is important for the resolution of many cases. It is a dispute which has run most consistently throughout the cases involving the scope of the right to search incident to arrest. 12 While the right to search the person of the arrestee without a warrant is unquestioned, how far afield into areas within and without the control of the arrestee a search may range is an interesting and crucial matter.

The Court has drawn a wavering line. 13 In Harris v. United States, 14 it approved as ''reasonable'' the warrantless search of a four-room apartment pursuant to the arrest of the man found there. A year later, however, a reconstituted Court majority set aside a conviction based on evidence seized by a warrantless search pursuant to an arrest and adopted the ''cardinal rule that, in seizing goods and articles, law enforcement agents must secure and use search warrants wherever reasonably practicable.'' 15 This rule was set aside two years later by another reconstituted majority which adopted the premise that the test ''is not whether it is reasonable to procure a search warrant, but whether the search was reasonable.'' Whether a search is reasonable, the Court said, ''must find resolution in the facts and circumstances of each case.'' 16 However, the Court soon returned to its emphasis upon the warrant. ''The [Fourth] Amendment was in large part a reaction to the general warrants and warrantless searches that had so alienated the colonists and had helped speed the movement for independence. In the scheme of the Amendment, therefore, the requirement that 'no Warrants shall issue, but upon probable cause,' plays a crucial part.'' 17 Therefore, ''the police must, whenever practicable, obtain advance judicial approval of searches and seizures through a warrant procedure.'' 18 Exceptions to searches under warrants were to be closely contained by the rationale undergirding the necessity for the exception, and the scope of a search under one of the exceptions was similarly limited. 19

During the 1970s the Court was closely divided on which standard to apply. 20 For a while, the balance tipped in favor of the view that warrantless searches are per se unreasonable, with a few carefully prescribed exceptions. 21 Gradually, guided by the variable expectation of privacy approach to coverage of the Fourth Amendment, the Court broadened its view of permissible exceptions and of the scope of those exceptions. 22

By 1992, it was no longer the case that the ''warrants-with- narrow-exceptions'' standard normally prevails over a ''reasonableness'' approach. 23 Exceptions to the warrant requirement have multiplied, tending to confine application of the requirement to cases that are exclusively ''criminal'' in nature. And even within that core area of ''criminal'' cases, some exceptions have been broadened. The most important category of exception is that of administrative searches justified by ''special needs beyond the normal need for law enforcement.'' Under this general rubric the Court has upheld warrantless searches by administrative authorities in public schools, government offices, and prisons, and has upheld drug testing of public and transportation employees. 24 In all of these instances the warrant and probable cause requirements are dispensed with in favor of a reasonableness standard that balances the government's regulatory interest against the individual's privacy interest; in all of these instances the government's interest has been found to outweigh the individual's. The broad scope of the administrative search exception is evidenced by the fact that an overlap between law enforcement objectives and administrative ''special needs'' does not result in application of the warrant requirement; instead, the Court has upheld warrantless inspection of automobile junkyards and dismantling operations in spite of the strong law enforcement component of the regulation. 25 In the law enforcement context, where search by warrant is still the general rule, there has also been some loosening of the requirement. For example, the Court has shifted focus from whether exigent circumstances justified failure to obtain a warrant, to whether an officer had a ''reasonable'' belief that an exception to the warrant requirement applied; 26 in another case the scope of a valid search ''incident to arrest,'' once limited to areas within the immediate reach of the arrested suspect, was expanded to a ''protective sweep'' of the entire home if arresting officers have a reasonable belief that the home harbors an individual who may pose a danger. 27

Another matter of scope recently addressed by the Court is the category of persons protected by the Fourth Amendment--who constitutes ''the people.'' This phrase, the Court determined, ''refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with [the United States] to be considered part of that community.'' 28 The Fourth Amendment therefore does not apply to the search and seizure by United States agents of property that is owned by a nonresident alien and located in a foreign country. The community of protected people includes U.S. citizens who go abroad, and aliens who have voluntarily entered U.S. territory and developed substantial connections with this country. There is no resulting broad principle, however, that the Fourth Amendment constrains federal officials wherever and against whomever they act.

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Annotation 1 - Fourth Amendment - FindLaw

ST. PAUL, Minn. (KMSP) -

If a bipartisan group of legislators have their way, Minnesotans will vote on an electronic data privacy constitutional amendment in 2016.

The amendment would require law enforcement agencies to get a warrant if they want to look through your emails or other electronic communications. (Read the bill for yourselfhere.)

By contrast, the current practice, as described to Fox 9 by Chuck Samuelson, executive director of the Minnesota ACLU, allows law enforcement to "take your cell phone, dump all your contents and picture and take all of it, and they can use it to build a case against you."

"But if they had Fourth Amendment protections, you would have the ability in some cases to block the government from downloading your data, and in other cases to ensure that the government does it properly," Samuelson adds.

One of the authors of the Senate version of the bill, Branden Petersen (R-Andover), says the reason he thinks a constitutional amendment is more appropriate in this case than simply passing a law has to do with the distinction between "guiding governing principles" and specific cases.

"Statutory-focused legislation is very specific in dealing with specific instances, and it's not open to interpretation in terms of what it means, whereas constitutional language is much more universal," Petersen says. "In the existing Fourth Amendment, you have the right [to be protected] from unreasonable searches and seizures of your effects in your home, but it doesn't say what 'effects' means in all its iterations. That's not how the constitution is written, and of course we interpret those principles in a whole host of different ways, as we've seen throughout our history."

Petersen argues it's time for the Fourth Amendment to be brought into the digital age.

"If we were all going to start Minnesota today and write the constitution, I think it's pretty clear that electronic data would be included," Petersen says. "And then, of course, all law flows downhill from the constitution, so if you're going to get it right in the first place, you should start with original governing principles and then create laws that are consistent with those principles. We don't start debating statute without a constitutional basis to do so, or at least we ought not do so."

"If the founders were here today, of course electronic data would be protected, because it tells every intimate detail of your life," Petersen adds.

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Bill aimed at strengthening electronic data privacy rights advances at Capitol

Since June 2013, the American public, press, and policy-makers have been debating the implications of Edward Snowdens disclosures of mass U.S. government surveillance programs, most established after the 9/11 attacks. Our reliance on modern communications technology and its connection with our basic constitutional rights of free speech and Fourth Amendment protections against warrantless seizures and searches is at the heart of that debate. But while that controversy has raged very publicly (even globally), another series of U.S. government search and seizure activities have only recently started to receive the scrutiny they deserve. And just as the over-reach by the NSA sparked what I have previously termed the digital resistance movement, these other searchesconducted by elements of the Department of Homeland Security (DHS)have sparked a more traditional form of citizen resistance.

Enter the VIPR

Less than three years after the 9/11 attacks struck American commercial aviation carriers, Al Qaeda-inspired terrorists targeted a different kind of transportation system Madrids commuter rail network. Just over a year after that attack, terrorists struck the London bus and subway system. Fearing U.S. transit systems would be next, DHS officials responded by creating Visible Intermodal Prevention and Response (VIPR) teams, composed of Transportation Security Administration (TSA) and Federal Air Marshall (FAM) personnel, augmented by state or local law enforcement organizations. Touted as a means of deterring and preventing terrorism, the VIPR program has grown from a single team in 2004-05 to over 30-teams and an annual budget of over $100 million today. As the number and scope of VIPR operations have grown, so has the controversy surrounding their employment.

Warrantless searches and internal checkpoints are characteristics of totalitarian political systems.

While VIPR teams began as extensions of security at major airports, TSA officials gradually began pushing VIPR operations beyond airportsto major transit systems in Washington, Houston, Boston, New York City, and most recently, Chicago. Multiple published reports over the past several years have documented warrantless baggage searches by VIPR teams on these transit systems. TSA officials claim that the judicially-created special needs exception to the Fourth Amendment provides them with the legal authority to conduct such searches. In 2011, a VIPR teamtook overthe Amtrak station in Savannah, Georgia and conducted warrantless searches of detraining passengers. The same year in Tennessee, VIPR teams conducted warrantless searches of trucks atweigh stations.

Over the last decade, VIPR teams have conducted thousands of such searches (according to Congressional testimony by TSA officials) and uncovered no terrorists. Indeed, the November 2013 shooting at Los Angeles International Airport was a demonstration of how the alleged deterrent effect of random VIPR operations was no deterrent to a determined gunman. The same month, the Government Accountability Office published areport calling into question a key component of VIPR teamsBehavior Detection Officers and the validity of the operational concept underlying their use. The ACLU has declared the VIPR program a direct assault on the Fourth Amendment. In the 113thCongress, Rep. Scott Garrett (R-NJ) tried tokill the VIPR programaltogether, regrettably without successbut it is very likely Garrett will make another attempt in 2015.

VIPR teams represent an expensive and ineffective counterterrorism tool whose tactics and practices are, in the view of privacy and civil liberties community, constitutionally abhorrent. However, VIPR is not the only DHS component engaged in attempted or actual warrantless searches of the travelling public.

Papers, please

Throughout the southwest United States and at selected points near the Canadian border, U.S. Customs and Border Protection operates a series of inland checkpoints on American highways, sometimes as much as 100 miles inside the United States. Most Americans who do not live in areas where the checkpoints are located are probably unaware that these inland CBP checkpoints have existed for decades, legitimized by an ill-considered Supreme Court decision inUnited States v. Martinez-Fuerte.

That case, which involved three separate incidents involving the transportation of illegal aliens into the United States, examined the question of whether the use of such checkpoints for warrantless seizures and visual inspection (read searches) violated the Fourth Amendment. Writing for the Courts majority, Justice Powell asserted that given the huge problem of illegal immigration and CBPs responsibility of to prevent it, under the circumstances of these checkpoint stops, which do not involve searches, the Government or public interest in making such stops outweighs the constitutionally protected interest of the private citizenIn summary, we hold that stops for brief questioning routinely conducted at permanent checkpoints are consistent with the Fourth Amendment and need not be authorized by warrant. The courts reasoning seemed to be thus: Abiding by the traditional probable cause standard was too burdensome to the effort to stem illegal immigration.

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Homeland Insecurity: Checkpoints, Warrantless Searches and Security Theater