The members of the Constitutional Convention could not have imagined the technological advancement of the past few decades or how it would affect police search and seizure activities. Americans commonly take privacy and security for granted. The Internet coupled with intelligent computers changed the trajectory of all American lives leading to unprecedented challenges to our Fourth Amendment protections.
Amendment IV
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.
Historically Warranted
In the 18th and early 19th centuries, the citizens held responsibility for policing. Generally, citizens participated in local “night watches.” Outside of this, a loose group of sheriffs and constables existed. These more formal groups lacked the tools to maintain order as the police do nowadays. Police patrolling during these times was reactive with identifying and catching criminals as the objective. Current models of police work proactively as a deterrent to crime. The need for a warrant before search and seizure activities allowed policing to remain mission oriented.
Early Warrants and Writs – Britain’s Heavy Hand
The Fourth Amendment resolved the primary concerns of the period. In particular, under British rule, “General warrants” and “writs of assistance” served against the citizens of Britain and the colonies. Throughout Britain, “General warrants” allowed authorities to target political enemies and, also, those avoiding tax collection. The warrants authorized invasive searches and resulting charges to stifle opposition to the ruling thumb. Similarly, British rulers used “writs of assistance” in the colonies. These documents were equivalent to General warrants but without limiting time constraints.
These General warrants and writs of assistance often used to:
- Apprehend felons
- Control weapons outside of the military
- Recover stolen property
- Collect taxes
- Regulate Guilds
- Restrict/censor the press
- And also, to discourage:
- Religious deviance
- Political dissent opposing British rule
- Vagrancy/homelessness
- The illegal hunting and catching of wild game
Otis’ Words Spark the Revolution
Britain argued that they needed funds to continue protection and security by British troops. With this in mind, the 1765 Stamp Act smothered the colonies by taxing every piece of paper they printed on from newspapers to legal documents to playing cards. Unenthused by British troops already quartered there, colonists resisted taxes meant to fund further hosting. Additionally, no representation for the colonies existed in Parliament. Due to this, the consensus believed in exclusion from overseas taxation.
A Massachusetts lawyer, James Otis, hired by the government to defend writs of assistance, quit his position to speak out against them. Afterward, in a series of public debates, Otis defiantly uttered the phrase “taxation without representation is tyranny.” (Today, this argument commonly stated as, “no taxation without representation.”) In addition, Samuel Adams and Otis wrote “The Massachusetts Circular Letter,” based on their studies of the 1215 Magna Carter. After all, the Magna Carter acknowledged that British subjects must provide personal or representative consent for taxation.
The Massachusetts House of Representatives supported the letter. As a result, Otis’ battled ended up in court. Otis lost his case. Moreover, Britain argued “virtual representation” stating the Parliament represented all Englishmen. This idea did not sit well in the colonies who maintained their own locally-elected General Assemblies. Massachusetts stood firm, the Governor then dissolved the Assembly. As a result, riots ensued sparking the American Revolution. Also laying the groundwork idea for American Constitutionalism. A belief system which advises that foundational strength comes from a Constitution not changeable by the whims of government.
The Basics of Warrants – Privacy
In 1979, the Supreme Court ruling in Smith v. Maryland provided that two things must occur before moving to search warrant.
There must be:
- An individual expectation of privacy
- A societal expectation of privacy
The decision, in this case, expressed that providing a third-party with information comes with no reasonable expectation of privacy. Looking at this in the modern day, it seems troubling, but, fortunately, more recent cases and various state legislature works to redefine this expectation. Research your state’s Laws and compare to your current expectations. What you find may surprise you.
Not Always Necessary
Interestingly, public places do not generally require warrants. Furthermore, objects in “plain view” or “open fields,” meaning where a cop can openly see them, remain subject to search and seizure. In essence, if a cop witnesses a criminal act then the officer would not need to obtain a warrant to search, seize, and detain. Additionally, if the individual consents to a search then officers will not need a warrant.
Exigent circumstances and emergency situations do not require warrants due to time sensitivity. During lawful detainment, officers rightfully search the individual for weapons and other evidence. Some personal items, like cell phones, still require an additional search warrant. This exception is also a factor in vehicle searches where probable cause exists.
Broader discretion applies to searches administered at the U.S. borders, as well as, international airports and seaports. Individuals, their possessions, and personal vehicles subject to thorough privacy-invading searches under the pretense of national security. Similarly, “stop and frisk” laws, also known as Terry stops, allow searches based on reasonable suspicion, a much lower bar than probable cause. Both of these searches primarily impact people not under suspicion of a known crime.
Through the Court
The police must present evidence to a judge demonstrating probable cause to obtain a warrant. For instance, witness statements, including hearsay that will not be admissible in court, and other evidence can establish probable cause. Alternatively, an officer’s feelings, beliefs, and gut do not sufficiently establish probable cause. Within the document, the judge grants access to strictly defined areas with sufficient evidence of a certain level of suspicion of the criminal activity. The evidence must show that criminal activity occurred.
Search warrants detail what is and is not covered. If the order is too broad or does not identify specific persons or items, then the court rejects the motion. As a rule, if presented with a warrant, read the warrant carefully and allow access only where required.
Some judges strongly prefer that government agents obtain warrants and that searches without warrants are, in all likelihood, invalid. In other cases, a judge will deem a warrant unnecessary and only require that the search be “reasonable.” Generally, judges adhere to probable cause as a requirement to support a search; at other times, the probable cause is deemed not to be an “irreducible minimum.”
Illegally Obtained Evidence
Under the “exclusionary rule,” the court must not allow unlawfully seized evidence when law enforcement disregards the correct process. Police errors could result in a guilty party going free because the evidence became inadmissible in court. The regulations surrounding this rule expanded during the 1960s and 1970s but cut back since the 1980s.
The exclusionary rule has one exception, the “good faith exception.” If the officer believes their search falls within their legal authority, under the good faith doctrine, the illegally obtained evidence remains admissible in court. Most commonly the exception relates to invalid search warrants.
“If the government becomes the lawbreaker, it breeds contempt for the law.” – Louis Brandeis, Supreme Court justice
Fun Fact:
For young people, Fourth Amendment protections apply much less. Parents hold power to revoke their children’s privacy. Parents may search their children’s person, possessions, and rooms. In school, especially in public schools, the administration only needs to provide reasonable suspicion to conduct a search. Generally, administrators will perform locker and bookbag searches for drugs and weapons. For athletes, drug tests administered by the school may be required to participate. Fortunately, schools must not conduct strip searches.
Modern and Technological Challenges
The Fourth Amendment deals with keeping America, and it’s citizens secure. Those who argue its purpose as privacy are merely trivializing the matter. Protection under the Fourth Amendment necessitates justification, therefore preventing arbitrary or unjustified intrusions into American’s lives and property. Unless there is a critical need for secrecy the rules of a reasonable search, those rules should be made public and responsive to the public’s opinion.
Law Enforcement Expansion
Police and intelligence agencies are relatively new aspects in society. While law enforcement minimally existed for some time, the first official police force started in Boston in 1838. Over time, more cities and towns established police departments which grew to the modern day police force. Police brutality and killings grew over time as laws passed enhancing their power.
Our intelligence agencies, created during the 1900s, expanded the abilities of federal law enforcement. FBI raids and investigations dig deep and often uncover information outside the scope of the investigation. And in efforts to prevent terrorism, we allow FISC courts to grant FISA warrants which extend wide-use beyond an individual enabling bulk spying. The government designed FISA warrants as counterintelligence against “foreign power or an agent of a foreign power.” This verbiage includes American citizens. FISA warrants allow for physical searches and electronic surveillance, including, but not limited to wiretapping.
Search and Seizure in General Society
Protections of the warrant and probable cause apply when there is a particular suspect, but sometimes the suspect is unknown. Conversely, stop and frisk laws and other forms of profiling violate privacy target groups of people with fewer requirements. For example, stopping only those who appear to be a particular race or religion. In the post-9/11 world, we accept airport security screenings with random individuals selected for additional searches. Is boarding a plane enough “cause” to allow full body searches?
Law enforcement will use roadblocks as a means to stop and check all private vehicles passing through a specific area. Most commonly, the roadblocks seek impaired drivers under the influence of drugs and alcohol. In other cases, border security or a missing person could initiate a roadblock set up. One could argue these stops benefit society, but often hundreds of law-abiding individuals lose their privacy in an effort to find a crime that may or may not exist.
The government should have to justify two things when discriminatory searching or seizing occurs: 1) The group selected for unfavorable treatment must be more likely to include people worthy of the government’s resources and attention. 2) The occurrence of problematic behavior within that group is significant enough to justify burdening the entirety of the group. If both criteria can’t be proven, the government could run into legal issues for not searching us all.
As Technology Booms, Privacy Withers
The technological advancement in cameras allows for substantially more invasive surveillance. Not that long ago, cameras were bulky and expensive. Today, cameras can be discreetly hidden, almost invisible. Without much notice, cities throughout the nation filled with cameras able to track individuals as they wander around. As a result, the average citizen is under nearly constant surveillance. At red lights, toll booths, even street poles, video surveillance captures each vehicle that passes. Aerial drones and planes capture a bird’s eye view of Earth publicly available online. All of this happens virtually unnoticed. Recently, I saw an article that suggested the possible equipping of speed limit readout signs with license plate readers. I wonder how we face our accuser when it is a camera or computer?
With the rise of the Internet, the collection of phone and Internet data became another means of privacy invasion. Over the years, we clicked our rights and privacy away on many an unknown Terms and Conditions Agreement. Realistically, we gave up this information passively allowing companies to improve our experience and better market to individuals. With companies collecting and storing bulk data, how sure are we that the government won’t access it without our knowing. It leads to the question what is unreasonable search and seizure on the Internet. Cookies? Stored data in web browsers? Personalized ads? Location tracking? Third-party collection? Bulk data collection? Login and linking accounts through social media? Biometrics?
Courts and laws struggle to keep up with technological advances. As Americans spend more and more time online, the importance of proper court rulings grows substantially. Judges hold the burden of bridging the Fourth Amendment protections between the physical world to the networked world.
Finding Balance
Despite the modern challenges to the Fourth Amendment, our personal privacy and security have improved since our days under the British Crown. However, we must stay vigilant to ensure our rights are not further eroded.
We would love to hear your insights on other challenges to the Fourth Amendment in the comments below or email us at emails@dirtywindshield.com.
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