7/28/2004
The State of the Fourth
By Josh Bolinger
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated….
Amendment IV, United States Constitution.
At its most rudimentary level, the objective of the Fourth Amendment is to restrict the power of government agents to make arrests, search people and their property, and seize objects, documents, and contraband. At the core of all search and seizure law, this foundation is nevertheless continuously shifting, to the extent that entire books are devoted every year to tracking modifications in this area of law.
In spite of these changes, basic issues remain the same. At its heart, the Fourth Amendment is concerned with privacy. Most Americans intuitively possess a better grasp of this concept than they may think. For example, showering in one’s home is an activity traditionally deemed especially private, while riding in a car through a swarming downtown street with one’s windows rolled down is an activity with a reduced level of privacy.
Central to understanding Fourth Amendment law is the fact that police officers can often override privacy concerns if the search is “reasonable.” A police officer can act in such a manner in two instances. First, a search is deemed reasonable if the police have “probable cause” to believe that they can pinpoint evidence that tends to show a person committed a crime. In such instances, an officer needs a search warrant signed by a judge. A search is also reasonable if certain circumstances make a warrant-less search permissible; for instance, where the health and safety of the public warrant immediate action on the part of the police officer.
In spite of the seeming simplicity of these two rules, confusion is widespread as to when the Fourth Amendment actually applies. Generally, the amendment only springs into action if someone has a “legitimate expectation of privacy.” If no expectation exists, no privacy issues are at stake and, consequently, the Fourth Amendment provides no shelter.
To consider whether a legitimate expectation of privacy exists, one must look to a commonly used two-part test. The first step is to inquire whether the person actually suspected some degree of privacy and subsequently had that privacy infringed. The second step is to query whether that expectation could be viewed as “reasonable” by an objective observer. If the answer to both questions is “yes,” a court would likely proceed to determine whether the actual search was reasonable.
If a search is ruled to be unreasonable, seized evidence is not permitted at criminal trials. Consequently, it cannot be used by the prosecution to prove the guilt of the defendant. Commonly referred to as the “exclusionary rule,” this bar works as a powerful deterrent in preventing police officers from performing unlawful searches. However, illegally seized evidence can be used in civil and deportation cases and is occasionally permitted in order to assail the credibility of witnesses on the stand.
EMERGING TRENDS
In recent years, the conventional way of viewing the Fourth Amendment and its guarantees has rapidly shifted and continues to evolve, thanks primarily to the legislative and judicial branches. Legislation fueled by concerns over domestic terrorist attacks has worked to undermine civil liberties since 9/11, and courts have generally approved of the increasingly broadening reach of the government in this area.
Legislation
The USA PATRIOT Act began to impact the way we view Fourth Amendment law immediately upon its inception. Passed by Congress shortly after the 9/11 attacks, the “Act” gives the government wide latitude in its search for terrorists. For instance, secret searches of homes and personal possessions are permitted. In addition, provisions of the Act authorize “National Security Letters” that allow the government to obtain the personal records of travel agents, casinos, car dealerships, and others. Moreover, the Act creates an expansive new definition of terrorism to cover anyone or any group that uses force in attempting to bring about change for political or ideological reasons. Consider also that the government can now conduct widespread wiretaps. Any judge is allocated the authority to issue a wiretap order for an individual—even if that individual is not named by the government in its request. This allows the FBI, using powerful spying equipment, to monitor computers, read e-mail, and track web pages visited by American citizens.
In addition, new legislative efforts threaten to pick up where the Act left off as the Department of Justice continues to advocate more intrusive measures, with their efforts continuing to gain support in Congress. For example, H.R. 3179, known as the “Anti-Terrorism Intelligence Tools Improvement Act of 2003,” attempts to permit the secret use of information gathered from secret intelligence surveillance and searches in immigration proceedings. If passed, the government would essentially be free of the requirement to inform the individual that he or she has been subjected to a secret search.
H.R. 3179 also purports to punish individuals who challenge the government’s burdensome requests for information. Recipients of National Security Letters who contravene the gag order that accompanies such requests may face criminal penalties. Theoretically, this provision could apply to a person who wrote to the editor of a local newspaper complaining about an FBI National Security Letter. And under H.R. 3179, such an individual could face prison time.
Courts
Regrettably, the judicial system has appeared largely apathetic toward the erosion of Fourth Amendment liberties. Recent federal cases exemplify this attitude. For example, detaining a person in handcuffs in a police car while officers search the detainee’s vehicle currently fails to constitute an actual arrest, at least according to the First Circuit (Flowers v. Fiore, 359 F.3d 24 (1st Cir. 2004)). The Second Circuit recently held that government agents who fail to announce their identity and who subsequently enter and search a residence are deemed to have acted reasonably because, when they knocked, they were effectively “invited in,” even though the person had no idea that they were government agents (United States v. Hatfield, 365 F.3d 332 (4th Cir. 2004). The Tenth Circuit recently followed suit, finding that agents who fail to even knock are deemed to have acted reasonably and, thus, to have conducted a legal search if they thought there was a possibility of an ambush (United States v. Hernandez, 2004 U.S. App. LEXIS 5153 (10th Cir. 2004).
As of late, decisions by the United States Supreme Court also take a “hands-off” approach when it comes to restricting police. On June 21, 2004, the Court held in Hiibel v. Sixth Judicial District Court of the State of Nevada that a person could not refuse to give his name to officers who tried to question him along a roadside, even though he was not a suspect at the time. In upholding the petitioner’s misdemeanor conviction for failing to reveal his name or show an ID during an encounter on a rural road in 2000, the Court concluded that forcing someone to give police their name did not violate a person’s Fourth Amendment protection from unreasonable searches and a person’s Fifth Amendment right against self-incrimination.
The Hiibel decision marked the sixth victory for law enforcement during this most recent term in cases involving search and seizure by government agents. Legal experts predict that these cases could have broad implications for law enforcement and the public. In the five other cases this term, the Court:
▪Ruled that as long as an arrestee was a recent occupant of a vehicle, an officer can search the vehicle incident to the arrest (Thornton v. United States).
▪Allowed drugs found in a suspect’s vehicle to be used as evidence after federal agents dismantled his car at a border checkpoint. The Court said that balancing tests to determine what was a “routine” search of a vehicle, as opposed to a more “intrusive” search of a person, had no place in border searches of vehicles (United States v. Flores-Montano).
▪Upheld “informational roadblocks” where police officers attempt to utilize the public to help solve crimes. A man was arrested at one such roadblock for driving erratically (Illinois v. Lidster).
▪Permitted officers to kick down a person’s door after only 15 seconds as long as they perceived the suspect to be dangerous or if there was a threat that evidence would be destroyed (United States v. Banks).
▪Did not require suppression of the physical fruits of a suspect’s unwarned but voluntary statements, even though police failed to provide the suspect with the warnings prescribed in Miranda (United States v. Patane).
Even so, a solitary glimmer of hope for privacy advocates emerged on June 28 when the Supreme Court issued its opinion in Missouri v. Seibert. That case concerned the “question-first” method of interrogating a suspect, whereby an officer will withhold giving Miranda rights, obtain a confession, and then later read the person their rights and acquire the confession a second time. The Seibert Court held that because the interrogation was nearly continuous, the suspect’s second statement, which was clearly the corollary of her invalid first statement, should be suppressed. What alarmed the Court was the question of whether a suspect could ever reasonably understand that he could elect to stop talking to the officer, even if he had talked earlier. The Court rationalized that to provide across-the-board validation to “question-first” interrogation methods would be to thwart the very safeguards that Miranda was meant to bestow.
Conclusion
Any attempt to predict with confidence the future of search and seizure law is likely imprudent, as this subject area appears to be in a constant state of flux. What is fairly certain, however, is that two factors will likely influence the Fourth Amendment in the next few years. The War on Terror will undoubtedly continue to elicit, mold, and propel legislation through Congress that may impinge on indispensable privacy rights. The only restraint on such lawmaking efforts may be the voice of constituents who loathe such efforts to encumber basic civil liberties.
In addition, the judicial system will continue to decide just how much latitude to give the President and Congress in their ongoing battle against terrorism. In particular, the U.S. Supreme Court will be looked to for direction as it decides three additional Fourth Amendment-related cases during its upcoming October term. In Devenpeck, et al v. Alford, the Court will look at whether an arrest violates the Fourteenth Amendment when a police officer has probable cause to make an arrest for one offense, if that offense is not closely related to the offense articulated by the officer at the time of the arrest. In addition, the Court in Illinois v. Caballes will examine whether the Fourth Amendment requires reasonable, articulated suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop. Finally, in Muehler, et al v. Mena, the Court will examine whether, in light of the Court’s repeated holdings that mere police questioning does not constitute a seizure, the Ninth Circuit erred in ruling that law enforcement officers who have lawfully detained an individual pursuant to a valid search warrant engage in an additional unconstitutional “seizure” if they ask that person questions about criminal activity without probable cause to believe that the person has engaged in such activity.
Related links:
2003 Year-in-Review Case Report
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