Amendment IV: Searches, Seizures and Warrants
“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.”
Like the Third Amendment, the first half of the Fourth Amendment was included in the Bill of Rights in response to the oppressive way British soldiers treated American colonists through their use of “Writs of Assistance.” These were court orders that authorized customs officers to conduct general searches of premises for contraband. The exact nature of the materials being sought did not have to be detailed, nor did their locations. The powerful new court orders enabled officials to inspect not only shops and warehouses, but also private homes. It quickly became apparent to many colonists that their homes were no longer their castles. These searches resulted in the violation of many of the colonists’ rights and the destruction of much of the colonists’ personal property.
Revolutionary patriot James Otis was Advocate-General when the legality of these warrants came under question by the colonists. Called upon to defend that legality, he promptly resigned his office. Otis stated, “Now, one of the most essential branches of English liberty is the freedom of one’s house. A man’s house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court can inquire. Bare suspicion without oath is sufficient.” After living through oppressive policies such as this, the Founders wanted to ensure that Americans would never have to face intrusive government measures again. Thomas Jefferson wrote, “This I hope will be the age of experiments in government and that their basis will be founded in principles of honesty, not of mere force.”
The Fourth Amendment requires that a warrant signed by a judge be issued in order for authorities to arrest an individual. For a valid warrant to be issued, the circumstances must pass the legal test for probable cause—that “more likely than not,” criminal activity is afoot. At the time of the founding, even after a warrant had been issued, law enforcement authorities were still required to follow a certain procedure prior to a search. This included knocking on the door and announcing their presence before entering a dwelling.
The Fourth Amendment Today
The Fourth Amendment prohibits the government from searching your home without a warrant, which must include specific information such as the person’s name and address to be searched. But what about other kinds of invasions? Your phone, mail, computer, medical records—they’re all personal and private but also at risk for unwarranted electronic intrusions. The Fourth Amendment’s protections against unreasonable searches and seizures go far beyond an actual police search of your home. The U.S. Supreme Court has defined the Fourth Amendment to mean that you have a reasonable expectation of privacy for your personal information as well.
By creating numerous exceptions, however, the Supreme Court has effectively diminished many of the Fourth Amendment’s protections. In United States v. Leon, the Supreme Court held that evidence seized by officers objectively and in good faith was admissible, despite the fact that the warrant used to gather the evidence was later found to be defective. The Supreme Court has ruled that grand juries may use evidence that is allegedly obtained illegally in questioning witnesses because to hold otherwise would interfere with grand jury independence and the time to contest the illegal search is after the accused is charged. The Supreme Court has also held that the Fourth Amendment does not apply in certain situations: (1) probation or parole revocation hearings; (2) tax hearings; (3) deportation hearings; (4) when government officials illegally seize evidence outside the United States; (5) when a “private actor” (i.e., not a government employee) illegally seized the evidence; or (6) when the illegally seized evidence is used to impeach the defendant’s testimony.
In 2011 the Supreme Court essentially eviscerated the Fourth Amendment when it ruled 8-1 in Kentucky v. King that the police may forcibly enter your home without a search warrant as long as they believe someone inside is trying to destroy evidence of a crime. Are you secure in your home as long the government can knock down your door and take over your property at gun point with no search warrant whatsoever?
Since 9/11, the federal government has sought and acquired more power than at any other period in our nation’s history, much of which undermines the rights afforded by the Fourth Amendment. Laws granting unprecedented police powers such as the USA Patriot Act, along with secret surveillance programs, have caused concern among many about the fundamental rights secured by this Amendment. As discussed earlier, the Patriot Act includes provisions such as the “Sneak and Peak” clause that permits police to enter and search a person’s home with a secret search warrant and without informing the person for months afterwards. Then-U.S. Attorney General John Ashcroft gave legitimacy to these “black bag jobs,” which were a throwback to former FBI director J. Edgar Hoover. Also under the “Sneak and Peak” provision, the FBI, with a warrant, can secretly enter a person’s home and plant a “Magic Lantern” on the computer. These devices (also known as the keystone logger) are almost impossible to detect and, once installed, create a record of every time a key is pressed on the computer. This record can then be recovered by the FBI during their next break-in. These “legal” break-ins and uses of “Magic Lanterns” are not limited to terrorists but are used in regular criminal investigations of American citizens as well.
Police raids of American homes have greatly increased. Often the police even fail to knock and announce their presence before breaking down doors. In 2006, the U.S. Supreme Court ruled that evidence found by police officers who enter a home to execute a search warrant without first following the requirement to “knock and announce” can be used at trial, despite that constitutional violation. And cities and towns across America are installing 24-hour surveillance cameras that watch your every move, making it possible for the government to “search” you anytime you’re in public and to track, document and record your movements— who you meet with and where you go. There are obvious parallels between these developments and the general search warrant exercised by the British during the colonial period, which was so despised by Americans.
Under the USA Patriot Act, the FBI initially could obtain a warrant from the secret Foreign Intelligence Surveillance Court, which allowed the FBI to secure lists of books borrowed and bought by patrons from libraries and bookstores. The librarian or bookstore owner was prohibited from informing anyone, including the person whose privacy had been breached, that such a search had occurred. A much lower standard of proof than the normal “probable cause” was initially required for such searches. It has now been further reduced to having to be “relevant to an ongoing criminal investigation.”
The Protect America Act of 2007 allows for the massive, untargeted collection of international communications without a court order or meaningful oversight by either Congress or the courts. The Act grants the U.S. Attorney General—not a court or independent body—the authority to issue year-long program warrants for surveillance of people reasonably believed to be outside the United States. But it permits the government, with few limitations, to listen to all international communications where one party is in the United States. The Act contains no protections for the domestic end of the phone call or email, leaving decisions about the collection, mining and use of American citizens’ private communications up to government agents.
As these threats surrounding the continuing war on terrorism increase, Americans’ rights under the Fourth Amendment will become even more relevant. While some might see the temporary necessity in such laws during a national security emergency, it must be pointed out that the war on terror has no finite duration. There will always be some form of terrorist threat to the United States. Although some provisions under the Patriot Act have been questioned by the courts, it is worrisome that the other provisions under the Act are not subject to “sunset” clauses (which automatically set a date when legislative provisions terminate) but can remain in effect permanently, thereby effectively condemning portions of the Bill of Rights to history.