U.S. Constitution: 4th Amendment
A while back, I asked for reader suggestions on posts but, alas, have published no posts in response to said suggestions. Most of the suggestions were for posts and post series requiring research. Three of my colleagues have volunteered to write something in response to suggested topics and I have underway a post on General and Flag Officers, which was to be the inauguaral post in my “Know Your Military” series, only to accidentally overwrite it with a version about 90 minutes of work earlier in the process and haven’t regenerated a desire to do that work again.
Kevin Drum‘s statement that the federal government’s ability to obtain your location via GPS “cell phone tracking should indeed require a warrant hardly seems disputable” has given me a ready opportunity, though, to inaugurate “A recurring series that expounds on each paragraph in the US Constitution — its origins, intent, current interpretation, significance today” as suggested by Charles Austin. I don’t know that we’ll ever get to every paragraph but we’ll hit the highlights as opportunities present themselves.
On its face, the 4th Amendment couldn’t be much simpler:
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.
As with most of the rest of the Constitution, though, it’s become barely recognizable after two hundred plus years of litigation. It’s safe to say that “the greater number of searches, as well as the vast number of arrests, take place without warrants.” Indeed, “searches under warrants have played a comparatively minor part in law enforcement, except in connection with narcotics and gambling laws.”
A whole body of case law has carved out judge-made exceptions to the warrant requirement, under the rationale that the 4th Amendment only protects against “unreasonable” searches and seizes. Seemingly, damned near anything constitutes a reason. FindLaw has a superb discussion of the relevant case law and judicial reasoning. To oversimplify greatly, however, suffice it to say that police can pat you down under the pretense of looking for a weapon if you’re anywhere but inside your home; can search your person and the room you’re in if you’re being placed under arrest; you have essentially no “expectation of privacy” in your vehicle once police have stopped you for any “valid” reason, including a completely random roadblock where they have no reason to think you’ve done anything wrong; and you’ve got even less protection in a boat than in a car.
Similarly, the “open fields” doctrine gives no protection against “police searches in such areas as pastures, wooded areas, open water, and vacant lots” and materials in “plain view” of police may also be seized without warrant. Very limited protections exist, furthermore, in public schools, government offices, or (obviously) prisons.
Kevin, though, is talking about electronic surveillance rather than searches. FindLaw has an excellent discussion of the case history there, too, beginning with the 1928 Olmstead Case which held that “wiretapping was not within the confines of the Fourth Amendment . . . so long as there was no physical trespass on premises owned or controlled by a defendant.” That rationale would ultimately be overturned in 1967. Still, the Court has given wide berth to police so long as they weren’t physically entering a person’s property.
So far as I’m aware, there’s no case law on the tracking of a person’s location via a GPS-enabled mobile phone. Given the above, however, it’s hard to imagine that the Court would hold a warrant was required. Police don’t have to enter your home to get such information (it’s presumably triangulated based on cell tower locations) and the information conveyed (your approximate location) is something to which your reasonable expectation of privacy is quite low.
Indeed, while I’m much more of a 4th Amendment purist than most, finding much of the above history to be a classic case of “judicial activism” not merely being something that liberals do, I’m hard pressed to get too excited by the feds keeping tabs on the general whereabouts of “persons of interest” without judicial supervision.
Image credit: BillofRights.com