U.S. Constitution: 4th Amendment

The Fourth Amendment - Forbidding Unreasonable Searches and SeizuresA 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

FILED UNDER: Law and the Courts, US Politics, , , , , ,
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. anjin-san says:

    Bill of Rights? What kind of anti-American, hippie crap are you talkin’?

  2. Beldar says:

    Surely Kevin Drum jests.

    Someone pays good money — unforced by the government in any fashion — to buy an electronic device which is intended, quite literally, to determine and then to broadcast his position. He knows for a certainty that there are satellites that can track the location of that device — it’s the entire reason he purchased it! He similarly knows for a certainty that a commercial enterprise whose actions and decisions are wholly outside his control can, as a consequence of the service he’e chosen and is voluntarily paying for, locate him. They can, if they so choose, pass that information along to others — ex-wives, bill collectors, or government agents — when and as they wish, without thereby violating any contractual or other “right” the customer may think he has.

    The customer has no reasonable expectation of privacy in the use of this device — at least not insofar as he’s expecting it (or anyone who can intercept its signals) to conceal his location. If he ever thought he did, it’s because he hadn’t thought about it very much, or else because he didn’t understand the concept.

    This is not much different from the notion many people have that their emails, sent on computers owned by their employers, using bandwidth and ISPs provided by their employers, is somehow supposed to be secret from their employers. Just because one has a strong intuitive sense that something “ought to be private” doesn’t make it so, and it certainly doesn’t expand the protections of the Constitution to elastically fit one’s whims.

  3. anjin-san says:

    it’s the entire reason he purchased it!

    Not true. Most people buy phones to use voice & text, followed by web surfing. The primary reason for introducing GPS was to make 911 calls workable (something that has still not happened).

    He similarly knows for a certainty that a commercial enterprise whose actions and decisions are wholly outside his control can, as a consequence of the service he’e chosen and is voluntarily paying for, locate him.

    Only if the carrier allows it. Businesses certainly have no “right” to locate people via their mobile devices. The question is will consumers, who are paying a premium for cell service, willingly bend over and take it.

    This is not much different from the notion many people have that their emails, sent on computers owned by their employers, using bandwidth and ISPs provided by their employers, is somehow supposed to be secret from their employers.

    It could not be more different. And employer owns his network, the bandwidth, and the time one spends at work. I own my mobile device. I pay for the service & bandwith, and my time is my own. This should make me the decision maker in regards to its usage.

  4. DL says:

    I believe New Hampshire was randomly stopping anyone they felt like with a boat or RV on the highways, hoping to find illegal fish or game aboard.

    My definition of Case law – the gradual rewriting of the constitution, without representation (Penumbras and emanations notwithstanding.)
    (not schooled in law, obviously)

  5. LaurenceB says:

    Anjin-San,
    I believe that what Beldar was referring to when he said “it’s the entire reason he purchased it!” was that a cellular device is constantly being tracked by the carrier through cell towers, which is why it works as a mobile phone, which is precisely why the customer purchased it. It has nothing to do with voice vs. data networks; both are cellular, therefore all communication via cell phone is geographically tracked.

    Along the same lines, James’s reference to “GPS-enabled phones” being trackable is a bit misleading – since all phones are trackable and are tracked by the carrier, not just those with embedded GPS/AGPS capability.

  6. anjin-san says:

    I believe that what Beldar was referring to when he said “it’s the entire reason he purchased it!” was that a cellular device is constantly being tracked by the carrier through cell towers, which is why it works as a mobile phone, which is precisely why the customer purchased it. It has nothing to do with voice vs. data networks; both are cellular, therefore all communication via cell phone is geographically tracked.

    Not sure what you point is. I used to work for Verizon Wireless, and I have a pretty good grasp of how cellular technology works.

    People buy mobile devices so they can communicate free of landlines. That is the point of why they get them. This does not mean they want third parties to track their movements simply to give carriers additional revenue streams. Carries may indeed have that buried permission to do that somewhere in the fine print, but it was not the intention of most users to give it when they got their phones.

    People in this country need to start getting alarmed about the ability of technology to infringe upon their privacy. The government and corporations have show that, buy in large, they don’t give a damn about the concept as it relates to citizens, only as it relates to them.

  7. Dave says:

    In a 1983 case, U.S. v. Knotts, the Supreme Court said that using a tracking device to monitor the location of a suspect traveling in a car on public roadways was not a Fourth Amendment search and hence required no warrant. The rationale was that there was no expectation of privacy because the cops could just as easily have visually observed where the car was going.

    However, the Court also held that once the suspect exited the car and went into a private home, the cops could not use the tracking device to monitor his location inside, because once he was no longer out in the public, he did have an expectation of privacy.

    Based on that case, I’m guessing the Court would draw a pretty direct analogy to the cell phone GPS tracking – allowing it in public, but requiring a warrant for movements indoors.

  8. James Joyner says:

    Based on that case, I’m guessing the Court would draw a pretty direct analogy to the cell phone GPS tracking – allowing it in public, but requiring a warrant for movements indoors.

    Ah, but the Knotts tracking device was secretly planted by police whereas a cell phone GPS was voluntarily acquired and carried. So, in one case, you have police “entering” a home for the surveillance and in the other case you do not.

    Of course, as always, you never know until SCOTUS takes and rules on a case. And it’s a substantially different Court than in 1983, anyway.