Ever wonder how the law adapts to technology that makes it harder or easier for police to search and seize suspected criminals? Orin Kerr posits that an Equilibrium-adjustment exists. "Courts respond to the new facts by trying to restore the old level of protection. If a new technology or practice increased government power, courts ratchet up Fourth Amendment...
Contemporary Quotes on the Fourth Amendment
"In the debate over the PATRIOT Act and other broad surveillance measures, the Bank Secrecy Act should be thought of as a 30-year experiment in subverting the Fourth Amendment. The experiment has imposed tremendous costs on individual privacy and the economy (even before 9/11, the banking industry was estimating compliance costs of $10 billion a year), with few tangible results in stopping crime and even fewer in preventing terrorism. Getting back to the standards of the Fourth Amendment is a good idea, not just for securing privacy but for making law enforcement and intelligence agencies more focused and effective at stopping criminals and catching terrorists."
"The Fourth Amendment is arguably the heart of the Bill of Rights. It permits the government to issue warrants, seize property and arrest criminals – which protects society and empowers the people to govern – and protects individuals from undue search and seizure, or overly broad warrants.
The Fourth Amendment helps law enforcement focus their investigations on seeking truth and justice. We seek justice in America, and justice requires truth. Police officers who have to meet certain procedural standards are both less likely to abuse law-abiding citizens and more likely to actually bring criminals to justice. It strikes a delicate balanced based upon the Biblical concept that it is equally detestable to punish the innocent as it is to acquit the guilty as found in Proverbs 17:15.
However, key parts of the USA Patriot Act and other post-9/11 counter-terrorism initiatives such as the Total Information Awareness program disregard basic Fourth Amendment requirements, thus disrupting this important balance. They ignore that while the government must have search and seizure powers to protect its citizens, it also must convince an impartial judge and provide specific and particular details about what government agents seek.
Section 215 of the Patriot Act violates these Fourth Amendment requirements by allowing federal agents to monitor what we are reading in the library and could require any person or business to produce any books, records, or items, including mental health, financial, and employment records. Section 215 threatens our liberty because it allows agents to seize our records without evidence that we have committed a crime. For decades, law enforcement has been able to look into what we read and obtain other private records, but they always had to obtain warrants or court orders based on a particularized suspicion that our activities were actually connected to crimes or terrorism."
"Another problem in the Patriot Act, Section 213, is 'authorizing' or 'allowing' secret searches of peoples' homes and workplaces. These so-called 'sneak and peek' searches, are contrary to well-established Fourth Amendment requirements that government agents must 'knock and announce' prior to conducting a search to allow those who have been served with a warrant to challenge things like mistaken identity or an incorrect address. Under Section 213 you may never have an opportunity to challenge an illegal search because he may never receive notice that a search was conducted at all."
"The same specter of the 'writs of assistance' fought by Otis in 1761 haunt us today in the subtle guise of the USA Patriot Act. For the same reasons we must oppose such writs to protect the country that was conceived in fighting for such rights.
For over two-hundred years the Fourth Amendment requirements that searches and seizures be reasonable, that warrants be particular and specific, and that reasonable suspicion of an individual nature of criminal activity be present before the government intrudes upon a citizen have served us well and have caused us to be the envy of free people and those who wish to be free around the world. Vile acts of terrorism, such as 9/11, cannot justify compromising these constitutional principles."
"The TSA has become such an embarrassment with its incompetence, larceny, arbitrary policies, and 'hugely greater' budgets that it will likely be abolished. That doesn't mean passengers will recover their Fourth Amendment rights, especially because general searches are turning up treasures beyond nail files: drugs and other contraband are putting more Americans behind bars and yielding more money in fines. Rather, the feds will shift the TSA's 'duties' to other bureaucracies. As the government continues to criminalize behavior, and to ban the accouterments of that behavior, airport searches will become increasingly valuable for discovering 'criminals.' Americans who might object to being frisked on the street, who would insist on a warrant before allowing a cop to toss their home, actually want government agents to search them at airports. After all, that's what keeps them safe. Imagine their shock when they realize their protectors have become their wardens."
"If any law is valid, the Bill of Rights and the Constitution (still the Supreme Law of the Land) should trump statutory law where there's conflict. The Fourth Amendment is clear on the issue of warrants. They require probable cause, must be supported by oath or affirmation, and must describe with particularity the place to be searched and the persons or things to be seized. In every case the officer must provide to the magistrate enough facts and circumstances to demonstrate probable cause. He must swear to the court that the person about to be searched is worth searching. If he takes the oath dishonestly, he is guilty of perjury. And the government agent better have a very, very good idea what he expects to find.
The secret FISA courts do not meet this standard, and neither do the sneak and peak searches authorized by the Patriot Act. Instead, they allow investigators to snoop on Americans without any traditional court warrant, only a secret and unaccountable administrative or judicial decree. Laws like FISA and the Patriot abuse our privacy, system of checks and balances and constitutional government. These abusive laws must be repealed for the sake of American liberty."
"The Fourth Amendment, as distinguished from contrived and entirely reversible Fourth Amendment 'remedies,' says or implies nothing about excluding evidence, just as the Fifth Amendment gives no hint that confessions voluntarily made and corroborated by the facts are somehow 'invalid.' The Fourth Amendment forbids only 'unreasonable searches and seizures.' And the reasonable test of a reasonable search is the evidence itself, the very facts that defense attorneys seek to suppress. As Leon F. Scully Jr., my late father and an attorney and author, observed, 'The guilt of the defendant and the reasonableness of the search are usually mutually supportive.'"
"Finally, if the President thought the law should be amended to authorize warrantless domestic surveillance, he had a convenient vehicle for that purpose shortly after 9/11. That's when the PATRIOT Act was passed, substantially enhancing the president's authority under FISA and expanding his ability to conduct foreign intelligence surveillance. The President could have, but did not, seek new authority for the NSA—authority that he has now decreed, unilaterally, without input from either Congress or the courts."
"The Fourth Amendment protects 'against unreasonable searches and seizures' of (among other things) the person. In determining whether a search or seizure is unreasonable, we begin with history. We look to the statutes and common law of the founding era to determine the norms that the Fourth Amendment was meant to preserve. …
We are aware of no historical indication that those who ratified the Fourth Amendment understood it as a redundant guarantee of whatever limits on search and seizure legislatures might have enacted. … The immediate object of the Fourth Amendment was to prohibit the general warrants and writs of assistance that English judges had employed against the colonists …. That suggests, if anything, that founding-era citizens were skeptical of using the rules for search and seizure set by government actors as the index of reasonableness.
Joseph Story, among others, saw the Fourth Amendment as 'little more than the affirmance of a great constitutional doctrine of the common law,' … which Story defined in opposition to statutes …. No early case or commentary, to our knowledge, suggested the Amendment was intended to incorporate subsequently enacted statutes. None of the early Fourth Amendment cases that scholars have identified sought to base a constitutional claim on a violation of a state or federal statute concerning arrest."
"The combination of digital technology and increasingly sophisticated analytic methods have complicated the intuitive link between what is directly observed or acquired and what is ultimately subject to surveillance in a broader sense. The natural move here is to try to draw a distinction between what is directly 'acquired' and what is learned by mere 'inference' from the information acquired. I doubt such a distinction will hold up. It takes a lot of sophisticated processing to turn ambient infrared radiation into an image of the interior of a home; the majority in Kyllo was not sympathetic to the argument that this was mere 'inference.' Strictly speaking, after all, the data pulled off an Internet connection is nothing but a string of ones and zeroes. It is only a certain kind of processing that renders it as the text of an e-mail or an IM transcript. If a different sort of processing can derive the same transcript—or at least a fair chunk of it—from the string of ones and zeroes representing packet transmission timing, should we presume there's a deep constitutional difference?"
"The Fourth Amendment forbids 'unreasonable searches and seizures,' and this usually requires the police to have probable cause or a warrant before making an arrest. What if an officer reasonably believes there is an outstanding arrest warrant, but that belief turns out to be wrong because of a negligent bookkeeping error by another police employee? The parties here agree that the ensuing arrest is still a violation of the Fourth Amendment, but dispute whether contraband found during a search incident to that arrest must be excluded in a later prosecution.
Our cases establish that such suppression is not an automatic consequence of a Fourth Amendment violation. Instead, the question turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct. Here the error was the result of isolated negligence attenuated from the arrest. We hold that in these circumstances the jury should not be barred from considering all the evidence."
"You needn't have sympathy for the sketchy defendants in Fourth Amendment cases to be concerned about what's going on here. If you take away the exclusionary rule and you make it increasingly difficult to sue police officers for search and seizure violations, the Fourth Amendment carries all the literal weight of the parchment on which it's written. Without an enforcement mechanism, it's meaningless."
"It is well established that, under the Fourth Amendment to the United States Constitution, police may not conduct a warrantless search or seizure within a private residence unless there exist both (1) probable cause and (2) exigent circumstances. … Any other search is per se unreasonable."
"My right to privacy, after all, is something that can be infringed by any old person—not merely by the government. On the currently dominant view, then, the government violates privacy (and the Fourth Amendment) just in case it performs actions that would be privacy violations if conducted by anyone. Yet the Framers had good reason to be particularly concerned with the social implications of government information gathering. Those concerns had less to do with 'privacy' as such than with the structural balance between personal autonomy and state control—considerations that could stand to loom much larger in our thinking about the Fourth Amendment."
"The Fourth Amendment arises from abuses of the British Crown that allowed roving searches by revenue agents under the guise of what were called 'writs of assistance' or 'general warrants.' Instead of following specific allegations against specific individuals, the Crown's revenue agents were given free rein to search indiscriminately.
In 1761, the famous colonial leader, James Otis, challenged these writs, arguing that '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.' Two hundred and fifty years later, the PATRIOT Act restores these roving searches.
In the audience that day in 1761 was a 25-year-old lawyer named John Adams. He would later recall, 'Every man of an immense crowded audience appeared to me to go away as I did, ready to take arms against writs of assistance. Then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there, the child, "Independence" was born.'
The American Founders responded with the Fourth Amendment. It provides that before the government can invade a person's privacy, the executive branch must present sworn testimony to an independent judiciary that a crime has occurred, that there is reason to believe that an individual should be searched for evidence of the crime and specify the place to be searched and the things to be seized."
"James Madison, the father of the Bill of Rights, was somewhat less giddy about the prospect of militarizing the home front. 'A standing military force, with an overgrown Executive will not long be safe companions to liberty,' he warned at the Constitutional Convention, 'the means of defense against foreign danger have always been the instruments of tyranny at home.'"