Encyclopedia of the Fourth Amendment

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Edited by: John R. Vile & David L. Hudson Jr.

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      About the Editors

      JOHN R. VILE is a professor of political science and dean of the University Honors College at Middle Tennessee State University (MTSU). He is the author of numerous books, including Presidential Winners and Losers: Words of Victory and Concession (2002); The Encyclopedia of Constitutional Amendments, Proposed Amendments, and Amending Issues, 1789–2010, 3rd ed. (2010); The Constitutional Convention of 1787: An Encyclopedia of America's Founding (2005); A Companion to the United States Constitution and Its Amendments, 5th ed. (2011); Essential Supreme Court Decisions: Summaries of Leading Cases in U.S. Constitutional Law, 15th ed. (2010); and The Writing and Ratification of the United States Constitution: Practical Virtue in Action (2012). Co-edited works include the Encyclopedia of the First Amendment (2009) and The Encyclopedia of Civil Liberties in America (2005). Vile is a member of the board of the American Mock Trial Association, a recipient of the Congressman Neal Smith award for contributions to law-related education, a 2009 inductee into the American Mock Trial Coaches Hall of Fame, and a recipient of MTSU's Outstanding Career Achievement Award for 2010–2011.

      DAVID L. HUDSON JR. is a First Amendment Scholar at the First Amendment Center at Vanderbilt University. He also teaches classes at Vanderbilt Law School and the Nashville School of Law. He is the author, co-author, or co-editor of more than thirty-five books, including The Encyclopedia of the First Amendment (one of three co-editors), The Rehnquist Court: Understanding Its Impact and Legacy (Praeger, 2006), The Handy Supreme Court Answer Book (Visible Ink Press, 2008), and Let the Students Speak! A History of the Fight for Free Expression in American Schools (Beacon Press, 2011).

      Topical Table of Contents

      Case Table of Contents

      U.S. Supreme Court cases unless otherwise noted. Some cases are listed more than once, but most are not. See topic entries within the encyclopedia and index at back of volumes for other suggestions on cases to read.

        Computer Searches
      • See
        • Internet, Email, Text Messages, and Computer Searches and Seizures
        Passenger Searches
      • See
        • Vehicular Searches and Vehicular Stops
        Police Lineups
      • See
        • Identification Laws and/or Police Lineups
        Silver Platter Doctrine
      • See
        • Exclusionary Rule and Exceptions to Exclusionary Rule

      Foreword

      In March 1971, I received in the mail a package of documents stolen from the Media, Pennsylvania, office of the Federal Bureau of Investigation (FBI) by a decidedly nongovernmental Citizens Committee to Investigate the FBI—whose members have remained anonymous all these years. The documents concerned specific abuses of the Bill of Rights with regard to individuals, including violations of the Fourth Amendment. Although U.S. Attorney General John Mitchell sternly warned the press not to publish any of the documents, the Washington Post and the New York Times, exercising their First Amendment rights, did just that.

      So did I, in the Village Voice. Soon two FBI agents knocked on my door at home where I worked. They demanded that I tell them whether I had copies of those stolen documents in my possession. I asked to see the search warrant and was surprised to find that they didn't have one. I told FBI kingpin J. Edgar Hoover's agents to see my lawyers at the American Civil Liberties Union, a few blocks away; but they insisted on searching my office. I reminded them of the requirement of the Fourth Amendment, and the surly FBI agents left.

      I was very grateful to a Boston lawyer, James Otis, who, in 1761, had argued for four hours before the king's court in Boston against the “writs of assistance,” general search warrants written by British officers that allowed them to thoroughly search American colonists' offices and homes.

      Samuel Adams and the Sons of Liberty instituted Committees of Correspondence (there being no Internet at the time) to denounce these abuses throughout the colonies, spurred by James Otis's description of those writs as instruments of “slavery” and “of arbitrary power, the most destructive of English liberty.”

      In the audience at the court that day was a young lawyer, John Adams, who 56 years later, using his notes on James Otis's call to action, wrote that “Otis was a flame of fire. … Then and there the Child Independence was born” (quoted in Levy, 1999, p. 157). As Leonard Levy (1999) wrote:

      Adams's reaction to Otis's speech is so important because a straight line of progression runs from Otis's argument in 1761 to Adams's framing of Article XIV of the Massachusetts Declaration of Human Rights to [James] Madison's introduction of the proposal that became the Fourth Amendment. (p. 158)

      It will be dramatically evident in the pages that follow, in this odyssey of the Fourth Amendment, that its plainspoken requirements have often been contorted or dangerously disregarded. As a crucial example, in 1928 the Supreme Court—in the first wiretapping case before the Court (Olmstead v. United States)—ruled that the Fourth Amendment did not apply to the rapidly advancing technology of privacy shredding.

      In dissent, an alarmed Justice Louis Brandeis predicted that the government would inevitably go beyond wiretapping. “Ways may someday be developed,” he predicted, “by which the government, without removing papers from your secret drawers, can reproduce them in court.”

      “Can it be,” Brandeis urgently asked, “that the Constitution affords no protection against such invasions of individual security?”

      There were, however, advances in individual privacy, as when the exclusionary rule mandated that illegally obtained evidence by the government can be excluded in court. Originally applied by the Supreme Court only in federal cases (Weeks v. United States [1914]), this vital constitutional safeguard was extended to state courts in Mapp v. Ohio (1961). Justice Tom C. Clark wrote for the majority in admirably lucid prose that requires no law degree of the reader:

      There is no war between the Constitution and common sense. Presently, a federal prosecutor may make no use of evidence illegally seized, but a state's attorney across the street may. … Thus, the state, by admitting evidence unlawfully seized, serves to encourage disobedience to the Federal Constitution which it is bound to uphold.

      But, in 2009, the Roberts Court, ignoring common sense in real life, has greatly endangered the exclusionary rule, deciding—as reported by David G. Savage (2009):

      In Herring v. United States, the justices said the exclusionary rule is not triggered when the police negligently or unwittingly violate the Fourth Amendment. And in Pearson v. Callahan, they said the police cannot be sued if they enter a house without a warrant after receiving a signal from an informer inside. (p. 19)

      In street jargon, that's “a setup”—placing an informant in a situation precisely in order to slickly violate the Fourth Amendment.

      However, the essence of the Fourth Amendment has never been in more peril than during the administration of George W. Bush (along with Vice President Dick Cheney's “Dark Side”) and since, under President Barack Obama. The United States has become a deep and unbounded surveillance society, far beyond even George Orwell's imagination.

      In 1978, the Foreign Intelligence Surveillance Court (FISA) was instituted to counter executive claims—going back to President Franklin D. Roosevelt and, of course, J. Edgar Hoover—of the necessity of warrantless searches for national security, thereby suspending the Fourth Amendment.

      The FISA law and the attendant FISA Court primarily resulted from the revelations of Senator Frank Church, chair of a Select Committee on Intelligence Activities on the evisceration of the Fourth Amendment by Hoover's COINTELPRO (counterintelligence operation) and, more astoundingly, on the omnivorous, omnipresent surveillance technology of the National Security Agency (NSA). Pledged Church in 1975: “The American people need to be reassured that never again will an agency of the government be permitted to conduct a secret war against those citizens it considers a threat to the established order” (cited in Hentoff 2003).

      But still, Church worried that with advancing technology, the government's tracking of Americans it considered possible “persons of interest” could, unless subject to continued constitutional accountability,

      at any time be turned around on the American people. And no American would have any privacy left—such is the capacity to monitor everything, telephone conversations, telegrams, it doesn't matter. There would be no place to hide. …

      There would be no way to fight back because the most careful effort to combine together in resistance to the government, no matter how privately it was done, is within the reach of the government to know. (1975, cited in Greenwald 2012)

      The government's capacity to probe has multiplied exponentially since then, and much of the nation was shocked when, as the 1990s were coming to an end, the New York Times disclosed the ever more extensive government warrantless surveillance of us by the NSA, among other sleuths, disabling the purported privacy protections of the FISA Act. To repair the damage, Congress passed the 1998 FISA Amendments Act that further diminished what remained of the Fourth Amendment.

      The Obama administration even went beyond its predecessor's dismantling of the Fourth Amendment. In a continuing case, Jewel v. National Security Agency (9th Cir. 2011), brought by the Electronic Frontier Foundation—the leading defender of civil liberties in digital communications—the Obama Justice Department has made much more urgent an awakening of the citizenry to the history of the Fourth Amendment as the quintessential foundation of our right to privacy with respect to government intrusion. As Kenneth Bankston of the Electronic Frontier Foundation explained in 2009, President Obama

      has for the first time claimed sovereign immunity against the privacy-protecting Wiretap Act and the Stored Communications Act. … This administration is arguing that the United States can NEVER be sued for spying that violated federal surveillance statutes, whether the Foreign Intelligence Surveillance Act or the Stored Communications Act. (cited in Hentoff 2009)

      However Jewel v. National Security Agency turns out, it is clear that the urge to imperialize government surveillance authority transcends political parties and ideologies. In its lawsuit, the Electronic Frontier Foundation claims:

      Using this shadow network of surveillance devices, the defendants have acquired and continue to acquire the content of a significant portion of the phone calls, e-mails, instant messages, text messages, web communications and other communications, both national and international, of any American who uses the phone system or Internet, … [creating] an unprecedented, suspicionless general search through the nation's communications.

      Unfortunately, such searches are not entirely unprecedented. They date back to the writs of assistance, the arbitrary general searches that the British approved before American independence.

      And, unless the citizenry becomes informed of its Fourth Amendment guarantees and urgently educates Congress about them, the government will continue to add ever newer technology to its shadow network of surveillance devices.

      In December 2009, the Electronic Freedom Foundation and the Samuelson Clinic of Berkeley Law School brought a lawsuit against the Department of Justice “for using Facebook, Twitter, and other social networks to investigate citizens in criminal and other matters.” Those matters can include “national security,” extra judicial investigations with corollary inclusions of citizens in bottomless databases. Furthermore, the Electronic Frontier Foundation makes the point that “social networks are hardly the only places to mine valuable data. A security researcher found that Sprint Nextel provided law enforcement agencies with its customers' (GPS) location information over 8 million times between September 2008 and October 2009” (Boulton 2009).

      We don't have to be, as the FBI puts it, assessed as a national security threat to be under the government's unblinking eye.

      This Encyclopedia of the Fourth Amendment, therefore, is not only an account of the continuous wars of resistance to prevent government raids on the Fourth Amendment but also a possible weapon of defense, one that actively concerned citizens can use educate others—and Congress—about our vanishing privacy. (After all, members of Congress also value their privacy, having experienced its loss during J. Edgar Hoover's regime.)

      What awaits us in the future, if we remain passively complicit in government invasions of our privacy, is described in James Bamford's The Shadow Factory (2008). He tells of NSA's development of an artificial intelligence system at its Advanced Research and Development Activity. This system, says Bamford, “is designed to know what people are thinking” (p. 325). Science fiction? He explains:

      With the entire Internet and thousands of databases for a brain, the device will be able to respond almost instantaneously to complex questions posed by intelligence analysts. As more and more data is collected—through phone calls, credit card receipts, social networks like Facebook and MySpace, GPS tracks, cell phone geolocation, Internet searches, Amazon book purchases, even E-Z pass toll records—it may one day be possible to know not just where people are and what they are doing, but what and how they think. (p. 325)

      Bamford adds, “The system is so potentially intrusive that at least one researcher has quit, citing concerns over the dangers in placing such a powerful weapon in the hands of a top-secret agency with little accountability.” Showing NSA's penchant for irony, the system, notes Bamford, is “known as Acquaint, which stands for ‘Advanced QUestion Answering for INTelligence’” (p. 325).

      In current real time, David Wood (2008), national security correspondent of the Baltimore Sun—one of the few members of the print, television, and digital press to have penetrated at least parts of the NSA—illuminated the scope of NSA's enormous Cray supercomputer, whose code name is the “Black Widow.” Imagine the reaction of Samuel Adams and the Sons of Liberty to learn that in the United States of America to come, the Black Widow “scans millions of domestic and international phone calls and e-mails every hour,” performing “hundreds of trillions of calculations per second” as it pounces on “key words and patterns” of Americans' communications to track down threats to our national security.

      The press, in all current and future media, must inform and keep informing Americans of the government's insatiable obsession with knowing far more about them than they know about themselves.

      When I was still in high school—the Boston Latin School, a public school founded in 1635, whose alumni included Samuel Adams, Cotton Mather, and Ralph Waldo Emerson—I first heard of the seminal invocation of the primary right of each individual to be “let alone,” as Justice Louis Brandeis put it, by his or her government.

      In the British Parliament, in 1763—two years after James Otis became the “flame of fire” in Boston—William Pitt declared:

      The poorest man may, in his cottage, bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England may not enter; all his forces dare not cross the threshold of the ruined tenement.

      But King George III and the Parliament did not include their American possession in that purview—and the Fourth Amendment was soon born. Its subsequent tumultuous odyssey is before you in this Encyclopedia of the Fourth Amendment, which, I expect, will ignite in its readers an insistent hope for a triumphant return of what our Founders intended.

      NatHentoff
      Further Reading
      Bamford, James. The Shadow Factory. New York: Anchor Books, 2008.
      Boulton, Clint. “EFF Sues DOJ for Sleuthing Practices on Facebook, Twitter.” http://E-Week.com, December 3, 2009, http://www.eweek.com/c/a/Web-Services-Web-20-and-SOA/EFF-Sues-DOJ-For-Sleuthing-Practices-on-Facebook-Twitter-334801/.
      Greenwald, Glenn. “Surveillance State Evils.” http://Salon.com, April 21, 2012. http://www.salon.com/2012/04/21/e_2/.
      Hentoff, Nat. “J. Edgar Hoover Back at the ‘New’ FBI.” The Village Voice, December 9, 2003. http://www.villagevoice.com/2003-12-09/news/j-edgar-hoover-back-at-the-new-fbi/.
      Levy, Leonard. Origins of the Bill of Rights. New Haven, CT: Yale University Press, 1999.
      Savage, DavidG.Who's Policing the Fourth Amendment?American Bar Association Journal95, no. 4 (2009): 19.
      Wood, David. “Spying NSA's Failures.” Baltimore Sun, October 26, 2008, http://articles.baltimoresun.com/2008-10-26/entertainment/0810240049_1_james-bamford-puzzle-palace-eavesdroppers/.

      Preface

      Several years ago, we served as two of the three editors (along with David Schultz) for a comprehensive, two-volume work titled the Encyclopedia of the First Amendment. The experience was immensely rewarding and rich. The process of defining, detailing, and editing various entries on cases, concepts, individuals, and other aspects of the freedoms of religion, speech, press, assembly, and petition was an all-encompassing project that paid scholarly dividends. Both of us teach constitutional law, and the encyclopedia project not only expanded our knowledge base but also made us better teachers more conversant in the constitutional culture of the First Amendment.

      The positive feedback from that work in part inspired us to work with CQ Press, an imprint of SAGE Publications, to create another two-volume set on an equally important part of the Bill of Rights: the Fourth Amendment.

      While the forty-five words of the First Amendment often receive a lion's share of the attention from the media, the fifty-four words of the Fourth Amendment are crucial to establishing a constitutional baseline of freedom in the United States. Those fifty-four words read:

      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.

      The Fourth Amendment ensures that individuals possess a level of privacy with respect to invasive actions by government officials. The Founding Fathers—like their English forebearers—believed that a “man's home is his castle,” that government officials should not have the right to engage in far-reaching fishing expeditions, often called general warrants. Instead, to avoid constitutional problems, government officials must have a warrant signed by a neutral and detached magistrate that is justified by probable cause and that particularly describes the person, place, or thing to be searched. Justice Louis Brandeis famously wrote in his dissenting opinion in Olmstead v. United States (1928), a case concerning wiretapping, that the Fourth Amendment protected the “right to be let alone—the most comprehensive of rights and the right most valued by civilized men.”

      We followed the same general format that proved successful with the First Amendment work. This means that readers will find a Foreword by renowned civil liberties defender and author Nat Hentoff and then a series of longer essays by renowned Fourth Amendment scholars and/or jurists. Subjects include a history of the Fourth Amendment, the meaning of “search and seizure,” the exclusionary rule, technology and the Fourth Amendment, the Fourth Amendment and terrorism, the warrant requirement, the Fourth Amendment and privacy, and application of the Fourth Amendment to the states. This bevy of constitutional experts offers deeper perspective on Fourth Amendment concepts and provides an excellent starting point for readers of the work.

      Following the series of introductory essays are more than 900 topical entries, written by more than 75 scholars from institutions throughout the nation, arranged in alphabetical order and covering the gamut of Fourth Amendment cases, related laws, terms and concepts, issues and organizations, and key persons. Each topical entry is followed by key information for the interested reader and/or researcher. This includes the name of the author, a list of cross-references to other related entries, and a “Further Reading” section that will offer the reader/researcher a selection of longer, more comprehensive works on the subject.

      We have attempted to include every U.S. Supreme Court decision on the Fourth Amendment—even many decisions that simply featured a lone justice dissenting from a denial of certiorari. The work also includes some lower court decisions—state high court decisions or federal appeals court decisions—that we believe contributed substantially to the development of search and seizure law. We have included numerous early cases, including some from Great Britain and many from U.S. state courts that predate the Fourth Amendment. We do so because we believe, as in Justice Oliver Wendell Holmes's famous aphorism, “a page of history is worth a volume of logic.”

      To provide coverage of terms and concepts, we tackled the familiar ones of exclusionary rule, probable cause, warrant requirement, and others. But we also addressed others—the drug courier profile and dropsy testimony—that may be unfamiliar to some readers. Because people make history, we sought to enrich the work by discussing many of the leading individuals who contributed to the rich history of Fourth Amendment law, be they jurists, attorneys, scholars, or others—like the eponymous censor Anthony Comstock—who contributed to some key aspect of Fourth Amendment history.

      We hope that readers will find this work user-friendly. Our editors and proofreaders helped us craft several useful aids, including two topical tables of contents, a glossary, the ever-indispensable subject and case indexes, and a selected bibliography. We also included a chronology of key events to provide some perspective on when events took place with respect to each other. The introductory essays that we commissioned from renowned experts provide an excellent starting point for those readers who wish to gain an in-depth and deeper contextual understanding of the Fourth Amendment. Others may want to use this encyclopedia to find a starting place for research on a particular case, concept, or controversy; we believe that many students will find this work useful as a starting point in their research. We think that public, college and university, journalism, and law libraries will find this work invaluable to those who want to explore any aspect of Fourth Amendment law. One of us is a lawyer and the other is the father of a lawyer, so we would be especially pleased if many attorneys and judges find this work, with its comprehensive treatment of cases, to be a useful tool in their own practices.

      Most of all, we hope that this work will lead to a greater understanding and appreciation of the rich history and the continuing, contemporary value of the Fourth Amendment in a free and democratic society.

      JohnR.Vile and DavidL.HudsonJr.

      Contributors

      • THOMAS AIELLO
      • University of Louisiana
      • MARY WELEK ATWELL
      • Radford University
      • DAVID BARNES
      • King & Spalding LLP
      • FRANCIS J. BECKWITH
      • Baylor University
      • ALVIN K. BENSON
      • Utah Valley State College
      • STEPHANIE COOPER BLUM
      • Michigan State University
      • CRAIG BRADLEY
      • Indiana University Maurer School of Law
      • LACINDA D. BRESE
      • Southeastern Oklahoma State University
      • LARRY BURRISS
      • Middle Tennessee State University
      • MARK BYRNES
      • Middle Tennessee State University
      • BRYAN M. CARSON
      • Western Kentucky University
      • BRIAN CATERINO
      • Independent scholar
      • THOMAS K. CLANCY
      • The University of Mississippi School of Law
      • JAMES COLL
      • Nassau Community College and New York City Police Department
      • AARON COOLEY
      • University of North Carolina at Chapel Hill
      • AMANDA HARMON COOLEY
      • South Texas College of Law
      • PAUL J. CORNISH
      • Grand Valley State University
      • MICHAEL COULTER
      • Grove City College
      • WILLIAM J. CUDDIHY
      • Los Angeles City College
      • LAUREN Z. CURRY
      • Sherrard & Roe, PLC
      • KEVIN R. DAVIS
      • Vanderbilt University
      • LAJUANA S. DAVIS
      • Samford University
      • REBECCA SHRIVER DAVIS
      • Georgia Southern University
      • STEPHANIE R. DAVIS
      • Morehead State University
      • HEATHER K. DEMATOS
      • Smith Hanley Consulting Group, LLC
      • GEORGE M. DERY III
      • California State University, Fullerton
      • RAÚL FERNÁNDEZ-CALIENES
      • St. Thomas University School of Law
      • LOUIS FISHER
      • Scholar in Residence, The Constitution Project
      • JOEL FISHMAN
      • Duquesne University Center for Legal Information and Allegheny County Law Library, Pennsylvania
      • PAUL D. FOOTE
      • Eastern Kentucky University
      • JAMES C. FOSTER
      • Oregon State University–Cascades
      • CARA L. GALLAGHER
      • Evanston Township High School, IL
      • PATRICK M. GARRY
      • University of South Dakota School of Law
      • TOBIAS T. GIBSON
      • Washington University in St. Louis
      • MICHAEL C. GIZZI
      • Illinois State University
      • RICHARD A. GLENN
      • Millersville University
      • JOHN C. GOTTFRIED
      • Western Kentucky University
      • JAMES M. GOTTRY
      • Snell & Wilmer, LLP
      • RICHARD J. HARDY
      • Western Illinois University
      • THURMAN HART
      • Independent scholar
      • ROBB S. HARVEY
      • Waller Lansden Dortch & Davis, LLP
      • ROGER HEINRICH
      • Middle Tennessee State University
      • CRAIG HEMMENS
      • Boise State University
      • KEVIN HOGG
      • Carleton University
      • KENNETH M. HOLLAND
      • Ball State University
      • DAVID L. HUDSON JR.
      • Vanderbilt University
      • JOHN W. JOHNSON
      • University of Northern Iowa
      • RAYMOND G. KESSLER
      • Sul Ross State University
      • HELEN J. KNOWLES
      • Whitman College
      • WILLIAM C. KOCH
      • Tennessee Supreme Court
      • KYLE L. KREIDER
      • Wilkes University
      • MAURICE LEACH
      • City University of New York Graduate Center
      • CHRISTOPHER R. MARSHALL
      • South Texas College
      • SHANNON K. MCCRAW
      • Southeastern Oklahoma State University
      • TOM MCINNIS
      • University of Central Arkansas
      • DALE MINESHIMA-LOWE
      • Center for International Relations
      • ANDREW MOLINARI
      • New York City Department of Education
      • CARYN E. NEUMANN
      • Miami University of Ohio
      • KEVIN FRANCIS O?NEILL
      • Cleveland State University
      • RICHARD L. PACELLE JR.
      • Georgia Southern University
      • DAVID RAY PAPKE
      • Marquette University
      • MICHAEL PARIS
      • The College of Staten Island (CUNY)
      • GENE POLICINSKI
      • First Amendment Center
      • JANE G. RAINEY
      • Eastern Kentucky University
      • MITZI RAMOS
      • University of Illinois at Chicago
      • JOHN DAVID RAUSCH JR.
      • West Texas A&M University
      • STEPHEN L. ROBERTSON
      • Middle Tennessee State University
      • ROGER ROOTS
      • New York Institute of Technology
      • RALPH A. ROSSUM
      • Claremont McKenna College
      • DAVID SCHULTZ
      • Hamline University
      • WILLIAM L. SHULMAN
      • Middle Tennessee State University
      • SARAH SKOWRONSKI
      • Loyola University, Chicago
      • TARA W. STRICKO
      • Kennesaw State University
      • ANDREW E. TASLITZ
      • Howard University School of Law
      • RICHARD TENNENT
      • Bell, Tennent & Frogge, PLLC
      • JOHN R. VILE
      • Middle Tennessee State University
      • DARREN A. WHEELER
      • Ball State University
      • CARY S. WIGGINS
      • Wiggins Law Group
      • CLYDE E. WILLIS
      • Middle Tennessee State University
      • LAURA WITTERN-KELLER
      • University at Albany (State University of New York)
      • FIONA YOUNG-BROWN
      • Freelance writer
      • MARVIN ZALMAN
      • Wayne State University
      • PRISCILLA H. M. ZOTTI
      • United States Naval Academy

      Introduction

      The Fourth Amendment to the Constitution is among the first ten amendments to the U.S. Constitution, known collectively as the Bill of Rights. The amendment, like most others within the Bill of Rights, was largely drafted by James Madison. Although the delegates who attended the Constitutional Convention that met in Philadelphia in the summer of 1787 had included some legally enforceable prohibitions on governmental actions, they had primarily sought to preserve rights through the design of government structures (separation of powers and federalism, for example) rather than through mere “parchment barriers,” or words written on paper.

      During the Federalist/Anti-Federalist debates over ratification of the Constitution, however, leading Federalists—most notably James Madison, who is often described as the father of the U.S. Constitution—became convinced that the addition of a bill of rights was necessary both to forestall a second convention, which might undo the work of the first, and to settle Anti-Federalist anxieties about the enhanced powers of the new national government. The Bill of Rights was somewhat amended and proposed by the new Congress in 1789 and ratified by the necessary number of states in 1791. Nonetheless, as shown in David Schultz's overview essay, “The Incorporation of the Fourth Amendment,” federal courts did not actively apply the amendment to the states (many of which, however, had equivalent provisions within their own constitutions) until Wolf v. Colorado (1949). The Supreme Court waited even longer before deciding in Mapp v. Ohio (1961) that it would apply the exclusionary rule—a corrective action that it had first applied to the national government in Weeks v. United States (1914) whereby illegally obtained evidence is excluded from being admitted at trial—to enforce the Fourth Amendment.

      Fourth Amendment Principles

      The Fourth Amendment embodies principles that are dear to the heart of most Americans, as well as their English forebearers. Winston Churchill is said to have remarked that “[d]emocracy means that when there's a knock in the door at 3:00 AM, it's probably the milkman.” In Wolf v. Colorado (1949), Justice Felix Frankfurter noted,

      The knock at the door, whether by day or by night, as a prelude to a search, without authority of law but solely on the authority of the police, did not need the commentary of recent history to be condemned as inconsistent with the conception of human rights enshrined in the history and the basic constitutional documents of English-speaking peoples.

      Similarly, the Fourth Amendment is often associated with the idea, deeply embedded in English common law, that a man's home is his castle. Even before the American colonists had gained their independence from Great Britain, they had sided with the English author John Wilkes in opposition to general searches. The rules that the Fourth Amendment establishes for obtaining a warrant, which requires probable cause, further affirm the unstated but pervasive constitutional assumption that individuals are legally innocent until proven guilty. Tennessee Supreme Court Justice William C. Koch's incisive introductory article details other principles associated with the warrant requirement.

      While Americans undoubtedly cherish the values inherent in the Fourth Amendment, they would probably be more likely to know that the First Amendment deals with freedoms related to religion, speech, and press (few would probably remember assembly and petition) than they would be likely to identify the Fourth Amendment as the one that deals with warrants, unreasonable searches and seizures, and probable cause. In addition to having the advantage of being listed first, the First Amendment has a certain clarity and force that seems absent from the Fourth Amendment. Whatever ambiguities the terms of the First Amendment might embody, its language seems to echo the “thou shalt nots” of Moses and the Ten Commandments when it proclaims that “Congress shall make no law” (emphasis added). By contrast, the Fourth Amendment's statement that “the right of the people … shall not be violated” is more passive. Similarly, Fourth Amendment terms like “searches and seizures,” “probable cause,” and “oath or affirmation” are more likely to send one to a legal dictionary or law book than are First Amendment terms like “freedom of speech, or of the press” or even “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

      Interpretive Challenges

      A number of the overview essays to this book detail some of the interpretive ambiguities that the Fourth Amendment poses. Whereas the wording of the First Amendment does not temper its protections with adjectives, instead of prohibiting all searches and seizures, the Fourth Amendment explicitly prohibits only those that are “unreasonable.” This term seems to invite individual judgment. In the terminology of the legal theorist Ronald Dworkin, the amendment appears to direct governmental officials to think in terms of a broader “concept” (although one might debate whether it is security, privacy, due process, or something else) rather than a more limited “conception,” as, for example, in the Fifth Amendment's requirement for grand jury indictment or its provision against double jeopardy.

      Moreover, whereas the Fourth Amendment's requirement for warrants “particularly describing the place to be searched, and the persons or things to be seized” seems rather plainly to point back to the colonists' angst-ridden experiences with British customs agents, it fails specifically to use either the terms general warrants or writs of assistance by which American patriots had so designated such abuses. This drafting omission may have obscured much of the impetus behind the original text. The term probable cause, while lacking the interpretive precision of such legal terms as preponderance of the evidence or beyond a reasonable doubt, clearly puts the onus on government to establish sufficient probability of wrongdoing before being able to justify intrusions into private places.

      As proposed and ratified, the Fourth Amendment consists of two independent clauses joined by a coordinating but ambiguous conjunction that, as Thomas K. Clancy and William J. Cuddihy show in their overview essays “The Reasonableness Requirement” and “Origins and Original Meaning of the Fourth Amendment,” respectively, can lead in rival directions. Scholars and judges continue to disagree vehemently about the degree to which the “reasonableness” of searches and seizures that the first clause requires should be ascertained according to whether or not such searches and seizures proceeded according to the warrants named in the second clause. Moreover, almost every articulable rule has one or more exceptions, many with deep roots in the common law.

      Perhaps as importantly, the Fourth Amendment does not specify what consequences government agents will face if they fail to follow its guidelines. Once courts accept the notion, which is itself contested, that the clause is designed to apply not only to customs raids like those that the British employed prior to the Revolutionary War but also to searches and seizures carried out in the pursuit of law enforcement, especially against potentially violent criminals, the costs of enforcing the amendment through the exclusionary rule, which can exclude highly probative evidence, might be more apparent than the cost of earlier provisions within the Bill of Rights. Significantly, Justice Hugo L. Black, a constitutional fundamentalist when it came to enforcing the protections of the First Amendment with respect to both the national government and the states, was often timid, if not hostile, when called upon to apply the exclusionary rule, which he did not regard as the Fourth Amendment's clear mandate. As Professor LaJuana S. Davis's overview essay, “The Fourth Amendment Abroad,” clearly shows, the United States remains one of a relatively small number of nations that apply this rule. Scholars continue to debate whether tort or other remedies against offending parties might be as successful in deterring Fourth Amendment abuses, and the Supreme Court has formulated an increasing number of exceptions—exigent circumstances, inevitable discovery, plain view, open fields, evidence that impeaches testimony by a defendant, limits on knock and announce entries, the independent source doctrine, and others—that limit the application of the exclusionary rule.

      Courts have to adapt many constitutional provisions to developments in technology. One could hardly imagine interpreting the commerce clauses so that they apply only to conveyances and products in existence at the time of the Founding Fathers, yet as Professor Priscilla H. M. Zotti's overview essay, “The Fourth Amendment and Technology,” indicates, the questions that technology pose for the Fourth Amendment are greater than for most otherwise comparable constitutional provisions. The telegraph and telephone were simply portents of much more complex computer and Internet technologies that courts have had to consider when interpreting the Fourth Amendment in the twenty-first century. It took decades before the U.S. Supreme Court decided in Katz v. United States (1967) that warrantless wiretaps were unconstitutional. The development of the automobile has in turn generated a cottage industry of cases and issues, most beginning with Carroll v. United States (1925), relative to searches of such vehicles. The possibility of overhead flights and the use of heat sensors, beepers, and other new techniques have brought their own problems.

      Early in U.S. history, the adoption of the Sedition Act of 1798 raised vital questions about the federal government and the First Amendment. Given the paucity of early federal law-enforcement activities, it is difficult to think of an equivalent incident in the early republic that led to the articulation of Fourth Amendment principles—although James Otis's arguments against the writs of assistance and the dicta of Wilkes v. Wood (1763) and Entick v. Carrington (1765) in England seem to cast light on the motives for adopting the amendment. Notably, however, one of the U.S. Supreme Court's earliest interpretations of the Fourth Amendment, in Boyd v. United States (1886), interpreted the amendment in very broad, and near-poetic, language. The Court indicated that the amendment applies

      [t]o all invasions on the part of the government and its employees to the sanctity of a man's home and the privacies of life. It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty and private property.

      Writing just over a decade later, Justice Edward White observed in Bram v. United States (1897) that the Fourth and Fifth Amendments

      contemplated perpetuation, in their full efficacy, by means of a constitutional provision, principles of humanity and civil liberty, which had been secured in the mother country only after years of struggle, so as to implant them in our institutions in the fullness of their integrity, free from the possibilities of future legislative change.

      The Court continues to cite this broad language to this day. Judges sometimes consider the amendment in conjunction with the self-incrimination provision of the Fifth Amendment. John W. Johnson's overview essay, “The Fourth Amendment and Privacy,” shows that the Fourth Amendment has been implicated in a variety of contemporary issues generally connected to the right of privacy (itself sometimes identified with the elusive Ninth Amendment), especially as regards birth control, abortion, and state sodomy laws.

      Few subjects invoke Fourth Amendment concerns like issues of national security, and developments in legal thinking since the terrorist attacks of September 11, 2001, make this a particularly fruitful time for scholarly commentary, legislation, and judicial rulings on Fourth Amendment issues. Louis Fisher's overview essay, “The Four th Amendment and Terrorism,” articulates some of these challenges. As the influence of the Fourth Amendment has spread abroad, U.S. interpretations of the amendment have an importance that extends beyond U.S. shores, as noted in Davis's “The Fourth Amendment Abroad.”

      About this Encyclopedia

      With such interpretive challenges, it is hardly surprising that the amendment has been the source of frequent litigation and controversy. Fourth Amendment specialists can find a plethora of articles (especially in law reviews, which are not always easily accessible by laypersons) on individual cases and some very able treatises that discuss wider Fourth Amendment issues in sometimes painstaking detail. It has remained more difficult for nonspecialists to find a single resource that provides the equivalent of “one-stop shopping” for Fourth Amendment cases and issues. These two volumes are designed to provide such a resource. As such, it should be especially valuable: for reference librarians in high school, college, university, law school, and public libraries; for students and scholars of history, political science, and public policy; for practicing lawyers, especially those who deal with privacy and criminal matters; for journalists; and simply for citizens who need brief summaries of key cases and concepts.

      These volumes are largely patterned on an earlier set of volumes that we helped to edit that provided encyclopedic information on the First Amendment. This, like the earlier encyclopedia, begins with a chronology and some comprehensive overview essays. These are followed by over 900 alphabetically arranged entries that explore Supreme Court decisions; important judges, lawyers, and thinkers; key concepts; and laws and other relevant documents. Each entry contains cross-references to similar entries and references to secondary sources. Alphabetical, topical, and case tables of contents; a selected bibliography; a listing of online resources; a glossary; and an index provide further resources for citizens and researchers.

      Acknowledgments

      The editors are grateful to the numerous scholars who contributed to these volumes, and especially to those who authored the longer overview essays, which provide a broader context for the alphabetical entries. The editors further appreciate the support of the institutions for which they work, the students whose questions have so often brought deeper insight into individual constitutional cases and provisions, and the multitude of scholars who have provided resources from which to draw in writing these volumes. We especially thank John Martino, Carole Maurer, and Doug Goldenberg-Hart at CQ Press and SAGE. And last, but certainly not least, we thank our copy editors: Paula L. Fleming, Shannon Kelly, Patrice Sutton, and Matthew Sullivan.

      Although the Fourth Amendment has been the subject of intense scholarly debate, we have designed this encyclopedia neither to interpret the Fourth Amendment from a single overarching method of constitutional interpretation nor to advance one or another view of the scope of the amendment. We have designed it to provide adequate resources for students and scholars who want to gather sufficient information to do their own research and reach their own conclusions about such subjects.

      As they contributed their own essays and reviewed those of others, the editors have expanded their own appreciation of the amendment and the values that it seeks to protect. They have becoming increasingly cognizant of the debt that they owe to the large number of forebearers who recognized the importance of such rights and enshrined them within the nation's fundamental law. They are also grateful to those citizens and leaders who have remained faithful to these ideals, confident that it is not necessary to ignore the rule of law under the pretense of saving it.

      JohnR.Vile and DavidL.HudsonJr.

      Chronology: Development and History of the Fourth Amendment

      Cases that are listed in the same year are not always listed in the order in which they were issued.

      1215Magna Carta (England) helps establish precedent for written documents that restrain arbitrary governmental power.
      1485The accession of Henry VII leads to increased general searches in England.
      1604Semayne's Case (England) is the first case known to have articulated the requirement for government officials to knock and announce before entering a residence.
      1605The Gunpowder Plot leads to numerous general searches in England.
      1662Parliament authorizes writs of assistance to search for goods during daylight hours on which custom duties were not paid.
      1754Massachusetts adopts an excise tax on alcohol consumption that leads to confrontations over home inspections.
      1761Issuance of general warrants in Massachusetts stirs popular opposition, led by attorney James Otis.
      1763British issue a general warrant for John Wilkes, who is regarded in the American colonies as a hero.
      1765An English court rules in Entick v. Carrington that a search and seizure conducted under a general warrant for one of Wilkes's supporters was unlawful.
      Parliament adopts the Stamp Act, taxing the colonies.
      1776The American Revolution begins in part out of colonial concerns over British use of writs of assistance. New state constitutions renounce general warrants.
      The Second Continental Congress adopts the Declaration of Independence.
      Virginia adopts its Declaration of Rights.
      1780The Massachusetts Constitution outlaws “unreasonable searches and seizures.”
      1787The Constitutional Convention meeting in Philadelphia drafts the U.S. Constitution and sends it to the states, where it is debated by Federalist supporters and Anti-Federalist opponents.
      In Connecticut, a court in Frisbie v. Butler invalidates a search that was conducted under a general warrant.
      1789George Washington is inaugurated as the nation's first president.
      The First Congress proposes the Bill of Rights, which includes the current Fourth Amendment (originally the sixth of twelve).
      The Collection Act allows for warrantless searches of ships.
      1791The necessary number of states ratifies the Bill of Rights, which includes the Fourth Amendment prohibitions against unreasonable searches and seizures.
      1793Congress adopts a Fugitive Slave Law, the implementation of which sometimes violates Fourth Amendment rights.
      1803Marbury v. Madison, 5 U.S. 137, confirms the power of courts to invalidate congressional laws as unconstitutional.
      1806In Ex Parte Burford, the U.S. Supreme Court mentions the warrant clause of the Fourth Amendment in invalidating an incarceration.
      1811Justices of the Virginia Supreme Court rail against general warrants in Wells v. Jackson.
      1813Chief Justice John Marshall explains the meaning of probable cause in Locke v. United States.
      1814In Grumon v. Raymond, the Supreme Court of Errors of Connecticut uses general principles to uphold a trespass action for an unlawful arrest and imprisonment based on a general warrant.
      Joseph Nicephone Niepce takes the first photograph using a wooden box developed by Charles and Vincent Chevalier of Paris.
      In Sailly v. Smith, a New York court upholds a seizure of illegally imported goods from under a sled in an open shed.
      In Wakely v. Hart, the Pennsylvania Supreme Court refuses to invalidate a warrantless search under the state's equivalent of the Fourth Amendment, which the court thinks was largely directed toward preventing general warrants.
      1816A Massachusetts case, Oystead v. Shed, addresses a trespass action for breaking and entering a dwelling house.
      Pearce v. Atwood (Massachusetts) limits the kind of warrants that can be issued on Sundays.
      1817A New Hampshire court decides in Mayo v. Wilson that town leaders did not violate state constitutional search and seizure provisions by stopping an individual they believed was violating the law by unnecessarily traveling on Sunday.
      1822United States v. La Jeune Eugenie, a U.S. Circuit Court decision, upholds the seizure and return of a slave ship to the French government.
      1824The Appolon affirms doctrines of probable cause in awarding damages for the illegal seizure of a ship.
      1829American Fur Company v. United States allows for the warrantless search of the goods of an individual trading with the Indians.
      1833In Barron v. Baltimore, Chief Justice John Marshall decides that the provisions of the Bill of Rights were designed to limit the national government rather than the states.
      1836David Alter invents the electric telegraph.
      1837Samuel Morse invents a rival telegraph.
      1845Joseph Story asserts in Taylor v. United States that the validity of evidence does not rest on whether the person who seized it was acting under proper authority.
      1847In Larthet v. Forgay, the Louisiana Supreme Court uses the Fourth Amendment warrant requirement to uphold damages in a state-conducted search and seizure in New Orleans.
      1849Justice Levi Woodbury mentions Fourth Amendment warrant requirements in a dissenting opinion in Luther v. Borden.
      1850The Fugitive Slave Act strengthens provisions to capture slave runaways.
      1855A decision in Smith v. Maryland affirms that the Fourth Amendment has no application to the states.
      1856Murray's Lessee v. Hoboken Land & Improvement Co. determines that warrants are not required in cases of government seizures involving civil cases.
      1861Southern secession after the election of Abraham Lincoln leads to a four-year civil war.
      1863General William Rosecrans orders first known tapping of telegraph lines to detect Confederate plans.
      1865The ratification of the Thirteenth Amendments ends chattel slavery.
      1866The Civil Rights Act is adopted in part to limit aggressive searches and seizures under newly enacted Black Codes.
      1868The states ratify the Fourteenth Amendment (through which the Supreme Court will later apply provisions of the Bill of Rights, including the Fourth Amendment, to the states).
      1873Taylor v. Taintor recognizes that those holding sureties for bonds have greater rights to break and enter than do law enforcement officials.
      1876Alexander Graham Bell invents the telephone.
      1878Ex Parte Jackson indicates that postal inspectors need warrants to open closed envelopes or packages.
      Stacey v. Emery equates “probable cause” with “reasonable cause.”
      1879Judge Thomas Cooley associates privacy with “the right to be let alone.”
      Connecticut adopts laws criminalizing the use of, or prescription of, birth control devices.
      1883Cotzhausen v. Nazro helps establish a precedent for future “mail cover” searches.
      1886In a case involving the seizure of business records, Boyd v. United States interprets the Fourth Amendment broadly and rules that there are important links between the Fourth and Fifth Amendments.
      1890Louis Brandeis and Samuel Warren publish an important article in the Harvard Law Review on the right to privacy as a common-law tort.
      1892Counselman v. Hitchcock reiterates principles established in Boyd v. United States (1886).
      1904Interstate Commerce Commission v. Baird rules that the Interstate Commerce Commission could, without violating the Fourth and Fifth Amendments, require evidence from coal company executives to carry out its administrative role to oversee rates.
      Adams v. New York decides that courts should “not stop to inquire as to the means by which the evidence was obtained.”
      1906In Hale v. Henkel, the Supreme Court rules that the agent of a tobacco company could be asked to turn over information about his company that he might not have to turn over if it directly incriminated him.
      1908Henry Ford begins mass-producing the Model T automobile.
      1914Weeks v. United States applies the exclusionary rule to the national government.
      The Harrison Act criminalizes the use of opium, morphine, and derivatives.
      1917The United States enters World War I.
      Congress adopts the Espionage Act.
      Russia undergoes the Bolshevik Revolution.
      1919The Eighteenth Amendment institutes national alcoholic prohibition and the National Prohibition, or Volstead Act, is adopted to enforce it. Such enforcement leads to numerous court decisions.
      The United States experiences its first Red Scare. Attorney General A. Mitchell Palmer institutes mass arrests, designed to harass socialists and communists.
      1920Silverthorne Lumber Co., Inc. v. United States affirms the “fruit of the poisonous tree” doctrine while recognizing an independent source exception to the exclusionary rule.
      1921Amos v. United States invalidates the results of a search in which a wife's consent appears to have been coerced.
      1924Hester v. United States recognizes that police could conduct warrantless searches of abandoned property, in this case, containers of moonshine.
      J. Edgar Hoover is appointed to head the Bureau of Investigation, a precursor to the Federal Bureau of Investigation.
      1925Carroll v. United States establishes an automobile exception to the warrant requirement.
      Gitlow v. New York signals the beginning of the process of incorporation by which the Court will apply provisions of the Bill of Rights to the states.
      1926New York judge Benjamin Cardozo refuses to apply the exclusionary rule to state prosecutions, famously describing the impact of the rule with the words “the criminal goes free because the constable blunders.”
      1927Byars v. United States and Gambino v. United States help establish the silver platter doctrine under which federal agents can use evidence that state agents illegally secured.
      Maul v. United States allows for the boarding of U.S. ships outside the coastal limits of the United States.
      United States v. Lee permits the search of evidence that police had secured from a ship outside the territorial limits of the United States.
      1928Over the dissents of Justices Louis Brandeis and Oliver Wendell Holmes, Olmstead v. United States decides that police do not need warrants to install wiretaps that do not involve physical trespass or force.
      1932United States v. Lefkowitz limits materials that police can collect in an office incident to an arrest in which they did not observe a crime in progress.
      1933The Twenty-first Amendment overturns national alcoholic prohibition but leaves states with power to enact regulations in this area.
      Nathanson v. United States decides that a search warrant, especially of a house, has to be based on more than mere suspicion that illegal activity is taking place.
      1934The Federal Communications Act makes it illegal to divulge information obtained by wiretaps.
      1935J. Edgar Hoover is appointed founding director of the Federal Bureau of Investigation, a post he holds until 1972.
      1936In State v. Lindway, the Ohio Supreme Court rejects the exclusionary rule.
      1937Nardone v. United States interprets the Federal Communications Act of 1934 so as to make it illegal for the government to divulge wiretap interceptions, even during criminal trials.
      1938Carolene Products, Footnote 4 establishes that the Court would give greater scrutiny to violations of specific provisions of the Bill of Rights than to claims that government economic regulations were unconstitutional.
      1940President Franklin D. Roosevelt authorizes secret eavesdropping of suspected foreign agents in the United States.
      1941Japanese attack on Pearl Harbor, Hawaii, leads to U.S. entry into World War II.
      1947Harris v. United States, which remained ruling law for about twenty years, allows for an extensive search of a house incident to arrest despite dissenting opinions that liken the outcome to that permitted by general warrants.
      1949In Wolf v. Colorado, the Supreme Court decides that while the Fourth Amendment limits the actions of the states, the Court will not require that they also adopt the exclusionary rule.
      1952On Lee v. United States allows use of evidence secured by a transmitter on an informant.
      In Rochin v. California, the U.S. Supreme Court determines that police officers' actions in seizing a defendant, taking him to the hospital, and having his stomach pumped violated the due process clause because the conduct of the officers shocked the conscience.
      1953President Dwight D. Eisenhower appoints Earl Warren as chief justice of the U.S. Supreme Court.
      1957Breithaupt v. Abram allows the government to withdraw blood from an unconscious individual suspected of being drunk and causing an accident.
      1960In Elkins v. United States, the Supreme Court ends the so-called silver platter doctrine under which federal agents had been allowed to use evidence illegally gathered by state officials.
      Abel v. United States allows the government to use evidence from a warrantless search of a hotel room after the resident had left.
      1961Mapp v. Ohio applies the exclusionary rule to the states.
      Monroe v. Pape allows individuals to sue police for intrusive warrantless searches.
      Silverman v. United States invalidates a conviction based on information secured by electronic surveillance whose installation had involved physical trespass.
      Marcus v. Search Warrants invalidates Missouri's procedures for searching and seizing allegedly obscene materials.
      1963Ker v. California limits no-knock searches.
      1964Aguilar v. Texas further refines standards for ascertaining the reliability of informants.
      Stoner v. California invalidates a warrantless search of a motel room on the basis that a motel employee did not have the right to waive the Fourth Amendment rights of a guest.
      1965In Angelet v. Fay and Linkletter v. Walker, the Court refuses to apply the exclusionary rule retroactively to the states prior to the decision in Mapp v. Ohio (1961).
      Griswold v. Connecticut strikes down Connecticut birth control laws as violations of the right to privacy implicit in the Fourth Amendment and other provisions in the Bill of Rights.
      1966Schmerber v. California rules that police had probable cause to have a doctor administer a warrantless blood alcohol test to an individual involved in an accident despite the individual's protest.
      1967Berger v. New York overturns New York's eavesdropping law, and Katz v. United States rules that the government must secure warrants to get wiretaps, overruling Olmstead v. United States (1928).
      Camara v. Municipal Court rules that a warrant was required for the inspection of an apartment but lays out reduced standards for establishing probable cause in cases involving government administrative inspections.
      See v. City of Seattle rules that government agents need search warrants to conduct administrative inspections of areas of commercial premises that are not open to the public.
      Warden v. Hayden brings an end to the mere evidence rule.
      1968Bumper v. North Carolina invalidates a search in which consent was secured by incorrectly informing an individual that police had a search warrant.
      Terry v. Ohio allows for the police to stop and frisk individuals suspected of “casing” a jewelry store.
      1969Davis v. Mississippi applies the exclusionary rule to illegally obtained fingerprint evidence.
      Desist v. United States refuses to give Katz v. United States (1967) retroactive application.
      Chimel v. California significantly limits the scope of warrantless searches of houses conducted incident to arrests.
      Spinelli v. United States sets forth standards for ascertaining the reliability of informants and, with Aguilar v. Texas (1964), establishes the Aguilar-Spinelli test.
      The Advanced Research Projects Agency (ARPA) brings ARPANET, the beginning of the Internet, online.
      The Senate confirms President Richard Nixon's appointment of Warren Burger as chief justice of the United States.
      1971Coolidge v. New Hampshire limits items seized under the plain view doctrine to those immediately recognizable as contraband. It also rules that an attorney general is too involved in law enforcement to be able to serve as a “neutral and detached” magistrate in issuing warrants.
      Bivens v. Six Unknown Fed. Narcotics Agents allows for some civil suits against government officials who violate Fourth Amendment rights.
      1972Eisenstadt v. Baird extends the right to privacy to nonmarried couples.
      United States v. United States District Court limits domestic wiretapping of suspected subversive groups but leaves the status of wiretapping of foreign groups unclear.
      Email is used for the first time.
      1973Almeida-Sanchez v. United States invalidates a roving border patrol that lacks a warrant or probable cause.
      Cupp v. Murphy allows police to take fingernail scrapings without consent or a warrant.
      United States v. Dionisio and United States v. Mara allow grand juries to subpoena witnesses for voice recordings and handwriting samples.
      In Schneckloth v. Bustamonte, the Supreme Court rules that police are not required to tell a person whose car they want to search that he or she has the right to refuse to give consent for the search.
      United States v. Robinson allows for a full search of a person incident to a lawful arrest, including, in this case, the contents of a cigarette package that contained drugs.
      1974Congress adopts the Family Educational Rights and Privacy Act (FERPA).
      United States v. Calandra limits the exclusionary rule in grand jury hearings.
      In United States v. Giordano, the Court invalidates evidence from warrants secured under the Omnibus Crime Control and Safe Streets Act of 1968 with the signature of an executive assistant to the U.S. attorney general rather than the attorney general or a designated assistant attorney general.
      1975United States v. Ortiz invalidates warrantless searches at fixed checkpoints sixty-two air miles and sixty-six road miles north of the Mexican border.
      In United States v. Brignoni-Ponce, the Court rules that roving patrols cannot stop vehicles simply on the basis of the occupants' apparent Mexican descent.
      Gerstein v. Pugh decides that a state cannot hold an individual on information without a judicial determination of probable cause.
      1976In United States v. Miller, the Court decides that an individual does not have a legitimate expectation of privacy that would prevent subpoenas of bank records.
      South Dakota v. Opperman allows for the use of some warrantless inventory searches.
      1977United States v. Ramsey allows for the warrantless opening of mail packages under the border search exception.
      United States v. Chadwick overrules the warrantless search of a footlocker placed in a car that police had probable cause to search.
      1978Zurcher v. Stanford Daily allows the government to use a search warrant to search a news office.
      Congress adopts the Right to Financial Privacy Act.
      Mincey v. Arizona refuses to accept a general “murder scene” exception to the warrant requirement.
      Congress adopts the Foreign Intelligence Surveillance Act (FISA), which empowers a special FISA Court to review executive surveillance actions.
      Michigan v. Tyler requires officials to secure warrants for nonconsensual searches of fire scenes that are not closely tied to the original entry.
      Marshall v. Barlow's, Inc. limits warrantless inspections of business premises.
      1979Delaware v. Prouse limits evidence from random automobile stops conducted without probable cause.
      In Smith v. Maryland, the U.S. Supreme Court upholds police use of a warrantless pen register.
      Bell v. Wolfish upholds a requirement requiring arraigned pretrial detainees to be subjected to body cavity searches after contact with outside visitors.
      1980The Privacy Protection Act requires government to seek subpoenas when getting information from newsrooms.
      Donovan v. Dewey permits warrantless searches of stone quarries.
      Payton v. New York outlaws warrantless felony arrests in the home absent exigent circumstances.
      In United States v. Mendenhall, the U.S. Supreme Court creates the so-called free to leave test in determining whether individuals have been seized within the meaning of the Fourth Amendment.
      1981Doe v. Renfro upholds a dog-sniffing search, but invalidates a strip search, of school students.
      Michigan v. Summers allows police executing a search warrant for contraband to detain occupants of the premises.
      1982Washington v. Chrisman decides that police do not need a warrant to accompany an arrested individual to his or her residence, in this case, a dorm room.
      United States v. Ross decides that when police have probable cause to search a vehicle, they have the authority to search all containers within the vehicle.
      1983Illinois v. Gates develops the “totality of the circumstances” test to ascertain whether there is probable cause to secure a warrant. It replaces tests developed in Spinilli v. United States (1969) and Aguillar v. Texas (1964).
      In Michigan v. Long, the U.S. Supreme Court explains that a state high court is free to interpret its state constitutional provisions limiting unreasonable searches and seizures to provide greater protection than the U.S. Supreme Court does under the Fourth Amendment. The Court also explains, however, that the state court must make clear by a plain statement that it is deciding the case on state-law grounds.
      1984Immigration and Naturalization Service v. Lopez-Mendoza refuses to apply the exclusionary rule to evidence used in deportation hearings. Immigration and Naturalization Service v. Delgado further limits search and seizure protections during INS workplace raids.
      Nix v. Williams reaffirms the inevitable discovery exception to the exclusionary rule.
      United States v. Leon and Massachusetts v. Sheppard recognize a good faith exception to the exclusionary rule.
      Oliver v. United States rules that a “No Trespassing” sign is insufficient to preclude police searches of open fields not connected with the curtilage of a house.
      Hudson v. Palmer limits Fourth Amendment privacy rights of prisoners.
      1985New Jersey v. T.L.O. upholds warrantless searches of schoolchildren as long as school officials act on the basis of reasonable suspicion.
      Winston v. Lee prohibits police from extracting a bullet from a defendant who does not give consent when other evidence of his participation in a crime is available.
      United States v. Montoya de Hernandez permits extended warrantless detention in a border search (in this case at Los Angeles International Airport) designed to detect drugs carried in an individual's alimentary canal.
      1986Bowers v. Hardwick permits a state to prosecute individuals for private acts of consensual sodomy.
      California v. Ciraolo upholds a warrantless aerial search of the curtilage of a home.
      Congress adopts the Electronic Communications and Privacy Act.
      The Senate confirms President Reagan's appointment of William Rehnquist to be chief justice of the United States.
      Dow Chemical Co. v. United States allows for the use of photographs taken by warrantless aerial overflights of an industrial complex.
      1987Hearings over the confirmation of Robert Bork to the U.S. Supreme Court turn in part on his restrictive readings of constitutional privacy rights.
      Griffin v. Wisconsin upholds a warrantless search of the home of a probationer by a probation officer acting on less than probable cause.
      O'Connor v. Ortega addresses warrantless administrative searches in the workplace.
      Arizona v. Hicks rules that the plain view doctrine does not enable police to move stereo equipment without a warrant to ascertain serial numbers.
      1988Congress adopts the Video Privacy Protection Act.
      California v. Greenwood upholds a warrantless police search of garbage bags set out on a curb for pickup.
      1989Treasury Employees v. Von Raab upholds drug testing of governmental customs employees, while Skinner v. Railway Labor Executives' Association upholds mandatory drug testing of railroad employees who are involved in certain accidents.
      Florida v. Riley upholds a helicopter search of a home's curtilage.
      In United States v. Sokolow, the U.S. Supreme Court determines that federal agents did not violate the Fourth Amendment when they relied in part on the drug courier profile.
      1990Electronic Frontier Foundation is founded in San Francisco.
      Michigan Department of State Police v. Sitz upholds the use of warrantless highway checkpoints to check for sobriety.
      James v. Illinois refuses to allow the use of illegally seized evidence to impeach defense witnesses other than the defendant.
      In Alabama v. White, the U.S. Supreme Court rules that an anonymous tip about a person carrying drugs provided the requisite reasonable suspicion to justify a stop of the person's vehicle.
      1991County of Riverside v. McLaughlin decides that states cannot hold individuals for longer than forty-eight hours without a judicial determination of probable cause.
      1993Minnesota v. Dickerson articulates the plain feel doctrine.
      1994Albright v. Oliver expresses a preference for bringing civil rights actions under provisions of the Fourth Amendment rather than under the more general due process clause of the Fifth Amendment.
      Congress adopts the Driver's Privacy Protection Act.
      1995Vernonia School District v. Acton upholds randomless drug testing for student athletes.
      Arizona v. Evans decides not to apply the exclusionary rule to violations by court employees who are not directly associated with arrests.
      Wilson v. Arkansas establishes that the Fourth Amendment generally requires police to knock and announce their presence before entering a building.
      1997Maryland v. Wilson rules that police may order passengers out of a car during a vehicle stop.
      1999Wilson v. Layne rules that police officers do not have the right to bring members of the media with them when they execute a search warrant on a private home.
      Wyoming v. Houghton permits the search of the possessions of passengers in a vehicle when police have probable cause to suspect the driver of possessing contraband.
      2000City of Indianapolis v. Edmond invalidates state roadblocks designed to catch illegal drug use.
      The DNA Backlog Elimination Act provides that convicted felons have to provide DNA samples upon their arrest.
      In Bond v. United States, the U.S. Supreme Court invalidates the warrantless tactile search of a bus passenger's bag when the federal agent lacked individualized suspicion that the person was harboring contraband.
      2001Terrorist attacks on the United States raise renewed questions about the scope of governmental surveillance.
      Congress adopts the USA PATRIOT Act, which permits the detention of aliens, roving wiretaps, sneak and peek warrants, and so on.
      Illinois v. McArthur allows police to exclude an individual from his or her house for two hours while police obtain a search warrant.
      Atwater v. City of Lago Vista allows police to arrest individuals for misdemeanor traffic violations, in this case a seat belt violation.
      Ferguson v. Charleston rules that a hospital cannot turn over to police warrantless urinalysis tests of women who are delivering babies to ascertain whether they are addicted to cocaine.
      Kyllo v. United States establishes that police cannot use warrantless thermal-imaging devices to ascertain whether a residence is being used to grow marijuana plants.
      2002Board of Education v. Earls extends random drug testing of public school students engaged in extracurricular activities.
      2003Lawrence v. Texas overrules Bowers v. Hardwick (1986), deciding that the right to privacy protects private consensual acts of sodomy against state legislation.
      2004Congress adopts the Video Voyeur Protection Act.
      Congress adopts the Lone Wolf Amendment as part of the Intelligence Reform and Terrorism Prevention Act. It is designed to allow surveillance of terrorists who are not directly tied to foreign governments.
      In Hiibel v. Sixth Judicial District Court of Nevada, the U.S. Supreme Court rules that Nevada's stop and identify statute does not violate the Fourth Amendment.
      2005Illinois v. Caballes establishes that police can use a trained narcotics-detection dog to sniff the outside of a car that they have stopped for a traffic violation.
      The Senate confirms President George W. Bush's appointment of John Roberts as chief justice of the U.S. Supreme Court.
      2006Georgia v. Randolph finds that a co-occupant of shared premises may not give effective assent to a government search if the occupant of the dwelling who is physically present objects to a warrantless search of the premises.
      United States v. Grubbs upholds the constitutionality of anticipatory warrants.
      Samson v. California upholds a suspicionless search of a parolee by a law enforcement official under a state law that makes such searches a condition of parole.
      Hudson v. Michigan refuses to suppress evidence from a search that did not adhere to knock and announce standards.
      2007The Protect America Act (PAA) relaxes the requirement for wiretaps under the Foreign Intelligence Surveillance Act when one or both parties to the conversations are overseas.
      2008Congress adopts the Foreign Intelligence Surveillance Act Amendments (set to expire in 2012), which permit warrantless surveillance of foreign nationals overseas as long as the purpose is to gain foreign intelligence information.
      2009Safford Unified School District v. Redding limits warrantless strip searches of public school students.
      Arizona v. Gant modifies New York v. Belton (1981) by limiting searches of a vehicle in conjunction with arrests.
      Congress adopts the Communications Assistance for Law Enforcement Act to ease governmental electronic surveillance.
      Herring v. United States extends the good faith exception to the exclusionary rule and refuses to exclude evidence based on mistaken information in police computers.
      Michigan v. Fisher allows for warrantless entries into houses when it is “reasonable to believe” that an individual might be harming him- or herself or others.
      2010City of Ontario v. Quon rules that a city had the right to audit and examine personal text message transcripts sent and received from a pager that it had issued to an employee.
      2011In Davis v. United States, the Court decides not to apply the exclusionary rule to a case in which police had acted in good faith and according to precedent (subsequently overruled) at the time they conducted the search of a car.
      Kentucky v. King upholds warrantless searches of houses in exigent circumstances (in this case, the possible destruction of drug evidence) that the police did not create.
      2012United States v. Jones disallows evidence that the government secured through the installation of a global-positioning tracking system (GPS) by a warrant that was not executed in a timely fashion.
      Florence v. Board of Freeholders rules that strip searches of arrestees who are being incarcerated with others are not unreasonable.
      United States marks the 225th anniversary of the writing of the U.S. Constitution.

      Fourth Amendment Overview

      Origins and Original Meaning of the Fourth Amendment

      What we now call “the Fourth Amendment” originated as part of a series of alterations to the federal constitution that Congressman James Madison of Virginia introduced into the U. S. House of Representatives on June 8, 1789. In its final form, the amendment read:

      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.

      At first glance, the amendment seems a model of succinct precision. Its restrictions on search and seizure reach not only places but also persons and objects. All unreasonable searches and seizures are forbidden, and the second clause emphasizes that warrantless searches without probable cause are clearly unreasonable. Every warrant must particularize the place that it subjects to a search. As a necessary derivative, the general warrant, authorizing the entry and search of all places that its bearer suspects, is unreasonable and unconstitutional. Moreover, the amendment assumes that houses generate a greater expectation of privacy than persons and objects, for it demands atomistic singularity in searching houses (“the place to be searched”) but only multiple specificity regarding persons and objects (“the persons or things to be seized”). Furthermore, “probable cause,” or sufficient grounds, must be shown before warrants of search, seizure, or arrest may be issued.

      Scrutiny, however, shatters this impression of compactness. First off, the amendment does not universally require warrants. Although the amendment requires specificity and probable cause for the issuance of warrants, it does not specify the circumstance under which warrants are to be issued or even whether they must be issued. Spacious contingencies of warrantless arrest, search, and seizure are thereby assumed without description.

      What about “probable cause”? Is belief or mere suspicion the threshold for such cause, and who decides when its requirements are satisfied—the officer who executes the warrant or the neutral magistrate who issues it? Does probable cause encumber warrantless seizures, and how does it adapt in engaging the different warrants of search, seizure, and arrest?

      Finally, what remedies are appropriate after unreasonable searches or seizures occur? Neither the amendment nor any of its brother rights in the Bill of Rights provides an answer.

      Another problem concerns the relevance of the amendment to intrusive methods of subsequent origin. Alexander Graham Bell did not invent the telephone until 1876, almost a century after the amendment originated, but wiretapping began soon after and bestirred a hornet's nest of Fourth Amendment questions. First off, does the amendment concern wiretapping? When Chief Justice William Taft, in Olmstead v. United States (1928), argued that it did not, that the amendment controls only physical entry into a dwelling and not tapping the wires outside it, he invited the amendment's technological circumvention. In 1763, a general search warrant for John Wilkes, the most famous search warrant in British history, facilitated some forty-nine arrests, the seizure of thousands of documents, and the search of about five houses. Today, however, anyone with a directional microphone and a rudimentary computer can intercept every telephonic conversation in every house within miles: the warrantless effect of countless general warrants with no physical search.

      Furthermore, what is true of wiretapping applies to a host of police techniques that have arisen since Madison wrote. Informants provide one example; traffic stops for inebriated drivers offer a second; police lineups of suspects at the station house generate a third. Another question: Does “waterboarding” a suspect to extract information constitute a search of his or her person? Here, too, the amendment answers only with silence.

      Spacious interpretations of the amendment's original meaning also generate problems. Professor Thomas Davies and many other scholars insist that the amendment's words defined as unreasonable only one category of search and seizure: the general warrant. In their view, the amendment's protections do not include privacy or many other topics to which others have dilated the amendment's coverage.

      Origins
      Classical Origins

      Privacy penetrates the very heart of the amendment and illustrates the difficulties in defining its content and scope. From biblical times, Western culture has uniformly asserted the invulnerability of the home from violent entrance or violence by guests within it. Among the ancients, Mesopotamians, Hebrews, Greeks, and Romans typically punished unwelcome intruders with death, and Rome's Byzantine and barbarian heirs did likewise. Written between 673 and 684 CE, the code of Kent, one of the kingdoms that Germanic Saxons established in Britain after the Romans departed, provided diverse penalties for disturbances within the home: only a few coppers for drunken insults but fifty shillings “if the house is spattered with blood.”

      As early as 500 BCE, the Hebrews had formulated a more intense aspect of privacy that transcended the physical walls of the house and emphasized the opacity to outsiders of what happened within those walls. Thus, the Baba Batra, the “First Gate” of the Babylonian Talmud, forbade the placement of windows or doors that either permitted or enabled perception from without of the activities within, thereby defining privacy as an obligation as well as a right. The core of this new aspect of privacy was not the boundaries of the house but the inappropriateness of what occurred behind them to the sight or hearing of others. In the Western tradition to which the Hebrews donated, castles were such in a double sense.

      England, 407–1485

      The amendment also reflects an extensive English and British legacy of search and seizure. Between the evacuation from Britain by Rome around 407 and the Norman Conquest of 1066, seven independent kingdoms, the “Heptarchy,” arose in what later became England. Wessex, the largest of these kingdoms, had some protocol of search and seizure by about 695, when King Ine's code mentioned livestock uncovered in the culprit's house. Moreover, for four centuries after the conquest, the idea that an Englishman's house was his castle remained a reality as well as an adage. These centuries of few and infrequent house searches before 1485 were pivotal to the later emergence of a concept of unreasonable search and seizure because they established an expectation of near immunity from searches. When Englishmen after 1485 began to criticize the search process and intrude rights against it, they did so from a threshold of expected privacy that the earlier centuries had bequeathed to them.

      During this millennium between about 460, when the Saxons began to invade, and 1485, when the Tudors began to renovate the search process, English law furnished only four situations allowing the entry and search of private dwellings. The “hue and cry,” the oldest category of official search, was essentially cut-rate, private enforcement of the public law. Community members who caught a thief in the act cried out for everyone within earshot to join in hot pursuit until the fugitive was caught and summarily killed. Although the culprit would be pursued into any house he was seen to enter, only after about 1470 were other houses routinely searched.

      Second, after about 1297, members of the craft guilds, the fraternities of skilled craftsmen, acquired authority from the king and Parliament to inspect merchandise on sale, both to maintain standards of quality and to prevent unlicensed competition by rogue tradesmen who refused to join the guild. Guild members displaying their wares at shops and at fairs were routinely searched, and after 1500, inspections of private homes unaffiliated with the investigating guild were becoming routine. On the other hand, when the Black Death struck England in 1348, fewer than a hundred guilds existed, and most contained a score or fewer members. Peasants made up over 95 percent of the population of medieval England, and most of the rest were warriors and priests. The entire population of perhaps 5.5 million contained not more than a few thousand artisans to conduct or experience guild searches.

      Third, to collect the king's revenues, English customs officers have conducted official searches since 1275. Because the customs laws emphasized illegal exportation, however, customs searches occurred mostly aboard ship, although here, too, houses were being searched frequently toward the end of the period.

      Finally, after 1450, the courts were extinguishing a fourth type of search, which had until then been common, for the collateral that insolvent debtors withheld from confiscation by creditors. In 1485, an Englishman's house was his castle and had long been so.

      England, 1485–1603

      The arrival of Henry Tudor as King Henry VII in 1485 radically transformed the structure and operation of the English law of search and seizure, for both the categories and the severity of that law proliferated. Within a century, massive criticism of English searches and seizures had begun, adumbrating the concept, if not the words, “unreasonable search and seizure.”

      Having defeated Richard III at Bosworth Field in 1485, Henry VII knowingly occupied the shakiest throne in Europe and rooted out political threats to his supremacy. The foremost plot against Henry in his first year, which he successfully defused, included “a great bande of rude and rusticall people.” In the second year, 1487, “a great multitude of beggarly Irishmen were stryken downe and slayne lyke dull and brute beastes” in the Battle of Stoke. To subjugate those “brute beastes” and undercut the political threats that they incubated, Henry VII and his progeny initiated frequent house-to-house searches.

      First, a statute of 1495 required frequent, general searches for vagrants, the homeless poor. Teams of searchers numbering in the dozens periodically searched every inn, tavern, and suspicious house in countless villages, rounding up thousands of vagrants every year. The new methods soon extended to collateral purposes of social control, such as regulating the dress, diet, and recreation of the lower classes and forbidding them to hunt for food the rabbits, deer, and fish that the wealthy classes pursued as sport. By the middle of the sixteenth century, the old “hue and cry” by local officials and the pursuit of state felons by the Crown utilized violent, house-to-house searches as well.

      Religious and political nonconformity, however, overshadowed all other factors as inducements to the promiscuous searches that the amendment would later forbid. Between 1527 and 1547, Henry VIII divorced his Spanish wife, Catherine of Aragon; subsequently married five more times; incurred papal wrath and excommunication; confiscated the property of the Catholic Church; and declared himself England's head of church as well as state.

      Instead of uniting Englishmen behind the Crown, as he had intended, Henry split them into three hostile groups, each convinced that the others were hell-bent. Most Englishmen probably supported Henry VIII. Many Catholics, however, such as Henry's chancellor Sir Thomas More, thought that he had gone too far and refused to renounce the old faith even at the cost of life itself.

      A third group charged that Henry's policies were a counterfeit Reformation, for unlike Martin Luther of Germany and John Calvin of France, he had not revised Catholic Church doctrine, only displaced the pope as its regional leader. Increasingly, this third group began to demand a more radical reform of the English church that purged it of lingering Catholic ritual and absorbed the ideas of Luther regarding salvation by faith alone and of Calvin regarding predestination. Because they wished to purify the church, critics derided them as “Puritans.”

      After Henry died in 1547, his three children inherited religious turmoil that demanded massive responses by state and law. Henry VIII's lone son, Edward VI, reigned from 1547 to 1553, never reaching the age of maturity necessary to rule. Although his elder sister, Mary, inherited a kingdom that had been Anglican for nineteen years, she convulsed England by attempting to restore Catholicism as the state religion. In just five years on the throne, 1553–1558, she oversaw more executions for religious reasons than all of her predecessors and successors for centuries. A year after Elizabeth acceded to the throne, her Act of Uniformity restored Anglicanism as England's state religion in 1559, but this was Anglicanism with a difference. Disclaiming any wish to “peer into the windows of men's souls,” this legislation required only “occasional conformity” (i.e., once-yearly participation in public Anglican ritual).

      As the Tudor dynasty progressed, so also did the rigor of Tudor searches to suffocate criticism of the established church and state. As early as 1527, the London headquarters of the German Hansa, or merchant's guild, was searched for Lutheran pamphlets. In 1550, the Privy Council of Edward VI decreed the search of Oxford University for Catholic literature. In 1557, Queen Mary turned the tables by ordering the massive search of Cambridge University for Protestant literature. As Catholic and Protestant challenges to Elizabeth mounted in the 1580s, she abandoned “occasional conformity” in favor of a system of political and religious control, all of it keyed to frequent, unimaginably horrific searches that destroyed property and violated personal dignity.

      Until this point, the mid-sixteenth century, the introduction of house-to-house searches had provoked little protest. Tudor-Stuart Englishmen assumed the immutability of the social and political orders. Vagrancy searches harassed the illiterate poor, who lacked both voice and sympathy. Rounding up assassins of king and Parliament and others accused of crimes against the state resided in the same psychological category. After dissident Catholics had tried to detonate both king and Parliament in the famous Gunpowder Plot of 1605, the resulting general search warrants occasioned the search of at least eleven residences, the arrest of fifty-five unnamed persons, and the confiscation of countless documents. Because these statistics cover only a few of England's fifty-two counties, one must multiply them to arrive at estimates of the actual numbers. Most Englishmen, however, responded with the same silence with which Americans greeted passage of the USA PATRIOT and Homeland Security Acts after 9/11.

      Elizabethan searches after 1580, however, crossed several red lines. For one thing, the targets were new: politically connected, articulate, and iconic religious spokesmen who were invariably literate, usually well-off, and connected to the nation's economic and political nerve centers. Moreover, unlike modern searches, which seek evidence and criminals, Elizabethan searches aimed to terrify, humiliate, and degrade. With local citizenry summoned for the hue and cry as backup, entire towns were periodically searched, house-to-house, door-to-door, usually in the dead of night by violent strangers who bashed in doors and walls with sledgehammers and, with drawn swords poised above, examined the body cavities of screaming women and children. Even the houses of searchers were routinely searched during their absence.

      Moreover, political and religious control was wielded through the existing enforcement apparatus of searches. Traditional searches, such as the privy search and hue and cry, operated for new political and religious purposes. An old institution, the Star Chamber, acquired the new mission of suffocating political criticism of state and Crown; a new one, the High Commission, addressed challenges to the established church. Joining them was the entirety of Elizabethan officialdom, from the masters of the Stationers' Company, who searched printers and booksellers for books forbidden as well as unlicensed, to the Privy Council, whose “Pur suivants,” or pursuers, enforced infinite powers of search and seizure against dissidents of every sort.

      In one of the earliest critiques of the search process, a Catholic gentleman described the process in 1582:

      For an midnight oure aduersaries oftentimes rushe in forcibly vpo[n] them, and sett a watche about the house, that none may escape: then they searche every chamber, euen the bedchambers of wiues and maidens: aboute they goe throwgh all the house from place to place, veweing, tossing, & refeling in euery corner, chests, coffers, boxes, caskets, and closetts. And yf anie thing happen to be fownd that maye woorke some detection of religio[n], or may brede anie blame, or minister matter of surmise: as siluer chalices, patens, candlesticks, crosses, books, vestments, & other ornamets which are called churche stuffe, these they snatche away, by a priuilidge of robberie … and lest anye thing els should be lost by negligence, they stick not to ryfle the bosomes, purses, and coffers of honest matrones, yea and to vncouer their verie innermost garments, & oftentimes to teare & retthe a sunder with violence, to see yf anye Agnus dei, crucifix, medalls, beads or anie halowed things do lye hydd there.

      In 1587–1593, Protestant zealots, such as the “Martin Marprelate” pamphleteers, criticized Elizabeth's Episcopal prelates. They now experienced the same searches as had their Catholic neighbors and echoed their criticism.

      England, 1603–1776

      The Stuart dynasty, which followed the Tudor dynasty on Elizabeth's death in 1603, maintained its methods of search and seizure, and so did the Hanoverian dynasty, which in 1714 assumed the throne that it still occupies. Dynasties, however, changed far more than methods of search. From their first year on the throne, the Stuarts preferred to use warrants to authorize searches in place of the ex officio, warrantless techniques that they had inherited, and, by 1700, guild searches had largely atrophied. Otherwise, however, the apparatus of search and seizure resembled a layer cake that accumulated new layers of application and purpose without altering its central core of general house-to-house search.

      For example, the Stuarts first expanded the use of general warrants to enforce the laws against game poaching. Between 1660 and 1662, they also extended the use of general warrants and searches to regulate weapons and curtail meetings of religious dissenters. Also, in 1662, they modified an old device, the writ of assistance, into the cornerstone of promiscuous customs searches. Between 1640 and 1695, old institutions of political and religious control, such as the Stationers' Company, the Star Chamber, and the High Commission, either expired or lost their powers of search. After 1695, however, Stuart judges upheld the common-law use of general search warrants by the secretaries of state to stifle political and religious criticism. Between 1700 and 1750, the late Stuarts and the new Hanoverians discovered whole new applications for the old general searches, such as bankruptcy, land and excise taxes, and recruitment for the armed services.

      The continuity of promiscuous searches and seizures profoundly affected responses to them. The first criticism of the search process, between 1580 and 1640, was little more than a loose accretion of visceral outbursts by those who had been searched. As the search process acquired new targets, each target joined the chorus of protesters.

      Catholics and Puritans came first in the 1580s. Dissident guild members denouncing guild searches followed. Typical of the genre was a protest in 1584 by one member of the printers' guild, John Wolfe, against another, John Day, who had searched Wolfe's house for printing a pamphlet that the company had assigned to Day. Day and his servants, protested Wolfe,

      dyd most forcyblye and riotouslye … break vppe wythe theire said forcible weapons and other engens, the Hall doore of the howse of youre said Subiecte and soe entered into the said howse and … seekinge the vtter spoyle of youre said Subiecte Dyd then break oppen the Locks and doores of the Chambers, Countinge howses, Chestes and other places … wrestinge his poore oulde father by the throate beatinge and threatnynge his men and spoyled and took awaye wythe them prynted bookes and dyverse other goodes.

      Merchants joined the chorus when the first Stuarts, James I and Charles I, subjected them to customs searches. In 1622, Samuel and John Warner protested that enforcers of the tax on tobacco had broken into their houses, searched four places, and disrupted their business for six hours.

      Between 1610 and 1642, search and seizure became a weapon of outright political war, as Parliament increasingly challenged the first two Stuarts, James I (1603–1625) and Charles I (1625–1646), for political dominance. Parliament erupted with dozens of speeches, resolutions, and protests of the search process. Finally, on February 25, 1641, a resolve of the House of Commons proclaimed that a general search warrant against John Bastwick, a prominent minister, and the consequent search were “against Law and the Liberty of the Subject.” The legal foundation for a right restricting the British search process was finally in place.

      But what, precisely, did that right involve? What, indeed, in 1641, were the “Law and Liberty of the Subject” regarding search and seizure? Each critic of the search process had denounced only the search, seizure, or arrest that he or the constituency he represented had endured. For the most part, critics had denounced the savagery of the searches and played on the sympathy of readers by claiming that a particular search had inappropriately targeted social icons, elderly men, pregnant women, or helpless children.

      As of 1641, not one legal or political commentator had challenged the power of general search itself or enumerated the characteristics of permissible search. The right existed only in the negative. Countless Englishmen had vilified the search process as an atrocity. But what, then, were the characteristics of appropriate search?

      Sir Edward Coke was the first to fortify discontent with the search process with prescriptions for lawful and unlawful search. The central problem, said Coke in the Fourth Part of his Institutes of the Law of England (1644), published a decade after his death, was that the general warrant for stolen goods was against reason and law because it acted as a sort of passkey that opened all doors at the searcher's will and caprice. It was “full of inconvenience,” said Coke, that any man should have such power for any purpose. Coke's view quickly attained doctrinal status. Later giants of English law, such as Sir Matthew Hale, William Hawkins, and Sir William Blackstone, repeated or cited Coke.

      By the end of seventeenth century, English thought on the search process had entered a third stage. Henry Carr, a dissenter, gadfly, and habitual critic, claimed that specific warrants, limiting searches to the place or places that they specified, should supersede general ones to quench religious nonconformity. By 1750, countless other authorities had also advocated that the specific warrant be standard for such disparate purposes as recovery of contraband, collection of the excise tax, and recovery of poached game.

      By 1750 the general warrant had lost its legitimacy, and legal treatises, particularly the ones that guided routine use, provided numerous examples of the specific warrant. Loss of legitimacy, however, did not translate into loss of legality. General warrants were still the orthodox method of search, and specific ones were still experimental supplements. In treatises published between 1700 and 1750, examples of general warrants outnumbered specific ones more than seven to one.

      Colonial Search and Seizure to 1761

      All of the colonies used door-to-door searches but varied their applications and details. As in Britain, general searches, often without any warrant as well as by general warrant, collected colonial taxes, recovered stolen goods, and hunted down murderers and counterfeiters. Some differences, however, were striking. None of the colonies sustained vagrancy searches. On the other hand, five southern colonies (Maryland, Virginia, Georgia, North Carolina, and South Carolina) furnished slave patrols with infinite powers of warrantless search to subjugate slaves and white indentured servants. By contrast, only seventeenth-century Massachusetts used general searches to attempt religious control, in this case, of Quakers, Catholics, and Anglicans. Half of the colonies copied England's excise searches, often, however, in a simplified form that did not exempt nondealers from the warrantless searches to which dealers were perpetually subject.

      The pivotal shift from general to specific warrants came in Massachusetts, not Britain. Although Massachusetts retained general searches in 1728, general searches had diminished by half since 1695. Between 1728 and 1756, however, these applications suddenly proliferated across a broad spectrum of purposes, including press-gangs for deserters from the Royal Navy; smallpox abatement; a fraudulent scheme to establish a commercial bank using improved land as collateral; and the collection of three distinct taxes, the local and import duties and the British customs taxes. A population long accustomed to the slow atrophy of house-to-house searches seethed with protest as their categories multiplied. When British press-gangs forced Bostonians into service as sailors in 1747, a Boston town meeting howled that such conduct violated the Magna Carta.

      First, in 1752, the General Court or legislature substituted specific for general warrants to locate smallpox sufferers. When the court tried to impose a self-incriminatory oath to enforce a liquor tax in 1754, political hell resulted. The interrogation procedure allowed officials only to question house owners on their doorsteps under oath regarding their yearly household consumption of liquor. But that was enough. In the next election, voters overwhelmingly rejected the legislators who had supported interrogation. Between 1756 and 1764, the new legislators standardized specific search warrants over general ones for all leading applications: first for the abominated excise tax, next for its impost counterpart, and afterward for game poaching and military desertion. By 1767, the courts had even rejected general searches for the old hue and cry, the oldest and longest established means of enacting such searches.

      Otis and Wilkes

      Therefore, when British customs officials asked the paramount Massachusetts court to issue writs of assistance in 1761, in effect general customs warrants, the results were predictable. Many of the merchants who had sponsored specific excise warrants for local application between 1754 and 1756 hired the top legal talent of Massachusetts, James Otis Jr., son of the Speaker of the House of Representatives, to challenge the writs. “A man's house is his castle,” thundered young Otis, who for the first time demanded that specific warrants displace general ones.

      The Otis brief marked a watershed in the history of search and seizure. By 1760, voices denouncing the general warrant and demanding the specific warrant in its place for particular applications were legion. The Otis brief was transcendent and seminal because it demanded specific warrants for every application. Otis rooted his thesis in common law, tradition, practice, Massachusetts particularity, and, probably, the Magna Carta. He not only championed the specific warrant universally but also provided a constitutional mandate for it.

      The Wilkes affair provided a British counterpart to the Otis brief. Arrested by a general warrant in 1763 for criticizing the Crown and secretaries of state, John Wilkes, a Member of Parliament, turned the tables on the government. Some forty-nine major trials resulted in which major political and judicial figures, such as William Pitt and Chief Justice Charles Pratt, denounced the general warrant. The Wilkes Cases, in turn, inspired truculent debates in Parliament and in the press, which ended with a House of Commons resolution denouncing general warrants for press censorship.

      From 1761 to 1787

      Neither Britain nor her colonies standardized specific warrants over general ones in the decade and a half before the American Revolution. By 1776, specific warrants had displaced general ones in all colonies for only one purpose, the recovery of stolen goods, and for all purposes only in Massachusetts. General warrants remained abundant, and southern slave patrols increased the vigor of their operation.

      In fact, the American Revolution produced a counterrevolution in the evolution of specific warrants. The new states used general warrants and warrantless general searches vigorously to suppress Loyalism and enforce provision of the rebel armies. In September 1777, Philadelphia endured a series of house-to-house searches by militia with fixed bayonets to root out Loyalism. Dozens of Quakers were rounded up at sword's point, held incommunicado, and deported in the dead of winter. Searches in revolutionary America rivaled those in Elizabethan England in scope and ruthlessness.

      To conclude that the revolution reversed the demise of general searches and arrests, however, is misleading, for the revolutionary experiences were aberrational almost by definition. Although American legislatures continued to enact and use general warrants and similar methods between 1761 and 1781, colonial courts and legal theorists had other ideas. The British effort to extract writs of assistance from the colonial courts after Paxton's Case (Mass. 1761) had upheld them failed utterly. Between 1768 and 1774, colonial jurists ignored applications for the writs, denied receiving them, or issued writs that were specific or otherwise inconsistent with those sought.

      Moreover, Chief Justices William Allen of Pennsylvania and John Trumbull of Connecticut issued impassioned denunciations of the general warrant. John Dickinson, Arthur Lee, and other pamphleteers did likewise. Thus, the florescence of general warrants and the like between 1776 and 1781 was a kind of Indian summer for them; despite their continued use, such warrants had elsewhere lost their legitimacy.

      Despite wartime exigencies, six states denounced general warrants in their constitutions of 1776–1777: Virginia, Delaware, North Carolina, Maryland, Pennsylvania, and Vermont. Afterward, two more states, Massachusetts in 1780 and New Hampshire in 1784, not only abrogated general warrants but proclaimed a generic right against all “unreasonable searches and seizures.” In an obvious oversight, the constitutions of Pennsylvania and Delaware had adumbrated that right by forbidding search and seizure unconditionally before describing the conditions of an appropriate search via specific warrant.

      From 1787 to 1791

      In September 1787, the Constitutional Convention proposed an invigorated central government chosen by the people and acting directly upon them. Fears that this robust government would compromise the established right against unreasonable search and seizure were expressed in the convention itself in a speech by Richard Henry Lee. In newspapers and pamphlets, at least fourteen critics expressed similar fears, and so did speakers at a second round of conventions in each state to ratify or reject the new government. Patrick Henry's speech in the Virginia Ratifying Convention on June 16, 1788, typified the lot:

      The officers of congress may come upon you fortified with all the terrors of paramount federal authority. Excisemen may come in multitudes; for the limitation of their numbers no man knows. They may, unless the general government be restrained by a bill of rights, or some similar restriction, go into your cellars and rooms, and search, ransack, and measure everything you eat, drink, or wear. They ought to be restrained within proper bounds.

      Although the ratifying conventions of Virginia and New York had requested the prohibition of both general warrants and unreasonable searches and seizures in 1788, the new government commenced operations next year in New York City with no prohibition. Aware that the Anti-Federalists, the Constitution's implacable foes, remained a looming threat, James Madison, the constitution's principal author, introduced modifications on June 8, 1789, one of which resembled the Virginia and New York proposals:

      The rights of the people to be secured in their persons, their houses, their papers, and their other property from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly descr[i]bing the places to be searched, or the persons or things to be seized.

      House committees headed by John Vining (Del.) and Egbert Benson (N.Y.) polished the language, and the Senate altered their iteration only by substituting a comma for a semicolon between the two clauses. As ratified by the necessary eleventh state, Virginia, on December 15, 1791, the amendment declares:

      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.

      Original Meanings

      The history of the Fourth Amendment clarifies many of its ambiguities. For example, the general warrant category was not the only category of unreasonable search, and specific ones were not the only reasonable types.

      House-to-house searches without warrant were no less unreasonable than general warrants. A century of protest had anathematized England's warrantless excise searches even before the revolution. In 1772, Boston and many other Massachusetts towns had denounced warrantless customs searches, and, in 1774, the Continental Congress had elevated denunciation of those searches to a national mandate. Also, legislation in the 1780s extended specificity in warrants from dwelling houses to neighboring structures. Furthermore, at least twelve of the thirteen states implicitly terminated nocturnal entrance of the domicile, and most states penalized unannounced entrance as well.

      Because specific warrants had only begun to develop as orthodox searches after 1752, probable cause for them was likewise inchoate in 1791. For arrest and search warrants, “probable cause” meant little more than an accuser's bare declaration of a cause to suspect before a magistrate whose warrant he sought. Judicial sentryship was just beginning to emerge, as was explicated belief as a higher threshold for probable cause.

      Between 1767 and 1769, British customs officers had seized several ships belonging to two famous colonial merchants, John Hancock of Massachusetts and Henry Laurens of South Carolina. The resulting case law acknowledged the existence of probable cause for warrantless maritime seizures. Here, too, definition was only beginning and meant little more than an antidote to “customs racketeering.”

      Although an Englishman's house had been his castle for centuries, an American's ship was not. The members of Congress who drafted the Fourth Amendment continued to enact warrantless searches of ships, and of cargoes at quayside, on demand.

      Finally, centuries of custom permitted what we now call “search incident to an arrest warrant” and warrantless arrests under “exigent circumstances,” such as the hot pursuit of fugitives caught in the act. In both circumstances, forcible entry to arrest was assumed, and thus routine search of the person arrested and the arrest site were assumed as well. Neither circumstance, however, had traditionally permitted broader arrests or occasioned the controversy and commentary breeding definition.

      WilliamJ.Cuddihy
      Further Reading
      Amar, AkhilReed. “The Fourth Amendment, Boston, and the Writs of Assistance.” Suffolk University Law Review30 (1996): 53–80
      Amar, AkhilReed. “Fourth Amendment First Principles.” Harvard Law Review107 (1994): 757–818.http://dx.doi.org/10.2307/1341994
      Clancy, ThomasK.The Fourth Amendment: Its History and Interpretation. Durham, NC: Carolina Academic Press, 2008.
      Coke, SirEdward. Institutes of the Laws of England. 4 vols. London: W. Clarke and Sons,1817. (Originally published 1628–1644.) Cuddihy, William. The Fourth Amendment: Origins and Original Meaning, 602–1791. New York: Oxford University Press, 2009.
      Cuddihy, William, and B.CarmonHardy. “A Man's House Was Not His Castle: Origins of the Fourth Amendment to the United States Constitution.” The William and Mary Quarterly Third Series37 (1980): 371–400.http://dx.doi.org/10.2307/1923809
      Davies, ThomasY.Recovering the Original Fourth Amendment.” Michigan Law Review98 (1999): 547–750.http://dx.doi.org/10.2307/1290314
      Fraenkel, OsmondK.Concerning Searches and Seizures.” Harvard Law Review34 (1920): 361–366.http://dx.doi.org/10.2307/1326954
      LaFave, WayneR.Search and Seizure. 6 vols.
      4th ed.
      Saint Paul, MN: Thomson/West, 2004.
      Landynski, Jacob. Search and Seizure and the Supreme Court. Baltimore: Johns Hopkins University Press, 1966.
      Lasson, NelsonB.The History and Development of the Fourth Amendment to the United States Constitution. Baltimore: Johns Hopkins University Press, 1937.
      Levy, LeonardW.Original Intent and the Framers' Constitution. New York: Macmillan, 1988.
      McInnis, Thomas. The Evolution of the Fourth Amendment. Lanham, MD: Lexington Books, 2009.
      Redemann, Bob. “The Historical and Philosophical Foundations of the Exclusionary Rule.” Tulsa Law Journal12 (1976): 323–336.
      Reynard, A.. “Freedom from Unreasonable Search and Seizure.” Indiana Law Journal25 (1949): 262–276.
      Stengel, JosephJ.The Background of the Fourth Amendment to the Constitution of the United States.” University of Richmond Law Review3 (1968): 278–298; 4 (1969): 60–75.
      Taylor, Telford. Two Studies in Constitutional Interpretation. Columbus: Ohio State University Press, 1969.
      Wilson, Bradford. Enforcing the Fourth Amendment. New York: Garland Press, 1986.
      Woody, ClydeW., and MarianS.Rosen. “Fourth Amendment Viewed and Reviewed.” South Texas Law Journal11 (1969): 316–327.

      The Reasonableness Requirement

      The first clause of the Fourth Amendment prohibits “unreasonable” searches and seizures. This fundamental command reflects the Framers' recognition “that searches and seizures were too valuable to law enforcement to prohibit them entirely” but, as U.S. Supreme Court Justice Hugo Black observed in 1967, that “they should be slowed down” (Berger v. New York). The concept of reasonableness measures both the permissibility of the initial decision to search and seize and the permissible scope of those intrusions. The definition of reasonableness varies based on the context in which the search takes place. For example, what is a reasonable search in a public school may not be a reasonable search on a public street. In a case involving an assistant principal's search of a student, the U.S. Supreme Court in New Jersey v. T.L.O. (1985) stressed that

      [d]etermining the reasonableness of any search involves a twofold inquiry: first, one must consider “whether the … action was justified at its inception;” second, one must determine whether the search as actually conducted “was reasonably related in scope to the circumstances which justified the interference in the first place.”

      Search and seizure issues permeate governmental activity. Each day, thousands of vehicle stops occur, and countless individuals are subjected to arrests and to airport and other entranceway screening. The Fourth Amendment has vast application to such activities as health and safety inspections, regulation of the international border, and drug testing of workers and students. It measures the justification of governmental responses to terrorism, with the potential for the use of weapons of mass destruction, and the most mundane of searches, such as rummaging through a governmental workplace to find a misplaced file. Advanced technologies now permit the government to obtain information in a host of ways. The wide scope of the applicability of the amendment continues to create new and unprecedented challenges to traditional notions of reasonableness, and the reasonableness analysis employed by the Court continues to evolve.

      The Court currently chooses primarily from five principal models to measure reasonableness. In addition, several situations do not easily fit within any of those models. The models are offered here to facilitate understanding of the Court's cases and how the Court might address similar situations. However, the Court in any situation may choose whichever model it sees fit to apply. Virtually all the doctrinal development of the concept of reasonableness began in the twentieth century, which is when the Court developed these models.

      Principal Models
      Model #1: The Warrant-Preference Model

      The Fourth Amendment contains two grammatically independent clauses joined by the conjunction and. The first clause is called the reasonableness clause and merely specifies, without elaboration, that all searches and seizures must be reasonable. The second clause, commonly called the warrant clause, requires that warrants be under oath or affirmation, that the places to be searched and the persons and things to be seized must be particularly described, and that the intrusion must be supported by “probable cause.” The warrant-preference model construes the reasonableness clause as being defined by the warrant clause; that is, a search or seizure is not “unreasonable,” and therefore not forbidden, when it is carried out with a warrant issued pursuant to probable cause. The Court's initial cases were notable for their premise that a warrant complying with the specifications of the warrant clause was required for all searches, with the only exception being searches incident to arrest.

      A main disciple of the warrant-preference model was Justice Felix Frankfurter, who wrote in United States v. Rabinowitz (1950):

      One cannot wrench “unreasonable searches” from the text and context and historic content of the Fourth Amendment. It was the answer of the Revolutionary statesmen to the evils of searches without warrants and searches with warrants unrestricted in scope. Both were deemed “unreasonable.” Words must be read with the gloss of the experience of those who framed them. Because the experience of the framers of the Bill of Rights was so vivid, they assumed that it would be carried down the stream of history and that their words would receive the significance of the experience to which they were addressed—a significance not to be found in the dictionary. When the Fourth Amendment outlawed “unreasonable searches” and then went on to define the very restricted authority that even a search warrant issued by a magistrate could give, the framers said with all the clarity of the gloss of history that a search is “unreasonable” unless a warrant authorizes it, barring only exceptions justified by absolute necessity. Even a warrant cannot authorize it except when it is issued “upon probable cause … and particularly describing the place to be searched, and the persons or things to be seized.”

      Over the years, the Court has stated the warrant preference in many different forms, reflecting the strength or lack of strength that view has had on the Court at any given time.

      Model #2: Individualized Suspicion

      When confronted with new technology, an automobile, the Supreme Court in Carroll v. United States (1925) had to decide for the first time the question whether a warrant was the sine qua non of reasonableness. The Court held that it was not always required. Instead, the Court found other criteria to measure the reasonableness of the search. In this case, the official had probable cause to believe that the vehicle was carrying contraband.

      This second model, the requirement of individualized suspicion, operates to limit the government's discretionary authority to search and seize by employing objective criteria outside the government's control to measure the propriety of the intrusion. Individualized suspicion, also called particularized suspicion, serves to preclude arbitrary and general searches and seizures and mandates specific justification for each intrusion. It places the focus of the inquiry concerning the permissibility of a search or seizure upon the circumstances presented by the private party or object of the search or seizure; if and only if the individual or object provides a reason for inquiry may the government intrude.

      Thus, a person cannot be arrested absent probable cause to believe that the person is engaged in criminal activity. Similarly, to justify a search, the officer must have probable cause to believe that the person, place, or thing to be searched has evidence of a crime. For example, in Davis v. Mississippi (1969), police investigating a rape could not permissibly seize young African American men and take them to police headquarters for questioning and fingerprinting simply because the victim described her assailant as a Negro youth. That investigatory procedure was condemned in Davis as violating the Fourth Amendment because such “seizures would subject unlimited numbers of innocent persons to the harassment and ignominy incident to involuntary detention. Nothing is more clear than that the Fourth Amendment was meant to prevent wholesale intrusions upon the personal security of our citizenry.”

      Individualized suspicion limits not only the circumstances under which the government may initiate actions but also the scope of the search or seizure by ensuring that the intrusion performed is reasonably related to the circumstances that justified the initial interference. Thus, for example, if the police are looking for an elephant, they do not have any objective basis to believe that it would be found in a dresser drawer, and opening that drawer would be outside the scope of a permissible search.

      The Court has divided the concept of individualized suspicion into two levels of suspicion: for searches and arrests, probable cause is required; for frisks and stops, reasonable suspicion is needed. In Ornelas v. United States (1996), the Court candidly admitted: “Articulating precisely what ‘reasonable suspicion’ and ‘probable cause’ mean is not possible.” The Ornelas Court viewed the concepts as “commonsense” and “nontechnical.”

      The probable cause standard requires a significant amount of justification. It is more than “bare suspicion” but less than what would justify a conviction (Brinegar v. United States [1949]). Although the Court in Illinois v. Gates (1983) said that it does not require the fine-tuning of evidence that even the “preponderance standard demands,” the Court added that it is not helpful to fix a “numerically precise degree of certainty” to the determination; it made clear that “only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.”

      Articulable suspicion is “considerably less” than proof of wrongdoing by a preponderance of the evidence. In United States v. Cortez (1981), the Court said that the “essence of all that has been written” about articulable suspicion “is that the totality of the circumstances—the whole picture—is taken into account. Based on that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” The requirement that evidence be particularized means that an officer must be able to point to a specific individual and have information relating to that particular individual. The requirement that evidence be objective means that the officer must be able to point to identifiable facts about the suspect or conduct by the suspect and be able to state why those facts or conduct aroused the officer's suspicion. The key criterion is that reasonable suspicion is based on articulable facts, not mere hunches. The courts then permit police officers, based on their training and experience, to make logical inferences from the information known. Any one of the facts, or all of them in isolation, may be consistent with innocent activity; yet, taken together, they may amount to reasonable suspicion.

      For example, in Terry v. Ohio (1968), the experienced officer observed two suspects casing a store. The men separated, and one walked to the front of a store in a commercial district during normal business hours and looked in the store's windows. The man then walked past the store. He turned around, looked in the store again, and then rejoined the other man. After the two men conferred, the second man went through the same series of activities. These actions were repeated by each man five or six times over a period of ten to twelve minutes. At one point, the men conferred with a third man, who left the scene. When the two men later joined the third man, the officer stopped the men. The officer was a veteran on the force, and his experience gave meaning to the men's actions: He believed that the men planned to rob the store. The Court thus upheld the officer's stop and frisk of the men. The officer in Terry was able to identify specific behavior by the suspects: talking, walking back and forth to the store, and looking in the windows. Important to the Court's finding of reasonable suspicion was the repeated nature of the men's activities. Equally important was the officer's expertise: He recognized the activity as “casing” the store for a robbery. Based on the officer's experience and the facts known to the officer, the Court found the officer's suspicion that a robbery was about to occur to be reasonable.

      Model #3: Case-by-Case Model

      The origin of a third model is in Go-Bart Importing v. United States (1931): “There is no formula for the determination of reasonableness. Each case is to be decided on its own facts and circumstances.” According to this view, the two clauses of the Amendment are independent; the first clause requires only that searches and seizures be “reasonable,” and the second clause addresses only those searches and seizures conducted under warrants, saying nothing about when a warrant is necessary or about what factors are to be examined to determine reasonableness.

      Attorney Telford Taylor has been a main proponent of this view. He asserts that the warrant preference rule stands the Fourth Amendment on its head. The amendment was designed primarily as a limitation on the issuance of warrants, and the Framers took for granted the existence of warrantless searches because experience had given them no cause to be concerned about such searches. Taylor opines that neither the legislative history of the amendment nor any other history “sheds much light on the purpose of the first clause” (1969, p. 43). In Taylor's view, the amendment was not designed to apply the warrant requirement to most searches. A notable case espousing this model is United States v. Rabinowitz (1950), wherein the Supreme Court upheld the warrantless search of a one-room office as incident to a valid arrest. The Court observed that there was no “fixed formula” for measuring reasonableness and that “the recurring questions of the reasonableness of searches must find resolution in the facts and circumstances of each case.”

      Model #4: The Balancing Test

      The Court in the twentieth century periodically confronted the applicability of the Fourth Amendment to intrusions by local and state government agencies. Those cases usually concerned the regulation of police investigations but also included regulatory inspections for the general welfare of the community. Several cases in the 1960s combined to undermine dramatically the previous framework. First, in 1961, the Court in Mapp v. Ohio incorporated the Fourth Amendment's exclusionary rule via the Fourteenth Amendment, thereby making its requirement to exclude from trial evidence obtained in violation of the Fourth Amendment fully applicable to the states. That is, the exclusionary rule applied for the first time to the law enforcement and other activities of state and local governments.

      Second, in applying the warrant clause to wiretapping in Katz v. United States (1967), the Supreme Court rejected a property-based analysis of the Fourth Amendment and substituted a privacy analysis. To support that inquiry, the Court in subsequent cases created a hierarchy of privacy interests: Reasonable expectations of privacy that society is prepared to recognize as legitimate have, at least in theory, the greatest protection; diminished expectations of privacy are more easily invaded; and subjective expectations of privacy that society is not prepared to recognize as legitimate have no protection. The Court has, at times, utilized this hierarchy to determine which reasonableness model to choose.

      Third, the Court has sometimes adopted a balancing test to measure reasonableness. As a result, a significant list of permissible warrantless and suspicionless invasions, and the level of intrusiveness of those governmental actions, grew throughout the latter portion of the twentieth century. Balancing differs from the case-by-case approach, in addition to identifying specific interests to be utilized, according to Michigan v. Summers (1981), in that it is “done on a categorical basis—not in an ad hoc, case-by-case fashion.” It is also decidedly nonhistorical in that the factors used in the balancing test are contemporary interests.

      In Camara v. Municipal Court (1967), the Supreme Court validated the issuance of search warrants to inspect residences for health, fire, and housing code violations on an area-wide basis, rejecting any requirement of individualized suspicion for believing that violations existed at a particular building. The Court stated, “Unfortunately, there can be no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails.” The Court further found that “the only effective way to seek universal compliance with the minimum standards required by municipal codes is through routine periodic inspections of all structures.”

      Thereafter, the Court utilized the balancing test to justify a vast array of intrusions. That list includes searches of prison inmates and detainees and their cells, orders designed to protect police officers during stops, detentions of persons during the execution of search warrants, entries onto property to combat and investigate fires, and inventory searches of possessions validly in police custody. One broad category is administrative inspections, including inspections of private residences, commercial buildings, mines, and places of employment. Other permissible searches have included those of public school students, parolees, and probationers' homes and drug testing of various categories of people. Most vehicular checkpoints, including license- and vehicle-registration stops and sobriety and immigration checkpoints, are justified by balancing. Finally, the balancing test is used to regulate the most common of all searches—airport screenings of passengers and their effects—and many other types of entranceway intrusions.

      In more recent cases, balancing has usually involved an assessment of the relative strength of the governmental and individual interests, with the Court's thumb pressing heavily on the government's side of the scale. Indeed, the Court in Wyoming v. Houghton (1999) candidly acknowledged that the “practical realities” of the balancing test “militate in favor of the needs of law enforcement, and against a personal-privacy interest that is ordinarily weak.”

      Model #5: Common Law Plus Balancing

      As the twentieth century neared its close, a fifth test emerged in Wyoming v. Houghton (1999), in which the Court created a two-step model for measuring reasonableness. First, the Court inquired “whether the action was regarded as an unlawful search or seizure under the common law when the Amendment was framed.” Second, if “that inquiry yields no answer,” the Court evaluated the search or seizure “under traditional standards of reasonableness by assessing, on the one hand, the degree to which it intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Putting aside the Court's remarkable assertion that the balancing model was the “traditional” standard, the Houghton test is an odd combination: If it yields an answer, the Court regards the common law at the time the amendment was framed, which was in 1791, as dispositive; if not, the Court applies the balancing test to evaluate the relative weights of contemporary governmental needs and individual interests.

      Houghton's dispositive reliance on the common law as defining reasonableness where it yields an answer was a new development. Also, contrary to Houghton, the historical abuses that prompted the amendment were more important to the Framers than the common-law search and seizure requirements, with the only notable exception being the common-law search warrant, which served as the model for the warrant clause. Using the common law as the measure of reasonableness is distinct from using the common law as the measure of the Framers' intent. As to the former, the common-law rule as of 1791 defines what is reasonable. As to the latter, the common law is consulted to ascertain the Framers' intent, which is in turn used to justify reliance on some conception of reasonableness. Houghton's view of the dispositive rule of history has had some continuing influence. In Atwater v. City of Lago Vista (2001), the majority opined that history was not just “one of the tools” relevant to a Fourth Amendment inquiry but that a person seeking to depart from the historical understanding bears a “heavy burden” of justifying that departure.

      Situations that do not Fit any of the Five Models

      In several situations, reasonableness analysis does not fit within any of the five models just described: consent to search, border searches and seizures, speech-related interests, physical intrusions by governmental agents that invade a person's bodily integrity, and some aspects of searches of residences.

      The Court's Attempts to Harmonize the Models

      The Court has sometimes attempted to harmonize its case law by announcing the primacy of a particular model. None of those efforts have been enduring. City of Indianapolis v. Edmond (2000) is a recent attempt. In Edmond, the Court was confronted with the constitutionality of a highway-checkpoint program designed to discover and interdict illegal narcotics. The Court asserted that a search or seizure is “ordinarily unreasonable in the absence of individualized suspicion of wrongdoing,” thereby placing that model at the pinnacle of the hierarchical structure of reasonableness. It viewed balancing as limited to situations in which the “primary purpose” of the search or seizure is not to detect evidence of “ordinary criminal wrongdoing.” Because the primary purpose of the Indianapolis checkpoints was “to advance ‘the general interest in crime control,’” the Court declined “to suspend the usual requirement of individualized suspicion.” The Court emphasized that the purpose inquiry “is to be conducted only at the programmatic level and is not an invitation to probe the minds of individual officers acting at the scene.”

      Nothing in the Court's analysis would prevent Indianapolis from simply relabeling its program and conducting the same screening for drugs as incident to an otherwise permissible checkpoint, which is to say that the distinction between a criminal law enforcement purpose and other purposes is illusory. Even if viable, Camara cautions that such a distinction is unwise: “It is surely anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior.” Intrusions may be performed to determine whether a building meets fire safety codes, whether a motorist is intoxicated, whether automobile parts are stolen, or whether a child's welfare is being maintained. The fact that the intruder may be there for a relatively benign purpose should carry no weight in assessing the reasonableness of the governmental intrusion. Nor should it matter whether the intent is subjective to the individual officer or whether the purpose inquiry is made at the programmatic level. Indeed, such a distinction is particularly ironic in light of the search and seizure practices that motivated the Framers: suspicionless intrusions approved of at the “programmatic level,” that is, writs of assistance and general warrants issued by executive officials to find illegally imported goods and authors and publications critical of the government. Governmental purpose is important in assessing the legitimacy and strength of the governmental interest; it should not be relevant in distinguishing between like intrusions.

      Finally, Edmond's framework is just another of many attempts at creating a hierarchy that is simply ignored in subsequent opinions. In Samson v. California (2006), the Court approved the suspicionless stop and search of a person simply because the person was known to be on parole. The Court stated that the “touchstone of the Fourth Amendment is reasonableness, not individualized suspicion.”

      Other Considerations
      Pretextual Actions

      One of the main principles of Fourth Amendment analysis has been the measurement of a police officer's intent by examining the objective aspects of the encounter, as opposed to inquiry into the officer's actual, subjective intent. There is, as a general rule, no examination of the actual belief or motivations of the officer. For example, in Whren v. United States (1996), the officers observed traffic violations, but Whren challenged the stop of his vehicle as unreasonable because the police were motivated to stop him to permit them to investigate a possible drug violation, for which they had no more than a hunch. The Court upheld the stop because it thought the traffic violation provided the police with an objective justification.

      Race and Ethnicity

      Sometimes uses of race raise few or no legitimate concerns. Other times they raise serious red flags. When the victim of a robbery describes the robber as white, black, dark-skinned, or of Asian background, most commentators and courts agree that using race and ethnicity as merely descriptive of the suspect of a completed crime is permissible. Other uses of race are clearly impermissible. Targeting innocent persons, who are not otherwise suspected of committing a crime, solely on the basis of their race is intolerable and impermissible. The Supreme Court sometimes simply ignores some allegations of the unacceptable use of race where the Court identifies an objective basis for the search or seizure. Thus, according to the Whren Court, a traffic stop is justified when a traffic violation has occurred, even though the officer is motivated by other reasons. In other situations there is a fundamental lack of consensus, such as whether race or ethnicity can be permissibly used as a factor—perhaps one of many—to justify a search or seizure of a person. However, the Supreme Court in United States v. Brignoni-Ponce (1975) permitted apparent ancestry to be a factor in immigration enforcement stops.

      Discriminatory treatment of minorities by law enforcement officers is a complex and persistent problem, as the Court has acknowledged. Terry, which involved a police officer's stop and frisk of persons suspected of planning a store robbery, was decided at a time of great racial unrest. The Court was “mindful of the limitations of the judicial function in controlling the myriad daily situations in which policemen and citizens confront each other on the street.” The Terry Court ultimately concluded that the Fourth Amendment's exclusionary rule was not the proper vehicle to attack such abuses and that the Fourteenth Amendment's equal protection guarantee was the proper provision to protect against such abuses.

      Bright-Line Rules versus Case-by-Case Adjudication

      The Court recognizes the necessity of a workable rule that the police officer on the street can follow. In New York v. Belton (1981), the Court noted that it is desirable to employ concepts that are not artificial and that correspond to real life: The decisions must be expressed such that they can be understood and applied by the police while performing their duties, and they should focus on the actual conduct of the police instead of contemporaneous or after-the-fact statements of the police. Thus, the Supreme Court has sometimes utilized bright-line rules to guide the police in executing searches and seizures.

      In Atwater v. City of Lago Vista (2001), which held that the arrest of a woman for a seat belt violation was proper, the majority found that the reasonableness inquiry provides no substantive limitation on the ability of the police to arrest for minor offenses that are based on probable cause to arrest. Atwater has proven controversial. The Court applied what it considered to be the traditional standard for constitutional reasonableness—probable cause to arrest—rather than trying to

      mint a new rule of constitutional law on the understanding that when historical practice fails to speak conclusively to a claim grounded on the Fourth Amendment, courts are left to strike a current balance between individual and societal interests by subjecting particular contemporary circumstances to traditional standards of reasonableness.

      More troubling than the adherence to probable cause as the measure of the reasonableness of an arrest are some of the Atwater majority's comments on the nature of reasonableness. It spoke at one point of the “categorical treatment of Fourth Amendment claims” as opposed to “individualized review” as being the general mode of analysis. It also asserted that “a responsible Fourth Amendment balance is not well served by standards requiring sensitive, case-by-case determinations of government need, lest every discretionary judgment in the field be converted into an occasion for constitutional review.” Instead, to implement command of reasonableness, courts should utilize “readily administrable rules.”

      In prior cases, the Court had viewed bright-line rules as exceptions. Moreover, one must distinguish between a rule that is clear in its application and the substance of the rule: A clear rule is desirable but says nothing about how to choose between two equally clear rules, one that furthers the individual's protections afforded by the Fourth Amendment and the other that diminishes those protections. Arguably, the use of per se rules to allow police or other governmental intrusions is inimical to much of the underlying purpose of the Fourth Amendment, which is to protect individual rights. If the amendment protected group rights, then the measure of reasonableness would be designed to protect the mass of the “people,” and bright-line rules would make more sense. The people's right to be secure—as a group—would arguably be advanced by screening techniques that involve large numbers of individuals with the purpose of weeding out individual terrorists or criminals. That view of the amendment has not—and should not—prevail. The Fourth Amendment is designed to protect individuals from governmental intrusions. Hence, logically, bright-line rules that allow certain intrusions usually should be rejected. On the other hand, bright-line rules that favor individual rights by being overinclusive of those deserving protection should be treated differently than per se rules that permit intrusions.

      The Court, however, has not followed that approach, as Atwater illustrates. Many of the bright-line rules are created for recurring situations to clarify for the police what they can or cannot do. Hence, for example, for searches incident to arrest that do not involve vehicles, the police can always search the person and seize the area around that person. During a traffic stop, the officer can always order the driver and all passengers out of the vehicle. Each of these rules clarify the police officer's authority, but each of them undeniably invades the privacy and security of many persons who are not dangerous and who do not harbor evidence. Underlying many of the bright-line rules is a legitimate concern for the safety of the police officer in confronting persons suspected of a crime. Beyond that concern, however, there are few guidelines to predict when the Court will adopt a bright-line rule in lieu of case-by-case adjudication.

      Unreasonable or Excessive Force

      The use of excessive force enters into the Fourth Amendment calculus of reasonableness in a variety of situations. In effectuating a seizure, the use of unnecessary force may convert what would otherwise be viewed as a “stop” into an “arrest.” The reasonableness of the use of force turns on the facts of each case, considering such factors as “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others,” and whether he or she is resisting or attempting flight. In Graham v. Connor (1989), the Court developed the balancing test framework for excessive force claims, applying it to “all claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen.”

      ThomasK.Clancy
      Further Reading
      Clancy, ThomasK.The Fourth Amendment: Its History and Interpretation. Durham, NC: Carolina Academic Press, 2008.
      LaFave, Wayne. Search and Seizure: A Treatise on the Fourth Amendment.
      4th ed.
      6 vols. Saint Paul, MN: Thomson/West, 2004.
      Taylor, Telford. Two Studies in Constitutional Interpretation. Columbus: Ohio State University Press, 1969.

      The Warrant Requirement

      Popular culture has assimilated many significant legal principles. Attendance at law school is not a prerequisite to awareness of a person's right to counsel, the Miranda rule, or the right against self-incrimination. References to these rights and others are ubiquitous in popular music, television shows, and motion pictures.

      Rap musicians even sing about search warrants. In his song “99 Problems” on The Black Album (Roc-A-Fella Records 2003), Jay-Z sings about telling a police officer that the officer needs a warrant to search the locked compartments of his car. The fact that Jay-Z felt protected by the officer's lack of a search warrant reflects the public's current understanding and belief that search warrants protect personal privacy from unreasonable governmental interference.

      Search warrants have not always been viewed in such a favorable light. The founders of our country considered them to be open invitations to interfere with their privacy and liberty. What accounts for the change in the perception of search warrants since the eighteenth century? After all, they still permit the government to invade our privacy, just as they did over two hundred years ago. The public's attitude about search warrants has changed because the requirements and process for obtaining a search warrant have changed. Search warrants can no longer be obtained at will. Today, the Fourth Amendment to the U.S. Constitution requires that applications for warrants must be under oath; that the warrants must be issued by a neutral, detached magistrate; and that the warrant must particularly describe the place to be searched and the persons or things to be seized.

      The Importance of Privacy Rights

      The right of privacy—privacy in our homes, property, thoughts, and opinions—has been recognized and valued throughout history. The ancient Romans believed that the gods protected a person's house. Accordingly, the famous orator Cicero proclaimed, “[W]hat is more inviolable, what better defended by religion than the house of a citizen? … This place of refuge is so sacred to all men, that to be dragged from thence is unlawful” (Radin 1927, 475–476).

      Ancient Jewish and Christian texts likewise recognize the right of privacy. Deuteronomy 24:10–11 (King James Bible) states that “[w]hen thou dost lend thy brother any thing, thou shalt not go into his house to fetch his pledge. Thou shalt stand abroad, and the man to whom thou dost lend shall bring out the pledge abroad unto thee.” Similarly, The Talmud states that

      no writ of repletion of personal property is to be granted by the court when the bailee of that property denies its possession before the court, for to do so would make it appear that the court issued a writ, the execution of which was not certain. (Lasson 1937, 15, citing Rodkinson 1918, 158)

      In medieval England, the importance of the right of privacy in a person's home was reflected in the crime of hamsocn (translated into Latin as invasio domus), which outlawed an armed attack on a person's home (Coleman 1981, 95). Persons committing the crime faced the loss of all that they owned and the possible loss of their life. In addition, persons who killed an intruder committing hamsocn were free from liability if they had no other way to defend themselves.

      Notwithstanding the historical recognition of the right of privacy, there was little recognition that the right of privacy shielded persons from intrusions by the government or by persons acting with the government's approval. In England prior to the mid-eighteenth century, three types of warrants provided legally authorized means to breach a person's privacy: common-law warrants, statutory warrants, and executive-issued general warrants.

      The Evolution of Warrants in England

      Common-law warrants most closely resemble contemporary warrants. Persons seeking a common-law arrest warrant were required to swear under oath that a felony had been committed and to name the person who had committed the crime. Judges reviewing these applications would issue an arrest warrant after determining that the allegations were sufficient. After issuing the arrest warrant, the judge could also issue a warrant authorizing the search of a specified place and the seizure of specified goods. The defining feature of such common-law warrants was their specificity. They were unambiguous with regard to the identity of the suspected criminal, the place to be searched, and the goods to be seized.

      Statutory warrants, which were authorized by acts of Parliament, empowered certain individuals or groups of individuals to search and seize without cause. For example, in 1335, Parliament authorized innkeepers in passage ports to search the guestrooms of their inns for counterfeit money. In 1360, justices of the peace were authorized to arrest anyone they found by indictment or suspicion to have committed a felony and to enter any building in which they might be found. Mere suspicion alone was sufficient for a justice of the peace to forcibly enter a building and arrest the suspect. These types of warrants seem less familiar to us than common-law warrants because they were general—they named no specific place to be searched or persons to be seized.

      The executive-issued warrants were the most intrusive and eventually generated the most opposition. Prior to the 1660s, the monarch could issue warrants on his or her own initiative for no other reason than to further a personal agenda. The warrants that King Henry IV granted to further the interests of certain organized trades serve as examples of this type of warrant. Between 1422 and 1461, for instance, he granted the company of dyers in London the authority to search for and seize cloth dyed with logwood.

      In 1487, Parliament created the Court of Star Chamber, a tribunal distinct from the monarch's General Council. The Star Chamber provided the monarch with the means to punish conduct that, while technically legal, lacked his or her personal approval. In 1542, for example, King Henry VIII restricted the recreation of workers by permitting the local officials to enter the houses suspected to hold workers who were playing “forbidden games like dice bowls or tennis.” Similarly, in 1566, the Court authorized wardens of the stationers' guild to open all packages, trunks, and books brought into England in order to restrict the spread and distribution of books and other publications that had not been licensed by the queen. The wardens were given broad authority to search anywhere unlicensed publications were suspected and to seize the publications and the offenders. The search for and seizure of unlicensed publications eventually engendered a great amount of public hostility.

      The use of executive-issued search warrants went largely unopposed until the latter part of the sixteenth century because they did not affect the lives of most English citizens and because there was no practical way to oppose them. However, the use of these warrants during the reign of Queen Elizabeth I to persecute Roman Catholics began to galvanize the opposition. One such episode involved Francis Tregian, a former member of the queen's court who fell out of favor because he was a Roman Catholic. On June 8, 1577, Sir Richard Grenville, the sheriff of Cornwall, accompanied by eight or nine justices of the peace and one hundred armed men, arrived at Tregian's estate on the pretext of searching for an escaped prisoner. When Tregian demanded to see the queen's warrant, Grenville drew his dagger and forced his way into the house. Grenville and his men seized Cuthbert Mayne, a Catholic priest, after which they “left no place unsearched nor any person unsifted.” Mayne was executed. After forfeiting his lands and goods, Tregian was incarcerated for almost thirty years and then banished to Spain.

      By 1580, the public's opposition to general searches had begun to spread. Those opposing these warrants objected that the searches were disruptive, violent, too general, irritating, and in violation of the privileges of Parliament. In 1628, Parliament forced King Charles I to sign the Petition of Right, calling for the cessation of arrest without cause because it was contrary to the Magna Carta (1215) and the laws of England. In 1641, Parliament abolished the Court of Star Chamber and the Court of High Commission. The remaining common-law courts refused to recognize the monarch's prerogative to search and seize at will, leaving the ruler to impose his or her will through acts of Parliament.

      Two subsequent flagrant abuses of general warrants hastened their demise. In 1662, Parliament created a customs system that allowed general, suspicionless searches of all cargo entering England for the purpose of interdicting smuggled goods. The Court of the Exchequer was authorized to issue a warrant to customs officers to search any house, place, or package and to seize goods believed to be smuggled. Then, in 1679, King Charles II issued a proclamation “[f]or the suppression of seditious and treasonable books and pamphlets.” The proclamation declared that writing, printing, or publishing any material not licensed by the king was seditious libel. Twelve judges, including Sir William Scroggs, the Lord Chief Justice of England, supported the king's proclamation and issued general warrants to aid the prosecution of a number of prominent Whig writers.

      In 1680, Parliament decided that the general warrants issued in the seditious libel prosecutions were contrary to law. Powerful members of the Whig-dominated Parliament began to agitate for Lord Chief Justice Scroggs's impeachment. The House of Commons resolved that he should be impeached, but the Lord Chief Justice was spared when Parliament was dissolved before action by the House of Lords. The damage, however, was done, and the king called for Lord Chief Justice Scroggs's resignation several months later.

      By 1700, the English citizenry generally disapproved of general warrants. In the early 1700s, legal scholars, including William Hawkins and Sir Matthew Hale, expanding on Sir Edward Coke's Institutes of the Laws of England, criticized general warrants issued without probable cause. In 1736, the House of Commons condemned general arrest warrants and executive-issued search warrants in seditious libel cases.

      A series of over forty cases decided in the 1760s, frequently referred to as the Wilkes Cases, sealed the fate of general warrants in England. John Wilkes, a Member of Parliament, printed a series of anonymous pamphlets criticizing the king. The forty-fifth of these pamphlets was particularly vitriolic. Lord Halifax ordered, and Robert Wood issued, a general warrant to discover the creator of these pamphlets. As a result of this warrant, forty-nine persons were arrested within three days.

      One of the persons arrested was a journeyman printer named William Huckle. Huckle filed suit, seeking damages for false imprisonment because he had been detained for six hours. Even though Huckle's jailer had “used him civilly by treating him to beefsteaks and beer,” a jury awarded Huckle 300 pounds. Lord Camden, Chief Justice of the Common Pleas, determined that the general warrant was invalid and upheld the damage award even though Huckle had suffered no injury. Camden observed that “to enter a man's house by virtue of a nameless warrant in order to procure evidence is worse than the Spanish Inquisition; a law under which no Englishman would wish to live an hour.” John Wilkes himself was arrested after the authorities broke into his house and seized all of his papers, including his will. Wilkes filed an action for damages against Wood. Lord Camden again declared that general warrants were contrary to the common law because they lacked probable cause and specificity, and a jury returned a judgment for Wilkes in the amount of 1,000 pounds.

      The third case involved John Entick, an associate of John Wilkes. After the authorities broke into his house and seized his private papers under the authority of Lord Halifax's warrant, Entick filed suit against the intruders for trespass. Lord Camden again declared that general warrants were “contrary to the genius of the law of England.”

      In the 1760s, the cases of Huckle v. Money, Wilkes v. Wood, and Entick v. Carrington prompted William Pitt, the Elder, to suggest to the House of Commons that all general warrants should be condemned unless they were specifically authorized by Parliament. Pitt famously argued that

      [t]he pooerest man may, in his cottage, bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it, and the storm may enter; the rain may enter, but the King of England may not enter; all his forces dare not cross the threshold of the ruined tenement.

      The House of Commons agreed only partially with Pitt and declared that general warrants in cases of libel were illegal. In his monumental Commentaries on the Laws of England published between 1765 and 1769, Sir William Blackstone, citing Huckle v. Money, observed that

      [a] general warrant to apprehend all persons suspected, without naming or particularly describing any person in special, is illegal and void for its uncertainty; for it is the duty of the magistrate, and ought not to be left to the officer, to judge the ground of suspicion. (vol. 4, chap. 21)

      Development in the American Colonies and the United States

      The demise of the validity of general warrants was followed closely by the colonists in the New World, who were equally hostile to the king's arbitrary intrusions into their privacy. Following his victory in Wilkes v. Wood, John Wilkes became a hero among the colonists, who coined the expression “Wilkes and Liberty” in his honor. In his Origins of the Bill of Rights (1999, 160–161), historian Leonard Levy observed that to commemorate John Wilkes's forty-fifth pamphlet, the colonies adopted “45” as their symbol and drank forty-five toasts to liberty while eating forty-five pounds of beef from a forty-five-month-old bull on the forty-fifth day of the year.

      The colonists had been burdened by trade regulations and restrictions imposed by the Court of the Exchequer in England. These regulations were enforced with “writs of assistance,” which were essentially general warrants that permitted customs officials to search anywhere for goods suspected to be smuggled. Many of the affected commodities were economically important to the colonists, and they frequently bribed the customs officials to look the other way.

      Even though the writs of assistance expired after King George II's death in October 1760, the customs officials continued to conduct searches and seizures. Within three weeks after news of the king's death reached Massachusetts, sixty-three Boston merchants filed suit, challenging the writs. Charles Paxton, a British customs agent, filed a countersuit. The merchants, represented by James Otis, argued that writs of assistance interfered with “the freedom of one's house.” Even though the Superior Court in Boston ruled against the merchants in 1761, John Adams, who attended the proceedings, believed that their opposition to the writs of assistance was the single most important event that led to the Revolutionary War.

      Beginning in 1767, Parliament enacted the Townshend Acts that reauthorized the use of writs of assistance by customs officers in the colonies. Because of the holdings in the Wilkes Cases, the colonial courts issued the writs only sporadically, and the customs officers were never able to use the writs to much effect. At a town meeting in 1772 in Boston, Samuel Adams attacked the writs, noting that

      our houses and even our bed chambers, are exposed to be ransacked, our boxes[,] chests & trunks broke open and ravaged and plundered by wretches … whenever they pleased to say they suspect there are in the house wares etc. for which the dutys have not been paid. (quoted in Cushing 1906, 361)

      In the fall of 1774, the First Continental Congress prepared and sent a petition to King George III presenting its grievances with England's colonial policies. One of these grievances was that “the officers of the customs are empowered to break open and enter houses without the authority of any civil magistrate founded on legal information.”

      After Congress adopted the Declaration of Independence on July 4, 1776, the colonies became independent states. Most states quickly adopted their own constitution or bill of rights reflecting the freedoms valued by their citizens. Between 1776 and 1784, eight states—Delaware, Maryland, Massachusetts, New Hampshire, North Carolina, Pennsylvania, Vermont, Virginia—included provisions in their new constitutions or bills of rights prohibiting general warrants or otherwise addressing the search and seizure abuses that had become commonplace during the reign of King George.

      During the early years of independence, the fledgling nation was held together by the Articles of Confederation. These articles reflected the public's wariness of a strong central government. Accordingly, most of the power of government remained with the states. While the Congress was responsible for conducting foreign affairs, declaring war, and maintaining an army and navy, the Articles denied Congress the powers to collect taxes, regulate interstate commerce, or enforce laws. The founders recognized that this arrangement was not viable, and, in 1787, Congress approved holding a convention in Philadelphia to revise the Articles of Confederation.

      The convention was not convened to address the rights and liberties of the citizens because it was commonly understood that the state constitutions served that purpose. Rather, the convention focused on the organization of the federal government, the allocation of power among the branches of the federal government, and the division of governmental power between the federal government and the states.

      Toward the end of the convention, George Mason, the principal author of the Virginia Bill of Rights, argued unsuccessfully for the inclusion of a bill of rights in the new constitution. He later refused to sign the Constitution at the conclusion of the convention. Another effort to include a bill of rights in the new constitution was turned back when the Confederation Congress approved the Constitution and submitted it to the states for ratification. The required nine states ratified the Constitution between December 7, 1787, and June 21, 1788, but these states did not include either Virginia or New York. Virginia ratified the Constitution on June 26, 1788, followed by New York on July 26, 1788.

      Seven of the ratifying states insisted that the Congress include a bill of rights in the new Constitution and suggested the rights and privileges that should be protected. Among the protections most frequently mentioned by the states' ratifying conventions was the protection against governmental search and seizure abuses. The task of drafting the proposed amendments fell to James Madison. One of the twelve amendments proposed by Madison, and approved by Congress, was a protection against unreasonable searches and seizures. Several ratifying states declined to ratify two of the twelve proposed amendments. However, with Virginia's ratifying vote on December 15, 1791, ten of the twelve proposed amendments were approved, and the Bill of Rights became effective. The Fourth Amendment states:

      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.

      The U.S. Supreme Court was called upon to construe the Fourth Amendment for the first time in Boyd v. United States (1886). Setting the paradigm for the future development of the constitutional protection of the right of privacy, the Court overturned a federal statute requiring taxpayers to produce their private books and papers on motion of the U.S. attorney. After citing Lord Camden's judgment in Entick v. Carrington, Justice Joseph P. Bradley stated,

      The principles laid down in this opinion affect the very essence of constitutional liberty and security. They reach further than the concrete form of the case then before the court, with its adventitious circumstances; they apply to all invasions on the part of the government and its employees of the sanctity of a man's home and the privacies of life. It is not the breaking of his doors and the rummaging of his drawers that constitutes the offense; but it is the invasion of his indefeasible right of personal security, personal liberty, and private property, where that right has never been forfeited by his conviction of some public offense, it is the invasion of his sacred right which underlies and constitutes the essence of Lord Camden's judgment.

      The U.S. Supreme Court did not move quickly to incorporate the Fourth Amendment against the states. In Wolf v. Colorado (1949), the Court held that the Fourth Amendment's prohibition against unreasonable searches and seizures applied to the states but did not require that the exclusionary rule, which excludes from trial evidence obtained in violation of the Fourth Amendment, be applied in state courts. Twelve years later, in Mapp v. Ohio (1961), the Court held that the exclusionary rule applied to state criminal proceedings. In Ker v. California (1963), the Court held that the states were required to use the Fourth Amendment's standards for determining the reasonableness of warrantless searches and seizures. The following year, the Court held in Aguilar v. Texas that the Fourth Amendment's requirements for warrants were applicable in state criminal court proceedings.

      The federal Bill of Rights provides most of the basic constitutional protections of personal rights and liberties. However, the states may impose greater restrictions on police activity under state law than the restrictions imposed by the U.S. Constitution. Accordingly, many state courts have interpreted their state constitution's protections against unreasonable searches and seizures to provide greater protections than the Fourth Amendment.

      Conclusion

      Over the past two centuries, we have grown so accustomed to the Fourth Amendment's protections that we take them for granted. It is helpful to be reminded that had Jay-Z lived in seventeenth-century England, the officer who stopped him would most likely have possessed a general warrant. That warrant would have undermined, rather than protected, Jay-Z's right of privacy. As the cases discussed in this book will illustrate, we are indebted to historical figures like John Wilkes, Lord Camden, William Pitt, James Otis, and John Adams for their forceful opposition to government's infringements of their right of privacy in their persons, homes, and possessions. Today, we live in a world in which technology provides the government with powerful and efficient tools to intrude into personal privacy. In times like these, it is helpful to be reminded of Lord Coke's observation that “each man's house is his castle.”

      WilliamC.Koch
      Further Reading
      Adams, CharlesF., ed. The Works of John Adams, Second President of the United States. Boston: Little, Brown, 1856.
      Blackstone, William. “Of Arrests.” Chapter 21 of Commentaries on the Laws of England. Vol. 4, Of Public Wrongs. Oxford, UK: Clarendon Press, 1765–1769. http://avalon.law.yale.edu/subject_menus/blackstone.asp.
      Coleman, RebeccaV.Hamsocn: Its Meaning and Significance in Early English Law.” American Journal of Legal History25 (1981): 95–110.http://dx.doi.org/10.2307/844629
      Cushing, HarryAlonzo, ed. The Writings of Samuel Adams: 1770–1773. New York: G. P. Putnam's Sons, 1906.
      Lasson, NelsonB.The History and Development of the Fourth Amendment to the United States Constitution. Brooklyn, NY: AMS Press, 1937 (citing Michael L. Rodkinson, The Babylonian Talmud, 1918, 158).
      Levy, LeonardW.Origins of the Bill of Rights. New Haven, CT: Yale University Press, 1999.
      Radin, Max. Handbook of Roman Law. Saint Paul, MN: West, 1927.

      The Incorporation of the Fourth Amendment

      The incorporation of the Fourth Amendment refers to the gradual process beginning in the twentieth century of applying the requirements of this amendment as a limitation upon state (and local) government officials. The incorporation of the Fourth Amendment has occurred through the due process clause of the Fourteenth Amendment, and its application to states occurred contemporaneously with that of other provisions of the Bill of Rights.

      Drafting and Applying the Fourth Amendment

      The Fourth Amendment's protection against unreasonable searches and seizures did not originally apply to limit the actions of state and local government officials. Its adoption was in response to debates over the ratification of the Constitution in 1787.

      The debates in 1787 over the ratification of the proposed constitution to replace the Articles of Confederation pitted the Anti-Federalists, such as Luther Martin, Richard Henry Lee, and Patrick Henry, against Federalists, who included Alexander Hamilton, John Jay, and James Madison. The former feared that the new national government would be too powerful and potentially threaten individual liberty and the rights of states. One criticism levied specifically was that the Constitution lacked a bill of rights that would limit the new national government. In response, Alexander Hamilton in Federalist Paper Number 84 asserted that a bill of rights was not necessary because the national government would not have the power to restrict individual rights. While Hamilton and the Federalists won ratification, they lost the debate over a bill of rights.

      As a condition of securing ratification of the Constitution, James Madison promised to introduce a bill of rights in Congress as amendments to the Constitution. In 1789, James Madison offered seventeen amendments in the House of Representatives. This number was reduced to twelve, and ten of these, once ratified in December 1791, became the Bill of Rights. Given that the amendments were offered in response to Anti-Federalist fears of the national government, they were not directed toward limiting the power of the state governments. Among the amendments Madison proposed was one that would have extended several rights, including trial by jury in criminal cases, to the states, but the Senate rejected it. The evidence suggests that what is now the Fourth Amendment was not originally intended by James Madison or Congress to apply to the states.

      This interpretation was reinforced in Justice Marshall's opinion in Barron v. Baltimore (1833). At issue in that case was whether the Fifth Amendment's just compensation clause applied as a limitation upon state governments. According to Marshall,

      the Fifth Amendment must be understood as restraining the power of the general government, not as applicable to the States. In their several constitutions they have imposed such restrictions on their respective governments as their own wisdom suggested; such as they deemed most proper for themselves. It is a subject on which they judge exclusively, and with which others interfere no further than they are supposed to have a common interest.

      Marshall thus rejected arguments that provisions of the national Bill of Rights limited state governments.

      Even though the Supreme Court effectively rejected application of the Fourth Amendment to the states, not all such values lacked state protection. Virginia, considered the model for the Bill of Rights, and many other states did have their own bills of rights—called “declarations of rights”—that included provisions similar to those found in the Fourth Amendment. When Madison drafted his seventeen amendments, he largely pulled them from existing state constitutions. Moreover, prior to the Civil War, judges in several state court decisions, interpreting their state's bills of rights, ruled that the Fourth Amendment applied as a limit on their governments. In Banks v. Farwell, 21 Pick. 156 (Mass. 1838), the Massachusetts Supreme Court ruled that the warrant requirements of the Fourth Amendment were applicable to the states. Similarly, in Larthet v. Forgay, 2 La. Ann. 524 (1847), and in Opinion of the Justices of the Superior Court of Judicature (N.H. 1852), courts in Louisiana and New Hampshire declared the Fourth Amendment as a limitation upon their state governments. Despite these rulings, the Barron precedent established for the federal courts that the Fourth Amendment did not limit the actions of individual states. States and their courts were free to disregard or apply the Fourth Amendment as they chose.

      The Fourteenth Amendment, Incorporation, and the Due Process Revolution

      Given Barron, states could disregard the warrant requirements of the Fourth Amendment if their own bill of rights did not have a similar limitation.

      Arguably, Article IV, section 2 of the Constitution also contains a potentially significant clause that seems to guard individual rights. The privileges and immunities clause states that “[t]he citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” Supreme Court Justice Bushrod Washington (George Washington's nephew) opined while writing as a circuit court judge in Corfield v. Coryell, 6 F.Cas. 546 (1823), that these rights extended to protection of life and liberty. Yet the focus of Washington's comments was more on economic rights that citizens enjoy across states and less on criminal due process.

      The process of making the Bill of Rights, including the Fourth Amendment, applicable to the states really began with the adoption of the Fourteenth Amendment. This amendment, proposed in Congress by Rep. John Bingham of Ohio on June 13, 1866, and ratified on July 28, 1868, extended constitutional protections to the recently freed slaves. The Fourteenth Amendment also overturned the Supreme Court decision in Dred Scott v. Sandford, 60 U.S. 393 (1857), which had declared that African Americans could never be citizens. Section 1 of the amendment had three critical provisions: a privileges or immunities clause, a due process clause, and an equal protection clause.

      Some argued that the privileges or immunities clause served either to protect the rights Justice Washington described in Corfield against state encroachment or to serve as a broader platform for reversing Barron to apply the entire Bill of Rights to the states. However, in the Slaughterhouse Cases, 83 U.S. 36 (1873), the Court rejected these claims, ruling that the privileges or immunities clause did not protect individuals from state encroachment on the Bill of Rights. It also effectively ruled against the idea that the Bill of Rights applied to the states. In reaching this conclusion, it was consistent with Barron. In dissent, Justice Joseph P. Bradley wrote,

      The terms, privileges and immunities, are not new in the amendment; they were in the Constitution before the amendment was adopted. They are found in the second section of the fourth article, which declares that “the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States,” and they have been the subject of frequent consideration in judicial decisions. In Corfield v. Coryell, 4 Wash. C.C. 380, Fed. Cas. No. 3,230, Mr. Justice Washington said he had “no hesitation in confining these expressions to those privileges and immunities which were, in their nature, fundamental; which belong of right to citizens of all free governments.”

      The privileges or immunities clause did not extend the Bill of Rights to the states. But the Fourteenth Amendment contained another clause—due process—that proved to be more promising. In Hurtado v. California, 110 U.S. 516 (1884), the Court addressed whether the due process clause applied the provisions of the Fifth Amendment to states. Hurtado, like Barron, rejected claims that the protections of the Fifth Amendment extended to restrictions on states. Writing for the Court, Justice Thomas Matthews declared that due process

      refers to that law of the land in each State, which derives its authority from the inherent and reserved powers of the State, exerted within the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and the greatest security for which resides in the right of the people to make their own laws, and alter them at their pleasure.

      Yet not every act of a legislature is law, according to Matthews:

      Law is something more than mere will exerted as an act of power. … [L]aw … “hears before it condemns, … proceeds upon inquiry, and renders judgment only after trial,” so “that every citizen shall hold his life, liberty, property and immunities under the protection of general rules which govern society,” and thus excluding, as not due process of law, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man's estate to another, … and other similar special, partial, and arbitrary exertions of power under the forms of legislation. … It follows that any legal proceeding enforced by public authority, whether sanctioned by age and custom, or newly devised in the discretion of the legislative power in furtherance of the general public good, which regards and preserves these principles of liberty and justice, must be held to be due process.

      Hurtado appeared again to doom application of the Bill of Rights to states. Yet concern with economic rights in the post–Civil War era led to the emergence of legal doctrines such as liberty of contract and economic or substantive due process. These theories contended that the federal and, more importantly, state governments were limited in their ability to regulate the economy and interfere with property rights. Cases such as Munn v. Illinois, 94 U.S. 113 (1877), and Muglar v. Kansas, 123 U.S. 623 (1887), revealed a concern for the protection of property and economic rights. This focus on property and economic rights finally paid off in Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 (1897), in which the Court, under Chief Justice Melville Fuller, issued the first decision incorporating the Bill of Rights to apply to the states via the Fourteenth Amendment's due process clause.

      While Chicago, Burlington & Quincy Railroad is the first instance of incorporation, more famous is the decision in Gitlow v. New York, 268 U.S. 652 (1925). Benjamin Gitlow had been indicted for the statutory crime of criminal anarchy under a 1902 New York state law. The Supreme Court upheld his conviction against claims that the state law violated his First Amendment free speech rights. In dissent, Justice Oliver Wendell Holmes Jr., joined by Louis Brandeis, declared: “The general principle of free speech, it seems to me, must be taken to be included in the Fourteenth Amendment, in view of the scope that has been given to the word ‘liberty’ as there used.”

      Gitlow's significance resides in a statement in Justice Edward Sanford's majority opinion:

      For present purposes we may and do assume that freedom of speech and of the press—which are protected by the First Amendment from abridgment by Congress—are among the fundamental personal rights and “liberties” protected by the due process clause of the Fourteenth Amendment from impairment by the States.

      After Gitlow, the question became, What rights were so important that they were deemed fundamental and should thus apply to the states? Several theories emerged.

      One theory was that due process does not incorporate any of the Bill of Rights to the states. This position was rejected in Chicago, Burlington & Quincy Railroad.

      A second answer is the total incorporation thesis. This is the position that the due process clause incorporates all of the Bill of Rights provisions to apply to the states. Justice Hugo Black in his dissent in Adamson v. California, 332 U.S. 46 (1947), argued this:

      My study of the historical events that culminated in the Fourteenth Amendment, and the expressions of those who sponsored and favored, as well as those who opposed its submission and passage, persuades me that one of the chief objects that the provisions of the Amendment's first section, separately, and as a whole, were intended to accomplish was to make the Bill of Rights, applicable to the states. With full knowledge of the import of the Barron decision, the framers and backers of the Fourteenth Amendment proclaimed its purpose to be to overturn the constitutional rule that case had announced. This historical purpose has never received full consideration or exposition in any opinion of this Court interpreting the Amendment.

      Justice Black is still identified as the main proponent of this view. To defend his claim, his dissent offered an analysis of the debates on the passage of the Fourteenth Amendment. Attached to Black's dissent was a long, detailed appendix discussing the debates and adoption of the Fourteenth Amendment. It was meant to support his legal claim that the Fourteenth Amendment stood for total incorporation of the Bill of Rights.

      There may, of course, be important rights—the right to privacy, for example—that are not articulated in the Bill of Rights but that justices think should apply equally to state and national governments. Justices who hold this view are thus said to favor what might be called “incorporation plus.”

      Yet another answer or approach to how the Bill of Rights applies to the states is selective incorporation. This assertion that the due process clause incorporates only some provisions of the Bill of Rights is the path the Court has taken.

      But which rights should be incorporated? Are all of them of equal value and weight, or do some deserve more protection? Is there a hierarchy to Bill of Rights provisions? The Court initially seemed to say yes.

      In Palko v. State of Connecticut, 302 U.S. 319 (1937), Justice Benjamin Cardozo turned back claims that the self-incrimination clause of the Fifth Amendment applied to the states:

      In these and other situations immunities that are valid as against the federal government by force of the specific pledges of particular amendments have been found to be implicit in the concept of ordered liberty, and thus, through the Fourteenth Amendment, become valid as against the states. The line of division may seem to be wavering and broken if there is a hasty catalogue of the cases on the one side and the other. Reflection and analysis will induce a different view. There emerges the perception of a rationalizing principle which gives to discrete instances a proper order and coherence. The right to trial by jury and the immunity from prosecution except as the result of an indictment may have value and importance. Even so, they are not of the very essence of a scheme of ordered liberty. To abolish them is not to violate a “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” … Few would be so narrow or provincial as to maintain that a fair and enlightened system of justice would be impossible without them.

      Thus, the holding in Palko is that the only provisions of the Bill of Rights that are applicable to the states through the due process clause of the Fourteenth Amendment are those that are of the very essence of a scheme of ordered liberty. Some provisions of the Bill of Rights seem, then, to be of more importance than others. This claim appeared to demarcate some provisions as enjoying a greater constitutional status than others.

      In Cantwell v. Connecticut, 310 U.S. 296 (1940), the Court seemed to follow the logic of Holmes's dissent in Gitlow in finding that the concept of liberty articulated in the First Amendment also includes freedom of religion. Cantwell was the first case to apply to the states the religious guarantees in the First Amendment and to include these in the definition of “liberty” in the Fourteenth Amendment. Freedom of religion, like freedom of speech, cannot be made subject to prior restraint by governmental authority.

      Criminal due process decisions have been central to the incorporation of the Bill of Rights. In Powell v. Alabama, 287 U.S. 45 (1932), the Court ruled that the right to counsel provision of the Sixth Amendment applies to the states. Powell, the first “Scottsboro case,” applied to the states the guarantee of counsel provision of the Sixth Amendment only under some situations, which were present in this case. As the Court stated in Betts v. Brady, 316 U.S. 455 (1942), another Sixth Amendment case involving right to counsel, due process only protects actions to ensure “essential fairness,” which includes the guarantee of a fair jury trial. Not until Gideon v. Wainwright, 372 U.S. 335 (1963), did the Court apply this guarantee of counsel in the Sixth Amendment to all cases in the state courts, capital and noncapital alike.

      Throughout the twentieth century, but specifically under Chief Justice Earl Warren, the Supreme Court incorporated many provisions of the Bill of Rights, especially those dealing with criminal due process and defendants' rights, to limit states. Yet no clear pattern or rationale seemed to emerge to explain the logic of incorporation. In Duncan v. Louisiana, 391 U.S. 145 (1968), Justice Byron White summed up the tests for determining whether a right is protected by the Fourteenth Amendment:

      The question has been asked whether a right is among those “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,” whether it is “basic in our system of jurisprudence,” and whether it is “a fundamental right, essential to a fair trial.”

      Applying these tests, the first eight amendments of the Bill of Rights, except for the Third Amendment (quartering of troops), the Seventh Amendment (right to jury trials), and the Fifth Amendment (grand jury provisions), are incorporated to apply to the states through the Fourteenth Amendment's due process clause.

      Incorporation and the Fourth Amendment

      Incorporation of the Fourth Amendment to apply to the states began with Weeks v. United States (1914). In that case, police officials in Missouri arrested Fremont Weeks without a warrant on charges of mail fraud and proceeded to search his residence. A subsequent search was then undertaken by the police and a federal marshal. They secured several papers as a result of the search that were turned over to the U.S. government. The federal government then prosecuted Weeks for mail fraud. He charged in appeal that the search had been illegal and that his Fourth Amendment rights had been violated in that the warrantless search was unconstitutional.

      The Supreme Court reversed the conviction. In doing so, Justice William R. Day, writing for the Court, recounted the history of the Fourth Amendment in terms of prompting privacy and personal security. He concluded that the seized papers could not be used to convict Weeks.

      If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment, declaring his right to be secure against such searches and seizures, is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution. The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established be years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land.

      Weeks formulated what has come to be known as the exclusionary rule. This rule states that evidence obtained from an illegal search and seizure cannot be used to convict an individual of a crime. In this case, the United States was barred from using the illegally obtained evidence.

      Weeks only barred the use of illegally obtained evidence in federal court when the search was undertaken by federal officials. The Court's decision did not forbid the use of this type of evidence in state court, and it did not apply to situations in which state officials obtained the evidence and turned it over to federal officials. The Court also did not say that the Fourth Amendment applied to the states. This is what the Court declared in Wolf v. Colorado (1949).

      At issue in Wolf was a warrantless search of a physician's office by state officials who had seized his appointment book and list of patients. Wolf had been convicted of performing abortions in violation of the law. He appealed his conviction, charging that the search was illegal. The Supreme Court addressed two questions: whether the Fourth Amendment applied to the states and whether the exclusionary rule also applied and therefore rendered the evidence obtained from the warrantless search illegal to use.

      Writing for the Court, Justice Felix Frankfurter affirmed Wolf's conviction. Frankfurter first addressed the question of whether the Fourth Amendment applied to the states. He ruled that it did. However, he rejected the total incorporation argument that the due process clause simply made applicable to the states the first eight amendments of the Bill of Rights. Instead, he argued that only certain rights that are more fundamental should apply to the states. Specifically, he stated,

      The security of one's privacy against arbitrary intrusion by the police—which is at the core of the Fourth Amendment—is basic to a free society. It is therefore implicit in “the concept of ordered liberty” and as such enforceable against the States through the Due Process Clause. The knock at the door, whether by day or by night, as a prelude to a search, without authority of law but solely on the authority of the police, did not need the commentary of recent history to be condemned as inconsistent with the conception of human rights enshrined in the history and the basic constitutional documents of English-speaking peoples.

      In other words, the Fourth Amendment, the need to be secure against unreasonable searches and seizures, was so core to the concept of ordered liberty that due process demanded its application to the states.

      Yet the same was not true about the exclusionary rule. In rejecting its application to the states, Frankfurter surveyed state court decisions prior to and after Weeks. He noted that thirty-one states had refused to apply the exclusionary rule in their own jurisdictions. He took this as evidence that states did not believe the exclusionary rule was a necessary tool to address illegal searches, that common-law tort remedies and lawsuits were sufficient, and therefore there was no need to incorporate it along with the Fourth Amendment.

      In Rea v. United States (1956), a 5–4 majority invoked the supervisory power of the Supreme Court to prohibit federal officers from presenting, in state cases, evidence obtained in violation of the Fourth Amendment. In this case, after illegally obtained evidence was rejected in federal court, a U.S. narcotics officer sought to use it in a state proceeding. After his conviction in state court, the defendant appealed, and eventually the Supreme Court heard the case. It then used its supervisory power under the Federal Rule of Criminal Procedure to prohibit federal officers from seeking to introduce this evidence into a state court proceeding. Rea thus did not formally incorporate the exclusionary rule to the states, but it took another step in that direction.

      In a pair of cases, Elkins v. United States (1960) and in Rios v. United States (1960), the Court overruled Weeks, holding in these cases that evidence illegally seized by state officers could not be used in a federal prosecution. However, the Court did not apply the exclusionary rule to the states. In fact, technically it could not do so since the case did not involve state prosecutions. These decisions took an even closer step toward the incorporation of the exclusionary rule.

      In Wong Sun v. United States (1963), the Warren Court strengthened the exclusionary rule, introducing the concept known as the “fruit of the poisonous tree” doctrine. In this ruling, illegally obtained evidence of narcotics and a confession were excluded based on the fact that both were obtained from illegal police searches. The poisonous fruit doctrine stated not only any primary evidence but also any secondary evidence gathered as a result thereof must be excluded from trials when the cause of the evidence could not be purged from illegal actions on the part of the police.

      Finally, Wolf was overturned by Mapp v. Ohio (1961). In this case, Cleveland, Ohio, police officers requested entrance to the Dollree Mapp residence in order to search for a fugitive who was reportedly hiding in her home. The police also believed that a large amount of obscene paraphernalia was hidden there. When Mapp asked to see a warrant, the police waved a piece of paper, which she grabbed and stuffed down her blouse. It was not a warrant. The officers proceeded to enter the house forcefully without a warrant and searched the entire residence from basement to second floor. The obscene materials were discovered in the course of that search, and the defendant was ultimately convicted for possession of them. The use of this evidence in the state court was then challenged, and the Supreme Court overturned the conviction.

      Writing for the Court, Justice Tom C. Clark reviewed the history of incorporation, describing the Court's struggle to determine which provisions of the Bill of Rights should apply to the states. He also discussed the Court's precedents regarding the Fourth Amendment and efforts to clarify when the exclusionary rule applied and to what level of government. He concluded,

      Moreover, our holding that the Exclusionary Rule is an essential part of both the Fourth and Fourteenth Amendments is not only the logical dictate of prior cases, but it also makes very good sense. There is no war between the Constitution and common sense. Presently, a federal prosecutor may make no use of evidence illegally seized, but a State's attorney across the street may, although he supposedly is operating under the enforceable prohibitions of the same Amendment. Thus the State, by admitting evidence unlawfully seized, serves to encourage disobedience to the Federal Constitution which it is bound to uphold.

      According to Clark, it was illogical to apply the exclusionary rule to one level of government but not another. Such a practice encouraged disrespect for the Constitution and, as its prior decisions revealed, made it difficult to establish a coherent line describing which rights were more necessary or more fundamental than others to protecting liberty and respecting privacy. Thus, Mapp brought to a conclusion a legal process of Fourth Amendment incorporation that had begun with Weeks.

      The Fourth Amendment Postincorporation

      Mapp v. Ohio may have completed the incorporation of the Fourth Amendment to the states, but it did not end the controversy regarding the wisdom of the exclusionary rule. There is little indication that the Supreme Court would unincorporate either the exclusionary rule or the Fourth Amendment. However, various decisions under the Burger, Rehnquist, and Roberts Courts have created numerous exceptions to warrant requirements. For example, warrantless searches are permitted if incidental to arrest, for border searches, and if one is engaged in hot pursuit of a suspect. Moreover, the Court has ruled that while illegally obtained evidence cannot be used to convict an individual, such evidence is admissible in grand jury proceedings, for sentencing, and to impeach a witness. The Court has also decided that illegally obtained evidence need not be excluded from court if it would inevitably have been discovered, if it is independently corroborated by legal means, or if the search were done in good faith and the warrant was otherwise defective. The precedents in these decisions are applicable both to the federal and state governments.

      Finally, as the Supreme Court has drawn limits on what the Fourth Amendment prohibits, some, such as former Justice William Brennan and Oregon chief justice Hans Linde, have argued that states should use their own constitutions to offer protections for defendants that are greater than offered by the Fourth Amendment. Proponents of this idea herald judicial federalism as a way to take the legal concepts of incorporation and cement them in state law. In incorporating the exclusionary rule into a state bill of rights, state supreme courts potentially insulate their decisions from Supreme Court review, thereby offering protections for their citizens in their own courts that may not be available at the federal level. Thus, this process of “reverse incorporation” means that the application of the Fourth Amendment to the states is not over but, instead, is occurring in a different venue.

      DavidSchultz
      Further Reading
      Amar, AkhilReed. The Bill of Rights: Creation and Reconstruction. New Haven, CT: Yale University Press, 1998.
      Auerbach, BruceE.The Politics of Due Process: Incorporation and the Bill of Rights.” In Law and Politics: Unanswered Questions, edited by DavidSchultz, 43–74. New York: Peter Lang, 1995.
      Davies, ThomasY.The Supreme Court Giveth and the Supreme Court Taketh Away: The Century of Fourth Amendment ‘Search and Seizure’ Doctrine.” Journal of Criminal Law and Criminology100 (2010): 933–1041.
      Fairman, Charles, and StanleyMorrison. The Fourteenth Amendment and the Bill of Rights: The Incorporation Theory. New York: DaCapo Press, 1970.
      Goldstein, JacobPaul. “From the Exclusionary Rule to a Constitutional Tort for Malicious Prosecutions.” Columbia Law Review106 (2006): 643–678.
      Katkin, Kenneth. “‘Incorporation’ of the Criminal Procedure Amendments: The View from the States.” Nebraska Law Review84 (2005): 397–468.
      Maclin, Tracey. “The Complexity of the Fourth Amendment: A Historical Review.” Boston University Law Review77 (1997): 925–974.
      Schultz, David, JohnR.Vile, and MichelleD.Deardorff. Constitutional Law in Contemporary America. Vol. 2. New York: Oxford University Press, 2010.
      Urbonya, KathrynR.Fourth Amendment Federalism? The Court's Vacillating Mistrust and Trust of State Search and Seizure Laws.” Seton Hall Law Review35 (2005): 911–970.
      Zotti, PriscillaMachado. Injustice for All: Mapp v. Ohio and the Fourth Amendment. New York: Peter Lang, 2005.

      The Fourth Amendment and Technology

      The rapid rate of technological development increases the likelihood of clashes between technology and the Fourth Amendment. It is apparent to any observer of modern society that the Framers of the Constitution could not have foreseen the technological innovations that exist today as part of everyday life in the United States. Widespread use of computers, cellular telephones, copy machines, and digital cameras, to name a few, are the norm. While we take for granted these developments and by and large see these technological advances as positive and beneficial, Americans are becoming increasingly aware of the implications these have for their own privacy.

      The tension between liberty and authority is ever present in a society that cherishes both individual freedom and collective security. The Fourth Amendment of the United States Constitution establishes a fact-based “reasonableness” for government to obtain evidence in light of probable cause. However, technological advances have made the seizure of evidence more unobtrusive and prevalent in society, triggering the Fourth Amendment in ways the Framers of the Constitution never could have imagined. As the digital age advances, new technologies raise questions of what is a reasonable expectation of privacy for citizens. Courts cannot function and justice cannot be served without evidence; however, courts must consider evidentiary-gathering techniques in light of their potential abuse. With the increased use of technology, the level of intrusion is less physical and harder to detect, and often the victims of searches are unaware that they were searched at all. The Fourth Amendment implications for the high-tech stealth world of law enforcement find courts playing catch-up with laws that were designed for the old world of physical intrusion and trespass.

      No case illustrates this dilemma better than that of Danny Lee Kyllo. In Kyllo v. United States (2001), the Supreme Court was faced with a physically unobtrusive search of a suspected marijuana grower's home. Agents of the Department of the Interior, based on an informant's tips, used a device called the Agema Thermovision 210 to gain information about suspected illegal activities inside Kyllo's home. Agents believed that Kyllo was growing marijuana there with the aid of high-intensity lamps. This thermal heat-sensing machine was used from a public street at 3:20 AM on January 16, 1992, to record the thermal temperatures inside Kyllo's dwelling. Based upon its findings, law enforcement believed Kyllo was growing marijuana and obtained a search warrant, which in turn resulted in the seizure of more than one hundred marijuana plants. The lower court reasoned that there had been no physical intrusion into Kyllo's home and that the thermal readings did not violate his Fourth Amendment rights.

      The Supreme Court reversed the lower court, reasoning that an ordinary surveillance of a home from the exterior would not constitute a search under the Fourth Amendment but a technologically enhanced one did elevate the intrusion. The Court reasoned that a Fourth Amendment search occurred when the government violated a subjective expectation of privacy in one's home that society recognizes as reasonable. Justice Antonin Scalia noted that the technology in question was not in general public use, not commonplace, and not a part of the expectation of privacy of society. By this logic, does one's privacy diminish as technology becomes more commonplace? The answer is most likely yes, which raises further questions concerning the diminished rate of privacy protections. As technology rapidly develops and is deployed into society, it becomes unclear where reasonable societal expectations will reside. Once a technological tool is used, and used extensively, it appears that citizens, at least under the logic of Kyllo, are left with fewer Fourth Amendment protections. Furthermore, Scalia noted that the intrusion is inside the home, in private space that is considered off limits, a protected area of privacy.

      Boyd, Olmstead, and Katz: Technology, Innovation, and the Fourth Amendment

      Although the Fourth Amendment was adopted along with the rest of the Bill of Rights in 1791, its scope and impact were not explained through case law for some time. The first search and seizure case to reach the high court came in 1886 in Boyd v. United States. In Boyd, Justice Joseph Bradley reasoned that it is not the breaking of doors or the rummaging of personal effects that constitutes the essence of an offense. It is the invasion of the right of personal security, personal liberty, and private property. Boyd made clear that the protection of the Fourth Amendment from unreasonable searches and seizures was premised upon the right of privacy, that is, the right to be left alone, free from government intrusion. Boyd linked this privacy right to property rights, from which the intrusion into such persons, houses, papers, and effects were protected by the common-law remedy of trespass. Privacy and physical intrusion created a nexus for triggering the Fourth Amendment. Privacy rights were potentially violated upon the physical intrusion into one's home.

      This logic was tested by technological innovation. With the advent of the telephone, inevitably devices were developed that allowed an intruder to listen in on telephone conversations, thereby seizing the words of the participants. In Olmstead v. United States (1928), the Supreme Court faced the Fourth Amendment question of wiretapping for the first time. Roy Olmstead was charged with violating the National Prohibition Act for importing and selling liquor. The evidence used to convict him included telephone conversations made from both his home and office. These incriminating conversations were seized with wiretaps by the government. Nevertheless, speaking for the 5–4 majority, Chief Justice William Howard Taft reasoned the amendment did not forbid what had happened to Olmstead. There had been no search or seizure. The evidence had been secured by the use of the sense of hearing and that alone; there had been no physical entry of the house or office of the defendants. Taft thought that the language of the Fourth Amendment could not be extended and expanded to include telephone wires, reaching to the whole world from the defendant's house or office. Only if a physical entry took place, would Olmstead have a claim, one of trespass. The physical intrusion of an unlawful entry was what the Fourth Amendment was designed to protect against.

      Taft's interpretation would place wiretapping outside the aegis of the Fourth Amendment and thus the Court's power. He argued that Congress could protect the secrecy of telephone messages by making them, when intercepted, inadmissible as evidence in federal criminal trials. For Taft, it was not within the purview of courts to adopt such a policy by enlarging the meaning of the Fourth Amendment. Only if there was physical intrusion, a trespass, or the use of physical force was the privacy concern of the Fourth Amendment violated; technology did not expand the Fourth Amendment. Trespass under the common-law wisdom would be transcended by the pervasive reality of the subtleness yet effectiveness of technology.

      Justice Louis D. Brandeis, in his Olmstead dissent, saw the issue quite differently, as a part of the inevitable technological innovation that the Court would have to confront. For Brandeis, time would bring new conditions. Textually, reasoned Brandeis, the Court must interpret innovation in light of principles as opposed to wording and current meaning. The progress of science was not likely to stop with wiretapping. Brandeis's 1928 opinion realizes what would become more commonplace for the Court: continual questions about the impact of technological innovations upon the reach of the Fourth Amendment.

      Six years after the Olmstead decision, Congress enacted the Federal Communications Act, attempting to limit the use of wiretapping. In Nardone v. United States (1937), the Supreme Court held that wiretapping by federal officers violated the Federal Communications Act if the information was seized and disseminated. It was thereby excluded, even though wiretapping was not illegal if the information was not used outside of the governmental agency. The statutes captured inter- and intrastate communications, thus trumping state wiretapping statutes.

      The trespass rationale of Olmstead was utilized in cases dealing with the placement of listening devices or bugs instead of wiretapping telephones. In Goldman v. United States (1942), the Court found no Fourth Amendment violation when a listening device was placed against an exterior wall so that conversations were overheard on the other side. But when officers drove a “spike mike” into the wall, the Court determined that the trespass triggered Fourth Amendment concerns. Goldman in effect negates the logic of Olmstead that conversations, being intangible, by definition cannot be seized. This view was reiterated in Berger v. New York (1967), in which the Court held a state eavesdropping statute unconstitutional. Under the law, judges could issue warrants permitting officers to trespass on private grounds to install listening devices. Justice Tom C. Clark, writing for the majority, noted that the warrant did not specify what conversations and communications were to be seized, the authorized time frame was too long (two months), and no termination date was required. The blanket grant of search power was abusive, leaving no doubt that conversations and their seizure raised Fourth Amendment questions.

      The Olmstead tenet, that physical intrusion was fundamental to the Fourth Amendment, was laid to rest in Katz v. United States in 1967. The seizure of Charles Katz's conversations came by way of a Federal Bureau of Investigation (FBI) listening device placed atop a public telephone booth. There was no entry into Katz's home; only the seizure of his words from a public telephone any passerby was free to use. Writing for the 7–1 majority, Justice Potter Stewart abandoned the notion of physical intrusion as a prerequisite for a Fourth Amendment trigger and ruled that the basis for the violation was privacy. He famously argued that “the Fourth Amendment protects people, not places.” What a person knowingly exposes to the public, even in his or her own home or office, is not a subject of Fourth Amendment protection. But what an individual seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. Stewart articulated the now-recognized principle that the premise of the Fourth Amendment is the privacy of citizens, not physical intrusion and seizure of tangible goods. Stewart acknowledged that technological advances allow searches without physical intrusion and the seizure of intangible aspects of private life. In his concurrence, Justice John Marshall Harlan refined the problem by articulating a twofold requirement, first that a person exhibits an expectation of privacy and second that the expectation be one that society is prepared to recognize as reasonable. Harlan's two-pronged test is used to balance the Fourth Amendment in light of new technologies.

      The Katz requirements seem workable, yet they raise some questions. Privacy and reasonableness seem to be a part of a societal paradigm of tolerance. If the premise of the Fourth Amendment protection is a privacy right that society deems as reasonable, might the changing climate of crime and, currently, terrorism tip the scale in favor of more governmental powers? Does the reach of the Fourth Amendment with regard to privacy ebb and flow with public toleration and expectation? Once the public has accepted a type of intrusiveness, will there ever be an instance that the intrusion is only temporary (such as when the threat of crime or terror subsides)? While the physical trespass rule is obsolete, it is not clear what rules exist to both protect citizens and maintain safety for all in a modern society.

      The Court has applied the Katz two-pronged test to an ever increasing number of crime-fighting technologies such as pen registers, voice exemplars, beepers, tracers, breathalyzers, and global positioning system (GPS) technology. The post-Katz Supreme Court wrestles with the balance between a citizen's expectation of privacy and the need to gather evidence and combat crime.

      In United States v. Knotts (1983) and United States v. Karo (1984), the question of whether or not a beeper, a type of tracking device, violates the Fourth Amendment was raised. Beepers send a short, one-way signal indicating the current location of an individual. In Knotts, the beeper was placed inside a chloroform drum, which the police tracked to a remote cabin used by the accused to manufacture drugs. The Court ruled in Knotts that the beeper did not violate the rights of the accused because it was neither a search nor a seizure under the Fourth Amendment. Furthermore, enhancing one's sensory abilities did not violate the Fourth Amendment.

      James Karo had ordered a fifty-gallon drum of ether from a government informant with the intent to use it to extract cocaine from clothes laced with the drug imported into the United States. In Karo, the Court held that the installation of a beeper into the ether containers did not constitute a violation of Karo's expectation of privacy under the Fourth Amendment.

      Beepers have for the most part been replaced by GPS, which provide not only the current location of someone but the route taken. Developed for military use, GPS technology is widely available to the general public in automobiles and in cellular and handheld devices and can be used to precisely pinpoint any location on earth. Decisions dealing with this technology are analogous to the beeper cases of Knotts and Karo. Whereas beepers signal the current location of the individual, GPS tracking provides a history of locations, can store the information, and can gather additional data such as speed and distance. Because GPS provides a wealth of information, both personal and public, courts are faced with questions about whether the installation of such devices constitutes a search or merely enhances police sensory tools. In United States v. Jones (2012), the Court ruled that the attachment of a GPS device to a person's vehicle constituted a search within the meaning of the Fourth Amendment.

      Surveillance Technology: The Eyes of the Government

      Fourth Amendment case law teaches us that one's right of privacy vacillates as he or she moves about society and certainly is greater in one's home than on the street. Public places provide little expectation of privacy. In public, particularly in urban areas, we are photographed and videotaped almost constantly.

      Typically used in high-risk areas such as airport screening areas, cameras are now being placed on city walkways to combat street crime. Urban centers are using cameras in record numbers to “watch” high-traffic and high-crime areas. Along boardwalks, police can track the movements of an individual for miles. The typical Londoner is captured on camera on average 300 times a day. Those who argue for cameras' usage assert that the surveillance is in a public place rather than a private one and the level of intrusion is small and nonphysical. However, the ability to read the inscriptions on a belt buckle or the numbers dialed on a cellular telephone weakens that justification substantially. Despite the fact that public places can be and are under surveillance, most local governments lack sufficient regulations to refine the permissible boundaries of such public surveillance.

      Judicial decisions give little guidance to lawmakers about what actions violate the Fourth Amendment. Lower court judges have allowed the use of video surveillance in the workplace, reasoning that a Fourth Amendment violation only occurs if the individual has a reasonable expectation of privacy. Employers possess a legitimate interest in the efficient operation of the workplace, allowing supervisors to monitor at will that which is in plain view within an open work area. What a person knowingly exposes to the public, even in his or her own home or office, is not a subject of Fourth Amendment protection. The bottom line is that since an employer could assign humans to monitor the work place continuously without constitutional insult, an employer may choose instead to carry out that lawful task by means of unconcealed video cameras that record only what the human eye could observe. In other words, if the surveillance is simply more efficient from a manpower perspective, does the employer's action impose a Fourth Amendment violation? By analogy, if a city government does not have enough police officers to patrol the street, can it use cameras to replace human patrols?

      In International Union v. Garner, 601 F.Supp. 187 (1985), a city concerned about a union meeting and its possible results surveilled a public meeting place, recorded the vehicle license tags of those in the meeting parking lot, and then ran the tags through the Department of Motor Vehicles database to produce a list of employees who had attended the meeting. The city then gave this list to the employer. The district court found no violation, reasoning that, although individuals who park their cars in a public place and then enter a private meeting have a legitimate right to expect that others will not eavesdrop on the meeting, those individuals have no right to expect that persons passing by on the street will not take note of and draw inferences from the presence of their cars parked in plain view.

      Location seems to matter. A public location seems to indicate an almost nonexistent expectation of privacy. For example, the Virginia Court of Appeals overturned the conviction of a man who had used a small, concealed camera to photograph under a woman's dress. The appellate court reasoned that, although the appellant had aimed his camera so that the lens pointed up the victim's dress, the victim had no reasonable expectation of privacy while standing on the public fairgrounds. What one can view with the naked eye, even if one is a contortionist, does not violate the Fourth Amendment.

      Modern technological advances continue to challenge the concept of a “reasonable expectation of privacy.” Following are some of the dilemmas of modern life that have raised Fourth Amendment questions.

      Drug Testing

      In two 1989 cases, the Supreme Court held there was no requirement of individualized suspicion, probable cause, or a search warrant for the mandatory drug testing of certain employees. In Skinner v. Railway Labor Executives' Association, the Court held that employees involved in train accidents could be required to undergo urinalysis or drug testing. In National Treasury Employees Union v. Von Raab, the Supreme Court ruled that Customs Service employees applying for a promotion or transfer to a job that required the use of firearms and to work in drug interdiction could be subject to urinalysis without any individualized suspicion.

      The Court developed what came to be known as the “special needs” doctrine, articulating a non–law enforcement concern for the search and seizure. Typical law enforcement evidentiary searches require individualized suspicion. In special needs cases, however, the government need only articulate a public concern, such as a drug-free workplace or school safety, to justify the generalized warrantless search.

      Emphasizing the “special needs” in the public school context, the Court in Vernonia School District v. Acton (1995) upheld a public school district's policy authorizing urinalysis drug testing of students who participated in inter-scholastic athletics. The interference with privacy interests was not great, the Court decided, since schoolchildren are routinely required to submit to various physical examinations and vaccinations, and student athletes routinely experience less expectation of privacy in locker rooms and are subjected to regulations more extensive than nonathletes. In Board of Education v. Earls (2002), the Court extended the rationale of Vernonia to include all students involved in extracurricular activities, not just athletes. The Tecumseh (Oklahoma) School District required that all middle and high school students who participated in any extracurricular activities must undergo drug testing. The Supreme Court ruled 5–4 that there need not be individualized suspicion for such a policy to be deemed reasonable. Writing for the majority, Justice Clarence Thomas reasoned that the “special needs” of public schools went beyond the needs of law enforcement and that the policy furthered the school's interest in preventing and deterring drug use.

      In Ferguson v. Charleston (2001), the Supreme Court articulated the “special needs” doctrine further by noting that the intent of the search was important to the special needs test. If the search was primarily one of law enforcement, then the special needs test did not apply. Only those searches whose primary purpose was to serve a non–law enforcement goal could support a special circumstance for a warrantless, suspicionless search and seizure. Here the City of Charleston drug tested pregnant women who came to the hospital for prenatal care. Most of these women did not have health insurance and saw prenatal care as a public service. However, during the course of the examination, the unsuspecting women were drug tested, and if they tested positive for drugs, they were turned over to law enforcement. The Court struck down the City of Charleston's interpretation of the Fourth Amendment, ruling there the city was addressing no special need and the policy focused instead on a law enforcement goal.

      Facial Recognition

      Police scanned the face of every patron of the Super Bowl held in Tampa, Florida, in January 2001 with the use of facial-recognition software in cameras at each stadium entrance. The facial scans were then logged into a computer and compared to a law enforcement database. Nineteen individuals of criminal concern were identified. The company that developed the technology, concerned about the legal implications of the technological use of facial-recognition software, found no legal barriers to its use. In a public setting with minimal intrusion, the expectation of privacy of football fans is deemed to be nil. However, the larger implications are more daunting. A world in which every surveillance system in public forums is equipped with facial-recognition software underscores the lack of privacy rights in public places.

      Full-Body Scanners

      Full-body scanners, a recent technological advance, are used particularly in airports but not without controversy. The backscatter X-ray and millimeter-wave technologies penetrate the traveler's clothing to reveal hidden bombs, drugs, or nonmetal weapons that would not be apparent to traditional metal detectors or X-ray machines. The privacy concern is that the scanners reveal more than hidden weapon systems, such as the contours of the human body. Some argue that the images are pornographic, violating local obscenity laws. The actual scans blur facial features, and the officer in charge of analyzing the images is located remotely and can sharpen or soften the image based on the suspicion of illegal activity. Still, the public seems outraged at the use of scanners for all travelers, without any probable cause. The technology, which many believe is overly intrusive, is applied to all travelers as a primary screen rather than just to those who raise suspicion as a secondary screen. Another concern is the assurance that the scanned images are deleted and not stored. It is not hard to imagine a scan of a celebrity or an unusually proportioned person appearing on the Internet, despite rules requiring the image's deletion.

      Conclusion

      Historically, the development of new technology has led to a renewed interest in protecting privacy. There is a lag between the advent of new technology and the drafting of regulations that newly safeguard privacy. Wiretapping, thermal imaging, and urinalysis were each used extensively by law enforcement, to the point of abuse, before regulations were implemented. Since the search is so unobtrusive, and public places have an ever-diminishing expectation of privacy, it is cautionary to adjudicate the Fourth Amendment with older standards. Cameras, telephones, the growth and accessibility of personal computers, and the expansion of the World Wide Web have all brought renewed interest in the subject of privacy. Alan Westin, in his 1967 book Privacy and Freedom, argued that Americans fall into three categories: “Privacy fundamentalists” are very concerned about privacy violations and refute any government database whose limited purpose could be later expanded. At the other extreme are the “privacy unconcerned,” those who are not concerned by privacy considerations and the potential for abuse via technology. The vast majority of Americans fall into the middle ground, seeing both the potential benefits and abuses of technology in terms of privacy.

      Regulating emerging technology through Fourth Amendment jurisprudence poses significant difficulties for courts. Even if legislatures take the lead in articulating the boundaries around the use of new technology, its use and misuse will continually trigger Fourth Amendment queries that courts must address. Balancing privacy and security is no easy task. Neither can always be paramount. The future lies in establishing a working paradigm for new technologies rather than muddling through with old standards in light of new innovation. The original notion of privacy was physical, and some privacy advocates say the old precepts are enough to protect civil liberties, as long as the spirit of the Framers is carried into the digital age. How must the meaning of the Fourth Amendment change to keep pace with science? Surely the police are meant to be more efficient today than in the eighteenth century. The question is whether technology such as GPS is making police more efficient and capable or is creating an entirely new set of legal circumstances, given the nature of the search and seizure that results. Regardless, the meaning of the Fourth Amendment must keep pace with change. Courts must balance privacy and security concerns in an ever advancing society.

      PriscillaH. M.Zotti
      Further Reading
      LaFave, WayneR.Search and Seizure: A Treatise on the Fourth Amendment.
      4th ed.
      Saint Paul, MN: West Group, 2004.
      Lasson, NelsonB.The History and Development of the Fourth Amendment to the United States Constitution. Baltimore: Johns Hopkins University Press, 1937.
      Stewart, Potter. “The Road to Mapp v. Ohio and Beyond: The Origins, Development and Future of the Exclusionary Rule in Search-and-Seizure Cases.” Columbia Law Review83 (1983): 1365–1404.http://dx.doi.org/10.2307/1122492
      Westin, Alan. Privacy and Freedom. New York: Antheneum, 1967.

      The Fourth Amendment and Privacy

      Most Americans maintain that privacy is an important value—for them personally as well as for the nation. But is privacy a right grounded in the U.S. Constitution, particularly in the Fourth Amendment? Addressing this query requires trekking along a curious, twisting path in American legal and constitutional history.

      The Emergence of the Right of Privacy in America, 1600–1800

      The Oxford English Dictionary (OED) defines privacy as “the state or condition of being withdrawn from the society of others or from public attention; freedom from disturbance or intrusion; seclusion.” According to the OED, these usages date to the late Middle English period, 1350–1469. A secondary definition is the “absence or avoidance of publicity or display; secrecy.” This usage arose in the late sixteenth century.

      Privacy as a value and as an expectation emerged gradually in early American history. The first homes in the seventeenth-century English seaboard colonies lacked corridors, so access to one bedroom usually meant traipsing through another bedchamber. Floorboards had wide gaps that allowed heat to pass between floors, but sound traveled easily through the spaces between the boards as well. Many beds accommodated two or more persons. And some bedchambers were essentially small dormitories. Although toilet facilities were enclosed in outbuildings, individuals walking back and forth to them were visible from houses and the street.

      Builders in the early eighteenth century began to construct homes with corridors between bedrooms. Also beginning at this time was the practice of insisting that visitors to a home “knocke att the dore, and after leave given, to come in.” This injunction applied to neighbors as well as strangers. In addition, in the late 1700s, colonial courts began to step up the prosecution of Peeping Toms and eavesdroppers. In his famous 1761 argument against the offensive British writs of assistance, Boston attorney James Otis Jr. stated that “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 while he is quiet he is as well guarded as a prince in his castle.”

      The American Revolution introduced a legion of legal issues that would simmer for years. Thomas Jefferson did not use the term privacy in the Declaration of Independence (1776), but he may have had the concept in mind when he expressed indignation at the British monarch “for quartering large Bodies of Armed Troops among us.” Similarly, in the Pennsylvania Bill of Rights, adopted the same year as the Declaration, the signers argued in favor of a legal right to privacy by proposing that the people have a right to be free of searches and seizures of themselves and their houses, papers, and other possessions, except when such searches and seizures were properly authorized by appropriate judicial officials for criminal investigations.

      The men who wrote the U.S. Constitution in 1787 did not explicitly posit a constitutional right of privacy in the nation's founding document. Was this a monumental oversight? Or was privacy so well understood and appreciated by the likes of James Madison, George Mason, and Alexander Hamilton that the Framers did not feel the need to make it explicit? The first ten amendments to the U.S. Constitution—usually referred to as the Bill of Rights—were ratified in 1791 and furnished then, as they still do today, the textual underpinning for American civil liberties. Although the word private is used in the Fifth Amendment as part of the phrase private property, the term privacy is not specifically found in the Bill of Rights. Whether the men who wrote the Bill of Rights and the Constitution believed that a right of privacy should be derived by implication from other clearly expressed liberties has been a matter of contention since the Founders laid down their quill pens over 200 years ago.

      Those who see a right of privacy lurking between the lines or behind the words of the Bill of Rights point to the First, Third, Fourth, Fifth, and Ninth Amendments. The right to freedom of speech and freedom of religion in the First Amendment promises that one's ideas are one's own and may not be dictated by governmental power or censured if expressed. Logically, this reading of the First Amendment may entail that one possesses the liberty not to share one's thoughts with others, especially with the government. The First Amendment also guarantees the right to assemble and to petition the government for redress of grievances. The necessary other side of these First Amendment rights, it is argued by those who see privacy covered by the First Amendment, are the rights not to associate with certain people and not to have the identity of one's affiliations or associates made public. Joseph Story, a U.S. Supreme Court justice and perhaps the leading legal scholar of the early national period, maintained in his Commentaries on the Constitution of the United States (1833) that the Framers voiced the First Amendment freedoms in order to protect “private sentiment” and “private judgment.” In the early years of the republic, it was generally believed, although never tested in court, that the First Amendment protected the privacy of individuals who wished to shield their identity by issuing anonymous statements or by using pseudonyms. In the first twenty years of American constitutional government, six men who were or later would be elected president wrote under pen names.

      What about language in other sections of the Bill of Rights? The Third Amendment's prohibition of quartering of soldiers in private homes during times of peace stems directly from the fear of such violations of private space that concerned the writers of the Declaration of Independence and the Pennsylvania Bill of Rights. Most importantly for the purposes of this essay, the Fourth Amendment's prohibition of “unreasonable searches and seizures” safeguards the private papers and personal possessions of individuals, unless proper warrants are issued or probable cause is demonstrated; it, too, repeats phraseology in the Declaration of Independence and the Pennsylvania Bill of Rights. The Fifth Amendment may be said to offer some protection for personal privacy because it affords individuals the right not to be compelled to give evidence that might be used against them in criminal proceedings. Others have pointed to the Ninth Amendment's mention of nonenumerated rights.

      Whether a constitutional right could be derived from implied language in the Bill of Rights was not a question many Americans thought to ask for the first hundred years of the nation's existence. Because the courts, especially the U.S. Supreme Court, seldom decided cases dealing with individual rights until well into the twentieth century, the issue of whether a right of privacy could be teased out of selected portions of the first ten amendments was essentially moot.

      Privacy in the Common Law, from 1800 to 1900

      Turning to privacy in a nonconstitutional context, there is ample evidence that state common-law doctrine protected and promoted elements of privacy throughout the first century after the formation of the United States as a nation-state. The law of nuisance, for example, allowed those suffering from unreasonable noises and smells to pursue causes of action against individuals responsible for interfering with the “quiet enjoyment” of their property. The common law of trespass allowed an individual to sue a private party or the government if his house, papers, or possessions had been illegally intruded upon. As in the colonial era, eavesdropping prosecutions continued into the nineteenth century. State courts in the nineteenth century were regularly called upon to protect the core secrets of a business enterprise—what is now referred to as “intellectual property.” This was generally accomplished through trademark litigation.

      Certain types of communication between individuals have long been recognized as “privileged” in American law. Among such communications are those that take place between spouses, between doctors and patients, between lawyers and clients, and between clergy and parishioners. Revealing the substance of these communications can lead to breach-of-privacy lawsuits. Privacy of postal communications was protected by federal statutes in the late eighteenth and early nineteenth century; several states added their own sanctions, making it a state crime to tamper with the mails within their boundaries. The law also sought to punish the unauthorized divulging of the contents of letters once delivered. This proscription extended even to newspapers claiming a First Amendment right to publish newsworthy information gleaned from private letters.

      Commentators on the history of privacy in America before the U.S. Civil War generally cast the American understanding of privacy as a personal one, related more to the circumstances of a person's immediate physical environment (essentially the home) than to an assertion of a generalized legal, moral, or natural right. In 1879, Thomas Cooley, a Michigan appellate judge and the author of several influential legal treatises, termed the right of privacy the right “to be let alone.” Over the next 130 years, Cooley's memorable choice of words would be repeated countless times by lawyers, judges, and legal writers.

      Technological advances of 1840 to 1900 posed significant challenges to the law of privacy. The invention and rapid embrace of the telegraph, the telephone, the microphone, and what was then called “instantaneous photography” meant that personal privacy could no longer be shielded by protecting a site from a physical intrusion or by securing paper records from an actual taking. It would be well into the twentieth century, however, before state and federal courts were consistently willing to brand eavesdropping on a telephone conversation or photographing a document without permission as breaches of privacy.

      A key moment in the development of a nascent right of privacy took place in 1890 with the publication of a Harvard Law Review article, titled “The Right to Privacy,” written by two young Boston lawyers and former Harvard Law School classmates, Louis Brandeis and Samuel Warren. According to Roscoe Pound, dean of the Harvard Law School, this essay “did nothing less than add a chapter to our law” (Urofsky 2000, 101). What concerned Brandeis and Warren most was the press's intrusion into one's private life, leading possibly to a loss of reputation or the divulgence of embarrassing personal facts. They also objected to the unauthorized publication of pictures of individuals—shades of modern celebrities' concerns about the paparazzi! The authors wanted to find some legal way to leave it to an individual's own determination as “to what extent … thoughts, sentiments, and emotions shall be communicated to others” (p. 198). Brandeis and Warren were of the opinion that remedies for an injury to the right of privacy should be sought in an action for damages in tort law or for an injunction against future publication of offensive material.

      During the period 1890 to 1950, courts in most states adopted some form of a common-law right of privacy. Four states even legislated the right. Most focused on what today is called the privacy subtort of appropriation. One legal historian identified nearly 300 right of privacy decisions in state appellate courts and literally “thousands” of trial court privacy decisions in this period. Most successful right of privacy actions were filed by individuals against newspapers. However, experts on tort law found no cases in these sixty years of common-law recovery for invasion of privacy against police for eavesdropping or wiretapping, even when the law enforcement agencies acted without warrants or other proper legal authorization.

      Hints of a Constitutional Right of Privacy, from 1900 to 1960

      Although the U.S. Supreme Court was unwilling until 1965 to declare that privacy possesses definite constitutional status, a number of post–Civil War cases tiptoed around privacy issues. For example, in Boyd v. United States (1886), the nation's highest court confronted a question involving the constitutionality of the seizure of business records and a resulting forced confession. In his majority opinion, Justice Joseph Bradley came very close to calling the government's actions an invasion of privacy when he wrote the following:

      The principles laid down in this opinion affect the very essence of constitutional liberty. … They apply to all invasions on the part of the government and its employees of the sanctity of a man's home and the privacies of life. … [I]t is the invasion of his indefeasible right of personal security, personal liberty and private property. … In this regard the Fourth and Fifth Amendments run almost into each other.

      Similarly, in Weeks v. United States (1914), a case involving the government seizure of lottery tickets and other evidence of illegal gambling, the Court stated,

      If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures is of no value.

      Without question, the most important privacy case to come before the Supreme Court before 1960 was Olmstead v. United States (1928). Known particularly for its stirring dissents by Louis Brandeis and Oliver Wendell Holmes, Olmstead presents in stark relief the challenges posed to constitutional interpretation by changing technology.

      Roy “Big Boy” Olmstead was the general manager of an extremely profitable liquor-smuggling operation headquartered in Seattle, Washington. In defiance of Prohibition, Olmstead's business grossed an estimated $2 million a year. Olmstead's bullpen of telephones was an attractive target to federal agents who, without warrants, installed wiretaps in the basement of the building housing the phone bank but did not physically intrude into the group's offices. The wiretaps yielded countless hours of phone conversations, ultimately distilled into 775 transcribed pages detailing massive illegal activity. Based upon this evidence, Olmstead and several cronies were convicted of violating the national Prohibition laws. They appealed, alleging that their putative constitutional rights to privacy had been violated.

      The U.S. Supreme Court split 5–4 in favor of upholding the convictions. Chief Justice William Howard Taft, a strong backer of Prohibition, wrote the majority opinion. Taft ruled that the wiretapping did not constitute an unreasonable seizure of “something tangible” because the federal agents had merely transcribed “voluntary conversations secretly overheard.” That action did not, in Taft's view, violate the defendants' liberties under the Fourth Amendment because no “material things” were expropriated.

      Brandeis, an associate justice on the Supreme Court since his stormy confirmation hearing in 1916, was incensed by the illegal and, in his view, unconstitutional behavior of federal agents in Seattle. Appropriating language from his by now famous 1890 law review article, Brandeis declared that

      [t]he makers of our Constitution undertook … to protect Americans in their beliefs, their thoughts, their emotions, and their sensations. They conferred, as against the Government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men.

      To Brandeis, it did not matter that the writers of the Fourth Amendment had not anticipated the invention of the telephone or the advent of wiretapping technology. The spirit of that amendment should protect individuals not just from unreasonable seizures of tangible things but also from having their conversations “seized” by technological devices unknown to Founders George Mason or James Madison. In 1890, Brandeis and Warren had articulated a right to privacy essentially to shield the rich and famous from the intrusions of the press; in 1928, Brandeis proposed expanding the right, hoping to benefit the poor and those accused of crimes.

      Brandeis's dissent, as was his custom, was studded with hundreds of references to cases, statutes, and extra-legal authorities. It ran to almost twenty pages in the U.S. Reports. By contrast, Holmes's dissent cited only three cases and totaled less than a page and a half. Holmes complimented his “brother Brandeis” for an “exhaustive … examination” of the issues in the case but submitted that he was not convinced that “the penumbra of the Fourth and Fifth Amendments cover the defendant.” Regardless of whether the wiretapping was legal or constitutional, Holmes characterized it—in a phrase that continues to echo in American legal history—as “dirty business.”

      After Olmstead, no Supreme Court justice addressed the privacy issue with total focus for several decades. Nevertheless, a handful of Supreme Court opinions from the 1930s through the early 1960s—both majority and dissenting—kept the possibility of a constitutional right of privacy alive with tantalizing references to privacy emanations from the fringes of the Bill of Rights. In the case of On Lee v. United States (1952), for example, a federal undercover agent took incriminating testimony from a defendant by means of a concealed radio transmitter. In dissenting from the majority ruling upholding On Lee's conviction, Justice William O. Douglas wrote: “Mr. Justice Brandeis in his dissent in Olmstead espoused the cause of privacy. … What he wrote is an historic statement of that point view. I cannot improve on it.” He then submitted that the Fourth Amendment's protection against unreasonable searches and seizures should prevail regardless of “the nature of the instrument[s] that science or engineering develops.” Douglas, in fact, mentioned privacy in two other constitutional cases in 1952—Beauharnais v. Illinois, 343 U.S. 250, and Public Utilities Commission v. Pollak, 343 U.S. 451. A recent Douglas biographer, Bruce Allen Murphy (2003), referred to the second half of the Court's 1951–1952 term as Douglas's “privacy spring.”

      Another interesting Fourth Amendment case, illustrating that the Supreme Court was moving toward a statement of a constitutional right of privacy, was Mapp v. Ohio (1961). This case originated in 1957 when Cleveland police officers attempted to gain entrance to the home of Dollree Mapp in search of a man suspected in a local bombing. Mapp grabbed the purported search warrant and “placed … [it] in her bosom.” A struggle ensued, the document was retrieved, Mapp was handcuffed, and a search of the premises ensued. The offices did not find the bombing suspect, but they did discover a cache of allegedly obscene materials. Mapp was prosecuted and convicted for possessing obscenity. On appeal, the Supreme Court ruled that the salacious materials were unconstitutionally obtained because the search warrant—if it even existed—dealt with an at-large suspect, not allegedly obscene pictures or textual materials. In the course of his majority opinion in Mapp, which extended the coverage of the so-called exclusionary rule to defendants in state trials, Justice Tom C. Clark suggested that “privacy [is] no less important than any other right carefully and particularly reserved to the people.”

      Hints that there existed a constitutional right of privacy in Supreme Court cases between Olmstead and Mapp were either in dissents or nonbinding language (so-called obiter dicta) of majority opinions. What finally established privacy as a constitutional right was a long-running dispute over birth control in the state of Connecticut, culminating in 1965 in the curious majority opinion of Justice Douglas in the case of Griswold v. Connecticut.

      A Constitutional Right at Last: Griswold v. Connecticut (1965)

      A number of American states in the nineteenth century had laws on their books prohibiting the sale and use of various forms of contraception. By the end of the 1950s, however, all such laws had disappeared—except for those in Massachusetts and Connecticut. Connecticut laws dating back to 1879 not only criminalized the use of contraception but also provided for the prosecution of persons who counseled individuals on birth control. Pro–birth control activists in Connecticut had introduced bills to repeal the Connecticut statutes in virtually every session of the state legislature between the early 1920s and the late 1950s. Primarily due to pressure from the leadership of the Catholic Church, however, the repeal bills in the legislature never passed. At the same time the Connecticut legislature was beating back repeated efforts to repeal the anticontraception laws, a series of legal actions were mounted in state courts to attempt a similar result. They also failed—brought down by a slew of jurisdictional technicalities.

      Finally, in the early 1960s, Estelle Griswold, the executive director of the Planned Parenthood League of Connecticut, and Dr. C. Lee Buxton, medical director of the League's New Haven birth control clinic, contrived to be arrested for dispensing contraceptive advice to local married couples so as to test the legality, if not constitutionality, of the 1879 laws. Griswold and Buxton were convicted for running afoul of the state anticontraception laws. They were fined and ordered to close their clinic. Appeals courts in Connecticut sustained their convictions. Ultimately, Griswold, Buxton, and their attorneys succeeded in convincing the U.S. Supreme Court to accept jurisdiction to hear their case.

      Before the U.S. Supreme Court, the lawyer for the state of Connecticut, Joseph Clark, advanced a strong state's rights argument. He maintained that the 1879 anticontraception laws were adopted pursuant to the state's “police power” to regulate health, safety, and morals. If they were to be removed from the statute books, the state legislature should be the body to accomplish that. Since the Connecticut legislature had reviewed these laws many times over a forty-year period and chosen not to void them, why should a court far removed from the people of Connecticut impose its judgment? The lawyer representing Griswold and Buxton before the Court was Thomas Emerson, a Yale Law School professor and constitutional scholar. Emerson made two major arguments on behalf of his clients. The first was that the Connecticut anticontraception statutes violated the due process clause of the Fourteenth Amendment to the U.S. Constitution because they were arbitrary and capricious. For example, condoms and diaphragms, widely available in pharmacies in Connecticut in the early 1960s, could be sold to prevent the spread of disease but could not be prescribed by physicians to prevent pregnancies. The other principal contention advanced by Emerson was that the Connecticut laws, with their proscription of reproductive choice, violated what he characterized as an “emerging” constitutional right of privacy. On this point the case would turn.

      Griswold v. Connecticut allowed the Supreme Court to enunciate a constitutional right of privacy, something that it had been moving toward for several decades. The difficult question for the justices, however, was how to construct an appropriate platform for that right consonant with the words of the U.S. Constitution. Justice Douglas was chosen to write the Opinion of the Court, in large part because of his enunciation of privacy concerns in previous opinions. Douglas concluded that a constitutional right of privacy could be extracted from the “penumbra” of certain provisions of the Bill of Rights. That is, the shadows of several amendments contain the substantive spirit of privacy. The First Amendment's freedom of expression, for example, shades into a freedom to associate and a freedom to keep those associations out of the public eye. The Third Amendment's interdiction against requiring private citizens to quarter soldiers in their homes calls to mind another aspect of privacy. Perhaps most importantly, the Fourth Amendment's prohibition of unreasonable searches and seizures, as linked to the Fifth Amendment's protection of a person's right not to be compelled to self-incriminate in a judicial proceeding, creates another zone of privacy. Finally, Douglas found that the Ninth Amendment's wording—“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people”—left room for residual constitutional rights, such as privacy. Douglas had no difficulty holding that the fact situation in Griswold fell within the ambit of the right of privacy because, to rule to the contrary, would in effect permit the police to search “the sacred precincts of marital bedrooms.” Douglas's analysis was hailed by some legal experts as “creative constitutionalism,” but other scholars branded it as strained and sloppy legal reasoning.

      Although Douglas's opinion was the key statement of the Court in Griswold, two concurring opinions muddied the constitutional waters. Justice Arthur Goldberg, speaking for himself and Chief Justice Earl Warren and Associate Justice William Brennan, argued that the right of privacy sprang only from the Ninth Amendment's reservation of “certain rights” as “retained by the people.” Justice John Marshall Harlan, writing for himself and Justice Byron White, found the right of privacy in the due process clause of the Fourteenth Amendment—entirely outside the Bill of Rights. He adopted the language of Justice Benjamin Cardozo from a 1937 case: Certain constitutional freedoms are “implicit in the concept of ordered liberty” and, thus, do not need to be grounded explicitly in any of the first ten amendments. Hence, five of the seven justices in the Griswold majority staked out different territory than that occupied by the Opinion of the Court.

      The two dissenters, Justices Hugo Black and Potter Stewart, took the splintered majority to task for attempting to fashion constitutional doctrine out of thin air. As much as the dissenters expressed personal disapproval of the nearly century-old Connecticut anticontraception laws, they took their constitutional analysis literally. Black, particularly, excoriated the justices in the majority for imposing what he saw as personal public policy preferences over the judgment of the Connecticut legislature, which had been afforded the opportunity time and time again to strike down the 1879 laws but had chosen not to do so.

      The Right of Privacy since Griswold v. Connecticut, from 1965 to 2012

      Once out of the bottle, the right of privacy has been impossible to contain. The zone of marital privacy articulated in Griswold was expanded to permit privacy in birth control choices for unmarried couples in the Supreme Court ruling of Eisenstadt v. Baird, 405 U.S. 438 (1972). More notably, writing for a bitterly divided Court in the landmark decision of Roe v. Wade, 410 U.S. 113 (1973), Justice Harry Blackmun offered constitutional support for a woman's right to choose an abortion in the early stages of her pregnancy. Hedging, he based his ruling on the right of privacy “whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action … [or] in the Ninth Amendment's reservation of rights to the people.” Although recent Supreme Court decisions have cut back the sweep of Roe v. Wade, legal commentators still see it as a key decision in staking out a “zone of bodily privacy.”

      The legal controversy regarding the constitutionality of a right of privacy was placed on public display during an explosive U.S. Senate Judiciary Committee hearing in 1987. At issue was whether Robert Bork, nominated to a seat on the U.S. Supreme Court by President Ronald Reagan, should be confirmed. Bork, then a sitting federal appellate judge, had previously served as solicitor general of the United States under President Richard Nixon and boasted scores of trenchant publications during his more than two decades as a law professor. Democrats on the Judiciary Committee argued that the nominee's strident criticism of Roe v. Wade and Griswold v. Connecticut placed him out of touch with the popular will and the weight of modern constitutional scholarship.

      Perhaps the climatic point of the Bork hearing was a response the nominee made to remarks of Senator Edward Kennedy (D-Mass.). After repeating his view that judges should not be called on to enforce a “generalized, undefined right of privacy” that cannot be derived from “the text, the history and the structure of the Constitution,” Bork intoned,

      Aside from the fact that the right was not derived by Justice Douglas, in any traditional mode of constitutional analysis, … [w]e do not know what it covers. It can strike at random. … [T]he Supreme Court has not applied the right of privacy consistently and I think it is safe to predict that the Supreme Court will not.

      Then Bork brazenly challenged Kennedy: “Privacy to do what, Senator? … [P]rivacy to use cocaine in private? Privacy for businessmen to fix prices in a hotel room? We just do not know what it is.”

      The Senate Judiciary Committee voted 9–5 against Bork's confirmation, concluding that Bork was “out of the mainstream of constitutional thought” and that, if confirmed, would “disrupt the delicate balance” of the Supreme Court. Splitting largely along party lines, the U.S. Senate rejected Bork's nomination 58–42. Reflecting upon the confirmation hearings, one constitutional historian maintained that “Bork's … opportunity for a seat on the Supreme Court was scuttled on the shoals of privacy” (Johnson 2005, 222). Another scholar observed that the Bork hearings enshrined the right of privacy as a “fixed star in our constitutional firmament” and that the Senate could now employ fidelity to the right of privacy as a litmus test for membership in the American legal mainstream (Bloom 1989, 543). Indeed, all the successful nominees to the Supreme Court since 1987—Anthony Kennedy, David Souter, Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, John Roberts, Samuel Alito, Sonia Sotomayor, and Elena Kagan—have paid homage in their confirmation hearings to a constitutional right of privacy.

      Since the Bork confirmation hearings, the right of privacy has continued its protean career. In the sphere of abortion rights, for instance, the Supreme Court majority has maintained its fidelity to Roe v. Wade. But in a series of decisions rendered between 1986 and 2007, the Court paid lip service to the right of privacy but made clear that it was willing to uphold state restrictions on abortion that did not place “undue burdens” on women seeking to terminate pregnancies. Another hotly contested public policy matter that touched the right of privacy was the so-called right to die. When, if ever, should a family member or a friend be permitted to order that medical care cease for a person being kept alive by machines? A related question is, What role, if any, should physicians have in providing assistance to a person who wishes to die or a person incapable of making that decision for himself or herself? The Supreme Court majority has been reluctant to order termination of life support provided to a person in a “permanent vegetative state” unless the person had clearly communicated his or her intention prior to the onset of the tragic condition. Similarly, a bare five-person majority of the Court held in Vacco v. Quill, 521 U.S. 793 (1997), that doctor-assisted suicide did not fall within the panoply of unenumerated rights—such as the right of privacy—identified by the Court in previous decisions. However, the dissenters in Vacco argued that there should remain room for “further debate” about the constitutional limits states may employ to proscribe physician-assisted suicide. At this writing, the status of the right to die—the “ultimate privacy question”—remains in flux.

      In the last generation, gay men and lesbian women have also seen their privacy rights enhanced by court decisions. In Lawrence v. Texas, 539 U.S. 558 (2003), the U.S. Supreme Court, relying largely on the precedent in Griswold, held that state laws punishing homosexual activity violated the right of privacy. Writing for a five-person majority and reversing the decision of Bowers v. Hardwick (1986), Justice Anthony Kennedy ruled that laws criminalizing homosexual activity “[furthered] no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” In commenting upon the impact of the 2003 Lawrence decision, the editors of the Harvard Law Review submitted,

      Far from simply enunciating a circumscribed right for adults to engage in private, consensual sexual activity, Lawrence … embraces the notion of a fundamental right to be gay—a broad liberty to express one's sexuality in myriad ways, including through the formation of meaningful, lasting personal relationships. (2003, 297)

      Expanding on this greater recognition of the rights of gay individuals, appellate courts in Massachusetts and Iowa recently ruled that their states' marriage laws, by forbidding same-sex couples the opportunity to marry, violated their rights of privacy under the U.S. Constitution as well as their state constitutions. However, in the last decade, state legislatures considering the legality of same-sex marriage have been split, and popular referenda have generally upheld “traditional marriage.” Hence, the right to marry and other privacy rights of same-sex couples remain unsettled.

      In the first decade of the twenty-first century, the language and analyses of bodily privacy cases spilled into other realms of American law. Seldom does a day go by when there is not some mention in the media of a case or a pending case with privacy elements. We have come to expect frequent discussion and debate over such matters as the confidentiality of personal information, privacy in the workplace, celebrities and their clashes with the press, the rights of the accused before courts and military commissions, and, of course, privacy on the Internet. All of these matters, real or hypothetical, draw sustenance from Olmstead and Griswold. They also showcase the continuing resonance of the Fourth Amendment.

      United States v. Jones, a decision handed down by the Supreme Court on January 23, 2012, offers a glimpse at the ever-evolving right of privacy. In Jones, the justices confronted the question of whether federal law enforcement officers, by acting without a warrant and placing a global positioning system (GPS) tracking device on a vehicle driven by Antoine Jones, violated the reputed Washington, D.C., drug lord's Fourth Amendment right of privacy. All nine justices agreed that the government's action crossed the constitutional line, but they were sharply divided in their reasoning. The five-justice opinion of the Court, written by Antonin Scalia, held that the warrantless placement of a GPS device on the vehicle was a clear “trespass” and violated Jones's “reasonable expectation of privacy.” Scalia's opinion emphasized the physical intrusion of the surreptitiously installed device on the car in question, but he was reluctant to extend the Court's holding to cover broader issues involving non–physically intrusive locational technology.

      In an opinion written by Samuel Alito, four concurring justices in Jones argued that the decision should not be cast in narrow terms. For Alito, the case did not turn on whether the government illegally placed an unauthorized tracking device on Jones's car. In Alito's view, if the government had remotely monitored a suspect's vehicle by, for example, piggybacking on a manufacturer-installed locational system, the search would still have been unconstitutional. Citing Justice Brandeis's technologically prescient 1928 concurrence in Olmstead v. United States, Alito argued for a more expansive appreciation of the intrusiveness of modern technology than that voiced by Scalia's controlling opinion. The Supreme Court split in Jones, thus, provides an apt illustration of how the right of privacy continues to intrigue and confound American constitutional law.

      JohnW.Johnson

      Author's Note: The author gratefully acknowledges the permission of the University Press of Kansas to draw from the copyrighted text of his book—John W. Johnson, Griswold v. Connecticut: Birth Control and the Constitutional Right of Privacy (Lawrence: University Press of Kansas, 2005)—for this essay.

      Further Reading
      Bloom, LacklandH., Jr.The Legacy of Griswold.” Ohio Northern University Law Review16 (1989): 543.
      Bork, RobertH.The Tempting of America. New York: Free Press, 1989.
      Brandeis, LouisD., and SamuelD.Warren. “The Right to Privacy.” Harvard Law Review4 (1890): 193–220.
      Buchanan, G.Sidney. “The Right of Privacy: Past, Present, and Future.” Ohio Northern University Law Review16 (1989): 403–510.
      Dudziak, MaryL.Just Say No: Birth Control in the Connecticut Supreme Court before Griswold v. Connecticut.” Iowa Law Review75 (1990): 915–939.
      Ely, JohnHart. “The Wages of Crying Wolf: A Comment on Roe v. Wade.” Yale Law Journal82 (1973): 920–949.http://dx.doi.org/10.2307/795536
      Emerson, ThomasI.Nine Justices in Search of a Doctrine.” Michigan Law Review64 (1965): 219–234.http://dx.doi.org/10.2307/1287067
      Garrow, DavidJ.Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade. Berkeley: University of California Press, 1998.
      Harvard Law Review. “The Supreme Court, 2002 Term: Leading Cases: I. Constitutional Law: 2. Intimate Personal Relationships.” Harvard Law Review117 (2003): 297.
      Hull, N.E. H., and PeterCharlesHoffer. Roe v. Wade: The Abortion Rights Controversy in American History. Lawrence: University Press of Kansas, 2001.
      Johnson, JohnW.Griswold v. Connecticut: Birth Control and the Constitutional Right of Privacy. Lawrence: University Press of Kansas, 2005.
      Murphy, BruceAllen. Wild Bill: The Legend and Life of William O. Douglas, America's Most Controversial Supreme Court Justice. New York: Random House, 2003.
      Prosser, WilliamL.Privacy.” California Law Review48 (1960): 383–423. Story, Joseph. Commentaries on the Constitution of the United States. 3 vols. Boston: Hilliard, Gray,1833.
      Strum, Philippa. Privacy: The Debate in the United States since 1945. Fort Worth, TX: Harcourt Brace, 1998.
      Urofsky, MelvinI.Lethal Judgments: Assisted Suicide and American Law. Lawrence: University Press of Kansas, 2000.
      Urofsky, MelvinI.Louis D. Brandeis: A Life. New York: Pantheon Books, 2009.
      U.S. Congress. Senate. Committee on the Judiciary. Hearings on the Nomination of Robert H. Bork to be an Associate Justice of the United States Supreme Court. 5 vols. 100th Congress, 1st sess., 1987.
      U.S. Congress. Senate. Committee on the Judiciary. Report on the Nomination of Robert H. Bork to be an Associate Justice of the United States Supreme Court. 100th Congress, 1st sess., 1987.
      Westin, Alan. Privacy and Freedom. New York: Atheneum, 1967.

      The Fourth Amendment and Terrorism

      Following the terrorist attacks of September 11, 2001, the George W. Bush administration took two steps to increase its capacity to monitor phone conversations and other communications. One initiative occurred in public (asking Congress to pass the USA PATRIOT Act of 2001); the other operated in secret (authorizing the National Security Agency [NSA] to eavesdrop without court order). Not until December 2005 was the NSA operation disclosed by the New York Times. Both initiatives raise major questions about the scope and meaning of the Fourth Amendment.

      Fourth Amendment Protections

      The American colonists had many reasons to resent English rule, ranging from taxation without representation to the hated writs of assistance that empowered British revenue officers to search suspected places for smuggled goods without individualized suspicion. The latter grievances were publicly debated in February 1761 in Boston, prompting future president John Adams to say that from these arbitrary actions, “the child Independence was born.” Americans objected to British collectors and other “petty officers” boarding vessels and entering homes and shops in the search for illegal merchandise, breaking open boxes and trunks and destroying private property.

      By the time of independence in 1776, state constitutions had begun to adopt their own bills of rights to include protections against unreasonable searches and seizures. Technology, including increasingly sophisticated methods of electronic surveillance, has complicated efforts to protect individual privacy, but the main safeguard has been to depend on a neutral and detached magistrate rather than self-interested and often arbitrary decisions by law enforcement officers. Even guided by that principle, there are many examples of warrantless searches in contemporary life, including those at the border and at security checkpoints in airports.

      USA PATRIOT Act

      After the 9/11 attacks, the Bush administration submitted to Congress a bill to give federal officials greater authority to track and intercept communications. Enacted as the United and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorist, the USA PATRIOT Act of 2001 expanded the powers of both law enforcement and foreign intelligence investigations. Section 219 authorized nationwide service of search warrants in terrorism investigations. A single judge, having first authorized a warrant, may grant future warrants in other jurisdictions. Section 206 provided for “roving wiretaps” under the Foreign Intelligence Surveillance Act (FISA). A roving wiretap allows surveillance to follow an individual from one location to another, thus eliminating the need for a separate court order whenever the target of investigation changes phones. Section 213, called the “sneak and peak” provision, authorized surreptitious search warrants and seizures without the previous requirement to immediately notify a person when the entry occurred and what items were seized. Under this change, law enforcement officers could enter a home without giving immediate notice and delay notice for “a reasonable period.”

      The FISA statute created a special court (the FISA Court) to review applications of the federal government for this type of surveillance. The principle was to have an independent court examine and approve surveillance requests submitted by executive officials. The USA PATRIOT Act increased the number of FISA judges from seven to eleven and changed the requirements for requesting a search order. Previously under FISA, it was necessary for the executive branch to certify that “the purpose” of the surveillance was to obtain foreign intelligence information. The PATRIOT Act changed that by allowing requests if a “significant purpose” of the requests was to obtain foreign intelligence information. Previously there had been an effort to draw a line between the use of surveillance for gathering foreign intelligence and the efforts of the Justice Department to pursue criminal law enforcement. The 2001 statute removed what was seen as a “wall” between FISA information gathering and criminal investigations.

      Another controversial provision in the PATRIOT Act is § 215, which authorized the issuance of a search warrant covering “business records.” As implemented by the Bush administration, Federal Bureau of Investigation (FBI) agents would show up at a public library without a search warrant and ask to see what books readers had been ordering. These requests covered actions that were not criminal, such as library patrons wanting to read a biography of Osama bin Laden. Under the law, librarians were under a “gag order” not to speak to others about the FBI request. Librarians and booksellers fought back strongly against this requirement.

      Many of the provisions in the PATRIOT Act were scheduled to terminate after several years. When it reauthorized the statute in 2006, Congress made some of the sections permanent, while others would sunset on December 21, 2009, unless extended (which they were in 2010). Particular scrutiny is being placed on § 215, roving wiretaps, and what are called “national security letters” (NSLs). The latter are essentially warrantless orders (or administrative subpoenas) signed by FBI officials that require disclosure of information held by banks, credit companies, telephone carriers, and other private operations. No prior judicial approval is required to issue an NSL. Audits by the inspector general in the Justice Department, released in 2007 and 2008, revealed a number of FBI abuses in conducting the NSL program.

      Presidential Surveillance

      In December 2005, a story in the New York Times revealed the existence of a secret surveillance program authorized by President Bush and conducted by the NSA after the 9/11 terrorist attacks. NSA listened to telephone conversations and monitored emails without first seeking warrants from the FISA Court. When plaintiffs filed lawsuits, the administration invoked the state secrets privilege in an effort to block access to documents requested by private parties. Federal judges varied in their responses, some acquiescing to executive power, others allowing the lawsuits to proceed. In 2008, Congress granted retroactive immunity to AT&T and other telecommunication companies that had provided assistance to the administration. Some cases against the government continue to be litigated.

      For most of U.S. history, presidential authority to engage in warrantless eavesdropping for national security purposes was never clarified by statute or judicial rulings. In this legal vacuum, presidents were able to expand their powers in time of emergency. On May 21, 1940, on the eve of World War II, President Franklin D. Roosevelt sent a confidential memo to his attorney general, Robert H. Jackson, authorizing and directing him to obtain information “by [using] listening devices” to monitor the conversations or other communications “of persons suspected of subversive activities against the Government of the United States, including suspected spies.” Roosevelt told Jackson to keep these investigations “to a minimum and to limit them in so far as possible to aliens.” This memo appears as an appendix in a federal appeals court decision in Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975).

      In 1968, the U.S. Congress passed legislation requiring law enforcement officers to obtain a judicial warrant before placing taps on phones or installing bugs (concealed microphones). If an “emergency” existed, communications could be intercepted for up to forty-eight hours without a warrant in cases involving organized crime or national security. This legislation, often referred to as “Title III authority,” established a national policy for domestic wiretaps. The executive branch claimed that warrantless surveillance for national security purposes was lawful as a reasonable exercise of presidential power. Language in Title III stated that nothing in it limited the president's constitutional power to take measures he or she deemed necessary to protect the country against actual or potential attack by a foreign power and to obtain foreign intelligence information deemed essential to U.S. security. Congress soon found it necessary to reenter the field and pass comprehensive legislation on national security surveillance.

      Eavesdropping by the executive branch became a provocative issue in the 1960s after public disclosure that U.S. intelligence agencies had been monitoring the political activities of Americans. In 1967, when the U.S. Army wanted NSA to eavesdrop on American citizens and domestic groups, the agency agreed to carry out the assignment. A four-year investigation by a Senate committee, assisted by Captain Christopher Pyle who had inside knowledge about the military surveillance of civilian politics, brought the program fully into the open and shut it down.

      NSA put together a domestic “watch list” to track individuals and groups opposed to the Vietnam War. Through this activity, NSA agreed to use its surveillance powers to violate the First and Fourth Amendments. From mid-1969 to early 1970, the White House directed the FBI to install (without warrants) seventeen wiretaps to eavesdrop on government officials and reporters. Newspaper stories in 1974 revealed that the CIA had been extensively involved in illegal domestic surveillance, infiltrating dissident groups in the country and collecting close to 10,000 files on American citizens. CIA director William Colby later acknowledged the existence of this program while testifying before a Senate committee. To conduct its surveillance operations under such programs as SHAMROCK (in operation from August 1945 to May 1975), NSA entered into agreements with such U.S. companies as Western Union and RCA Global. American citizens, expecting that their telegrams would be handled with the utmost privacy, learned that American companies had been turning over their telegrams to the NSA. This period has been extensively researched (see Bamford 2002; Morgan 1980; Olmsted 1996).

      In United States v. United States District Court (1972), the Supreme Court scrutinized the government's use of warrantless electronic surveillance in the domestic field, seeking to balance the government's right to protect the country from unlawful subversion and attack and the right of citizens to be secure in their privacy against unreasonable government intrusion. Lower courts had insisted that judicial warrants were needed to justify electronic surveillance against domestic organizations. They rejected the government's argument that the president has some kind of “inherent” authority in the field of national security to authorize such searches. The president was still subject to the constitutional limitations of the Fourth Amendment. In a unanimous ruling, the Court upheld those judgments. In conducting surveillance, executive officials could not be trusted to serve as neutral and disinterested parties.

      Following the Court's decision, Congress adopted statutory guidelines for the president's power to conduct surveillance over foreign powers, resulting in the landmark Foreign Intelligence Surveillance Act (FISA) of 1978. In congressional hearings, Attorney General Edward H. Levi testified in support of legislation that would require “independent review at a critical point by a detached and neutral magistrate.” The claim of inherent presidential power would be checked by an independent judiciary. The statute created the FISA Court to review and sanction the exercise of executive power. In clear language, the statute announced that its procedures for electronic surveillance within the United States for foreign intelligence purposes “shall be the exclusive means” of conducting such surveillance.

      Warrantless Surveillance after 9/11

      On December 16, 2005, James Risen and Eric Lichtblau of the New York Times reported that President Bush, in the period immediately following the 9/11 attacks, secretly authorized NSA to listen to Americans and others inside the United States without a court-approved warrant. The administration had concluded that the exclusive framework of FISA was not legally binding and could be replaced by an executive-made process. As reported by Risen and Lichtblau, NSA had been monitoring the international telephone calls and international emails “of hundreds, perhaps thousands” of people over the intervening years in an effort to obtain evidence about terrorist activity.

      On the following day, in a weekly radio address, President Bush acknowledged that he had authorized NSA, “consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to al Qaeda and related terrorist organizations.” In a news conference on December 19, Bush claimed that as president “and commander in chief, I have the constitutional responsibility and the constitutional authority to protect our country. Article II of the Constitution gives me that responsibility and the authority necessary to fulfill it.” In addition to a constitutional source of authority, Bush pointed to statutory support: the Authorization of Use of Military Force (AUMF) that Congress had passed immediately after 9/11 to legalize military force against al Qaeda. Also on December 19, U.S. Attorney General Alberto Gonzales held a press briefing on the surveillance program, arguing that “the President has the inherent authority under the Constitution, as Commander-in-Chief, to engage in this kind of activity.” When asked why the administration did not seek a warrant from the FISA court, Gonzales replied that the administration was not “legally required” to do that if another statute (such as the AUMF) gave the president independent authority.

      In future public statements, the administration continued to cite both Article II and the AUMF, but over time the emphasis fell increasingly on an independent constitutional source. Under this interpretation, Congress could pass FISA as the “exclusive means,” but the administration could ignore statutory law and rely solely on executive-made law.

      The administration's formal legal reply appeared on January 19, 2006: a forty-two-page “white paper” by the Justice Department that defended the legality of the surveillance program. The administration offered two arguments, one statutory (AUMF), the other constitutional (Article II). The Justice Department claimed that Congress, in passing the AUMF, “by statute has confirmed and supplemented the President's recognized authority under Article II of the Constitution to conduct such warrantless surveillance to prevent further catastrophic attacks on the homeland” (2). The AUMF authorized the president to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorists attacks” of September 11 in order to prevent “any future acts of international terrorism against the United States” (2). The white paper asserted that “warrantless communications intelligence targeted at the enemy in time of armed conflict is a traditional and fundamental incident of the use of military force authorized by the AUMF” (2).

      The language “all necessary and appropriate force” in AUMF does not authorize a president to do whatever he or she wants to, particularly if it violates an existing law like FISA. If Congress after 9/11 wanted to modify the FISA procedures to grant the president wider authority without a judicial check, it knew how to do it: Amend FISA by bringing up a bill to debate changes, with lawmakers fully aware of what they were doing. In changing law, it is essential that members of Congress expressly know that a bill under consideration covers warrantless surveillance and that the judicial check in FISA is to be waived or restricted. AUMF did not do that. When Congress modifies an existing statute, it does so expressly and consciously, not by vague and unspoken implications.

      What of the Article II argument? The Justice Department said that NSA's activities

      are supported by the President's well-recognized inherent constitutional authority as Commander in Chief and sole organ for the Nation in foreign affairs to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States. (1)

      Some attorneys in the executive branch may believe that the president's power to conduct warrantless surveillance is “well-recognized,” but there is no such recognition by federal courts, members of Congress, or the academic community. The claim of independent and inherent presidential power in foreign affairs is regularly challenged and repudiated. In FISA, Congress left no room for inherent presidential authority to conduct warrantless surveillance.

      Claims of “inherent” power for the president should be received with extreme wariness. First, these are claims or assertions, not facts. Second, such a claim is self-serving because it comes from the branch seeking to widen its authority. Third, the word inherent is indefinite and indefinable, opening the door to illegal, unconstitutional, and extra-constitutional powers. Fourth, claims of “inherent” presidential authority have been regularly rejected by Congress and the courts in such areas as the 1952 seizure of steel mills by President Harry Truman; President Richard Nixon's claim that he could refuse to spend appropriated funds (impoundment); and the belief by President George W. Bush that he could independently create military commissions by ignoring existing congressional legislation, a position denied in 2006 by the Supreme Court in Hamdan v. Rumsfeld, 548 U.S. 557.

      The U.S. Constitution restricts each branch of government to express and implied powers. Express powers appear in black and white. They can be seen in print and analyzed, usually accompanied by extensive meaning from history and the Framers' intent. Implied powers are consistent with the Constitution because they must be reasonably drawn from an existing express power. The same cannot be said of “inherent” powers. The word inherent refers to powers over and beyond those explicitly granted in the Constitution or reasonably to be inferred from express powers. The purpose of a constitution is to specify and confine government powers to protect rights and liberties reserved to individuals. That objective is undermined by such vague and open-ended sources of authority as “inherent” ones.

      The Bush administration relied on the president's powers as “Commander in Chief,” but it is analytically meaningless to cite three words from Article II as though the case for executive power is self-evident and needs no further argument. The words do not confer on the president some type of plenary and exclusive power. They are constrained and checked by authorities given to Congress in Article I by the Framers' rejection of the broad prerogatives given to the king by William Blackstone and British writers, the principle of civilian supremacy over the military (with Congress as an essential part of that civil power), and judicial review.

      In its white paper, the Justice Department claimed that the president has special powers by being the “sole organ” of foreign affairs. That argument is exceptionally misleading. The phrase comes from a speech by Rep. John Marshall in 1800, when he said that the president “is the sole organ of the nation in its external relations, and its sole representative with foreign nations” (Fisher 2007b, 139). In his decades of distinguished federal service, as secretary of state, member of the House, and later chief justice of the Supreme Court from 1801 to 1835, Marshall never advocated exclusive power for the president over external affairs. His speech merely stated that President John Adams had a constitutional duty under the take care clause to see that an extradition treaty with Britain was faithfully carried out. That was all. Marshall underscored the presidential power to execute the policy of Congress, whether expressed in statute or treaty. He never implied that the president could act independently of statutes or treaties, much less in opposition to them (as the Bush administration claimed it could with FISA). For example, Chief Justice Marshall ruled in Little v. Barreme (1804) that when a presidential proclamation in time of war conflicts with a statute passed by Congress, the statute prevails. What the Justice Department did was to take Marshall's speech not as it was given, and not as it was intended, but as it was misinterpreted and distorted by Justice George Sutherland's dicta in United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936). Sutherland's misconceptions about Marshall's speech have been closely critiqued by such scholars as David Levitan, Charles Lofgren, and Perry Patterson (Fisher 2007b).

      After initiating the NSA surveillance, the Bush administration offered to brief eight members of Congress and the chief judge of the FISA court. The lawmakers (called the “Gang of Eight”) included the chair and ranking member of the two Intelligence Committees, the Speaker and minority leader of the House, and the Senate majority and minority leaders. These elected members of Congress were told by executive officials not to take notes or share what they heard with colleagues or their staff. It is usually constructive for the executive branch to brief and consult with members of Congress, provided the program under discussion is legal and constitutional. Briefing members about an illegal program does not make it legal, however. Moreover, the Gang of Eight was not the proper model. It had been established as a means of informing the congressional leadership and the top levels of the Intelligence Committees about a pending covert action. Section 413b(e) of Title 50 of the U.S. Code defines a covert action as an activity “to influence political, economic, or military conditions abroad.” The NSA surveillance had nothing to do with destabilizing or altering a foreign country.

      What constitutional duty fell on the Gang of Eight after learning that the administration's surveillance program had waived FISA and dispensed with an independent judicial check? Lawmakers are not bound by a rule of secrecy announced by executive officials during a briefing. They belong to a separate branch with separate institutional responsibilities, including the duty to ensure that the executive branch complies with the law. Members of Congress take an oath to the Constitution, not to the president.

      Operating under the Law

      In Youngstown Co. v. Sawyer, 343 U.S. 579 (1952), Justice Robert Jackson eloquently summarized the basic principle of the U.S. Constitution: “With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.” The executive operates under the law, not above it or outside it. The law is made by Congress, in public. After the New York Times revealed NSA's surveillance program in December 2005, officials from the Bush administration announced that the program was “consistent with U.S. law and the Constitution” and that it was “lawful” and had been regularly “reauthorized.” What they meant was that the program had been created in secret within the executive branch, even when contrary to publicly announced statutory law.

      The administration's effort to treat an illegal program as legal appears in the testimony of Michael V. Hayden, who appeared before the Senate Intelligence Committee on May 18, 2006, as nominee to the position of CIA director. He had served as director of the NSA as the surveillance plan was initiated. At the hearing, he defended the legality of the NSA program on constitutional—not statutory—grounds. He did not refer to the AUMF for legal justification. In recalling his service at NSA after 9/11, he told the committee that when he had talked to NSA lawyers, “they were very comfortable with the Article II arguments and the President's inherent authorities” (30). Their discussion about the lawfulness of the NSA program “anchored itself on Article II” (31). Hayden did not ask the NSA's general counsel to prepare a formal legal memo defending the surveillance program. There was no paper trail and no agency accountability. Informal talks about legal and constitutional issues are not likely to look as persuasive or as sound when put on paper and submitted to experts for independent assessment.

      At the Senate hearing, Hayden repeatedly claimed that the NSA program was legal and that the CIA “will obey the laws of the United States and will respond to our treaty obligations” (57). What could he have meant by “law”? National policy decided by statute and a treaty or a policy designed secretly within the executive branch, based on someone's interpretation of Article II? His comments at the hearing demonstrated that by “law,” he meant the latter. He told the committee that after 9/11, while head of NSA, he “had two lawful [surveillance] programs in front of me, one authorized by the president, the other one would have been conducted under FISA as currently crafted and implemented” (66). In other words, he was presented with two choices: one authorized by statutory law, the other in violation of it. He told one senator: “I did not believe—still don't believe—that I was acting unlawfully. I was acting under a lawful authorization” (104). He meant he was acting under a secret presidential directive based on Article II, in violation of the exclusive policy set forth in FISA.

      Senator Bayh (D-Ind.), hearing Hayden say that he acted legally in implementing the NSA program, remarked: “I assume that the basis for that was the Article II powers, the inherent powers of the President to protect the country in time of danger and war.” Hayden replied, “Yes, sir, commander-in-chief powers” (107). After 9/11, CIA Director George Tenet asked Hayden whether as NSA director he could “do more” to combat terrorism with surveillance. Hayden answered, “Not within current law” (54). In short, the administration knowingly and consciously decided to violate statutory policy and do so secretly. It knew that the NSA eavesdropping program it wanted to conduct was illegal under FISA but decided to go ahead, relying on Article II powers.

      Challenges in Court

      A number of private parties filed lawsuits to contest the legality and constitutionality of NSA's surveillance program. To demonstrate the injury needed to litigate a case successfully, plaintiffs argued that the contacts they previously had with clients over the telephone were now impossible because of NSA monitoring. To remain in touch with clients, they had to travel, including to countries outside the United States, and incur extra expenses. The executive branch asked the courts to dismiss these lawsuits on the ground that litigation would inevitably disclose “state secrets” injurious to the nation.

      Initially, some federal district courts allowed these cases to move forward. In Hepting v. AT&T Corp., 439 F.Supp.2d 974 (N.D. Cal.), decided July 20, 2006, the plaintiffs charged that AT&T and its holding company had collaborated with the NSA to conduct a massive warrantless surveillance program that illegally tracked the domestic and foreign communications of millions of Americans. The court decided that the dispute was not squarely covered by the state secrets privilege because of public reports about the program in the New York Times and admissions by President Bush and other executive officials that the program existed. Given the scope of the surveillance program, the court found it “inconceivable” that it could exist without the acquiescence and cooperation of a telecommunications provider and concluded that the plaintiffs were entitled “to at least some discovery.”

      In this case, the federal court let the case continue without reaching the merits. On August 17, 2006, a district judge in Detroit went directly to the substantive issues and held that the program violated the Constitution and federal statutes. In American Civil Liberties Union v. National Security Agency, 493 F.3d 644 (6th Cir. 2007), the court was persuaded that the plaintiffs were able to establish “a prima facie case” based solely on the government's public admissions about the program. The court dismissed the administration's reliance on the commander-in-chief clause and the president's claim of inherent powers.

      The government appealed. On July 6, 2007, a divided panel on the Sixth Circuit reversed the district court 2–1, on the ground that the plaintiffs lacked standing to bring the suit. It held that the plaintiffs could not, because of the state secrets doctrine, produce any evidence that their communications had been intercepted by the NSA, with or without warrants. They could only assert “a mere belief,” which the court found too “amorphous” and “speculative” to justify standing. Under this ruling, NSA was left free to violate statutes and the Constitution without fear of a successful challenge in court. The dissenting judge concluded that the surveillance program violated FISA and Title III and that the president lacked inherent authority to disregard those statutes. He also rejected the government's argument that the AUMF somehow implicitly repealed the “exclusive means” provision of FISA. The Supreme Court declined to take this case.

      An unusual case developed when al-Haramain Islamic Foundation, based in Oregon, obtained a top-secret calling log that showed it was a target of warrantless surveillance.

      The Treasury Department had inadvertently given the document to the organization during a routine discovery request. The foundation returned the document, but a trial court in 2006 ruled that it could rely on memories of the log in litigating its case. As explained later, al-Haramain (later named In Re National Security Agency Telecommunications) bounced back and forth between trial and appellate courts, with neither side able to gain a permanent victory.

      Facing possible setbacks in court, the Bush administration announced in January 2007 that it would no longer skirt the FISA Court but would instead seek warrants from it, as required by statute. When he appeared before the Senate Judiciary Committee that month, Attorney General Gonzales seemed to concede that the administration not only broke the law but knew it had done so. The New York Times on January 18, 2007 (Johnston and Shane), reported this statement from Gonzales: “The truth of the matter is we looked at FISA and we all concluded there's no way we can do what we have to do to protect this country under the strict reading of FISA.”

      A key issue in rewriting FISA was whether to grant retroactive liability for the telecom firms that cooperated with the administration. Some members of Congress wanted to give the telecoms legal immunity because they had “acted in good faith” and believed that the surveillance program was legal and presidentially authorized. However, companies the size of AT&T have sophisticated offices of general counsel able to independently determine the meaning of FISA. They should not have acquiesced to executive branch assurances that the program was legal or somehow presidentially authorized. The rule of law for national security would be nonexistent if an administration could go to private companies and secretly ask them to break the law to satisfy executive needs.

      On July 10, 2008, Congress passed legislation granting immunity to the telecoms that had been sued for their assistance with the NSA program. Lawsuits against the government, however, could continue. On July 2 of that year, a district court in the al-Haramain case held that FISA preempted the state secrets privilege. In the case, now called In Re National Security Agency Telecommunications, it held that Congress “appears clearly to have intended to—and did—establish the exclusive means for foreign intelligence surveillance activities to be conducted.” Moreover, § 1806(f) of FISA provided specific and detailed prescriptions to inform federal courts how they should handle claims by the executive branch about the disclosure of information related to electronic surveillance. Claims of inherent presidential power could not override the FISA statute.

      When the district judge ordered the Justice Department to clear two private attorneys for the plaintiffs to give them access to classified materials, the executive branch took the position that only the president, not the courts, could decide which parties have a “need to know” and gain access to confidential documents (Abrams 2009). Because of that position, the question arose as to what sanctions a federal judge may apply against an administration that resists a judicial order.

      Conclusion

      In times of emergency, executive officials will push boundaries to do what they think is necessary, not only for national security but for political and partisan interests. That pattern existed before 9/11 and reemerged after the terrorist attacks. The Bush administration, instead of complying with statutory policy and working jointly with Congress to pass whatever remedial legislation was necessary for FISA, decided to act unilaterally in secret and invoke inherent presidential power. Exercising inherent power always comes at the cost of the checks and balances, separation of powers, and structural safeguards that the Framers adopted to ensure that a concentration of power does not endanger individual liberties. The rule of law is threatened when federal judges adopt standards of “deference” or “utmost deference” to executive claims of state secrets. If judges fail to act with independence, an administration may violate statutes, treaties, and the Constitution without any effective challenges in court.

      LouisFisher
      Further Reading
      Abrams, Jim. “Access to Top-Secret Papers at Issue in Wiretapping Case.” Washington Post, May 31, 2009.
      Bamford, James. Body of Secrets. New York: Anchor Books, 2002.
      Bush, GeorgeW.President Bush's Address” [weekly radio address]. New York Times, December 17, 2005. http://www.nytimes.com/2005/12/17/politics/17text-bush.html.
      Bush, GeorgeW.. “President Bush's News Conference” [press conference]. New York Times, December 19, 2005. http://www.nytimes.com/2005/12/19/politics/19text-bush.html.
      Finan, ChristopherM.From the Palmer Raids to the Patriot Act. Boston: Beacon Press, 2007.
      Fisher, Louis. “Invoking Inherent Powers: A Primer.” Presidential Studies Quarterly37 (2007a): 1–22.http://dx.doi.org/10.1111/j.1741-5705.2007.02580.x
      Fisher, Louis. “Presidential Inherent Power: The ‘Sole Organ Doctrine.’Presidential Studies Quarterly37 (2007b): 139–152.http://dx.doi.org/10.1111/j.1741-5705.2007.02589.x
      Gonzales, Alberto, and MichaelV.Hayden [press briefing]. December 19, 2005. http://www.fas.org/irp/news/2005/12/ag121905.html.
      Johnston, David, and ScottShane. “Senators Demand Details on New Eavesdropping Rules.” New York Times, January 18, 2007. http://www.nytimes.com/2007/01/19/washington/19justice.html.
      Morgan, RichardE.Domestic Intelligence. Austin: University of Texas Press, 1980.
      Olmsted, Kathryn. Challenging the Secret Government: The Post-Watergate Investigations of the CIA and FBI. Chapel Hill: University of North Carolina Press, 1996.
      Risen, James, and EricLichtblau. “Bush Lets U.S. Spy on Callers without Courts.” New York Times, December 16, 2005. http://www.nytimes.com/2005/12/16/politics/16program.html.
      U.S. Congress. Senate. Committee on Intelligence. Hearings on the Nomination of General Michael V. Hayden, USAF, to Be Director of the Central Intelligence Agency. 109th Congress, 2nd sess., 2006.
      U.S. Department of Justice. Legal Authorities Supporting the Activities of the National Security Agency Described by the President. January 19, 2006. http://www.fas.org/irp/nsa/doj011906.pdf.

      The Fourth Amendment Abroad

      The Fourth Amendment of the United States Constitution protects persons against “unreasonable searches and seizures.” The Fourth Amendment has significantly influenced an international consensus that individual privacy and dignity are vital human rights that require explicit and vigorous protection. The widespread adoption of Fourth Amendment jurisprudence is a cogent example of “legal transplanting,” a term that legal historian Alan Watson used to describe how countries borrow and adapt foreign laws to reform domestic legal systems. However, other nations have not indiscriminately grafted Fourth Amendment principles to their laws, instead critically selecting which of the Amendment's protections best fit their own political and social structures. Nations with fairly recent constitutions have tended to adopt broader conceptions of protection against government intrusion that respect long-standing cultural understandings of “the human yearning for privacy” (Dash 2004, 8). Some, notably Canada and South Africa, have developed even more robust protection for individuals in their search and seizure law than has the United States with the Fourth Amendment. Americans, meanwhile, seem increasingly willing to forfeit some Fourth Amendment protections in favor of crime control, particularly in the wake of the September 11, 2001, terrorist attacks.

      Global Antecedents to the Fourth Amendment

      Sources as diverse as the Bible, the Quran, and Roman law view the home as sacred and proscribe intrusions into the home. The Code of Hammurabi, among the world's oldest comprehensive legal codes, demanded in Article 21 that “[i]f a man makes a breach into a house, one shall kill him in front of the breach, and bury him in it.” Viewing one's home and property as inviolable is thus an ancient idea, but restricting governmental authority to search for and seize evidence of crime was not part of the early conception of individual rights. The Quran protects people's homes and privacy, but the ancient Islamic laws bear little resemblance to modern search and seizure law. The Roman Code of Justinian inspired the adage that a “man's home is his castle;” the earlier Roman scribe Cicero had expressed similar beliefs that the home was sacred, writing, “What is more inviolable, what better defended by religion than the house of a citizen. … This place of refuge is so sacred to all men, that to be dragged from thence is unlawful” (quoted in Lasson 1937, 15). Roman law did have procedures for private citizens to seek judicial permission to enter another's home to retrieve stolen items, but public officials were not so restricted. Not even the Magna Carta of England (1215), regarded as an inspiration for individual rights in the U.S. Constitution, promised security from the Crown entering homes to search for and seize evidence, although it contained concepts recognizable in the U.S. Constitution's Fifth and Fourteenth Amendment due process clauses. History offers scant proof that governments respected individuals' privacy interests in searching or seizing property or that citizens necessarily expected government officials to show constraint in conducting searches. Thus, the Fourth Amendment's protections were born of modern demands for individual privacy, rather than any understanding that such protections were enforceable against government officials.

      The Fourth Amendment's Origins

      Although the Magna Carta was silent about search and seizure protections, this celebrated document inspired lawyers to challenge the Crown's practice of searching homes and businesses to collect revenue. These searches were often conducted without proof that the subject of the search had failed to pay taxes or possessed contraband. Those general searches grew more invasive during King Henry VIII's reign, when the king empowered a special commission to search homes and businesses for evidence of disloyalty to the king's newly established Church of England. A noted jurist of the time, Sir Edward Coke, protested the general searches because they were conducted without suspicion of wrongdoing or were based on evidence given by unnamed informants. In his treatise on common law, Coke noted that the Crown issued such warrants “upon a bare surmise to break any man's house to search for a felon, or for stolen goods” (Coke 1628–1644/1817, Vol. 4, 176). Despite Coke's efforts, 150 years would pass before another protest against general warrants would galvanize colonial America to challenge their use.

      In 1763, an anonymous writer produced and distributed a pamphlet in England criticizing a treaty negotiated by the king's ministers. England's King George III, angered by the criticism, ordered that the author and his papers and books be seized as seditious libel. The king also ordered that the homes of anyone suspected of printing the material be searched. The warrants issued under George III's order did not specify which homes were to be searched or which items could be seized. A politician and several printers were arrested, and evidence was seized from their homes, prompting lawsuits that attracted national attention. The national debate about general warrant searches reached Parliament. In a speech in the House of Commons attacking the searches, member William Pitt declared that “[t]he poorest man may, in his cottage, bid defiance to all the forces of the Crown” (Lasson 1937, 49–50).

      News of Pitt's speech resonated throughout colonial America. In an attempt to raise revenue for England, royal customs agents had been searching colonists' homes and businesses under general warrants looking for evidence of contraband or tax evasion. The colonists hated these warrants because (1) they authorized searches of private property for taxable goods but the colonists had no corresponding right to parliamentary representation, (2) they were executed by customs agents who were viewed as functionaries but who acted with wide discretion, and (3) they were considered to be an offensive invasion into the sanctuary of people's homes. The general warrants and writs of assistance were among the grievances that eventually sparked the American Revolution in 1776. After the Revolutionary War, the former colonists surprisingly did not outlaw general warrants in the original constitution. The reason for the omission is unclear. Some delegates at the constitutional convention may have believed that an independent judiciary was a sufficient check against any executive branch attempts to issue general warrants or that enumerating some rights might suggest the exclusion of others. The former colonists may have considered general warrants so odious that it was unnecessary explicitly to prohibit them. Moreover, every state already outlawed general warrants, so it may have been considered unnecessary to include another prohibition in the new federal constitution. However, some political leaders, the Anti-Federalists, opposed creating a strong national government after the American Revolution, fearing that a central government would eventually suppress individual liberties. They therefore pressed for inclusion of individual rights in the Constitution, including protections against unchecked law enforcement discretion, and Congress began preparing a bill of rights.

      The Fourth Amendment and the World Today

      Without mechanisms to enforce the Fourth Amendment's guarantees, the guarantee, as constitutional drafter James Madison (1788) noted of all written constitutions, is a mere “parchment barrier” (97). In the United States, the Supreme Court crafted the exclusionary rule, which excludes or suppresses trial evidence garnered through improper police procedure, as the primary enforcement mechanism to deter police misconduct in gathering evidence. The exclusionary rule is among the most controversial of Supreme Court criminal procedure doctrines, and recent court decisions reflect a growing disenchantment with suppression of evidence as the primary Fourth Amendment remedy. Perhaps recognizing American ambivalence toward the automatic (or presumptive) exclusionary rule, most nations have declined to adopt it. Instead, other nations have made suppression discretionary or advanced justifications other than deterrence to justify evidence exclusion. In turn, these trends may be influencing the U.S. Supreme Court to recast Fourth Amendment enforcement as discretionary rather than automatic. While the Fourth Amendment may have provided the seed for international search and seizure laws, rule adaptation between the United States and the rest of the world may no longer be as one-way as once believed, as shown for instance by Sanchez-Llamas v. Oregon (2006), in which the Court observed that “the automatic exclusionary rule applied in our courts is still ‘universally rejected’ by other countries.” Since 2006, versions of the exclusionary rule are appearing in new constitutions and criminal codes around the world, and conversely, U.S. jurisprudence is drifting toward a less rigid analysis of evidence exclusion when police have illegally seized evidence. U.S. Supreme Court decisions such as Herring v. United States (2009) and Hudson v. Michigan (2006) have already echoed the worldwide inclination toward flexibility in judicial discretion when balancing individual privacy rights against law enforcement interests.

      Western Europe

      Europeans considered the issue of suppressing unlawfully obtained evidence as proof of guilt long before the U.S. Supreme Court crafted the exclusionary rule. Nevertheless, the Fourth Amendment's exclusionary rule did not take root in the inquisitorial trial systems in Europe, which value truth and full fact-finding above protecting individual trial rights. In an inquisitorial system, tangible evidence is generally admissible when it is reliable and relevant. While several Western European nations' search and seizure protections equal (or exceed) Fourth Amendment guarantees, these countries are less committed to the necessity or effectiveness of an exclusionary rule. When there are claims of impropriety in physical evidence collection, these countries employ alternative methods of police discipline and deterrence. (As in most countries, the rules for oral confessional evidence, which could be extracted through torture, are stronger and may require evidence suppression.) Finally, several Western European countries (including the Netherlands and Switzerland) have explicit privacy rights in their constitutions that are based largely on corresponding provisions in the European Convention on Human Rights.

      France

      Like the Fourth Amendment and the U.S. Constitution, the right to privacy is not written in the French Constitution but has been read into the text by its courts. France's search and seizure rules are established in its criminal code. Its search and seizure law, under an inquisitorial legal system, is far less restrictive of law enforcement than that in the United States. For example, there is no requirement of probable cause, and many searches are authorized without judicial approval. However, French courts may suppress unlawfully obtained evidence under a “nullity” doctrine that guides evidence suppression in narrowly defined circumstances.

      Germany

      Germany has a long-standing doctrine governing suppression of improperly obtained evidence, Beweisverwertungsverbote, but has no written exclusionary rule for physical evidence in its constitution or criminal procedure laws, leaving the issue of exclusion to the judiciary. Nevertheless, the German Constitution guarantees a right to privacy that is valued so highly that German judges may even exclude evidence obtained by civilians. And, unlike Fourth Amendment jurisprudence, Germany's courts evaluate the overall fairness of the trial rather than deterrence of police misconduct to justify evidence exclusion. One scholar notes that

      the approach of German jurisprudence is rather similar to the reasoning of French or English judges when it comes to the decision whether to exercise discretion to exclude evidence. The following aspects are considered: the severity of the breach versus the gravity of the offence imposed; the effect of the breach on the credibility of the evidence; the “technical” nature of the breach, following the assumption that the application of the correct procedure leads to lawfully obtained evidence. (Gless 2010, 705)

      Italy

      Of the civil law Western European nations, Italy's search and seizure law perhaps has the strongest correlation to the Fourth Amendment. In 1988, Italy shifted from an inquisitorial model to an adversarial model of criminal trials, incorporating many Anglo-American procedural rights along the way. The Italian Criminal Procedure Code outlines the duties of the police during a search and seizure, has many of the restrictions on warrantless searches that have developed in Fourth Amendment jurisprudence, and has an exclusionary rule to suppress evidence obtained in violation of the Code. The Code does contain a “weapons exception” that may permit broad search powers whenever police believe that a weapon is in a place. Such an exception may have the effect of diluting the exclusionary rule for physical evidence found during such searches.

      Spain

      Like Italy, Spain has robust search and seizure protection in its Constitution and has specifically adopted a rule of exclusion for improperly obtained evidence. The Spanish Constitution prohibits entering a home without consent or a warrant unless officers see the crime and trace the perpetrator to the premises. The Code of Criminal Procedure further provides that “evidence obtained either directly or indirectly in contravention of fundamental rights and liberties will be of no effect;” this includes evidence gathered in violations of rights guaranteed by the Constitution. This provision for exclusion, called a nullity, requires that the evidence is struck from the record and may not be used during the criminal prosecution. Like its Continental neighbors, Spain does not use deterrence as a justification for the nullity rule. Spain instead uses disciplinary procedures or criminal charges to discipline officers guilty of police misconduct.

      England and the Commonwealth of Nations

      Early English common law, as noted above, did not require exclusion of unlawfully obtained tangible evidence at criminal trials, using money damages instead as the enforcement mechanism against unlawful searches and seizures. The early English criminal justice system valued the admission of relevant and reliable evidence over the propriety of how officers acquired it. As one English court stated in R. v. Leatham (1861), “It matters not how you get [evidence]; if you steal it even, it would be admissible in evidence.” Then, in 1984, Parliament passed the Police and Criminal Evidence Act (PACE), which codified common-law evidentiary rules. PACE authorized judges to exclude “evidence [that] would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it” (§ 78). Just as in the common law, evidence can also be excluded if it is more prejudicial than probative—that is, if a jury is more likely to find guilt not because of the substance of the evidence but because it prejudices jurors as to the defendant's propensity to do the charged crime. Some of the Commonwealth nations, such as Scotland and the Caribbean nations, follow England's rights-balancing approach. Finally, English courts scrutinize the admission of improperly obtained confessional evidence more carefully than the admission of tangible evidence.

      Australia

      Until the 1970s, Australia followed the English common law's reluctance to suppress improperly obtained physical evidence unless the evidence would affect the fairness of the trial. Australia's courts changed their position in the case of Bunning v. Cross, 141 CLR 54 (1978), which suggested five factors for judges to weigh evidence admissibility: (1) the police officers' degree of culpability in the illegal search or seizure, (2) whether the illegality affected reliability of the evidence, (3) whether the evidence might have easily been obtained by lawful means, (4) the seriousness of the charge, and (5) whether the police action breached a specific legislative intent to prohibit misconduct. In 1995, Australia adopted its uniform Evidence Acts, which give judges discretion to exclude unlawfully obtained evidence using the guidelines in Bunning v. Cross.

      Canada

      Before Canada adopted its Charter of Rights and Freedoms in 1982, criminal courts largely followed the English practice of admitting relevant evidence, and thus evidence was rarely suppressed because of police misconduct. When Canada enacted the Charter of Rights and Freedoms, it expressly incorporated the Fourth Amendment's protections against unreasonable searches and seizures. Thus, Canada's search and seizure rules, in text and practice, are the closest to the U.S. model with an important addition: The Canadian Charter expressly provides for a discretionary exclusionary rule. Canada, unlike the United States, expressly grounded its exclusionary rule in preserving judicial integrity. These changes may have shielded Canada's exclusionary rule from becoming as controversial as it has been in the United States.

      New Zealand

      New Zealand's search and seizure protection in its Bill of Rights provides that “[e]veryone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.” New Zealand's Bill of Rights, however, is not supreme law as is the U.S. Constitution but is instead a part of the collection of laws that make up the country's constitutional structure. New Zealand's courts have wide discretion to admit or refuse evidence, and like its neighbor Australia, New Zealand has no codified exclusionary rule. New Zealand courts use a reasonableness test to determine if questioned police conduct requires evidence suppression, evaluating law enforcement actions through examining the “time, place and circumstances” of the search. The courts then balance the interests of victims, society, and law enforcement against the individual's privacy interests. The issue of reasonableness is considered independently from whether the officers' actions actually contravened written law. Thus, as scholar Scott Optican points out, a search in New Zealand can be found “legal and unreasonable” or “illegal and reasonable.” Despite the courts' wide judicial latitude, New Zealand's judges have been conservative thus far in suppressing tangible evidence in cases of police wrongdoing.

      South Africa

      South Africa and seventeen other African nations (as of this writing) are members of the Commonwealth of Nations. While South Africa's constitutional search and seizure provisions incorporate the Fourth Amendment's text, South Africa's provisions exceed the rights afforded by most nations. Unlike those of other Commonwealth nations and the United States, the 1996 South African Constitution explicitly protects the right to privacy, providing that “[e]veryone has the right to privacy, which includes the right not to have—(a) their person or home searched; (b) their property searched; (c) their possessions seized; or (d) the privacy of their communications infringed” (§ 14). The South African Constitution also has an exclusionary rule, modeled on Canada's Charter, that requires evidence suppression “if the admission of that evidence would render the trial unfair or otherwise be detrimental to the administration of justice.” The South African laws' explicit focus on individual privacy rights indicates the country's commitment to maintaining close regulation of law enforcement power, and South Africa's Criminal Procedure Act and the Police Service Act codify many issues that may be left to judicial discretion in other countries.

      Israel

      Israel does not have a comprehensive written constitution, but its Knesset (Parliament) has passed a series of eleven basic laws that it plans to incorporate eventually into a single constitution. The Israeli bill of rights, called the Basic Law: Human Dignity and Liberty, guarantees individual rights to privacy, dignity, and protection from nonconsensual premises and internal body searches. The Knesset based these statutory search and seizure protections on Canada's Charter of Rights and Freedoms, which in turn was influenced by the Fourth Amendment. Israel's search and seizure protections are limited by any “law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required” (§ 8). As of yet, Israeli courts have not settled on an overarching interpretation of search and seizure protections since the passage of the Basic Law right provisions in the late 1990s. However, some of the early cases show hesitancy to suppress physical evidence because of police procedural transgressions.

      Muslim-Majority Countries

      A quarter of the world's population resides in countries where Islam is the predominate religion. These countries include much of the Middle East and countries in North and Central Africa, Central and South Asia, and Southern Europe (because these countries have geopolitical ties through membership in Islamic organizations, they are considered together here even though they are geographically distant). Not all Muslim-majority countries recognize Islam as a state religion, but in this geographically diverse set of nations, the power of Islamic law cannot be disregarded. Many Muslim-majority countries have adopted criminal procedure rules that forbid unlawful government intrusions on property and privacy, grounded in principles that can be found in ancient Islamic jurisprudence. Criminal procedure rules in some of the Islamic states largely conform to international legal norms expressed in the regional and international human rights agreements that the countries have signed. For example, Nigeria's Constitution includes a right to privacy as other constitutions do, although it expressly acknowledges the jurisdiction of Shari'a (Islamic law) courts in its Constitution. Some Muslim-majority countries, such as Turkey, have gone a step further in specifically ordering punishment for police officers who conduct unlawful searches, although the evidence gained from such a search may not be suppressed.

      Islamic law supports modern notions of the privacy of the home. Islamic law is grounded in the interpretations of divine law found in the Quran and the Sunna, the record of sayings and teachings of the Prophet Mohammed. The Quran forbids entering a home without permission and “spying” on people in their homes and in that way is comparable to the Fourth Amendment in its concerns about intrusions on privacy. Classical Islamic jurisprudence ordered exclusion of wrongfully obtained evidence under some circumstances, but the Quran's prohibitions against unauthorized entry into homes and spying were not historically linked to evidence exclusion. The precedents that provide the strongest substantiation in Islamic jurisprudence for evidentiary exclusion “might be more accurately read as establishing a balancing test for suppressing evidence that results from search and seizure violations, rather than a Fourth-Amendment-like exclusionary rule” (Reza 2009, 763). This balancing test is echoed in the U.S. Supreme Court's recent Fourth Amendment decisions that weigh the societal costs of suppression against the officers' blameworthiness in the Fourth Amendment violation and the likelihood of a deterrent effect on police conduct. While there is conflicting evidence about the influence of the Quran and the Sunna as a foundation for search and seizure rules in the Muslim world, the sacred texts are far from irrelevant. The Islamic texts could provide arguments to legitimize criminal procedure rights if governments try to change or dispense with those rights.

      Asia

      The Fourth Amendment has had influence on Asian countries like Japan and Korea, where U.S. military occupation helped to shape the constitutional framework, while India's approach to searches and seizures reflects the legacy of British rule. China and Taiwan, which lack these legacies of Western colonial or military rule, have moved in the direction of penalizing police officers or excluding improperly attained evidence in recent years.

      People's Republic of China

      The People's Republic of China implemented a new constitution in 1982 as part of its efforts toward socialist modernization, but it has no constitutional protection against unlawful search and seizure. China's 1997 Criminal Procedure Law also did not exclude illegally obtained evidence and thus had little impact on police professionalism. Recently, however, China has reformed its criminal procedure rules, partially in response to internationally publicized examples of police misconduct. In one case, a Chinese man was released from prison in 2010 after serving ten years for killing a neighbor. The Chinese defendant had confessed to the neighbor's murder after being beaten and tortured during a police interrogation. A decade later, the neighbor belatedly but fortuitously turned up alive and well. After the reappearance of the “victim,” Chinese courts surprised observers by not just ordering the man's release but also implementing two new rules of evidence to require exclusion of confessions obtained by torture and coercion. Five government organizations, the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, the Ministry of State Security, and the Ministry of Justice, joined to promulgate procedures to handle physical evidence in death-penalty cases and to redress the admissibility of confessions obtained by using torture. The 2010 Evidence Exclusion Rules do not require evidence exclusion, but they do provide that if police misconduct in collecting that evidence would impact the fairness of the trial, that evidence may not be the basis of a conviction. China's efforts to liberalize its criminal procedure rules on coerced confessions may spark interest in further reforms toward suppressing improperly seized tangible and documentary evidence.

      Taiwan

      Taiwan dramatically reformed its criminal justice system after a long period of authoritarian rule. Taiwan amended its Code of Criminal Procedure in 1997 to afford rights to criminal defendants. In 1998, Taiwan's Supreme Court announced a discretionary exclusionary rule that judges may “exclude illegally obtained evidence when they believed that admitting the evidence would impair justice and fairness” (Lewis 2011, 649). Taiwan later codified this rule in its Criminal Procedure Code, which requires balancing individual rights against the public interest in admitting tainted evidence. While the changes to the Criminal Procedure Code are relatively recent, the impacts of the changes in the judicial system are already noticeable. In 2002, Taiwan again amended its Code, changing from an inquisitorial to a modified adversarial judicial system and shifting warrant powers from prosecutors to judges.

      India

      India's search and seizure rules operate in much the same way as the Fourth Amendment does, but India does not have a specific constitutional provision governing searches, nor does it have an exclusionary rule. The Constitution of India once had a constitutional provision that gave citizens a “right to hold and enjoy property,” but it was repealed in 1978. India's Code of Criminal Procedure instead has a statutory requirement that two citizen-witnesses be present during searches to deter police misconduct. These civilian observers, called panch witnesses, serve to verify that searches are properly executed. Indian law also allows the owner of searched property to be present during the search, except under circumstances where it is impracticable to do so.

      Just as under English law, India's judges are reluctant to suppress relevant evidence. In Khet Singh vs. Union of India (2002), the Supreme Court of India considered a defendant's claim that drug evidence should be suppressed because the proper procedures for seizure and processing of evidence did not occur as outlined in India's narcotics statutes. In Singh, the Court outlined the law of evidence exclusion:

      So far as India is concerned its law of evidence is modelled on the rules of evidence which prevailed in English Law, and Courts in India and in England have consistently refused to exclude relevant evidence merely on the ground that it is obtained by illegal search or seizure.

      The Court in Singh concluded that absent “complete defiance of the law and procedure. … [or] any possibility of the evidence collected likely to have been tampered with or interpolated during the course of such search or seizure,” physical evidence is unlikely to be suppressed because of law enforcement lapses in following procedural rules. However, India's courts may be prepared to exclude evidence in cases of grave police misconduct.

      Japan

      Japan's Constitution and Criminal Procedure Code were written during the Allied occupation of Japan after World War II, and its search and seizure laws predictably resemble the Fourth Amendment. As with the Fourth Amendment's exclusionary rule, enforcement of Japan's search and seizure protection is a judicial rule. In 1978, in Japan v. Hashimoto, 32 Keishu 1672, the Japanese Supreme Court established an exclusionary rule known as the “theory of relative exclusion.” In grounding its decision as a tool to deter officers from violating the warrant procedures in the criminal procedure code, the Court stated, “Using illegally seized material as evidence would be harmful from the standpoint of controlling illegal searches in the future, and should be rejected as evidence for the case” (cited in Cho, 1998). Japan's theory of relative exclusion decides suppression issues by balancing the seriousness of the violation against the possibility that suppression will deter future transgressions. Like courts in other countries, Japanese courts are reluctant to reverse convictions when police illegally seize physical evidence, typically finding that the police misconduct is not serious or that no deterrence goal will be met by evidence exclusion.

      The Republic of Korea (South Korea)

      A year after the democratization of the Republic of Korea in 1987, a new constitution was enacted that was influenced by the U.S. Constitution. Korea may have been influenced to use the U.S. Constitution as a model by early attempts to establish a Korean Declaration of Independence and by contact with American military personnel. In 1988, Korea created a Constitutional Court, such as France and Germany have, to independently review constitutional issues. In articles 12, 16, 17, and 18, the Korean Constitution guarantees “personal liberty” and requires warrants for searches that are not committed in the presence of a police officer or where evidence destruction is at issue. Reportedly, search warrants require little evidentiary showing and are almost automatic for prosecutors to obtain. The constitutional and statutory search and seizure provisions do not expressly prohibit unreasonable searches but instead those that are unlawful under its criminal code. Korea has no official doctrine to suppress involuntary confessions or unlawfully seized physical evidence under an exclusionary rule.

      Central and South America

      Since the 1990s, more than fifteen countries in Central and South America have transitioned to democratic governance. At the same time, many countries in the region (Argentina, Bolivia, Chile, Colombia, Costa Rica, Dominican Republic, Ecuador, El Salvador, Guatemala, Honduras, Nicaragua, Paraguay, Peru, and Venezuela) have changed from inquisitorial criminal procedure systems to adversarial ones. While the United States has been only one of many models for democratic governments in Latin America (and not the most important one, as Latin America looked to continental Europe as a closer structural model for criminal procedure), the Fourth Amendment's principles have diffused to these countries' emerging search and seizure laws. Mexico is also considering a more open criminal justice system under influence from its northern and southern neighbors.

      Argentina

      Argentina's 1853 Constitution was explicitly modeled on and even in places directly translated from the U.S. Constitution and the Bill of Rights. During the years of autocratic and military rule, however, Argentina's Constitution had little force in limiting police search and seizure powers. Then, in 1994, Argentina amended its constitution and Code of Criminal Procedure, incorporating features of the European continental legal structure. Argentina's current criminal procedure code has an exclusionary rule that appears to operate similarly to the U.S. model: Illegally seized evidence may be suppressed subject to the doctrines of inevitable discovery and independent source. Unlike under the Fourth Amendment, evidence suppression in Argentina is subject to the discretion of the trial judge. How much impact the search and seizure rules have on police discretion is difficult to discern, however, as many Argentinian court decisions are unreported and much of the law is made at the state, rather than the federal, level.

      Brazil

      After decades of being governed by military dictatorships, Brazil adopted a new, democratic constitution in 1988. Brazil's Constitution guarantees the right to privacy and bars searches of homes except when there is consent, there are exigent circumstances, or a warrant has been issued. In 2008, Brazil extended its constitutional search and seizure protections to include an exclusionary rule in its Code of Criminal Procedure. Brazil's exclusionary rule requires suppression of evidence derived from illegal searches but incorporates the Fourth Amendment's inevitable discovery and independent source doctrines to save the admissibility of some evidence.

      Chile

      Discarding the remnants of military commander Augusto Pinochet's oppressive regime, a democratic Chile significantly amended its 1980 Constitution in 2005. Chile's democratic government shifted to an adversarial legal system and enacted bold legal reforms, guided by German experts on criminal procedure. The Chilean constitution ensures the inviolability of the home and of private communication. It is not yet clear whether the Fourth Amendment's enforcement mechanism, the exclusionary rule, will feature prominently in Chilean jurisprudence as it has in the German model, but some discussions have begun about mechanisms for suppression of physical evidence.

      Central and Eastern Europe

      When democratic governance emerged in Russia and in former Soviet-bloc states in Central and Eastern Europe, the new regimes revolutionized their countries' criminal procedure systems. Countries including Bulgaria, Hungary, Georgia, Poland, Russia, and Slovenia sought assistance from international lawyers (including the American Bar Association's Central and East European Law Initiative, or CEELI) to reform their constitutions and criminal codes. These countries were also influenced by the requirements for European Union membership and sought to conform their laws to the European Convention on Human Rights. These countries face challenges because many of the Eastern European legal systems were based in civil rather than common law, with trials being inquisitorial rather than adversarial. Nevertheless, several of these countries created criminal justice schemes that shifted some search warrant powers from prosecutors to judges and provided for jury trials in certain cases. As part of those initiatives, these countries guarantee privacy rights against improper search and seizure. Examples include the Czech Republic's Charter of Fundamental Rights and Freedoms 1992, article 12; the Constitution of the Republic of Georgia, article 20 (1995); and the Constitution of the Republic of Poland, articles 47, 48, and 50. A few codes also exclude evidence at criminal proceedings when police officers have procured it illegally; one such is the Constitution of the Russian Federation (1993), article 50.

      However, there is not yet a clear picture of how the evidence exclusion provisions are working. In Russia, Bulgaria, Hungary, and Slovenia, the exclusion provisions are blunt proscriptions on the use of illegally obtained evidence, perhaps with an expectation that the judiciary would interpret such rules to make them workable. Implementing blanket proscriptions without guidance has raised questions in those countries about what type and level of severity of police misconduct requires exclusion.

      Conclusion

      Understanding how the Fourth Amendment's protections differ at home and abroad requires one to consider how countries define the right meant to be protected and the goal to be achieved. While much of the divergence in individual privacy rights between the United States and other countries undoubtedly relates to historical, structural, and cultural differences, some of the differences lie in the contrast between the U.S. deterrence-based model and other nations' choices to justify such rights on the basis of preserving judicial integrity. Those choices are a product of hard-won lessons about the difficulties inherent in America's deterrence-based model. The level of search and seizure protections and justifications continues to be developed, as many nations have statutory and constitutional provisions that were enacted within the last few decades, as opposed to the Fourth Amendment's 220-year history. How the nascent search and seizure provisions around the world will operate in practice remains to be seen.

      LaJuanaS.Davis
      Further Reading
      Cho, Kuk. “The Japanese ‘Prosecutorial Justice’ and Its Limited Exclusionary Rule.” Columbia Journal of Asian Law12 (1998): 39–62.
      Coke, SirEdward. Institutes of the Laws of England. 4 vols. London: W. Clarke and Sons, 1817. (Originally published 1628–1644.)
      Dash, Samuel. The Intruders: Unreasonable Searches and Seizures from King John to John Ashcroft. Piscataway, NJ: Rutgers University Press, 2004.
      Gless, Sabine. “Truth or Due Process? The Use of Illegally Gathered Evidence in the Criminal Trial.” In German National Reports to the 18th International Congress of Comparative Law, edited by JürgenBasedow, UweKischel, and UlrichSieber, 675–709. Munich, Germany: Mohr Siebeck, 2010.
      Langer, Máximo. “Revolution in Latin American Criminal Procedure: Diffusion of Legal Ideas from the Periphery.” American Journal of Comparative Law55 (2007): 617–668.
      Lasson, NelsonB.The History and Development of the Fourth Amendment to the United States Constitution. Baltimore: Johns Hopkins Press, 1937.
      Lewis, MargaretK.Taiwan's New Adversarial System and the Overlooked Challenge of Efficiency-Driven Reforms.” Virginia Journal of International Law49 (2009): 651–726.
      Lewis, MargaretK.. “Controlling Abuse to Maintain Control: The Exclusionary Rule in China.” New York University Journal of International Law and Politics43 (2011): 629–698.
      Madison, James. Letter to Thomas Jefferson, October 17, 1788. In From Parchment to Power: How James Madison Used the Bill of Rights to Save the Constitution, RobertA.Goldwin. Washington, D.C.: AEI Press, 1997.
      Optican, Scott. “Search and Seizure in the Court of Appeal—an Essay on the Uses and Misuses of Section 21 of the Bill of Rights.” New Zealand Universities Law Review18 (1999): 411.
      Reza, Sadiq. “Islam's Fourth Amendment: Search and Seizure in Islamic Doctrine and Muslim Practice.” Georgetown Journal of International Law, 40 (2009): 703–806
      Universal Declaration of Human Rights, GA. Res. 217A (III), U.N. Doc. A/810, 1948. http://www1.umn.edu/humanrts/instree/b1udhr.htm.
      Watson, Alan. Legal Transplants: An Approach to Comparative Law.
      2nd ed.
      Athens: University of Georgia Press, 1993.
    • Appendix

      Working with Legal Sources