Congress and the Fourth Amendment

Long before the U.S. Supreme Court and lower courts developed Fourth Amendment standards for search and seizure, Congress passed legislation to define this area. Although Americans during the colonial period were outraged by writs of assistance and the general search warrant, it has been settled practice throughout U.S. history that warrants are not required for every search and seizure. As the Supreme Court acknowledged in United States v. Montoya de Hernandez (1985):

A statute in 1789 authorized federal officials to enter any ship or vessel suspected of having concealed goods or merchandise and to search and seize such goods. These laws continue to reflect the judgment of the legislative and executive branches that the expectation of privacy in the interior of the country does not apply at the borders, where smuggling and illegal entry are chronic problems. Acting under statutory authority, customs officials may board vessels without any suspicion of wrongdoing. All persons coming into the United States from foreign countries “shall be liable to detention and search” by authorized federal officers or agents.

Congressional statutes authorize other types of warrantless inspections by federal officers, and in almost every case of a challenged statute, the Supreme Court has upheld the legislative judgment. Beginning with the First Congress, statutes have required certain businesses to have their records available for federal inspectors. Legislation in 1791 provided that the books of distilleries shall “lie open” for inspection officers to take notes. The Narcotics Drug Act of 1914 required persons who dispensed narcotics to prepare orders on Internal Revenue Service (IRS) forms and make them available to official inspectors. Government officials may enter private homes to inspect for unsanitary conditions. Without a warrant, federal officials may inspect underground mines to ensure compliance with safety and health standards. Businesses open to the general public do not have the same expectations of privacy as people who live at home or work in offices.

In the 1970s, the Supreme Court reviewed the constitutionality of a police search of a student newspaper that had taken photographs of a clash between demonstrators and police. The newspaper, a third party, was not accused of any wrongdoing, but the Court in Zurcher v. Stanford Daily (1978) upheld the right of government to issue a [Page 186]warrant to obtain photographs in order to learn the identities of those who had assaulted police officers. The Court's decision was denounced by newspapers as “a first step toward a police state” and an assault that “stands on its head the history of both the first and the fourth amendments” (Fisher and Harriger 2009, 701). Congress responded by passing the Privacy Protection Act of 1980 to limit newsroom searches. With certain exceptions, it required the use of a subpoena instead of a search warrant to obtain documentary materials from those who disseminate newspapers, books, broadcasts, or other similar forms of public communication. During debate on the bill, Rep. Robert Kastenmeier (D-Wis.) explained that “sometimes a longstanding principle of constitutional jurisprudence is thrown into doubt by a decision of the Supreme Court.” While the decision “may answer a narrow question based on specific facts,” it leaves government officials and private citizens in doubt about the law. When this occurs “it is often best for Congress to step in to fill the void, rather than to await the results of many years of potential litigation which will again redefine the principle” (126 Cong. Rec. 26,562 [1980]).

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