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1-1-1984

1991: A Fourth Amendment OdysseyGerald F. UelmenSanta Clara University School of Law, guelmen@scu.edu

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Recommended Citation70 A.B.A. J. 86

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1991:A Fourth

AmendmentOdyssey

The following article is an edited version of the winning essay in the 1984 RossEssay Contest, conducted by the American Bar Association under a bequest in thewill of Erskine Mayo Ross. The Board of Editors of the ABA Journal administersand judges the contest. The topic selected for 1984 was "The Warrant Clause:Roots, Rights and Remedies."

IN THE SUPREME COURT OF THEUNITED STATES

No. 91-101

JOHN BANKHEAD, PetitionerV.

UNITED STATES, Respondent.

Argued August 10, 1991Decided October 12, 1991

Chief Justice VERBUM delivered theopinion of the Court.

This case arises in the aftermath of thetragic assassination of the president ofthe United States and four members ofher cabinet on July 4, 1991, during theopening ceremonies of the Bill of RightsBicentennial Exposition in Philadelphia,Pa. The petitioner has publicly alliedhimself with the terrorist organizationclaiming responsibility for the murders.He acknowledged to three witnessesthat he has personal knowledge of theassassination plot and its perpetrators.He now challenges the validity of a war-

86 American Bar Association Journal

By Gerald F. Uelmen

rant issued by a U.S. district judge inPhiladelphia. The warrant authorizes aduly licensed physician to attach elec-trodes to the scalp of the petitioner tomonitor his thought patterns for a periodof 24 hours. The sophisticated use ofelectrodes sensitive to electrical andchemical activity in the human brain hasprogressed to the point that mentalimages produced by recall can now beexternally reproduced and recorded. SeeStrangelove, "Image Transduction byUltraradiant Electroencephalograph,"266 Science 363 (1989).

The warrant does not require the peti-tioner to cooperate in any way. He hasbeen given a grant of immunity preclud-ing the use against him of any testimonyhe presents to the special grand juryinvestigating the presidential assassina-tion. He is already confined for con-tempt of court in refusing to testifyunder that grant of immunity. The addi-tional restraint necessary to execute thiswarrant is thus inconsequential. Nor willthe petitioner be subjected to any formof interrogation. The extraction of brainimages requires the total absence of

external stimuli. The device will simplyreproduce the images created by thepetitioner's self-induced recall for a 24-hour period. The order requires the phy-sician executing it to record only thoseimages which are related to the inquirybeing conducted, and specifies a list ofother suspects for this purpose.

No infringement of any protectionafforded by the Fifth Amendment priv-ilege against self-incrimination isinvolved here. We have long since lim-ited the reach of that clause to compelledcommunication, not disclosure of privateinformation. Fisher v. United States,425 U.S. 391, 401 (1976). Here, just as inAndresen v. Maryland, 427 U.S. 463,473-74 (1976), "petitioner was not askedto say or do anything," and "the individ-ual against whom the search is directedis not required to aid in the discovery,production, or authentication of incrim-inating evidence." In any event, the dis-trict judge obviated any Fifth Amend-ment concerns in this case by ruling thatthe previous grant of use immunity willextend to any information gained by theexecution of this warrant.

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The only issue raised by these pro-ceedings is whether an individual's inter-est in the privacy of his thoughts is to beelevated to total immunity from govern-mental intrusion. The petitioner suggeststhat such protection is compelled by theFourth Amendment prohibition of"unreasonable" searches and seizures.The government responds that thissearch is justified under the FourthAmendment warrant clause, since thereis ample showing of probable cause thatevidence of a crime will be discovered,and the warrant describes the evidenceto be seized with all the particularitypossible under the circumstances. Whilethe petitioner offers apocalyptic visionsdrawn from the futuristic novels read byevery college sophomore a generationago, he can offer no controlling prece-dent to justify a holding that any expec-tation of privacy is totally immune fromgovernmental intrusion under the FourthAmendment.

The Fourth Amendment prohibitsonly "unreasonable" searches, and theonly time this Court has even found anysearch conducted in compliance with thewarrant clause's requirements of proba-ble cause and particularity to be unrea-sonable was in Gouled v. United States,255 U.S. 298 (1921), and its progeny.There the seizure of papers from a sus-pect pursuant to a warrant was invali-dated because the government had noproprietary interest in the papers apartfrom their evidentiary value. This "mereevidence" rule, which precluded theissuance of a search warrant for anyitems other than fruits and instrumen-talities of a crime or contraband, wasoverruled by this Court in Warden v.Hayden, 387 U.S. 294 (1967), and wehave no interest in resuscitating its dis-credited doctrine. Significantly, theGouled rule was clearly premised onconcepts of the protection of propertyinterests, not privacy. 255 U.S. at 309.Moreover, the Gouled Court specificallyrecognized that a search pursuant to avalid warrant could not be unreasonable:"... .searches and seizures made under[warrants] are to be regarded as notunreasonable, and therefore not pro-hibited by the amendment. Searches andseizures are as constitutional under theamendment when made under validsearch warrants as they are unconstitu-tional, because unreasonable, whenmade without them-the permission ofthe amendment has the same constitu-tional warrant as the prohibition has, andthe definition of the former restrains thescope of the latter." 255 U.S. at 308.

The warrant issued here, to permit the

88 American Bar Association Journal

seizure of petitioner's thoughts, meetsall of the constitutional requisites for avalid warrant. Probable cause is prac-tically conceded. The particularity of thedescription of the evidence to be seizedis no less detailed than that contained inwiretap warrants we have upheld for theinterception and seizure of telephoneconversations. Scott v. United States,436 U.S. 128 (1978). The intrusion per-mitted here closely parallels the seizureof oral communications allowed by wire-tapping and eavesdropping warrants.The words being seized in that contextare simply the physical embodiment ofthoughts in a different form. The factthat their seizure here requires a pain-less process of extraction from the brainis of no constitutional significance.

The petitioner urges an analogy to acase in which the Fourth Amendmentwas held to preclude surgical removal ofa bullet from the defendant's body. Leev. Winston, 717 F.2d 888 (4th Cir. 1983).That decision did not accord absoluteprotection against surgical intrusions in-

The fact thatseizure requiresa painless processof extraction fromthe brain is of noconstitutionalsignificance.

to the body of the accused, however.The court emphasized the physical risksof general anesthesia, rather than thethreat to any privacy interest of theaccused, in holding that the surgery pro-posed there would be an unreasonablesearch. The intrusion proposed heremore closely resembles the extraction ofblood from a suspect's gastrointestinaltract. These procedures have been per-mitted pursuant to warrants based on a"clear indication" that evidence wouldbe uncovered. Schmerber v. California,384 U.S. 757 (1966); United States v.Couch, 688 F.2d 599 (9th Cir. 1982).

The petitioner also suggests thatuncommunicated human thoughtsshould be accorded absolute protectionfor "freedom of thought" under the FirstAmendment. The First Amendment,however, is not designed to protect"freedom of thought," but freedom to

communicate. As Justice Whiteobserved in Wolff v. McDonnell, 418U.S. 539, 576 (1974), "freedom from cen-sorship is not equivalent to freedomfrom inspection or perusal." The war-rant issued here impinges the latter, notthe former. Even if First Amendmentinterests were at stake, that would notelevate the petitioner's thoughts to abso-lute immunity from search. As thisCourt noted in Zurcher v. StanfordDaily, 436 U.S. 547, 565 (1978), "theprior cases do no more than insist thatthe courts apply the warrant require-ments with particular exactitude whenFirst Amendment interests would be en-dangered by the search."

Finally, the petitioner comparesuncommunicated thoughts to the mus-ings of a private diary, suggesting thatpersonal diaries are immune from sei-zure under the Fourth Amendment. Weknow of no case recognizing such immu-nity. To the contrary, courts have consis-tently permitted the seizure and use inevidence of private diaries, when a suffi-cient nexus to criminal activity has beenestablished. DiGuiseppe v. Ward, 698F.2d 602 (2d Cir. 1983); California v.Miller, 131 Cal.Rptr. 863 (1976). We arenot unsympathetic to the suggestion ofcommentators that private papers areentitled to greater Fourth Amendmentprotection than ordinary evidence. SeeMcKenna, "The Constitutional Protec-tion of Private Papers: The Role of aHierarchical Fourth Amendment," 53Indiana Law Journal 55 (1978). Perhapsuncommunicated thoughts should beplaced at the pinnacle of such a hier-archy. But nothing within the FourthAmendment supports protection whichis absolute. Commentators have alsosuggested that the gravity of the offenseis a relevant consideration in determin-ing whether a particular governmentalintrusion is acceptable. "Surely there isa valid distinction between society'sinterest in obtaining evidence relating toa conspiracy to assassinate the presidentof the United States and its interest inobtaining evidence concerning a simpletrespass." Comment, "The Search andSeizure of Private Papers: Fourth andFifth Amendment Considerations," 6Loyola of Los Angeles Law Review 274,304-05 (1973). We can leave for anotherday the question of whether a showingof ordinary probable cause of an ordi-nary offense would justify the extraordi-nary intrusion permitted by this warrant.In this case, we have no difficulty con-cluding that the warrant is valid, andtherefore, the search it permits is rea-sonable.

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Justice VERITAS, dissenting:Even in the frightening world of

"Thought Police" conjured by GeorgeOrwell, "With all their cleverness, theyhad never mastered the secret of findingout what another human being wasthinking." Orwell, 1984, page 138 (NewAmerican Library, 1983). That secret hasnow been mastered, and this Court isfinally presented with the profoundquestion predicted by Justice Brandeisin Olmstead v. United States, 277 U.S.438, 474 (1928): "Advances in the psy-chic and related sciences may bringmeans of exploring unexpressed beliefs,thoughts and emotions. . . . To LordCamden a far slighter intrusion seemed'subversive of all the comforts ofsociety.' Can it be that the Constitutionaffords no protection against such invas-ions of individual security?" The major-ity finds a "relative" answer for thatquestion in the "warrant clause" of theFourth Amendment: such invasions ofpersonal security must be "balanced"against the need for the security of thestate. I believe the "reasonablenessclause" of the Fourth Amendmentprovides an absolute answer: the invas-ion of personal security which the war-rant in this case authorizes isunreasonable per se. If we truly seek themeaning the Fourth Amendment musthave in the "brave new world" of 21stcentury America, we will find it in the

precedents of the 17th, 18th and 19thcenturies, not in those of the past 25years. What Justice Brennan said of theFifth Amendment is equally true of theFourth: "History and principle, not themechanical application of its wording,have been the life of the amendment."Fisher v. United States, 425 U.S. 391, 417(Brennan, J., concurring).

The history of the common lawreveals a consistent struggle to createsome impenetrable barriers to govern-mental intrusion, to protect the privacyeven of thought which might be deemeda threat to the security of the state.

In 1683 Algernon Sidney was con-demned to death for treason, for daringto write that kings who break their trustmay be called to account by the peoplethrough their Parliament. The papers inwhich this writing appeared had beenseized from Sidney's bedroom pursuantto a warrant. In pleading his own casebefore Lord Chief Justice Jeffreys, wholater achieved infamy for the "BloodyAssizes," Algernon Sidney raised thesame objection to that warrant which israised by the petitioner in this case.

Col. Sidney, "Then, my Lord, I think'tis a Right of Mankind, and 'tis exer-cised by all studious men, that theywrite in their own Closets what theyplease for their Memory, and no man canbe answerable for it, unless they publishit."

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Lord Chief Justice, "Pray don't goaway with that right of mankind, that itis lawful for me to write what I will inmy own Closet, unless I publish it; Ihave been told, Curse not the King, notin thy thoughts, not in thy Bed-Cham-ber, the Birds of the air will carry it. Itook it to be the duty of mankind toobserve that."

Col. Sidney, "I have lived under theInquisition .. "

Lord Chief Justice, "God be thanked,we are governed by Law."

Col. Sidney, "I have lived under theInquisition, and there is no man in Spaincan be tryed for Heresie ... "

Mr. Justice Withins, "Draw no Presi-dents from the Inquisition here, Ibeseech you Sir."

Lord Chief Justice, "We must notendure men to talk, that by the right ofnature, every man may contrive mischiefin his own Chamber, and he is not to bepunished, till he thinks fit to be called toit."

(The Arraignment, Tryal & Con-demnation of Algernon Sidney, Esq.,pages 34-35, London, 1684).

Fifteen years after Sidney was drawnupon a hurdle to Tyburn Hill to behanged, drawn, quartered and beheaded,his "treasonous" papers were publishedas Discourses Concerning Government,a treatise which inspired the Americancolonists who led a revolution againstanother English king a century later.

The American colonists also drewinspiration from the prosecution ofanother English dissenter whose case,80 years later, ended more happily. OnApril 22, 1763, a newspaper called TheNorth Briton appeared on the streets ofLondon, labeling the King's ministers"tools of despotism and corruption" andaccusing King George III himself ofcomplicity in dishonest negotiations forthe recently concluded Treaty of Paris.The secretary issued a warrant com-manding four officers: "to make strickand diligent search for the authors,printers and publishers of a seditiousand treasonable paper entitled the NorthBriton Numb. 45, Saturday, April 22,1763, printed for G. Kearsly in Ludgate-Street, London, and them, or any ofthem having found, to apprehend orseize together with their papers, and tobring in safe custody before me, to beexamined concerning the premises andfurther dealt with according to law."

In execution of this warrant, houseswere entered, blacksmiths were called into break open locked bureaus, pa ,erswere seized, and nearly 50 suspects

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In 1683 Algernon Sidney wascondemned to death for treason fordaring to write that kings who breaktheir trust may be called to account bythe people.

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were rounded up. Among them wasJohn Wilkes, a rakish member of Parlia-ment who used his prosecution to rallyopposition to the government. Wilkes'prosecutor was the earl of Sandwich,later immortalized for lending hisappellation to both Hawaii and ham onrye. Sandwich taunted Wilkes, saying hewould die "either of the pox or on thegallows." Wilkes responded, "Thatdepends, my lord, whether I embraceyour mistress or your principles." Aftergaining his release on a claim of parlia-mentary privilege, Wilkes brought suitagainst the secretary of state for tres-pass. The government spared noexpense in defending its action, spend-ing the enormous sum of £ 100,000 on itslegal defense. Wilkes won a judgment of£4,000 when the warrant was declaredinvalid because none of the suspects wasnamed. Wilkes became London's idol,and its lord mayor as well.

Soon after the decision in Wilkes'case, the English courts were presentedwith the case of another political pam-phleteer, John Entick. Entick had beennamed in the warrant under which hispapers were seized, though. Thus, thequestion of the validity of any warrantpurporting to justify the seizure of pri-vate papers was directly presented. Theanswer, provided by Lord Chief JusticeCamden, was a resounding restatementof the sentiments expressed by AlgernonSidney a century before: "If this pointshould be determined in favor of juris-diction, the secret cabinets and bureausof every subject in this kingdom will bethrown open to the search and inspec-tion of a messenger, whenever the secre-tary of state shall see fit to charge, oreven to suspect, a person to be theauthor, printer or publisher of a sedi-tious libel.... To enter a man's house,by virtue of a nameless warrant, in orderto procure evidence, is worse than theSpanish Inquisition-a law under whichno Englishman would wish to live anhour." Entick v. Carrington, 19 How.State Tr. 1030.

Wilkes' cause was also championed inParliament by William Pitt, a boyhoodfriend of Lord Chief Justice Camden.The parliamentary debate producedPitt's eloquent and oft-quoted defense ofthe constitutional right of privacy: "Thepoorest man may, in his cottage, biddefiance to all the forces of the Crown.It may be frail, its roof may shake; thewind may blow through it; the stormmay enter; the rain may enter; but theking of England may not enter; all hisforce dares not cross the threshold ofthe mined tenement."

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These events were widely reported inthe American colonies and achieved tre-mendous symbolic importance. Wilkes,Pitt and Lord Camden, who later servedas lord chancellor, were among the loud-est critics of the colonial policies whichled to the American Revolution. Theirheroism was memorialized in the namesof colonial cities and towns. Camden,N.J., Pittsburgh, Pa., and Wilkes-Barre,Pa., are modern reminders of this coura-geous trio. Their attacks on the use ofwarrants to seize private papers wereremembered when the former colonistsfashioned a Bill of Rights. Those whodrafted the Fourth Amendment in 1791"... vibrated in sympathy with the newlibertarian trends in England. Coloniallawyers would naturally turn to thespeeches of Pitt and the opinions ofMansfield and Camden-especially ofthe latter, whose pro-colonial speecheshad won him high place in the hearts ofAmerican patriots-for eloquent exposi-tion of English liberties and weightyexamination of the common law ofsearches and warrants." T. Taylor, TwoStudies in Constitutional Interpreta-tion, page 38 (1969).

Thomas Jefferson kept a complete setof the "State Trials" in his personallibrary, so he was well-acquainted withthe proceedings against Sydney, Wilkesand Entick. Catalogue of the Library ofThomas Jefferson, Vol. 5, page 296.

This history breathes life into the com-

mand of the Fourth Amendment that"the right of the people to be secure intheir persons, houses, papers and effects,against unreasonable searches and sei-zures, shall not be violated." As themajority reads these words, they addabsolutely nothing to the warrant clause.They can only serve to detract from thewarrant clause, by allowing warrantlesssearches which are "reasonable." Yetthe history of the Fourth Amendmentconvincingly demonstrates that the "rea-sonableness clause" was added becausethe warrant clause alone was deemedinsufficient protection against the exces-ses of governmental intrusion. Lasson,The History and Development of theFourth Amendment to the UnitedStates Constitution, page 103 (1937);Warden v. Hayden, 387 U.S. 294, 316-17(1967) (Douglas, J., dissenting).

When the question whether thW-Fourth Amendment erected any abso-lute barriers to governmental intrusionwas finally presented to this Court, thejustices quite naturally looked to"events which took place in England"and were "fresh in the memory of thosewho achieved our independence" toascertain the meaning of the terms"unreasonable searches and seizures."In Boyd v. United States, 116 U.S. 616,530 (1885), Mr. Justice Bradley quotedLord Camden's opinion in Entick v. Car-rington at great length, then summed upits meaning in words which once again

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echoed the "right of mankind" assertedby Algernon Sidney: "The principleslaid down in the opinion affect the veryessence of constitutional liberty andsecurity. They reach farther than theconcrete form of the case then beforethe court, with its adventitious circum-stances; they apply to all invasions, onthe part of the government and itsemployees, of the sanctity of a man'shome and the privacies of life. It is notthe breaking of his doors and the rum-maging of his drawers that constitutesthe essence of the offense; but it is theinvasion of his indefeasible right of per-sonal security, personal liberty and pri-vate property, where that right has neverbeen forfeited by his conviction of somepublic offense; it is the invasion of thissacred right which underlies and con-stitutes the essence of Lord Camden'sjudgment. Breaking into a house andopening boxes and drawers are circum-stances of aggravation; but any forcibleand compulsory extortion of a man'sown testimony or of his private papersto be used as evidence to convict him ofcrime or to forfeit his goods is within thecondemnation of that judgment. In thisregard, the Fourth and Fifth Amend-ments run almost into each other."

Justice Bradley's opinion was praisedas a landmark to be remembered "aslong as civil liberty lives in the UnitedStates," (Brandeis, J., dissenting inOlmstead v. United States, 277 U.S.438, 474 (1928)), and condemned as"dangerous heresy" and "radical fal-lacy." (8 Wigmore, Evidence § 2264 (3ded. 1940).) The barrier he erected wasmuch too broad and has since beenlargely dismantled. Fisher v. UnitedStates, 425 U.S. 391, 407-09 (1976). Butthe basic principle he espoused was anaccurate reflection of one of the highestaspirations of the common law: to pro-tect a private inner sanctum of individualfeeling and thought which cannot bepenetrated by the government.

What is at stake in this case is the lastremnant of that barrier, a sanctuary"where the law can never reach." War-den v. Hayden, 387 U.S. 294, 321 (1967)(Douglas, J., dissenting). Its preserva-tion does not require the resuscitation ofBoyd's discredited "mere evidence"doctrine, which required the govern-ment to establish a "property" interest inthe items to be seized under a warrant.In discarding this doctrine in 1967, weleft open the question whether the verynature of "testimonial" or "commu-nicative" evidence may preclude it frombeing the object of a reasonable searchand seizure.

The majority concludes Ihat ilie quc-tion reserved in Warden v. iIaden %%aanswered in Andresen v. Marvland. 427U.S. 463 (1976), when we rejected anargument that seizure of business rec-ords from the defendant's offices couldbe opposed on self-incriminationgrounds. Andresen addressed FifthAmendment concerns which are not rel-evant here. What is objectionable withthe warrant in this case is not that thepetitioner is being compelled to divulgehis thoughts. What is objectionable isthe government's intrusion into thosethoughts at all, even with a warrant.

Once we abandoned any role for theFifth Amendment privilege against self-incrimination as an absolute protection-ofprivacy interests, Fisher v. UnitedStates, 425 U.S. 391 at 401 (1976), wewere left with the "reasonableness"clause of the Fourth Amendment as theonly means of defining the limits of gov-ernmental intrusiveness. The majorityhas now eschewed any independent sig-nificance for that clause, in effect hold-ing that all searches conducted pursuantto a valid warrant are, ipso facto, rea-sonable. That relegates the privacy ofour thoughts to "relative" protection,depending upon how convincing thegovernmental need for the intrusionmight be.

By purporting to "balance" the inter-est of the individual in the privacy of histhoughts against the interest of the statein effective law enforcement, the major-ity has stacked the scales. How can theintangible benefits of untrammeledthought, even thought which contem-plates the destruction of society, be mea-sured against the concrete cost imposedby the escape of those who have strucka mortal blow against the fabric of oursociety? While the majority purports tolimit the breadth of their holding by theprospect that the balance may be struckin favor of the privacy of individualthought in future cases, with lessegregious facts, history offers little rea-son to hope that this prospect will everbe borne out. Only the recognition of asphere of absolute protection under theFourth Amendment will give recognition

V"Curse not the King, not in thythoughts, not in thy Bed-Chamber,the Birds of the air will carry it."

to the absolute value we ascribe to pri-vacy of thought.

The cases in which the governmentseeks to intrude into this sphere willalways be "hard" cases. The case ofAlgernon Sidney was a "hard" case. Sowere the cases of John Wilkes and JohnEntick. A willingness to pay the price of"hard" cases will not be apparent, "...so long as Fourth Amendment holdingsmust find justification in their ability tomaximize protection of the 'innocent' ata minimum 'cost' to society. Hopefully,the demarcation of a sphere of absoluteprivilege as of right under the Fourthand Fifth amendments will, by redirect-ing attention to the human rights of theaccused, support efforts to providegreater protection for the similar valuesat stake in the non-privileged area."Note, "Formalism, Legal Realism, andConstitutionally Protected Privacy underthe Fourth and Fifth Amendments." 90Harv. L. Rev. 945, 991 (1977).

Right now, the "balancing scale" ofFourth Amendment protection remainsat sea, with no anchor. There is literallyno extreme beyond which governmentalintrusion is absolutely forbidden. Withthe privacy of human thought left to thewarrant clause of the Fourth Amend-ment for protection, we have come fullcircle in our Fourth Amendment odys-sey, back to the position espoused byLord Chief Justice Jeffreys in the trial ofAlgernon Sidney over three centuriesago, "Curse not the King, not in thythoughts, not in thy Bed-Chamber, theBirds of the air will carry it."

(Gerald F Uelmen is a professor atLoyola Law School in Los Angeles,where he was associate dean from1973-75.)

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