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The Fourth Amendment:

Property, the Right to Exclude, and Developing Technologies

Michael Dalton Rodriguez

GOV 679H

Undergraduate Honors Thesis

Department of Government

University of Texas at Austin

May 2011

____________________________________

H.W. Perry Jr., Ph.D.

Department of Government

Thesis Advisor

Dana Stauffer, Ph.D.

Department of Government

Thesis Advisor

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Table of Contents

Acknowledgements………………………………………………………………………………..2

Introduction: Privacy and the Fourth Amendment ……………………………………………….3

Part 1 - Historical Foundation of the Fourth Amendment: Original Intention………………….11

Chapter 1 - Early Sanctity of Home……………………………………………………………...14

Chapter 2 - Common Law Understanding……………………………………………………….17

Chapter 3 - Colonial Developments……………………………………………………………...25

Chapter 4 - State Constitutions: 1776-1787……………………………………………………...29

Chapter 5 - Drafting and Ratification……………………………………………………………36

Chapter 6 - Original Intention……………………………………………………………………40

Part 2 - Fourth Amendment Jurisprudence and the Right to Exclude…………………………...46

Chapter 1 - Early Court Interpretation: Liberal Construction and the Right to Exclude………...49

Chapter 2 - Constitutionally Protected Areas and Extreme Trespass Theory…………………...59

Chapter 3 - Reasonable Expectations of Privacy and a Return to Constitutionally Protected

Areas……………………………………………………………………………………………..78

Chapter 4 - A Critique of Katz and the Right to Exclude………………………………………..94

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Acknowledgements

“For this God is our God for ever and ever: he will be our guide even unto death.”

Psalm 48:13

I thank Professor Dana Stauffer for her patience and support during the early stages of

this thesis, and I hope that she and her family find great joy in their newly arrived

member. The reassurance and guidance of Professor H.W. Perry Jr. enabled me to

complete a project that at many times I thought I would not finish, and to him I offer the

deepest thanks. But most of all, I am grateful to my parents, whose loving guidance is the

greatest spring of God’s sustaining grace in my life.

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Introduction: Privacy and the Fourth Amendment

Does an individual have a reasonable expectation of privacy from government agents

entering his driveway in the dead of night and attaching a tracking device to the underside of his

vehicle? In the Ninth Circuit, the answer is a resounding no. This question emerged from the

recent case, US v. Juan Pineda-Moreno, concerning a driveway that even the Government

conceded was within the curtilage of Mr. Moreno’s home.1 The Circuit Court concluded that,

because a gate, fence, or so much as “No Trespass” signs did not surround the driveway, even a

small child could wander upon it, so Mr. Moreno had no reasonable expectation of privacy.

Imagining warrantless government agents sneaking around the home in the late hours of the

morning, Chief Judge Kozinski noted in his dissent that, “There is something creepy and un-

American about such clandestine and underhanded behavior.”2 Disregard for the traditional

privacy protections afforded the home is not the only worrying part of this opinion. 3

The case above also reveals a major concern in applying Fourth Amendment protections

to searches and seizures: the interaction between securing oneself from outside observance and

government protection against crime and violence. The police state of Oceania in Nineteen

Eighty-Four serves as an extreme metaphor for this concern. Orwell depicts a society that has

The Court

also held that the extended tracking of Mr. Moreno’s location with GPS over a four-month

period, as invasive and disconcerting as it might appear, was not a search under the Fourth

Amendment. God is no longer the sole omnipresent being in the universe; in the Ninth Circuit,

Uncle Sam is, too.

1 Curtilage is that property so closely associated with the home that it is given the same protections as the home itself. 2 US v. Juan Pineda-Moreno (2010) 3 “From the English legal tradition, the colonists inherited a special appreciation for the sanctity of their homes.” Robert M. Bloom, Searches, Seizures, and Warrants: A Reference Guide to the United States Constitution (2003).Westport, Praeger Publishers.

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yielded all privacy to secure itself from the Brotherhood, enemies of the governing Party and Big

Brother:

The telescreen [within his dwelling] received and transmitted simultaneously. Any sound that

Winston made, above the level of a very low whisper, would be picked up by it; moreover, so long

as he remained within the field of vision which the metal plaque commanded, he could be seen as

well as heard. There was of course no way of knowing whether you were being watched at any

given moment. How often, or on what system, the Thought Police plugged in on any individual

wire was guesswork. It was even conceivable that they watched everybody all the time. But at any

rate they could plug in your wire whenever they wanted to. You had to live—did live, from habit

that became instinct—in the assumption that every sound you made was overheard, and, except in

darkness, every moment scrutinized.4

The description reveals the demoralization that accompanies constant government surveillance

and the absence of any areas of protected seclusion, and the hardening of the human spirit

towards individual expression, bred from constant fear of retaliation by the general will.

It is important to step back and examine why we may consider arbitrary government

intrusion unreasonable at all, as there are likely some who find a society of complete openness

the best to ensuring security and the tranquility that accompanies it. Orwell’s portrait of Oceana

in Nineteen Eighty-Four demonstrates the harmful effects that a lack of privacy engenders in

society. Without a sphere of solitude in which to reflect, people not only lose their will to be

different out of fear of retaliation from the general will, but also live in an agitated state, as the

ability to relieve oneself of scorn and contempt is circumscribed by the very will that is the

object of one’s hate. While this example comes from a work of fiction, there is scientific

evidence that helps to substantiate these claims.

4 George Orwell, Nineteen Eighty-Four 4 (1949)

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Nature herself offers a defense of seclusion and privacy, as “ecological studies

demonstrating that overcrowding threatens survival… hold[] across a wide range of species,

supporting the contention that having the ability to separate, like food and water, is a necessity of

life.”5

Social customs of human beings also reveal the value of privacy to human existence.

Privacy supports groups by allowing for dissociation whenever we become annoyed with the

company of our fellows and mutually decide to separate.

It may seem farcical to consider privacy in an animal context when our concern is about

the value of privacy to human beings, but we share many survival instincts with our animal

brethren, such as the animal desire to procreate and the territorial spirit that female animals, like

most mothers, feel for their young. Since privacy is necessary to support large populations of

animals, it may be necessary to support large populations of human beings as well.

6 If this were impossible, society would

enter an agitated state much like the one described in Nineteen Eighty-Four. Privacy also

contributes to the social hierarchy, as “a mark of status is a heightened level of access control.”7

The workplace best demonstrates this, as lower employees may work in crowded cubicles while

managers lounge in their own offices, and by wealth, as the affluent are able to barricade their

homes from prying eyes while the less fortunate must to submit to the continuous stream of

headlights that roll through their room through unblocked windows. Lastly, “the very relation of

association and dissociation that comprises friendship, intimacy, and love is central to the notion

of privacy.”8

5 Adam D. Moore, Privacy Rights: Moral and Legal Foundations (2010). University Park, The Pennsylvania State University Press

One can imagine how different a conversation between two newlyweds would be if

they knew that also on the line, there was a government agent listening to every word they

6 Ibid. 7 Ibid. 8 Adam D. Moore, Privacy Rights: Moral and Legal Foundations 54 (2010). University Park, The Pennsylvania State University Press

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uttered with exacting scrutiny. Instead of expressing their true thoughts and feelings, they might

revert to platitudes out of embarrassment or of fear that their intimate conversation may be

broadcast to the world. These findings demonstrate that privacy is both valuable to humans and

necessary across cultures, and that while some may adapt to a lifestyle without solitude, society

could not survive without privacy.

We need privacy and autonomy as individuals and as a society. The Fourth Amendment

was a manifestation of this recognized need. Justice Brandeis describes the hope of the founding

generation in drafting the Fourth Amendment to end arbitrary government searches and seizures

in his dissent in Olmstead v. United States:

The makers of our Constitution undertook to secure conditions favorable to the pursuit of

happiness. They recognized the significance of man's spiritual nature, of his feelings, and of his

intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found

in material things. They sought 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 protect that right,

every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the

means employed, must be deemed a violation of the Fourth Amendment.9

While the Fourth Amendment helps to protect privacy that is fundamental to our existence, it

was not the product of an attempt to establish a general right of privacy against government.

The amendment developed through a long tradition focused on the ownership interest in

private property, and the legal authority of the owner to exclude others from the use of that

property. Society came to recognize and prohibit unreasonable intrusions into the use of private

property by the government power of search and seizure, from the specific abuses of King John

9 Olmstead v. United States, 277 U.S. 438 (1928)

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prohibited by Magna Charta, to the general prohibition against unreasonable searches and

seizures of the Fourth Amendment. This authority, the right to exclude, included the ability to

create a zone of privacy from the outside world, by excluding others from the use or possession

of property rightfully owned. While the amendment did not focus on the protection of privacy, it

allowed the individual to assert his privacy by excluding unreasonable government infringement

upon his lawful right to enjoy his property as he wished.

The earliest interpretations of the Fourth Amendment by the Supreme Court focused on

the home and private effects as protected items, relying on older property concepts from the

common law. As government incursions into the private lives of citizens grew through the

development of more sophisticated search and seizure technologies, the Court first applied the

amendment only to tangible constitutionally protected areas, but later expanded the exclusionary

right10

In the late 1960s, the Court moved away from a property-based application of the

amendment to one based upon privacy, hoping to increase the privacy protected by the

amendment. It focused less on property and more on the individual, making his expectation of

privacy the material fact in determining whether a search or seizure occurred under the

amendment. Rather than a conversation being a protected interest in its own right, the Court

evaluated whether the individual had a reasonable expectation of privacy in his conversing, and

whether society found that expectation legitimate. If both were answered in the affirmative, then

of tangible property to intangible interests, such as conversations. This interpretation

provided the amendment sustained force in modern times, while protecting the ability of the

property owner or possessor of the intangible interest to restrain government from intruding upon

his right of security against unreasonable searches and seizures.

10 This is not to be confused with the exclusionary rule of later Fourth Amendment jurisprudence. I mean only the right for the property owner to exclude unwanted intrusions by government upon the use and possession of his property when they are unreasonable.

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the conversation fell within Fourth Amendment protection. This is the Court’s current standard

when applying the Fourth Amendment.

However, the older property-based approach was better adapted to protecting privacy

from developing search and seizure technologies. The privacy approach is too manipulative,

allowing privacy to oscillate with changes in the members on the bench. Ironically, the libertine

Justices who hoped to expand Fourth Amendment protections of privacy through this shift

actually contributed to their contraction. Those who devoted themselves to liberty and who we

most trust to protect it, Justices Brennan, Douglas, and Brandeis, helped to develop the privacy

standard that has allowed for an erosion of traditional Fourth Amendment protection.

Under both approaches, the initial presumption is that warrantless searches are per se

unconstitutional, though we make exceptions to this general axiom.11 This is in line with the

“rule of liberal construction that always has been applied to provisions of the Constitution

safeguarding personal rights.”12

11 This is the axiom that the Supreme Court has adopted: warrantless searches “are per se unreasonable under the Fourth Amendment -- subject only to a few specifically established and well delineated exceptions.” Katz v. United States (1967)

From this liberal rule of interpretation, I draw my thesis. Courts

should use a broad interpretation of the Fourth Amendment to deal with developing technologies,

based upon the general purpose and hope of the framers of the Amendment. The home should

receive the privacy protections traditionally afforded it, and new technologies, such as GPS

tracking, should be subject to the same reasonableness considerations as older forms of

surveillance. The Court should use the original framework of the amendment, and apply the right

to exclude to both tangible and intangible interests, so long as the individual takes reasonable

steps to assert that right.

12 Olmstead v. United States, 277 U.S. 438 (1928) (J. Butler, dissenting.)

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The first part of the thesis moves chronologically through the development of the Fourth

Amendment and evaluates the intentions of the framers in drafting the amendment. These

chapters examine the motivations that led to the Fourth Amendment and the hope that it was

meant to accomplish. The framework they adopted, with its intention to protect the use and

ownership of tangible private property from government interference, should guide the

application of the Fourth Amendment to searches and seizures today. The home is the primary

property interest the Fourth Amendment seeks to protect, and accordingly warrantless searches

and seizures that occur there should be unconstitutional, except for the most exacting of

circumstances. The Court should extend the protected objects of the amendment to intangible

interests, so long as the individual demonstrates reasonable action on his part to exclude the

government from infringing on its use and possession.

The second part reviews the subsequent development of Fourth Amendment doctrine

governing developing technologies. I evaluate Fourth Amendment jurisprudence throughout

three different eras of Court interpretation, the Boyd era, the Olmstead era, and the Katz era.

From this discussion, I comment on the current privacy test that dominates Fourth Amendment

analysis today, and offer my own formulation on the proper application of the amendment to

developing search and seizure technologies. I discuss the problems of my test, and evaluate their

potential effects, concluding that my test offers better protection against the erosion of traditional

Fourth Amendment protections by developing technologies than the current privacy standard.

Overall, I want the reader to come away from this thesis with the respect for private

property that the framers wished to provide within the Fourth Amendment. The home has

traditionally been held as a sacrosanct refuge from the outside world, and I wish the reader to

gain an appreciation for this tradition. Though we agree to cede certain rights to the State in the

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name of security and protection, the right to seclusion, to an area of constitutionally protected

solitude, is at the bedrock of our free society and accordingly deserves zealous protection.

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PART 1

Historical Foundation of the Fourth Amendment: Original Intention

Thesis: Based on property concepts and the result of several centuries of development, the right

to exclude was the intended form of Fourth Amendment protection.

The general warrant was the defining representation of what the colonists saw as the arbitrary

abuse of their private property, and accordingly, the Bill of Rights directly prohibited it, as part

of the fundamental constitution of government. However, searches and seizures conducted under

the indemnification of the general warrant were not the only means of search and seizure

considered unreasonable: under the common law warrantless searches and seizures occurred and

were able to serve as a means of arbitrarily abridging the privacy of the individual, along with

disdain for nocturnal searches and the unannounced entry of the home. Altogether, the Fourth

Amendment established a prohibition against unreasonable search or seizure in the constitution

of government, clearly specifying the warrant procedure to curb the arbitrary practice of general

warrants that had engendered the scorn of public opinion, and incorporating the traditional

understanding of what constituted an unreasonable search or seizure. This tradition was subject

to expansion in later years, and meant to curb arbitrary police action. Most important to this

tradition was the sanctity of the home, due to the cherished privacy it sheltered and nurtured. I do

not advocate an originalist application of the Fourth Amendment, but do find it necessary to

maintain its traditional framework. The amendment protects items from unreasonable searches

and seizures, and applies regardless of the motivations for its use. Though the amendment

purported to tangible property, the Court may vest intangible interests with the right to exclude.

This preserves the amendment’s intended protection. Any information gathered from within the

home by a technology that otherwise was not knowable without entry is an intrusion, equitable to

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forcible entry, and the fourth amendment should apply the same standard to the action. New

forms of surveillance should be subject to the same reasonableness considerations as older

technologies.

13

He was holding the lamp high up, so as to illumine the whole

room, and in the warm dim light the place looked curiously

inviting. The thought flitted through Winston’s mind that it would

probably be quite easy to rent the room for a few dollars a week, if

he dared to take the risk. It was a wild, impossible notion, to be

abandoned as soon as thought of; but the room had awakened in

him a sort of nostalgia, a sort of ancestral memory. It seemed to

him that he knew exactly what it felt like to sit in a room like this,

in an armchair beside an open fire with your feet in the fender and

a kettle on the hob, utterly alone, utterly secure, with nobody

watching you, no voice pursuing you, no sound except the singing

of the kettle and the friendly ticking of the clock.13

—George Orwell

13 Orwell, George. 96 (1949) Nineteen Eighty-Four. New York: Harcourt, Brace & World, Inc.

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Chapter 1

Early Sanctity of Home

The maxim “a man’s house is his castle” became a defining representation of the many

arbitrary claims of Great Britain in dealing with the American colonies in the decades leading to

the American Revolution. Many in the colonies felt their right to enjoy the privacy of their

homes from governmental intrusion eroded from the similar protection in England. The various

excise and trade laws that authorized agents of the Crown to enter into colonial homes upon mere

suspicion and break open locks, chests, and other private cabinets without the neutral judicial

oversight of a magistrate led to this conclusion. The colonial tradition of reverence for the home

was not novel, but the extension of a similar regard found in the mother country herself, a

tradition reaching back to at least the early fourteenth century.14 However, these traditions were

not the first to regard the home as a sacred place of refuge. Many ancient civilizations revered

the home not just because of the privacy it provided from unwanted intrusion, but also because it

formed the foundation of the family, binding together the dominant social group of society.15

The legal codes of many ancient societies evince a clear reverence for the home, and a

clear respect for the right of the owner to exclude others from his sacred confines. The sovereign

often punished burglars with death or held those who slew them blameless.

16

14 Cuddihy, William J. lxi (2009) The Fourth Amendment: Origins and Original Meaning 602-1791. New York, New York: Oxford University Press.

The Bible offers

several examples of Jewish custom barring unwanted intrusions into the home, even on behalf of

official authority, such as the story of Joshua and Achan. Though God revealed to Joshua

Achan’s sin, Joshua waited until Achan confessed to his act and the location of the prohibited

15 Gilson, Etienne. Foreword to City of God 15 (1958). New York, New York: Doubleday 16 Cuddihy, William J. lx (2009) The Fourth Amendment: Origins and Original Meaning 602-1791. New York, New York: Doubleday. For discussion and examples, see Footnote 3 on page lx, discussing the legal codes of Eshnunna, Babylon, The Bible and the Jewish Law, Ancient Greece, and the Burgundian Code.

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items within his tent before sending messengers to perform a search and seize them. 17 Such

respect for the home was a time-honored principle, disallowing entry into the home of another

without express permission.18

The Romans held similar principles as matter of law; religious institutions of society

enshrined the home as a sacred place of worship of the family Gods. The bond of unity between

ancient Roman families was the worship of the “sacred fire”, the hearth, the connection between

the living members and the dead ancestors. Being the shelter of the hearth, society held the home

to be as sacred as our notions of churches today. It was within the home that families worshipped

the Gods, and within the home, that divine protection dwelled.

19 Roman criminal procedure

offered several protections to the defendant in requiring the accuser to “state the grounds of his

case and take oath that his claim was not vexatious or frivolous,” along with the condition that

probable cause exist for the complaint.20 If the accuser overcame these safeguards, Roman courts

had several writs at their disposal affording the accuser a large amount of discretion in his ability

to search for the evidence. However, the actual seizure of the documents being sought required

that the accuser seal the documents “in the presence of witnesses and within a certain time

deliver what he had taken to the court,” so as to prevent forgery.21

17 Lasson, Nelson B. 14-15 (1937) The History and Development of the Fourth Amendment. Baltimore, Maryland: The John Hopkins Press. Joshua 7:10-26. For further discussion see Footnote 1 on page 14, listing the treatment of Rachab by the King of Jericho earlier in the same book and of Lot’s treatment by the crowd at Sodom in Genesis.

The legal and cultural

practices of the Romans influenced later Anglo-Saxon law, such as the crime of hamscon, which

18 Lasson, Nelson B. 14 (1937) The History and Development of the Fourth Amendment. Baltimore, Maryland: The John Hopkins Press. Footnote 3 “Rosh, in the Hosen Mishpat, chap. 389, sec. 5.” 19 Gilson, Etienne. Foreword to City of God 15 (1958). New York, New York: Doubleday 20 Lasson, Nelson B. 15 -16 (1937) The History and Development of the Fourth Amendment. Baltimore, Maryland: The John Hopkins Press. 21 Lasson, Nelson B. 17 (1937) The History and Development of the Fourth Amendment. Baltimore, Maryland: The John Hopkins Press.

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imposed punishment upon those who forcibly entered into a man’s dwelling.22

No freeman shall be taken or imprisoned or disseised or outlawed or exiled or in any way

destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers

or by the law of the land.

Those looking to

establish a right against unreasonable searches and seizures often cited the 39th Article of Magna

Charta, which reads:

The article was not meant to establish a general right against unreasonable search or seizure, but

merely to address “certain definite power abuses by King John,”23 but does form the basis for the

due process clause of the Fifth Amendment. Over time, creative glosses of this and other

provisions of Magna Charta combined to form a “Talismanic symbol of freedom, subjecting all

authority, including the royal prerogative, to the rule of law.”24 Scholars differ in their

interpretations of the motives behind such glosses. Leonard Levy finds them to be a time-

honored practice of deliberately moving the law in a desired direction,25 while Nelson Lasson

finds them to be the accidental result of applying present understandings to past circumstances.26

Regardless of intentions, the glosses provided those unhappy with general search or seizure

power a means of decrying its use with the backing of the law, and helped to ignite the spark of

revolution in the colonies over writs of assistance and general warrants.

22 Lasson, Nelson B. 18-19 (1937) The History and Development of the Fourth Amendment. Baltimore, Maryland: The John Hopkins Press. 23 Ibid. 24 Levy, Leonard W. 151 (1999) Origins of the Bill of Rights. New Haven, Connecticut: Yale University Press. 25 Ibid. 26 Lasson, Nelson B. 20 (1937) The History and Development of the Fourth Amendment. Baltimore, Maryland: The John Hopkins Press.

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Chapter 2

Common Law Understanding

The Fourth Amendment was in part a response to two methods of British law granting

general search and seizure power to agents of the Crown: general warrants and writs of

assistance. Different in terms of procedure, these authorizations were similar in the unfettered

discretion they allowed government agents to search homes and seize property. Its aim was the

protection of property, and operated through the exclusionary right of the lawful possessor to

prohibit government from infringing upon its use and ownership. General warrants often

authorized officers to search suspected places without evidence of a fact committed, to seize

persons or property not named, or to proceed though the officer did not describe particularly the

offense and support it with evidence.27 Writs of Assistance were general writs granted to officers

by statute to carry out the purposes of search and seizure, usually for the regulation of trade and

the imposition of excise or custom duties. These writs allowed officers to exchange them with

other officers, required any people at hand to assist the acting officer, and were indefinite until

their expiration six months after the death of the monarch during whose reign a court authorized

them. From the first half of the fourteenth century until the end of the seventeenth century

legislation authorizing search and seizure granted a broad power of enforcement that placed little

oversight or limitation upon the actions taken by government agents. When this practice began to

change and popular opinion recognized such a liberal grant of discretion as inimical to the liberty

of the English people, parliamentary legislation and common law reforms came to cast serious

doubt on the legality of general warrants28

27 Virginia Declaration of Rights if May, 1776

.

28 Lasson, Nelson B. 23 (1937) The History and Development of the Fourth Amendment. Baltimore, Maryland: The John Hopkins Press.

18

The earliest manifestation of this resistance was public unrest that required on two

different occasions the withdrawal or repeal of excise legislation. The first occurred in 1733

when Parliament taxed wines and tobacco, not as a custom duty, but as a tax on home

consumption. Playing on the bills expansion of the items customs agents could search for and its

search and seizure provisions, the opposition party aroused popular opposition to the measure,

and the public knew it as the Excise Scheme before the government withdrew it from

consideration.29 The second occurred in 1763 with the cider tax, a commodity bringing virtually

everyone into contact with government agents in the procurement of this duty. Opposition came

from disturbances in cider counties where the government moved troops to restore peace,

petitions by London and many other counties against the enforcement of the bill, and filed

complaints in the House of Lords over the subjugation of cider growers to arbitrary searches, all

of which led to the repeal of the tax a few years later.30

In 1662, Parliament authorized the Licensing Act for the regulation of the press, allowing

the Secretary of State to issue general warrants to obtain evidence of seditious speech against the

government. This act expired in 1679 at Charles II’s refusal to summon Parliament, but the

Secretary of State continued to issue general warrants in prosecuting seditious libel. The

These two incidents show the growing

public discontent with the arbitrary general search power that Parliament often granted,

especially when considering that these were two of the farthest-reaching authorizations of power,

bringing almost all subjects within the jurisdiction of a general warrant or writ of assistance. As

the masses saw their homes subject to inconsiderate and invasive searches, a clear disregard of

the Crown of their right to exclude crown agents from their homes, they clamored to opposition,

as they never had before.

29 Lasson, Nelson B. 40 (1937) The History and Development of the Fourth Amendment. Baltimore, Maryland: The John Hopkins Press. 30 Ibid.

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“remarkable conclusion” of the twelve judges of England that to “write, print, or publish any

book, pamphlet, or other material was illegal without a license from the king” allowed for

government censorship of the press to continue past the life of the Licensing Act, and helped to

continue a practice lacking in substance.31 Of all those who fell victim to a general warrant

issued by the Secretary of State between the time of the demise of the Licensing Act and the

ascension of King George III to the throne in 1760, only one challenged the warrants validity.

The judge in the case refused to decide the question because he had no authority to order the

return of the papers seized.32

John Wilkes, a member or Parliament, became a hero of liberty on both sides of the

Atlantic after he successfully challenged the validity of the general warrant used to seize his

papers for charges of seditious libel. The resulting opinions composed the basis of the common

law doctrine on general warrants at the time of the American Revolution. Starting in 1762, he

wrote a series of pamphlets criticizing the government called the North Britain, and in Number

45 wrote a particularly scathing attack upon the recent King’s speech that prompted the

government to authorize a general warrant to find and arrest the perpetrator, and to seize his

papers. Lord Halifax, the Secretary of State, issued the warrant, which contained no specific

description of which places to search, or which persons or papers to seize. There was also no

way to record under oath probable cause for the issuance of the warrant because there was little

to swear to in the warrant. The arbitrary discretion granted to the four messengers was so great

that “they proceeded to arrest upon suspicion no less than forty-nine persons in three days, even

taking some from their beds in the middle of the night.” Wilkes refused to obey the warrant,

pronouncing it as “a ridiculous warrant against the whole English nation.” He was imprisoned,

31 Lasson, Nelson B. 37-38, 42 (1937) The History and Development of the Fourth Amendment. Baltimore, Maryland: The John Hopkins Press. 32 Ibid.

20

his house was broken into and the messengers seized all of his private papers. 33 Wilkes refused

to fall victim to such arbitrary power and quickly filed suit against every person connected to the

warrant. Encouraged by the example of Wilkes, many others who had been wrongly imprisoned

filed suit, resulting in dozens of suits for trespass and false imprisonment. Wilkes became so

popular that in the colonies “Wilkes and Liberty” became a rallying cry against the arbitrary

claims of Great Britain, filling “the columns of American newspapers from Boston to

Charleston.”34

Lord Chief Justice Pratt, in the first case of Huckle v. Money, found 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; it was a most daring

public attack upon the liberty of the subject.” Mr. Leech, a printer who having nothing to do with

the printing of Number 45 was held in custody for almost six hours, sued for damages and won a

judgment of three hundred pounds. Pratt, who on appeal maintained that “the small injury done

to the plaintiff,” did not outweigh the “great point of the law touching the liberty of the subject

appeared to them”, upheld this judgment. “They saw a magistrate over all the King’s subjects,

exercising arbitrary power, violating Magna Charta, and attempting to destroy the liberty of the

kingdom, by insisting upon the legality of this general warrant before them.” Pratt believed the

general warrant to be a violation of the 29th Article of Magna Charta, though its authors did not

intend the clause to receive such a broad interpretation. The case established the common law

doctrine that “crown officers are liable to damage suits for trespass and false imprisonment

33 Lasson, Nelson B. 44 (1937) The History and Development of the Fourth Amendment. Baltimore, Maryland: The John Hopkins Press. 34 Levy, Leonard W. 161 (1999) Origins of the Bill of Rights. New Haven, Connecticut: Yale University Press.

21

resulting from unlawful search,”35

In the case of Wilkes v. Wood, Wilkes received an award of damages of one thousand

pounds from the jury for trespass and false imprisonment, which Lord Chief Justice Pratt upheld.

In similar rhetoric, he decried “If such a power [to issue general warrants] is truly invested in a

Secretary of State, and he can delegate this power, it certainly may affect the person and property

of every man in this kingdom, and is totally subversive of the liberty of the subject.” Pratt then

declared “office precedents…are no justification of a practice in itself illegal” since the

authorization for the Secretary of State to issues such warrants had expired with the Licensing

Act, despite the opinions of the twelve judges of England after the act had expired. Also

important was the lack of recorded inventory about the papers taken, thereby leaving the plaintiff

with no way of verifying all of the papers seized.

a remedy of great importance for warrantless searches and

seizures today.

The decisions of Lord Chief Justice Pratt influenced the Court of King’s Bench, which in

the appeal of the Leach case, Money v. Leach, issued an opinion affirming the judgment of the

plaintiff. It did on the narrow ground that Mr. Leech was not a publisher of the North Britain

Number 45, and therefore the officers imprisoned him wrongly, since the warrant only

authorized the seizure of those who authored or published the pamphlet. However, Lord

Mansfield did express the court’s opinion on the validity of the warrant. “It is not fit, that the

receiving or judging of the information should be left to the discretion of the officer. The

magistrate ought to judge; and should give certain directions to the officer. This is so, upon

reason and convenience”. As the practice was inherently illegal, custom could not save it from

proper refutation. It is important to bear in mind that though Pratt and Mansfield thought the

issuance of general warrants illegal by the common law alone, Parliament was still able to enact 35 Levy, Leonard W. 161 (1999) Origins of the Bill of Rights. New Haven, Connecticut: Yale University Press.

22

statutory authorization for such warrants. Lord Mansfield clearly prefers magistrates to issue

warrants so that a neutral figure can evaluate the facts and determine the scope of the search

rather than a party not meant to be neutral, but instead actively seek out crime by the duty of his

office.36

The most important case arising from the John Wilkes affair was that of Entick v.

Carrington, which has been lauded by the United States Supreme Court as “one of the landmarks

of English liberty” and also as “welcomed and applauded by the lovers of liberty in the colonies,

as well as in the mother country.”

37

36 The United States Supreme Court uses requirement of judicial oversight to invalidate many instances of warrantless searches.

A few months before the publication of Number 45 Lord

Halifax had issued a general warrant to search for John Entick, the author of the Monitor or

British Freeholder, and to seize him and all of his private papers. The warrant described John

Entick as the person of the search, but did not describe which of his papers to seize. Though

Entick originally chose not to seek damages, the success of Wilkes and others in connection with

the Number 45 affair prompted him to file suit, in which the jury awarded him three hundred

pounds. Pratt, now Lord Camden, gave the opinion for the Court of Common Pleas affirming

judgment for the plaintiff. The court decided the case on narrow footing, but Camden, unlike

Mansfield in previous cases, was not satisfied with such a narrow result. Instead he addressed the

validity of the warrant issued, and while the person to be searched was named in this warrant

unlike in the warrants of previous cases, all of his papers were to be seized libelous or not, and

no inventory of the papers seized was taken. A warrant not specifying the papers to be seized

allows “[one’s] most valuable papers [to be] taken out of his possession, before the paper, for

which he is charged, is found to be criminal by any competent jurisdiction, and before he is

convicted of writing, publishing, or being concerned in the paper.” Such an arbitrary power

37 Boyd v. United States, 116 U.S. 616 (1886).

23

would severely curtail the liberty of the subject, allowing libelous and non-libelous writings to be

carried away alike no matter how intimate the latter might be. Most important was the effect

such a practice had on the private property rights of the English people: “The great end, for

which men entered into society, was to secure their property. That right is preserved sacred and

incommunicable in all instances, where it has not been taken away or abridged by some public

law for the good of the whole.” So long as the individual possessed lawful ownership of the

property, its security depended on the exclusionary ability of the owner to prevent government

interference in the use of that property. Besides these structural deficiencies, statutory authority

for the issuance of search warrants for libelous papers had expired with the Licensing Act in

1696. 38 Echoing previous opinions, Lord Camden argued that tradition was not enough to save a

practice illegal in itself. “It would be a strange doctrine to assert that all the people of this land

are bound to acknowledge that to be a universal law, which a few criminal booksellers have been

afraid to dispute.” The judges who had allowed general warrants for seditious libel under the

common law after the expiration of the Licensing Act were acting outside of their judicial

authority, and thereby all warrants that had been issued by the Secretary of State on the reliance

of their understanding were void. It was not long before the House of Commons vindicated the

opinion of the Court by declaring through resolutions all general warrants invalid except those

issued pursuant to statutory authorization from Parliament, and furthermore, that their use against

a member of the House was a breach of privilege. These declarations were a product of the

recent rulings from the Wilkes cases and growing public discontent with unreasonable searches

and seizures.39

38 Telford Taylor, 33 (1969) Two Studies in Constitutional Interpretation. Columbus, Ohio: Ohio State University Press.

William Pitt best expressed the maxim “a man’s house is his castle” in a speech

39 Lasson, Nelson B. 48 (1937) The History and Development of the Fourth Amendment. Baltimore, Maryland: The John Hopkins Press.

24

before Parliament urging for these measures to be passed: “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 force dares not cross the threshold of the ruined tenement.”

At the time of the American Revolution under the common law, a general warrant was

universally invalid unless issued pursuant to statutory authorization from Parliament, having

become an unreasonable method of search and seizure. Protecting the privacy of the home and

the thoughts found within through the exclusionary right inherent in the ownership of private

property against unwanted and arbitrary intrusions was deemed more important than the Crown

interest in seeking out and punishing first seditious speech, and later all crimes. Parliament’s

refusal to abandon altogether the use of general warrants reflected a problem that the Fourth

Amendment sought to correct, knowing that the federal government might deem the practice

appropriate in a future crisis.

25

Chapter 3

Colonial Developments

In the colonies, events spawned from the use of writs of assistance, the method of choice

to authorize officials of the Crown in the Massachusetts Bay province to perform a search or

seizure, led to a resentment against unreasonable searches and seizures that preceded the same

feeling in England. The colonists came to see their homes as having less protection than those of

their English brethren. Unlike the general warrants that dominated English search and seizure,

writs of assistance were general commissions that allowed for the performance of any search or

seizure upon mere suspicion with no virtual limit on the duration of authorization. Such an

infringement on the exclusionary right of private property was a grave affront to its security.

In writs of assistance, an arbitrary power greater than that found in general warrants made

them the greatest instruments of tyranny available to agents of the Crown. While not listed

directly in the grievances of the Declaration of Independence, the phrase “He has…sent hither

swarms of Officers to harrass our people, and eat out their substance” implicates writs of

assistance. The commissions of many of these officers was by a writ of assistance with a general

power of search and seizure, allowing them to enter into colonial homes upon mere suspicion

and pry into their most intimate areas in search of contraband or uncustomed goods. Writs of

assistance and general warrants were a leading grievance against Great Britain that led to

eventual revolution.

The Molasses Act of 1733 was one of many trade regulations enacted on the colonies by

the British government in the furtherance of its economic policies. It laid a duty upon the

importation of molasses from any location other than the British West Indies, hoping to channel

colonial commerce away from non-British West Indies sources. The northern colonies depended

26

upon the rum distilling industry, which needed large amounts of molasses for production. The

British West Indies was incapable of meeting the large demand from the colonies and trade with

French and Spanish islands who could became necessary for economic stability and growth.

Smuggling was a widespread and well-known occurrence on both sides of the Atlantic, but

Parliament continued to reenact the act every five years. The benefits the French received from

the trade was too great to allow it to continue after the Seven Years War had begun, and

Parliament ordered colonial custom agents to bolster execution of trade regulations. Because

stopping the illicit trade would result in economic disaster for the northern colonies, smuggling

once overlooked or ignored by customs agents and members of Parliament “became smuggling

in a very real sense.” In the province of Massachusetts Bay, the primary means of authorizing

custom agents to enforce the act was with writs of assistance. The Superior Court of

Massachusetts acting under the jurisdiction of the Court of Exchequer issued writs of assistance,

due to an extension of an act of Parliament of 1662 that enabled agents of the Crown in England

to receive writs of assistance from the Court of Exchequer to the colonies by an act of 1696.40

In February 1761, six months after the death of King George II, all writs of assistance

expired, leading to an event described by John Adams as “the first scene of opposition to the

arbitrary claims of Great Britain. Then and there the child Independence was born.” Charles

Paxton, a customs agent, went before the Superior Court seeking a new writ of assistance for the

performance of his duties. James Otis, Jr., who represented the sixty-three Boston merchants that

had sought to have a hearing on the issuance of new writs soon after the old had expired,

opposed him.

41

40 Levy, Leonard W. 157 (1999) Origins of the Bill of Rights. New Haven, Connecticut: Yale University Press.

Otis argued that the 1662 statute only authorized the issuance of specific

warrants as its 1660 predecessor had. Then he declared writs of assistance to be “the worst

41 Lasson, Nelson B. 57 (1937) The History and Development of the Fourth Amendment. Baltimore, Maryland: The John Hopkins Press.

27

instance of arbitrary power, the most destructive of English liberty, that ever was found in an

English law book.” If the statute had meant to authorize general warrants, then it violated the

Magna Charta, and by its incompatibility to the Constitution, was void. Such an argument failed

to sway Chief Justice Hutchinson and the Superior Court, but it did electrify those in the

audience and the larger American cause.

This first instance of skirmish between customs agents and colonial resentment against

their arbitrary general power of search and seizure foreshadowed the much larger conflict that

was to ensue. In response in 1762, the Massachusetts legislature passed a bill requiring evidence

stated under oath before the issuance of a writ, but the governor vetoed the bill. Soon after

colonials took to “rescuing” goods seized by customs agents, and sought to inhibit them from

carrying out their duties.42

Attorney General DeGrey of Great Britain recognized the apparent illegality of the writs

in the colonies due to the imprecise wording of past Parliamentary statutes. Charles Townshend,

the Chancellor of the Exchequer, was given free reign over colonial policy. DeGrey assisted him

in suggesting revenue bills to the House of Commons, and the House passed a statute that clearly

corrected the past problems with the issuance of the writs in the colonies. The court of issuance

became the high court of each colony, spreading the writ of assistance from its previous confines

of Massachusetts Bay and New Hampshire to all of the American colonies.

43 The legalization of

the writs of assistance did little to help the enforcement of customs duties as the “rescue” of

goods seized by their use continued in Massachusetts Bay and New Hampshire, and judges

refused to issue them in their traditional form elsewhere, if at all.44

42 Levy, Leonard W. 159 (1999) Origins of the Bill of Rights. New Haven, Connecticut: Yale University Press.

The writs issued differed

43 Ibid. 44 Lasson, Nelson B. 72 (1937) The History and Development of the Fourth Amendment. Baltimore, Maryland: The John Hopkins Press.

28

across the colonies, but all imposed limitations imposed upon the general and arbitrary search

power that the traditional writ provided. A preference for specific warrants over general warrants

emerged in American thought between 1761 and 1776, although American judges did not

brigade it with practice. Outside of Massachusetts Bay general warrants remained the

predominate means of authorizing search or seizure. “American rhetoric and reality diverged;”45

the general warrant was too convenient and efficient a tool to be so easily discarded by judges

throughout the colonies, and not until independence and the subsequent codification of basic

inalienable rights in the state constitutions did general warrants begin to fade from use.

45 Levy, Leonard W. 166 (1999) Origins of the Bill of Rights. New Haven, Connecticut: Yale University Press.

29

Chapter 4

State Constitutions: 1776-1787

After the newly sovereign American states declared their independence, they adopted

their own constitutions and established within them rights inalienable by government. Listed

among these rights in almost all of the states that chose to adopt such limitations upon state

power was a denunciation of the general search warrant. They sought to limit the ability of

government to infringe upon the use and ownership of private property. While the long

experience with general warrants and the unreasonable power of search and seizure they

provided led to a deep hatred of their use by the British, the states, freed from the tyrannical yoke

of Great Britain, were not as ready to prohibit outright their use by their own legislatures. Even

in those states that did prohibit general warrants, they sometimes still issued under legislative

enactments. The fourth amendment later sought to cure not just the past abuses of Great Britain,

but the recent abuses of the state governments as well.

The State provisions against general warrants represent American thinking on search and

seizure at the beginning of the revolution. For Madison and the others who helped to author the

fourth amendment, they provided drafting guides and had already set out important prohibitions

to be included in the later federal provision. As with the Constitution, the fourth amendment was

a culmination of American experience with past practice that required rectification and new

experimentation.

When the Virginia legislature first drafted the Declaration of Rights, not all members

thought a search and seizure provision necessary. George Mason and Thomas Jefferson both left

30

such a provision out of their original drafts of the state constitution.46

X. THAT general warrants, whereby an officer or messenger may be commanded to search

suspected places without evidence of a fact committed, or to seize any person or persons not

named, or whose offense is not particularly described and supported by evidence, are grievous and

oppressive, and ought not to be granted.

The condemnation that was

included reads:

As the first such provision in all of the state constitutions, the Virginia legislature made

significant progress in moving towards the demise of the general warrant. Many of the

deficiencies of general warrants received correction: evidence was required before conducting a

search of a suspected place, the official had to name the person he was to seize, and the official

had to particularly describe the offense committed and support it with evidence. However, the

provision failed to address all of the pitfalls of general warrants: the officer was not required to

name the property he was to seize, and there was no requirement that the officer connect the

location of the search to the crime committed.47

The Pennsylvania search and seizure provision in its Declaration of Rights, which

Vermont copied, made significant progress over the Virginia provision, which it drew from in

part. The text reads as follows:

The most glaring deficiency was that general

warrants received no prohibition at all, but merely a stern disapproval, leaving the legislature the

ability to enable their use. North Carolina copied the Virginia provision.

X. That the people have a right to hold themselves, their houses, papers, and possessions free from

search or seizure; and therefore warrants without oaths or affirmations first made, affording a

sufficient foundation for them, and whereby any officer or messenger may be commanded or

required to search suspected places, or to seize any person or persons, his or their property, not

particularly described, are contrary to that right, and ought not to be granted. 46 Levy, Leonard W. 169 (1999) The Origins of the Bill of Rights. New Haven, Connecticut: Yale University Press. 47 Ibid.

31

The amendment described a general right against search and seizure, the first legitimate use of

the concept in American constitutional thought. The same weak “ought” qualified the right, but

for this provision it was likely necessary as the legislature had no desire to eliminate all search

and seizure without warrant issued in the proper form. Warrantless searches were a long-time

practice allowed under the common law in specific circumstances, and too important for

elimination. The requirement of oath of affirmation of sufficient foundation for the warrant was

the first step towards the probable cause requirement of the fourth amendment, an important

safeguard for restricting the arbitrary discretion of search and seizure allowed under the general

warrant. Pennsylvania added property to the Virginia requirement that the officer include the

person he was to seize in the warrant. This improvement helped to prevent the seizure of

documents and personal items not a part of the crime committed, protecting the individual’s

privacy from government abuse.

The Delaware declaration on search and seizure digressed from its Pennsylvania guide,

though it contributed its own concept later included in the fourth amendment. It also drew from

the not yet passed Maryland search and seizure provision, to which it bears an almost identical

resemblance. Section 17 reads:

That all warrants without oath to search suspected places, or to seize any person or his property,

are grievous and oppressive; and all general warrants to search suspected places, or to apprehend

all persons suspected, without naming or describing the place or any person in special, are illegal

and ought not to be granted.

The legislature removed the general right against searches and seizures, and the requirement that

the officer particularly describe the property he would seize. The novel concept, at least by past

state constitutions, was the declaration that warrants that did not meet the listed requirements of

the provision were illegal, though not necessarily void. The word “ought” again appeared to

32

qualify the section’s application, though noting the illegality of general warrants was important

in establishing their inconsistency with the fundamental constitution of government.

In 1780 Massachusetts adopted the provision closest to the fourth amendment in text, and

thereby the most important for understanding the meaning behind its later brother. Article XIV

reads:

Every subject has a right to be secure from all unreasonable searches and seizures, of his person,

his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if

the cause or foundation of them be not previously supported by oath or affirmation; and if the

order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more

suspected persons, or to seize their property, be not accompanied with a special designation of the

persons or objects of search, arrest, or seizure: And no warrant ought to be issued, but in cases,

and with the formalities, prescribed by the laws.

The provision is the most detailed of all the rights listed in the Massachusetts constitution.48

48 Levy, Leonard W. 171 (1999) The Origins of the Bill of Rights. New Haven, Connecticut: Yale University Press.

John

Adams, the author of the article, attended the famous Writs of Assistance case in 1761, and was

familiar with the arguments of James Otis against writs of assistance that had inflamed the

American cause. The lasting influence of Otis likely made search and seizure of particular

importance to Adams. Though he strangely omitted the requirement that the officer describe the

places he would search, the “right to be secure from all unreasonable searches and seizures” that

he included was the biggest contribution to the later fourth amendment, setting out the basic

reason behind the prohibition against general warrants. The phrase set a standard for judging

whether a conducted search or seizure should be considered legal, that of reasonableness. It was

the first direct protection of the exclusionary right inherent in property as a means of limiting

arbitrary infringements on the use and ownership of private property.

33

Though most states had sought to discourage general warrants in their state constitutions,

all enacted their use during the war for independence not only as exigencies of war, but for

domestic purposes as well. The resentment to the British practice that helped to ferment the

revolution failed to constrain the state governments from using general warrants for their own

legislative aims. An incident in Pennsylvania became the most notorious example of such

sacrifice of principle for expediency. In 1777, fears of a British landing at the Chesapeake

prompted Congress, sitting in Philadelphia, to request the Pennsylvania executive council to

disarm a group of people suspect of being British spies and seize their political papers. The

council authorized the arrest of persons who had not taken a loyalty oath and the search of their

homes for their political papers. Officials arrested around forty people, deporting them to

Virginia without trial to an indefinite prison sentence, which lasted about a year. The officials

also seized their personal papers in their entirety. Throughout the ordeal, the council and

Congress refused to take action, each asking the other body to hold a hearing for the exiles, and

both claiming that the exigencies of war constrained them from so doing. The exiles remained in

Virginia, in accordance with the will of Congress, though their containment was contrary to the

state’s constitution and in violation of a writ of habeas corpus issued by the state chief justice.49

General warrants remained in use throughout the war, as their users thought, “enemies of

the revolution had no entitlement to [the] civil rights” of the state constitutions.

50 Despite being a

perceived necessity of war, five states continued their use of the general warrant after fighting

ceased. Maryland, the Carolinas, Georgia, and New York all continued the practice to enforce

impost laws based upon past practice.51

49 Levy, Leonard W. 172 (1999) The Origins of the Bill of Rights. New Haven, Connecticut: Yale University Press.

In the four states of New Hampshire, Connecticut,

50 Cuddihy, William J. 634 (2009) The Fourth Amendment: Origins and Original Meaning. New York, New York: Oxford University Press. 51 Levy, Leonard W. 172 (1999) The Origins of the Bill of Rights. New Haven, Connecticut: Yale University Press.

34

Pennsylvania, and Virginia, general warrants remained in use for similar purposes, but the

specific warrant came to occupy an equal preference in the time leading to the adoption of the

constitution. The case of Frisbie v. Butler from Connecticut was important in limiting the use of

the general warrant in that state, which had no constitution. A general warrant that declared “all

persons and places throughout the world to be searched” was “illegal and void.” The court did

not void multiple-specific warrants, warrants describing several places instead of a single home

or shop for an officer to search, but upheld them obiter dictum.52

Between 1782 and 1787, the general preference for general warrants reversed, helping

American idealism to overthrow the arbitrary practice that custom and expediency had sheltered

for so long. Also in this period, several other search and seizure practices besides general

warrants became illegal due to their unreasonable nature. Despite the affirmation of the use of

multiple-specific warrants in Connecticut in Frisbie v. Butler, other states moved to require that

the warrant list a single location and not several. Massachusetts and Rhode Island did so

gradually, while Delaware and Virginia did so instantaneously through legislative statute.

Importantly, these statutes required that the warrant specify the objects of search as well as the

The judge thought it “the duty

of a justice of the peace granting a search warrant to limit the search to such particular place or

places,” requiring a neutral figure detached from the passions of the investigation evaluate the

presence of probable cause. This case was important as a judicial push against unreasonable

searches and seizures, a mere continuation of the Pratt and Mansfield tradition in the states. The

remaining four states, Massachusetts, Rhode Island, New Jersey, and Delaware, came to prefer

the specific warrant to the general warrant as the dominant method of search and seizure in the

same period.

52 Cuddihy, William J. 659 (2009) The Fourth Amendment: Origins and Original Meaning. New York, New York: Oxford University Press.

35

location, extending the traditional protections of the home to “its outbuildings and the things that

they contained.”53 The unannounced search, in which an officer forced his way into the home to

perform a search without notifying the owner of his intentions, was limited in at least ten states

by statute, many of which only allowing it in cases of resistance.54 All of the states except

Delaware found searches at night to be unreasonable and enacted legislation prohibiting their

general use.55 Before the Fourth Amendment was drafted and ratified, “seven states had

foreclosed nocturnal searches to the federal government…and nine states permitted federal

searches only by warrant.”56

Four states also had prohibited the federal government from using

general warrants. The states limited federal means of search and seizure beyond what they

themselves permitted.

53 Cuddihy, William J. 660 (2009) The Fourth Amendment: Origins and Original Meaning. New York, New York: Oxford University Press. 54 Ibid. 55 Ibid. 56 Ibid.

36

Chapter 5

Drafting and Ratification

During the Constitutional Convention, the first proposal for the addition of a Bill of

Rights to the Constitution came a week before the body was to disband. The conventioneers

struck the proposal down, having worked through an extremely hot summer and being ready to

return home to families and associates. Richard Henry Lee produced his own version of a Bill of

Rights that he urged Congress to adopt ten days after the convention ended, with the following

provision on search and seizure: “the Citizens shall not be exposed to unreasonable searches,

seizures of their papers, houses, persons, or property.”57

Anti-federalists pointed to the Necessary and Proper Clause, noting the potential abuse

that it might receive absent additional constitutional limitations on the means available for use.

Their argument was given weight by Congress ability to lay imposts on goods, since the

traditional means of enforcing revenue bills was with the general warrant, and thought the states

His proposal was based upon the general

right from the search and seizure provision in the Massachusetts Constitution, and the broadest

on the subject. The measure met fierce opposition in Congress, led by James Madison, who

thought it would lead to an unacceptable situation. For Congress to pass the bill all thirteen states

would have to vote for it under the Articles of Confederation, though the Constitution only

required that nine state conventions ratify it for it to go into effect. Federalists argued that a Bill

of Rights was unnecessary since the federal government was to be of enumerated powers. It

would be unable to infringe upon the liberty of the people because listed in Article 1 Section 8

were the only powers it had at its discretion, and they were of a limited nature. They worried that

a Bill of Rights would expand the power of the federal government by setting out limitations on

powers that did not exist, but would later come into being through implication.

57 Levy, Leonard W. 173 (1999) The Origins of the Bill of Rights. New Haven, Connecticut: Yale University Press.

37

had limited the issuance of federal general warrants under the Articles of Confederation, the new

federal courts under the Constitution would be able to do so with authorization from Congress.

Thus, the arbitrary search practices of a far-away government became a dire threat for a second

time. Their argument also received credence by the inclusion of several individual rights against

the powers of the federal government in Article 1 Section 9, such as prohibitions against Bills of

Attainder and ex post facto laws, and the protection of the writ of habeas corpus absent

Congressional suspension. Anti-federalists argued that the inclusion of certain rights into the

Constitution showed that potential federal abuses of power were possible, and that while some

were already protection, a vast majority were not.

The Anti-federalists had a larger goal than just protecting individual rights from the new

federal government within the constitutional framework; they sought to defeat ratification of the

new Constitution by the states and to reconvene a second Constitutional Convention to rectify

the original problems of the Articles of Confederation without creating a novel system of

government. Playing upon public fears, they argued that without a Bill of Rights the new

government would be capable of the gravest abuses of individual liberty. Virginia first, and later

other states, adopted the Constitution on the understanding that the first Congress would submit a

Bill of Rights for state ratification soon after it convened. Five of the states that ratified did so

with recommendations for the first Congress to consider in drafting amendments.

James Madison proved genius in his response to Anti-federalist and Federalist opposition

alike. His original proposal placed the amendments throughout the text of the Constitution,

mostly in Article 1 Section 9 with the limitations upon Congressional power. Because it would

appear that the signers of the document signed a document including the amendments, though

they did not, Congress abandoned this idea for placing the amendments at the end of the

38

Constitution as a Bill of Rights. The Anti-federalists who had sought the demise of the

Constitution still hoped for a second Constitutional Convention at which they could alter the

document to limit the powers of the proposed federal government. A Bill of Rights would

preclude this possibility and settle public fears of the new federal government; the Anti-

federalists had to accept a Bill of Rights and its consequences or come out against it, in

contradiction to their past arguments. Madison made the similar argument that the Anti-

federalists had made about the inclusion of a few individual protections in Article 1 Section 9,

and the necessity to add others through amendments as possible abuses of power clearly existed.

He meant these arguments to sway the Federalists who truly believed that a Bill of Rights was

unnecessary.

Madison drew from the Pennsylvania and Massachusetts provisions on search and seizure

to draft his own. His original amendment reads as follows:

The rights of the people to be secured in their persons, houses, 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 describing the places to be

searched, or the persons or things to be seized.

The general right against unreasonable searches and seizures is listed, but is tied in operation to a

prohibition against general warrants. The amendment contains a fully developed concept of

probable cause, a less restrictive basis for a search than evidence of a fact committed. This aimed

at “ensuring custom searches that would be a major source of revenue for the colonies.”58

58 Bloom, Robert M. (2003) Searches, Seizures, and Warrants: A Reference Guide to the United States Constitution. Westport, Connecticut: Praeger.

No

longer would the issuance of a warrant depend upon the judgment of the officer and his

suspicion, but instead upon the judgment of a neutral judge or magistrate in whether probable

cause for the warrant existed. Madison’s proposal would have allowed for multiple-specific

39

warrants to issue, since the warrant only had to list the “places” of search and not the place of

search. His proposal went to a Committee of Eleven, made up of a member from each state that

had ratified the Constitution, for debate upon the proposed amendments and drafting changes.

The Committee corrected the word “places” to “place” to eliminate multiple-specific warrants,

and changed the phrase “their other property” to “effects” to broaden the protection of personal

property. Elbridge Gerry suggested that “rights” be changed to “right” and “secured” to “secure”

so as to make the phrase a statement of an individual right rather than of the effect of banning

general warrants. Egbert Benson then proposed that the words “by warrants issuing” be changed

to “and no warrants shall issue,” which failed to pass. However, the amendment went to the

Senate in the form that Benson had proposed, despite the House never having agreed to it. As

chairman of the Committee that reported the final arrangement of the amendments, he likely

switched his version for that of the House, though he may have been mistaken in doing so.

Regardless of intentions, the Senate passed the amendment in its present form, and the states

later ratified it as such. Through this the right to be secure, to exclude government from

infringing upon the use and ownership of private property, received full constitutional sanction.

40

Chapter 6

Original Intention

The historical record to the fourth amendment is so complex that Justices of the Supreme

Court often use it to support opposing answers to the same question on search and seizure. The

fourth amendment encompasses all of the following developments: the traditional sanctity of the

home from unreasonable intrusions, the English common law on search and seizure at the time of

independence, colonial resistance to the use of writs of assistance, provisions of the state

constitutions and their subsequent violations, and the drafting and ratification of the amendment

by the first Congress and the States. The developments were a refining process, a centuries-long

culmination of the right to exclude unwanted government intrusions into the possessory and

ownership interest in private property. The amendment established unreasonable searches and

seizures as contrary to the Constitution, with the general warrant prohibition being the clearest

example of what constituted an unreasonable search and seizure practice from the preceding

centuries. The home received the greatest degree of protection, as the threshold marked the

forbidden line behind which the contents of the home were to remain unknown, a fortress of

privacy for those who dwelled within. Society recognized other practices besides the general

warrant as unreasonable then, and as society has experienced “evolving standards of decency” in

applying the eighth amendment, the fourth as well must adapt to changing societal recognitions

of privacy and security.59

The sacred refuge of the home was not a novel concept at the adoption of the fourth

amendment, but the continuation of a long tradition extending back to primitive cultures that

As society advanced, the same reasonableness standards of older forms

of surveillance applied to new forms as well.

59 Trop v. Dulles, 356 U.S. 86 (1958)

41

used the home as a place of worship and the foundation of the social hierarchy.60

In the colonies, the home came under attack from extensive use of writs of assistance

used to collect revenues and enforce the trade laws of Parliament. Colonial customs agents,

armed with writs of assistance, wielded despotic discretion in their ability to search any home

upon mere suspicion without any duration to the commission of their power. The attempt made

by James Otis to challenge these writs failed to stop them from issuing, but it did enkindle the

flame of revolution throughout the continent that later events fed into a blistering inferno. Later

protests in the colonies and the aftermath of the French and Indian War led to the greater use of

writs of assistance in the colonies as the enforcement of the trade laws increased. After the

Townshend Acts extended the ability to issue writs of assistance to all of the colonies, many

judges that did not have a tradition of issuing the writ refused to issue it as an unreasonable and

illegal practice, reaffirming the home as a place outside of the arbitrary discretion of Crown

officials to search.

The early

Romans practiced this belief, and enshrined it into the Roman law of the later empire. The legal

practices preventing unreasonable and unwanted intrusions into the privacy of the home survived

in somewhat crudes forms after the fall of the Roman Empire in Medieval Britain, along with the

spiritual connection that bound society to the inner sanctity of the home. The Magna Charta later

recognized the home as a place deserving of protection from the arbitrary will of King John,

though not to the extent that Lord Pratt and Lord Mansfield later held it to mean. The use of the

general warrant did not receive much challenge until the middle of the eighteenth century, but

when the challenge came, it flogged the forces of the Crown for their use of the arbitrary practice

and restored the home to its lofty and noble position of peace. The home erected a barrier to the

outside world, protecting the intimate thoughts and details within.

60 See Chapter 1

42

After the break of familial bonds with Great Britain, the states sought to discourage the

use of general warrants as an unreasonable practice. The home was too important a refuge to

allow officials such discretion in determining whether a search was necessary. Despite the clear

disdain written into the state constitutional search and seizure provisions for general warrants,

many were reluctant to preclude its use, and even those that did still used them during the

revolution. American idealism failed to trump pragmatic concerns of war and tradition, but after

the fighting stopped, more than half of the states began to use the specific warrant with at least as

much frequency as the general warrant, and some abandoned use of the latter altogether.

Between 1782 and the drafting of the fourth amendment in 1787, protection of the home as a

barrier enveloping the objects within extended to the objects themselves, and also to nocturnal

searches and the unannounced entry of the home. The states constrained the search and seizure

practices of the federal government far past their own prerogatives, fearing that the home would

again fall prey to the arbitrary violations of a far-away power.

During the drafting of the amendment, the original proposal of the amendment by James

Madison sought solely to protect the home against the general warrant, and was not concerned

with warrantless searches. This is clear from the language that tied the general right to the

prohibition against general warrants. This was not because Madison was sympathetic to

warrantless searches. Rather, he was accustomed to police activity authorized by warrants.

Telford Taylor argues that in keeping with Madison’s original proposal, the later amendment

never referred to warrantless searches at all. Instead, he argues that a warrantless search incident-

to-arrest was quite normal under the common law and considered “reasonable.” Warrants were

the real danger, for they were the “authority for an unreasonable and oppressive search.” 61

61 Taylor, Telford. 41 (1969) Two Studies in Constitutional Interpretation.. Columbus, Ohio: Ohio State University Press.

His

43

argument depends upon the practice of law enforcement of the time, as the lack of trained

professionals forced officials to assume a merely peacekeeping function while collecting

revenues and enforcing trade regulations under the Crown.62 The real authority of these officers

rested in their grant of authority through a warrant, for without the warrant they were liable to

trespass suits to the homeowners whose homes they searched. The next hundred years saw the

transformation of ragtag forces into professional units that actively pursued criminals and the

evidence to place them behind bars, and legislatures and courts happily expanded the use of

warrantless searches to aid these new crime stoppers in a few notable exceptions.63

More than anything else, the final text discredits his argument, because even if Madison

and others only sought to prohibit the general warrant, the Senate approved and the states ratified

the fourth amendment in its present form. Madison’s view was not the only one on the subject:

the first proposal that Richard Henry Lee submitted to Congress under the Articles of

Confederation clearly sought to make the right against unreasonable searches and seizures a

general right of application. Many views likely proliferated on the meaning of the final text of

the fourth amendment as it went through the various state conventions, making the phrases of the

amendment a clear guide. In the Massachusetts’ provision on search and seizure that the

amendment drew from, the right against unreasonable search and seizure was a prefatory clause

to the prohibition of general warrants. The text of the fourth amendment made that right distinct

Warrantless

searches infringed upon the privacy of the home in the same ways that general warrants allowed

in the past, and later society came to recognize this distinction as such.

62 Bloom, Robert M. 12 (2003) Searches, Seizures, and Warrants: A Reference Guide to the United States Constitution. Westport, Connecticut: Praeger. 63 Ibid.

44

and operative, and the several practices recognized as unreasonable at that time help to define its

operation.

Society at the time of adoption recognized several practices of search and seizure as

unreasonable. Surveillance became a hefty tool of police forces to catch criminals in the act. Had

today’s extensive surveillance practices existed then, society would likely have found their

arbitrary and unchecked use unreasonable as well. After all, the warrantless officer peeking into

the home with a thermal imaging device upon mere suspicion is as arbitrary as the customs agent

forcibly entering the home under the authority of a general warrant; both exercise a raw,

unchecked, and discretionary police power.64

The framers of the amendment sought to protect tangible private property, through the

exclusionary right inherent in that property. Despite this original meaning, the original intention

of the amendment was to limit the arbitrary interference of government with the use and

possession of intimate and personal items. Intangible interests, such as conversation, are just as

intimate and the Court can bring them within Fourth Amendment protection by investing them

with an exclusionary right, similar to the one in tangible property. The intention of the framers to

provide absolute protection to property interests, rather than one that depended upon the

motivation of exercising that protection, should guide Fourth Amendment application today.

Deviance from this form of application provides opportunity for the future erosion of traditional

Fourth Amendment protections, as I will discuss in the second part. The same constraints of

older forms of surveillance should determine the application of the fourth amendment to new

Where the information gathered from inside the

home by a new technology is that which previously would have required entry into the home to

obtain, then use of that technology should require a warrant.

64 Bloom, Robert M. 12 (2003) Searches, Seizures, and Warrants: A Reference Guide to the United States Constitution. Westport, Connecticut: Praeger.

45

ones. The reasonableness standard in the fourth amendment would thereby turn on the

information revealed by past practices, and apply the old rules regulating the procurement of that

information to new procurement methods. This is not an argument against efficiency. Any

technology that makes gathering information more efficient should be welcomed as a benefit to

law enforcement, but only so far as that efficiency does not erode the traditional protection of the

fourth amendment.

46

PART 2

Fourth Amendment Jurisprudence and the Right to Exclude

Thesis: The “reasonable expectation of privacy” test is insufficient for preventing the future

erosion of traditional fourth amendment protections. A return to the right of exclusion broadened

to include intangible along with tangible interests will better protect society from the

encroachment of developing search and seizure technologies.

Those who ratified the Fourth Amendment considered the protection of private property rights

from arbitrary governmental interference to be its aim. Necessary in the right to be secure from

unreasonable government search and seizure practices was the right to exclude unwanted

government intrusion into the use of property. This right to exclude did not depend upon any

interest of privacy, security, or liberty, but was an absolute in itself. Despite the early liberal

construction of the Fourth Amendment sanctioned by Boyd v. United States,65 the Supreme

Court refused to broaden the right to exclude to intangibles in Olmstead v. United States,66 and

later abandoned the whole concept in Katz v. United States.67 It found the amendment to protect

“people, not places,” but refused to sanction a general right to privacy.68 A privacy analysis

displaced the property considerations of the text, and unduly emphasized privacy as the protected

interest of the amendment. Despite this supposed watermark in Fourth Amendment

jurisprudence, property considerations still weigh heavily in applying the privacy analysis. The

Court refuses to abandon the traditional focus of the amendment, and as recently as Kyllo v.

United States,69

65 116 U.S. 616 (1886).

indicated its unhappiness with the reasonable expectation of privacy test,

66 277 U.S. 438 (1928). 67 389 U.S. 347 (1967). 68 Katz v. United States, 389 U.S. 347, HN1 (1967). 69 533 U.S. 27 (2001).

47

invoking the constitutionally protected areas that were thought to have been discredited by the

majority in Katz v. United States.70 A return to the right to exclude broadened to include the

intangible interests denied in Olmstead v. United States,71

would better protect the original

boundaries of Fourth Amendment protection from erosion by developing technologies. This is

because the subjective nature of the reasonable expectation of privacy test allows for wavering

protections over time. Using the right to exclude approach, expectations of privacy are irrelevant

as those interests and property that the Court finds within Fourth Amendment protection are

secure from unreasonable search and seizure. In determining what intangible interests should

receive protection, the Court would still have wide discretion in applying the Fourth Amendment

to the use of developing technologies. For an intangible interest to receive protection, its

possessor must take reasonable steps to demonstrate the exercise of his right to exclude others

from its use.

70 389 U.S. 347 (1967). 71 277 U.S. 438 (1928).

48

There is a tide in the affairs of men,

Which, taken at the flood, leads on to fortune;

Omitted, all the voyage of their life

Is bound in shallows and in miseries.

On such a full sea are we now afloat;

And we must take the current when it serves,

Or lose our ventures.

Julius Caesar (IV iii 218-224)

49

Chapter 1

Early Court Interpretation: Liberal Construction and the Right to Exclude

One of the first fourth amendment cases to come before the court, Ex parte Jackson,72

established the very broad notion that all sealed letters in the mail required a warrant issued upon

probable cause before postage officials could open them for inspection. In dicta, the Court noted,

“the constitutional guaranty of the right of the people to be secure in their papers against

unreasonable searches and seizures extends to their papers, thus closed against inspection,

wherever they may be,” and likened their protection within the mails to that within the

“domicile.”73

The Court in Boyd v. United States

The extension of fourth amendment protection from the home to outside papers

sealed against inspection marked an expansive interpretation of the right to exclude, as the act of

purposefully shielding the materials within the envelope from outside scrutiny forced the

government to recognize and accept the desired seclusion. No matter if the papers were a

thousand miles away from the sender, the fourth amendment still protected the information

inside.

74 construed the fourth amendment liberally as it had

in Ex parte Jackson,75

72 96 U.S. 727 (1878)

and sanctioned such a construction for future cases. The case arose from a

Federal statute allowing for the issuance of subpoenas compelling the production of documents.

If the defendant failed or refused to produce the documents requested, then the jury was to

presume as true the written statement of the prosecution forming the basis of the subpoena and

describing what it thought was contained in the documents. In determining what constituted a

search or seizure under the amendment, the Court wrote “a compulsory production of a man's

73 Ibid. 74 116 U.S. 616 (1886) 75 96 U.S. 727 (1878)

50

private papers to establish a criminal charge against him, or to forfeit his property, is within the

scope of the Fourth Amendment to the Constitution, in all cases in which a search and seizure

would be; because it is a material ingredient, and effects the sole object and purpose of search

and seizure.”76

The basis for this approach came from the earlier English case of Entick v. Carrington,

To the Court, it did not matter that no physical search had actually occurred,

because the effect of compelling the production of personal papers to incriminate their owner

was a violation of the Fifth Amendment’s prohibition against requiring self-incrimination, and

consequently the acquirement of those papers in court was a search. The statute was a cleaver

means of bypassing the Fourth Amendment, the result of an attempt to retain the inclusion of

personal papers to establish guilt at trial without having to use a method that clearly violated its

text. Justice Bradley described the Fourth and Fifth Amendments as working in tandem, for

when objects prohibited at trial due to the Fifth Amendment were the object of search and

seizure, then the search violated the Fourth Amendment as well.

77

which Justice Bradley characterized as “one of the landmarks of English liberty.”78

76 Boyd v. United States, 116 U.S. 616 (1886)

That case

arose from the John Wilkes affair in England. In 1762, the Secretary of State issued general

warrants to several Crown officials to search all places, seize all documents, and arrest all

persons to find the author of North Britain Number 45, a paper that harshly criticized the Crown.

John Wilkes sued the Assistant Secretary of State, and later the Secretary of State, Lord Halifax,

for damages from trespass and received jury awards of £1000 and £4000 respectively. His

success encouraged John Entick to sue over an earlier incident in which Crown agents had

arrested him and seized his papers under a similar warrant, though it was at least specific to his

77 19 Howell's State Trials 1029 78 Boyd v. United States, 116 U.S. 616 (1886)

51

name. Lord Camden emphasized the importance of private property to society as his reason for

espousing the arbitrary power granted to the officials in the case through the general warrant:

The great end for which men entered into society was to secure their property. That right is

preserved sacred and incommunicable in all instances where it has not been taken away or

abridged by some public law for the good of the whole… By the laws of England, every invasion

of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground

without my license, but he is liable to an action though the damage be nothing; which is proved by

every declaration in trespass where the defendant is called upon to answer for bruising the grass

and even treading upon the soil.79

The right to exclude emanates from his description as the means for invalidating such capricious

invasions by the Crown. Without it, the law whimpers at the whims of every man who wishes to

impose his will on the possessions of others. Lord Camden made the original distinction between

what goods the government may reasonably seize and what goods it may not, looking at the

possessory interests of the goods in question.

80

79 19 Howell's State Trials 1029

For those seized under a common law writ for

stolen goods, the goods belong to someone else, who is merely asserting his ownership interest

to retrieve his property. The government acquires no ownership interest over goods it seized

from me and intends to use against me in a court of law, and cannot do so. This distinction

Justice Bradley applied to all private papers, arguing that compelling their production in a court

of law would violate the possessory interests of the owner. He found the other party entitled to

possession of stolen goods, and government to have a superior interest in goods in breach of

revenue laws, goods concealed to avoid duties, record books the law required be kept, and

contraband.

80 Clancy, Thomas K. 49 (2008) The Fourth Amendment: Its History and Interpretation. Durham, North Carolina: Carolina Academic Press.

52

Justice Bradley found Lord Camden’s judgment to apply to “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

essence of the offence; but it is the invasion of his indefeasible right of personal security,

personal liberty and private property.”81 The right to exclude rests on no single interest in

security, liberty, or property, but instead on a combination of all three and does not depend upon

them for its existence. Rather, the law establishes restrictions on the actions of government,

which government must follow to allow the individual security in his possessions and self.

Justice Bradley sanctioned a liberal interpretation of all amendments regarding the liberties of

individuals, but especially the fourth amendment as allowing subtle changes in the application of

the amendment might lead to a growth of despotic practices similar to the practice allowing the

Secretary of State to issue general warrants at issue in Entick v. Carrington.82

Justice Miller, concurring in the opinion, could not agree that a search or seizure

occurred, as the events of the case did not implicate the text of the fourth amendment in a literal

way. For him, such a reading of the amendment was an aberration from the original meaning of

the Constitution and no justification for the majority interpretation existed. Even in the first few

search and seizure cases that reached the Court, Justices disagreed over how much weight to

afford the literal text of the amendment in consideration of the personal liberty at stake by an

overly constrictive approach. While Justice Miller’s concern was more reasonable than that of

the later Olmstead Court, he nonetheless misunderstood the danger from unduly narrowing the

amendment’s protection. In limiting the application of the amendment to the mere physical

invasion of a premises or mere physical seizure of an item of property, government receives free

81 Boyd v. United States, 116 U.S. 616 (1886) 82 19 Howell's State Trials 1029

53

reign to use technological means to effect the whole object of what otherwise would have been a

tangible search and seizure. Clearly, Justice Miller had no means of imagining the future forms

that search and seizure technologies would take. This lack of foresight plagues all judges, and is

the reason the Court should refrain from molding fourth amendment protections to the

technologies and practices of the present.

The Court continued its preference for a liberal fourth amendment construction in Weeks

v. United States83 with its creation of the federal exclusionary rule. While a police officer

arrested and held the defendant, other officers went to his home and conducted a warrantless

search and seizure. They turned the seized papers and articles over to a federal marshal, who

later returned to the home and conducted a second warrantless search, in which he collected

several letters and envelopes from the defendant’s room. The defendant later moved to have

those items returned to him as his rightful property, their seizure being through illegal means, a

request the trial court denied. Justice Day, writing for the majority, reviewed the holding of

Justice Bradley in Boyd v. United States84, emphasizing the fourth amendment restraint upon

government action that secures the people, their papers, house, and effects against unreasonable

searches and seizures.85

The Supreme Court adopted the exclusionary rule for two purposes, with the first being

to discourage unreasonable searches and seizures by law enforcement, and the second being to

prevent judicial acquiescence in such illegal practices. “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

83 232 U.S. 383 (1914) 84 116 U.S. 616 (1886) 85 Because the Fourth Amendment did not become applicable to the States by incorporation through the Fourteenth Amendment until 1961, the restraint recognized in Weeks v. United States applied only to action by the Federal Government.

54

resulted in their embodiment in the fundamental law of the land.”86 This was a broad

interpretation of an amendment whose text provided no method of enforcement. Under the

common law, a blind eye governed the procurement of evidence, allowing illegally obtained

items into trial without dispute. The fourth amendment sought to alter or abolish common law

methods of search and seizure that it found unreasonable, this practice being no exception. The

Court found the inclusion of the evidence at trial a prejudicial error, because “to sanction such

proceedings would be to affirm by judicial decision a manifest neglect, if not an open defiance,

of the prohibitions of the Constitution, intended for the protection of the people against such

unauthorized action.”87

This marked a radical departure from the common law, as the Court held the fundamental

principles of the Constitution to supersede the possibility of letting a criminal go free whose guilt

the illegally seized evidence clearly established. The right to exclude was the motivation behind

the decision, for without the ability to remove evidence from trial procured in violation of the

fourth amendment, there would be no security in the person or property. In order to exclude

others, a course of redress is necessary once the government infringes that right.

Several years later, the Court expanded the exclusionary rule to reach information

obtained from illegally procured evidence, barring the violation of an intangible interest along

with use of the tangible evidence at trial. In Silverthorne Lumber Co., Inc. v. United States88

86 Weeks v. United States, 232 U.S. 383 (1914)

,

government agents detained defendants while other agents broke into their corporate office

without warrants and seized all of the books and papers they found there. The District Court

returned the originals to the defendants at their request, but issued new subpoenas for their

production based upon copies of the originals made by the prosecution, though federal agents

87 Ibid. 88 251 U.S. 385 (1920)

55

obtained the originals through a constitutional violation. Justice Holmes, writing for the majority,

found the government position to reduce “the Fourth Amendment to a form of words. The

essence of a provision forbidding the acquisition of evidence in a certain way is that not merely

evidence so acquired shall not be used before the Court, but that it shall not be used at all.”89

This proposition seriously broadened the thrust of the amendment past the mere

protection of a tangible property interest, because the papers and books had already returned to

the defendants before the trial began. The information within the papers received the same

protection as the papers themselves, due to the possessor’s right to exclude others from the

viewing of the documents and the information contained within. Though the concept was foreign

to Justice Holmes, who likely saw this as nothing more than the protection of tangible papers, it

was the information, an intangible interest, which the Court protected. Otherwise, the mere

return of the original papers to the defendants would have settled the case. This recognition did

not extend to a multitude of intangible interests, but just the one concerning the information

within private papers. The concept was ready for an expansion to other intangible interests, but

since the Court did not view its decision in this light, it was not inclined to do so until many

decades later. Justice Holmes recognized that this principle was not actionable in all situations,

such as if the same knowledge came from an independent source. The fourth amendment places

a restriction on government action, not that of private individuals.

90

The next year, the Court found substantive restrictions on the object of search and

seizure, fully developing a property-based application of the fourth amendment in Gouled v.

United States.

91

89 Ibid.

The defendant protested the evidential use of several papers in his trial, one of

which an Army officer took from his office, and the others federal agents seized under two

90 See Footnote 20 above 91 255 U. S. 298 (1921)

56

search warrants. The Court first looked back at Boyd v. United States92, Weeks v. United States93,

and Silverthorne Lumber Co., Inc. v. United States94

The effect of the decisions cited is that such rights are declared to be indispensable to the "full

enjoyment of personal security, personal liberty and private property"; that they are to be regarded

as of the very essence of constitutional liberty; and that the guaranty of them is as important and as

imperative as are the guaranties of the other fundamental rights of the individual citizen -- the right

to trial by jury, to the writ of habeas corpus, and to due process of law. It has been repeatedly

decided that these amendments should receive a liberal construction, so as to prevent stealthy

encroachment upon or "gradual depreciation" of the rights secured by them, by imperceptible

practice of courts or by well intentioned, but mistakenly overzealous, executive officers.

to emphasize the liberal construction that

the fourth and fifth amendments had in tandem, a tradition stretching back to the late 19th

century.

95

The Court recognized three fourth amendment interests of protection: security, liberty, and

property. These interests are not all-inclusive, but demonstrate that the fourth amendment does

not concern itself with one purpose and goal. It is a restriction upon the action of government,

independent in application of the interest underlying protection whenever an unreasonable search

or seizure occurs. The right to be secure takes no view of the purposive interest, but allows for

absolute dominion over the sought exclusion.

96

The Court then addressed whether search warrants could issue for the purpose of

obtaining papers with no pecuniary value and solely for use as mere evidence, finding that “they

may be resorted to only when a primary right to such search and seizure may be found in the

interest which the public or the complainant may have in the property to be seized, or in the right

92 116 U.S. 616 (1886) 93 232 U.S. 383 (1914) 94 251 U.S. 385 (1920) 95 Gouled v. United States, 255 U. S. 298 (1921) 96 Clancy, Thomas K. 78 (2008) The Fourth Amendment: Its History and Interpretation. Durham, North Carolina: Carolina Academic Press.

57

to the possession of it, or when a valid exercise of the police power renders possession of the

property by the accused unlawful and provides that it may be taken.”97 The result was a

formalization of the property rights approach to the amendment that Boyd v. United States98

The last case of major import from the early period of fourth amendment doctrine was

Hester v. United States.

had

first sanctioned. This did not offer absolute protection to private papers, but only those whose

ownership interest had not shifted to the government. The substantive restrictions were as much

a result of the Fifth Amendment as the Fourth, and showed the Court’s affinity for a liberal

construction of both amendments.

99 The case marked a minor retreat from the broad fourth amendment

interpretation sanctioned by prior cases, as it relied exclusively on the literal text. Federal agents

trespassed onto the defendant’s land, where they surprised the defendant and several of his

associates, who dropped several incriminating items of moonshine whiskey in their haste to

escape. Justice Holmes found that because open fields are not listed among the protected items of

“persons, houses, papers, and effects,” they do not receive protection under the fourth

amendment. The decision emphasized that not all private interests in land receive protection; the

home is the castle of the man and his absolute dominion, not the fields surrounding it. The result

is surprising considering the liberal construction of what constitutes a search or seizure in Boyd

v. United States100, and the substantive property restrictions placed upon search warrants by

Gouled v. United States101

97 Gouled v. United States, 255 U. S. 298 (1921)

, but Justice Holmes found the distinction between the home and the

98 116 U.S. 616 (1886) 99 265 U. S. 57 (1924) 100 116 U.S. 616 (1886) 101 255 U. S. 298 (1921)

58

open fields “as old as the common law,”102

and consequently land other than the home to be

outside of constitutional protection.

102 Hester v. United States, 265 U. S. 57 (1924)

59

Chapter 2

Constitutionally Protected Areas and Extreme Trespass Theory

The Supreme Court first addressed the application of the fourth amendment to developing

search and seizure technologies in the case of Olmstead v. United States.103

The basis for the majority opinion relied on practical considerations of the amendment.

As Chief Justice Taft stated in the opinion:

As the telephone was

such an important part of the 20th century, it is hardly surprising that it was the first developing

technology to reach the Court under the fourth amendment. The case involved the legality of

warrantless wiretapping, which the Court held to be constitutional. Defendant Olmstead was the

leading conspirator in an illegal bootlegging operation in the state of Washington, and the

government brought charges against him under the National Prohibition Act. Agents used

wiretaps without warrant to monitor the activities of the conspirators, with careful attention not

to commit a trespass by placing the taps on the wires outside of the home. The transcripts of

months of conversations comprised a majority of the case, and allowed for discovery of the full

extent of the conspiracy.

The Amendment itself shows that the search is to be of material things – the person, the house, his

papers, or his effects. The description of the warrant necessary to make the proceeding lawful is

that it must specify the place to be searched and the person or things to be seized.104

As a conversation between two individuals was not a tangible, material thing, no search had

taken place, and therefore the agents had not violated the fourth amendment. The Court refused

to expand the meaning of the text to include intangible items, finding such an interpretation

would be “attributing an enlarged and unusual meaning to the Fourth Amendment.”

105

103 277 U.S. 438 (1928)

Instead,

104 Olmstead v. United States, 277 U.S. 438 (1928) 105 Ibid.

60

Justice Taft sought to apply the understanding of the amendment at the time of its adoption to the

case at hand. The lack of a physical trespass into the home of Mr. Olmstead weighed heavily in

the majority disposition of the case, and the Court would have decided differently if federal

agents had committed such a trespass.

The decision upheld the right to exclude as an absolute when the item searched or seized

was tangible and within the text of the amendment, but refused to broaden that exclusionary right

to intangible interests whose lack of protection actually diminished the original protection

offered by the Fourth Amendment. No longer were men secure in the transmittance of their

thoughts across great distance, as they had been since Ex Parte Jackson106

106 96 U.S. 727 (1878)

with the stringent

protection offered to letters in the mail. Justice Taft distinguished the mails from the telephone

due to the constitutional power of the Congress to regulate and protect the Post Office

Department and exclude outside business from postal competition. While the government owes a

duty to tax payers to protect and deliver their sealed letters, this duty is not present in the

transmittal of telephone messages, and thereby the government does not need a warrant to listen

to telephone conversations so long as it commits no trespass onto the defendant’s property. The

Court found the situation similar to eavesdropping, which though considered a nuisance, the

common law allowed. While it is reasonable that different mediums of communication receive

different levels of protection, the intimacy involved in telephone conversations provides its own

justification for the requirement of a warrant. There is no way for the police to know what part of

the conversation will concern the criminal content sought, and what will be the intimate

expression of love or contempt until the conversation occurs. Wiretaps allow for a level of non-

specificity similar to the free range provided under general warrants, and necessitate judicial

oversight to curb abuse and undue intrusion. The government monitors more than just the

61

criminal suspect whenever a wiretap is used; it monitors all individuals who happen to call,

hearing not just shipment orders of contraband moonshine whiskey between thugs, but also a boy

wishing his father goodnight, or a husband describing to his wife their Eros. Such intrusion into

the security of the individual is greater than the unreasonable search and seizure of personal

papers prohibited by past cases.

Justice Taft carefully disposed of the Fifth Amendment issue, by suggesting that its

violation followed only if the Fourth Amendment first received violation. This proposition was

not the way that past cases applied the relationship between the Fourth and Fifth Amendments.

For example, in Boyd v. United States107

In dissent Justice Brandeis, echoing the argument of Justice Marshall in McCulloch v.

Maryland

, the Court found the subpoenaed request of personal

papers, whose contents were assumed to be what the prosecution described them to be if the

defendant did not produce them, an unreasonable search and seizure because the object sought

violated the Fifth Amendment, and the form of procuring that evidence effected the sole object

and purpose of search and seizure. If anything, a Fourth Amendment violation in such a case

depended upon a violation of the Fifth Amendment. The lack of government compulsion forcing

the individuals to speak over the wires became the principle distinction, although the government

never forced individuals to commit their personal thoughts to paper either. The public feared the

potential abuses that the decision allowed and Congress passed the Communications Act of

1934, making the interception of conversations over the telephone wires a federal crime.

108

107 116 U.S. 616 (1886)

, found that the Constitution was meant to endure for the ages, and accordingly the

governing principles within must be “capable of wider application than the mischief which gave

108 17 U.S. 316 (1819)

62

[them] birth.”109

The progress of science in furnishing the Government with means of espionage is not likely to

stop with wiretapping. Ways may someday be developed by which the Government, without

removing papers from secret drawers, can reproduce them in court, and by which it will be

enabled to expose to a jury the most intimate occurrences of the home.

The majority opinion underplayed the liberal construction of past Courts in

considering whether a search or seizure occurred, a construction necessary to preventing the

disintegration of fourth amendment protections over time.

Progressive technologies risked pushing back the protection of the Fourth Amendment over time,

and a restrictive interpretation that placed unnecessary limits upon the amendment’s scope would

only exacerbate that problem. His vision was the farthest reaching of all of the opinions that I

have come across, and he meant to provide protection that would last indefinitely into the future.

The test he fashioned to govern the amendment does just that: “To protect [the right to be let

alone] every unjustifiable intrusion by the government upon the privacy of the individual,

whatever the means employed, violates the Fourth Amendment.”110

109 Weems v. United States, 217 U.S. 349 (1910)

Justice Brandeis expanded

the right to exclude to an extreme in the emphasis of privacy, but did not consider its application

to security and liberty. He missed the essential function of the Fourth Amendment as a restriction

upon government action, rather than as a means of protecting merely one interest. Regardless of

privacy, a warrantless trespass into the home infringes upon a right to security and liberty.

Though the right of privacy that Justice Brandeis described was broader than mere application to

search and seizure, the later reasonableness standard adopted by the Court bears close

resemblance to his purported aim. He did not seek to include intangible interests into those

already protected by the amendment, but rather sought to alter the entire form of the amendment

by evaluating privacy and government intrusion into that protected interest. For better or worse,

110 Ibid.

63

his suggestion did have an ultimate influence upon the Court’s current fourth amendment method

of evaluation.

The Court revisited the holding of the Olmstead case in Goldman v. United States.111

The dissenting Justices all sought an overruling of the Olmstead case, finding its doctrine

pernicious and ridiculous. Justice Murphy observed that ”the search of one's home or office no

longer requires physical entry, for science has brought forth far more effective devices for the

invasion of a person's privacy than the direct and obvious methods of oppression which were

detested by our forebears and which inspired the Fourth Amendment.”

Refusing to overrule Olmstead, Justice Roberts found “to rehearse and reappraise the arguments

pro and con, and the conflicting views exhibited in the [Olmstead] opinions, would serve no

good purpose.” The majority merely asserted its affirmation of the Olmstead holding, whose

facts they found consistent with those in the case at issue. Agents used a listening device placed

on a wall adjacent to the defendant’s office to hear conversations, and later introduced transcripts

of what they heard at trial as evidence. The device did not physically penetrate the wall, but

merely magnified the sounds on the other side. The majority found the detectaphone similar to

wiretaps in that both heard what the defendant was saying without a physical intrusion. The

literal construction sanctioned by the Taft Court requiring physical intrusion into the

constitutionally protected area of the office or home led to finding the detectaphone a

constitutionally acceptable method of gathering information within those confines. The Court

held the right to exclude as absolute, but merely the right to exclude physical intrusions rather

than intangible methods of gathering similar information without trespass, severely curtailing the

effect and purpose of the amendment.

112

111 316 U. S. 129 (1942)

Instead of an

112 Goldman v. United States, 316 U. S. 129 (1942)

64

amendment whose protection increased to match the enlarged invasiveness of search and seizure

technologies, the Court constricted the amendment to previous methods of search and seizure,

despite the steady erosion of protection that progress would, and did, engender. The doctrine

ignored the importance that the telephone had assumed in society:

It is strange doctrine that keeps inviolate the most mundane observations entrusted to the

permanence of paper, but allows the revelation of thoughts uttered within the sanctity of private

quarters, thoughts perhaps too intimate to be set down even in a secret diary, or indeed, utterances

about which the common law drew the cloak of privilege -- the most confidential revelations

between husband and wife, client and lawyer, patient and physician, and penitent and spiritual

adviser.

Justice Murphy saw no distinction between the mails and the telephone as means of

communication, since both share the purpose of the transfer of information between individuals.

Even if Olmstead was sound, he saw the cases to differ since the wiretaps at issue there

monitored conversations projected from the home into the public sphere, while the use of the

detectaphone here revealed details the defendant did not wish to leave his office. Such a

distinction focused upon the right to exclude in a narrow sense, looking at the underlying action

of the defendant to determine whether he meant to exclude outsiders from his conversations.

Physical trespass defined the outcome of the next important fourth amendment case

dealing with developing search and seizure technologies, Silverman v. United States.113

113 365 U. S. 505 (1961)

Federal

agents nailed a “spike mike” into the wall of defendant’s home, which pressed against a heating

duct, magnifying vibrations throughout the entire home and allowing the agents to hear and

transcribe all of the conversations within. The Court distinguished the facts from those in the

65

Goldman decision, because here an actual physical intrusion happened violating the right of

security in the home. The Court implicitly recognized a conversation as an item of seizure;

otherwise, the Court would have decided as it had in past cases focusing on the lack of a physical

intrusion into the premises. Though the device penetrated the wall by only a few inches, and may

not have qualified as an actual trespass under local property law, the Court found a fourth

amendment violation. The doctrine broadly expanded the right to exclude to all instances of

physical trespass, no matter how small the infraction, but ignored intangible methods of intrusion

altogether. Though the Court did not recognize the inconsistency of its approach, it clearly

identified it in explaining its decision:

In these circumstances, we need not pause to consider whether or not there was a technical

trespass under the local property law relating to party walls. Inherent Fourth Amendment rights

are not inevitably measurable in terms of ancient niceties of tort or real property law.114

The Court’s reliance on physical trespass as the means of determining a violation of the fourth

amendment, a concept clearly arising from the “ancient niceties of tort or real property law,” is at

odds with such a liberal construction of the fourth amendment. Goldman and Silverman are

identical in all facts except for a minute intrusion into the physical premises of the home, and yet

that seemingly insignificant fact determined what duty the people owe to public safety to allow

the government vision into their most intimate confines. While the distinction between physical

entry and intangible intrusion has solid ground, it is not enough to demand the exposure of

peoples’ homes to the whims of warrantless government inspection through a means that does

not allow to people within knowledge that the government is observing them. Such an intrusion

might work more damage to the liberty of the person than a physical trespass. The liberal

construction of determining what constituted a search or seizure and the narrowly constrictive

114 Silverman v. United States, 365 U. S. 505 (1961)

66

view of what items and places fell within constitutional protection were at odds with one another,

irreconcilable interpretations that demanded the judge both act as a zealous reformer of

unreasonable practices and as a dogmatic protector of the old way.

The constitutionally protected areas approach to the fourth amendment spread from the

home to other areas associated with privacy and desired intimacy. In Lanza v. United States115

A business office is a protected area, and so may be a store. A hotel room, in the eyes of the

Fourth Amendment, may become a person's "house," and so, of course, may an apartment. An

automobile may not be unreasonably searched. Neither may an occupied taxicab. Yet, without

attempting either to define or to predict the ultimate scope of Fourth Amendment protection, it is

obvious that a jail shares none of the attributes of privacy of a home, an automobile, an office, or a

hotel room.

,

the Court outlined a list of constitutionally protected areas in deciding whether a jail should

receive protection:

This form of analysis became common in deciding which areas to include within fourth

amendment protection, with the obvious emphasis being upon the privacy the area afforded. The

Court did not err in its attempt to decide which areas should include protection, but instead in the

protection the amendment affords to the area within the outer boundaries. The right to exclude

received broad scope in defining a violation but limited application to prescribed areas.

Conversations received full recognition as objects of search and seizure under the Fourth

Amendment in Wong Sun v. United States.116

115 370 U. S. 139 (1962). The case was one of the first to involve actions by a state government that violated the Fourth Amendment, which the Court incorporated through the fourteenth amendment to apply to the states in Mapp v. Ohio, 367 U.S. 643 (1961).

The trial court allowed into evidence a

conversation that occurred between one of the defendants and several police officers who had

broken into his apartment without a warrant, which led to the finding of narcotics by which the

116 371 U.S. 471 (1963)

67

police charged defendant with a crime. The Court considered whether conversations fall within

the protected scope of the Fourth Amendment as an intangible interest with the full benefit of the

right of exclusion, finding that “verbal evidence which derives so immediately from an unlawful

entry and an unauthorized arrest as the officers' action in the present case is no less the "fruit" of

official illegality than the more common tangible fruits of the unwarranted intrusion.”117

The “mere evidence” rule met its demise in 1967 in the case of Warden v. Hayden.

The

exclusion of the conversations in the Silverman case provided the basis for the Court

interpretation, though that case had expanded the right to exclude to an intangible interest to

counter the sophisticated intrusion of a developing technology. Nevertheless, by fully

recognizing verbal statements as objects protected from unreasonable search and seizure, the

Court found the means of extending Fourth Amendment protection to intangible interests without

necessitating a radical shift in the Amendment’s interpretation and structure. The right to exclude

offers a sufficient means of preventing the future erosion of Fourth Amendment protection.

118

Police entered a home without a warrant upon word that a robbery suspect had recently entered

it. They searched the home for the defendant, and arrested him as the only male in the house.

During the search, the police found in a washing machine several garments described by

witnesses as those that the robber was wearing, garments the defendant later moved to suppress

at trial due to their being merely evidential in nature. Justice Brennan began by describing the

text of the Amendment, and found that “Nothing in the language of the Fourth

Amendment supports the distinction between "mere evidence" and instrumentalities, fruits of

crime, or contraband.”119

117 Wong Sun v. United States, 371 U.S. 471 (1963)

Riddled throughout his opinion was the assertion, equally unsupported

by the amendment’s text, that privacy is the ultimate interest protected by the amendment. This

118 387 U.S. 294 (1967) 119 Warden v. Hayden, 387 U.S. 294 (1967)

68

association Justice Brennan chose to ignore, opining, “Privacy is disturbed no more by a search

directed to a purely evidentiary object than it is by a search directed to an instrumentality, fruit,

or contraband.”120

Justice Brennan relates that the Court moved away from strict application of common law

property distinctions when applying the Fourth Amendment, but botches the justification for

many of those holdings. The first such instance confuses the holding of Silverthorne v. United

States as one concerned wholly with privacy, ignoring the exclusionary interest the Court sought

to protect in the concerned property. Though the trial court returned the original papers to the

defendants, the Supreme Court found the use of copies of the originals at trial a similar violation

of the amendment. This was not solely because of a privacy interest in the documents, but

because the government violated the amendment when securing the original documents, and

allowing it to avail itself of the use of that information at trial would taint the judiciary with

acquiescence of that illegal practice. He then mentions Henry v. United States

In denying that property interests are relevant in determining whether a search

or seizure is reasonable, the resulting consequence is that the individual exclusionary interest in

the property succumbs to a superior government interest in all property that may establish the

guilt of a criminal defendant. Emphasizing the protection of privacy over the protection of the

property rights the amendment sought to protect reduces its overall thrust as the right to be

secure no longer acts as a restriction upon government in all circumstances, but only those that

concern privacy.

121, Beck v.

Ohio122, McDonald v. United States123, Trupiano v. United States124, and Aguilar v. Texas125

120 Ibid.

, all

121 361 U.S. 98 (1959) 122 379 U.S. 89 (1964) 123 335 U.S. 451 (1948) 124 334 U.S. 699 (1948) 125 378 U.S. 108 (1964)

69

of which sought to expand fourth amendment protection in the traditionally favored broad

construction of the amendment, adding outside procedural constraints upon the protection

already established. Claiming “the requirement that the Government assert in addition some

property interest in material it seizes has long been a fiction,”126

Justice Brennan does not ignore the Fifth Amendment and its connection to the Fourth

sanctioned by the Court reaching back to the Boyd case, but he does distinguish the holding by

denying any self-incrimination that might result from the garments in question. He thus left

evidence of “testimonial” and “communicative” nature as a question for another day, but largely

dismantled the substantive restrictions upon the object of search and seizure and overruled the

holding of Gouled v. United States.

the only fiction he describes is

one of his own making as his analysis of the three governmental possessory interests recognized

as superior to that of the individual in the past merely represents his own understanding of the

reasons behind past practices, a proposition bolstered by his failure to cite a single source

supporting his position. Justice Brennan confuses the relation between property interests and

procedural due process requirements. Though items with government possessory interests are

sometimes excluded from trial on due process grounds, such as a failure of showing proper

probable cause for the issued warrant authorizing search for contraband, this is in no way an

abandonment of the protection afforded individual property interests. The Court meant to expand

the protection of the amendment past property protections, while keeping those property

protections intact.

127

126 Warden v. Hayden, 387 U.S. 294 (1967)

Recognizing that the decision may enlarge the scope of

government search and seizure, Justice Brennan finds the additional intrusions to be “made after

fulfilling the probable cause and particularity requirements of the Fourth Amendment and after

127 Gouled v. United States, 255 U. S. 298 (1921)

70

the intervention of "a neutral and detached magistrate."128 While these procedural safeguards are

enough to protect the security of the individual in a circumstance similar to this, it does not

justify the abandonment of the entire property rights approach to permissible searches and

seizures. As the concurring opinion of Justice Fortas noted, “the use of identifying clothing worn

in the commission of a crime and seized during "hot pursuit" is within the spirit and intendment

of the "hot pursuit" exception to the search warrant requirement.”129 Placing this case in one of

the three exceptions to the warrant requirement would have enabled the Court to reach a

reasonable result without resorting to the use of a blowtorch to light a birthday candle, engulfing

the cake in flames and burning a giant hole through its center. The “mere evidence” rule helped

to discourage general searches by limiting the items that the government could lawfully search

and seize. Its abrogation marked “[the destruction], root and branch, [of] a basic part of liberty's

heritage.”130

Justice Douglas attacked the majority opinion with a zealous defense of privacy, arguing

that the early Entick case created “a zone of privacy which no government official may enter.”

131

128 Warden v. Hayden, 387 U.S. 294 (1967)

The substantive restrictions upon permissible searches and seizures meant to eradicate general

searches that were the bane of colonial settlers. His dissent meshes the protection of property

rights with the protection of privacy, and provides an alternative to the false dichotomy of

choosing between a strictly property-based approach and a strictly privacy-based approach. His

reliance on privacy is as unsupported as the similar reliance of Justice Brennan, but at least the

former does not use the text for the first part of his argument, only to later ignore it in making his

second. The two offer stunning contrast in the application of the fourth amendment when

129 Ibid. 130 Ibid. 131 Ibid.

71

considering the supposedly superior “privacy” interest. The majority opinion dismantles a

century old protection because its absence has little effect on the privacy of the individual, while

Justice Douglas defends the practice as an additional privacy protection that aids in creating an

absolute zone of privacy within which the government may never enter. The privacy protected

depends on the whim of the Justice is determining what amount of privacy is reasonable under

the amendment. For the majority, procedural safeguards are enough to supplant the displaced

practice, while for Justice Douglas the practice is an indispensible boon to privacy. Focus on

privacy allows individual conceptions of what privacy protections the Fourth Amendment allows

much greater influence in its application than a stricter property-based approach focused on the

exclusionary right of the owner of the property. Justice Douglas accepts the exclusionary right of

property as a necessary component of privacy protection, a premise the majority denies.

By reason of the Fourth Amendment, the police may not rummage around among these personal

effects, no matter how formally perfect their authority may appear to be. They may not seize them.

If they do, those articles may not be used in evidence. Any invasion whatsoever of those personal

effects is "unreasonable" within the meaning of the Fourth Amendment.132

The property protected is by its nature so intimate that the government has no prerogative to

conduct a search or seizure with it as the object sought. The jacket and clothing here found did

not seem intimate items, but if the government searched for and introduced a brassiere or pair of

panties into evidence instead, the effect would be much more intrusive into the defendant’s

privacy.

The Supreme Court again addressed electronic eavesdropping in the 1967 case of Berger

v. New York.133

132 Warden v. Hayden, 387 U.S. 294 (1967)

Police discovered a bribery conspiracy after installing eavesdrops in two offices

133 388 U.S. 41 (1967)

72

under a New York statute upheld by the New York courts, each authorized for a sixty-day

period. Justice Clark, writing for a plurality opinion, described the development of numerous

electronic surveillance technologies and acknowledged how “the law, though jealous of

individual privacy, has not kept pace with these advances in scientific knowledge.”134 Such a

frank admittance of the limitations on judicial protection, or rather of judicial abdication in

failing to expand that protection, showed the Court’s recognition that, just as Justice Bradley

urged almost a century earlier in the Boyd case, Fourth Amendment protection must expand

liberally to prevent the subtle encroachments of pernicious search and seizure practices into the

law. The opinion moved through developments in search and seizure law after the Olmstead case

and its trespass doctrine, concluding that the Silverman and Wong Sun cases recognized

conversations as objects of search and seizure under the Fourth Amendment and provided them

protection against unreasonable search and seizure. This negated the premise of Olmstead v.

United States135

Because conversations are a form of property under the amendment, and fall within the

“effects” it protects, warrants authorizing for their search and seizure require their particular

description so that once police obtain the conversation sought the search will terminate. As the

New York statute failed to do this:

and its following lines of cases, that conversations did not receive Fourth

Amendment protection, and all but overruled them.

New York's broadside authorization, rather than being "carefully circumscribed" so as to prevent

unauthorized invasions of privacy actually permits general searches by electronic devices, the

truly offensive character of which was first condemned in Entick v. Carrington, 19 How.St.Tr.

1029 and which were then known as "general warrants.”136

134 Berger v. New York, 388 U.S. 41 (1967)

135 277 U.S. 438 (1928) 136 Berger v. New York, 388 U.S. 41 (1967)

73

The Court found such general authorization similar to the general warrants that directly

prompted the writing of the Fourth Amendment. The right to exclude that the Court expanded to

conversations prohibited general government searches, giving the office a “roving commission to

"seize" any and all conversations,” and rather permitted specific searches for those described in

the warrant and sought for a particular crime.137 Despite the statute’s requirement that the

warrant describe the person whose conversations the police were to monitor, rather than placing

limitations on general searches, this merely noted whose conversations the police searched for

and seized unreasonably. As with any general search, “this leaves too much to the discretion of

the officer executing the order,” rather than vesting a neutral magistrate with the ability to limit

the search to protect the liberty of the individual.138

The second problem Justice Clark identified was the length of the authorization for

search and seizure. A sixty-day period allows for repeated intrusions into the constitutionally

protected area of the individual, the same as an officer returning to the home or office each day

to overhear the conversations there, without a new showing of probable cause for each intrusion.

The search is not limited to a single instance, but allowed to occur continuously for 1,440 hours.

Numerous individuals will call upon the person under surveillance within this time; they will be

subject to the search and seizure as well though for many of them police have no reason to

suspect their connection to the crime behind the authorization. The third was the lack of a

requirement that police end the surveillance once they found the conversation they sought, since

the warrant never particularly described it. This allowed for continued intrusion into the security

of the individual after the reason for authorizing the surveillance expired. Such an allowance

137 Berger v. New York, 388 U.S. 41 (1967) 138 Ibid.

74

granted police greater discretion than that found under general warrants, as they at least required

the search end after the seizure transpired.

Justice Douglas in his concurrence recognized that the plurality opinion overruled the

guiding principle behind the Olmstead decision and its progeny, that conversations did not

receive fourth amendment protection. His principle objection to Justice Clark lay in his

continued support of the “mere evidence” rule. In his conception of the Fourth Amendment, the

framers sought to create a zone within which government could never enter; only when the

government had a superior interest in possessing an object could a reasonable search or seizure

occur. Since the government has no superior possessory interest in the conversations of

individuals, those conversations fall outside of the governmental prerogative to search and seize.

His interpretation might have prevailed had the Court not recently abrogated the “mere

evidence” rule in Warden v. Hayden,139

Justice Stewart concurred in the result on the narrow grounds that the warrant granted in

this case was not legal because the affidavits for its authorization were not adequate to show

sufficient probable cause of a crime committed. His narrow holding aligned with the dissenting

determining it had no real benefit in protecting the

individual from unreasonable search and seizure. His position is consistent in deploring general

government searches of letters as it does of conversations, and firmly relies on the property-

based application previously guiding Fourth Amendment decisions. The right to exclude that he

advocates is far broader than that recognized by the plurality, and not necessary to prevent a

degradation of fourth amendment protection. The requirements of probable cause and

particularity that Justice Clark describes are sufficient safeguards upon the government use of

developing search and seizure technologies.

139 Warden v. Hayden, 387 U.S. 294 (1967)

75

opinions on the larger questions of the statute itself, and was not an affirmation of the reasoning

of the plurality.

Justice Black fully agreed with Justice Douglas that the Court moved to overrule the

Olmstead holding, but disagreed in the appropriateness of such an act. For him, doing so would

substitute the text of the Fourth Amendment for whatever the Court wished it to say. His greatest

grief was in the subtle substitution of privacy over the protected items listed in the first clause of

the amendment, making it read “The right of the people to be secure in their privacy.”140

140 Berger v. New York, 388 U.S. 41 (1967)

Such a

shift worried him not only as a raw assertion of judicial power, but also because it changed

concrete protection to something vague and easily maneuvered to the whims of the Court. He

provided the example of the Fifth Amendment, whose protection against self-incrimination the

Court continued to degrade as it excluded numerous types of evidence from the amendment’s

prohibition. His final complaint against the plurality was that they applied the warrant

requirements of the Fourth Amendment literally to a practice that was included in fourth

amendment protection under a literal construction, and then added new requirements not found

in the text, all of which worked to make electronic eavesdropping nearly impossible to practice

without violating the Fourth Amendment. Many of the practices he saw as invented were

requirements that the Court had repeatedly found necessary in warrants, such as the requirement

that police establish probable cause that a crime occurred or is occurring before a search and

seizure take place. He ends his opinion with a long discourse on the role of the federal judiciary,

and especially the Supreme Court, in adopting the Constitution to present conditions. In his view,

any such attempts are the prerogative of the Congress and the People, and not that of the nine

who sit on the nation’s highest bench. A constitutional amendment would better effect a

76

harmonization of the Fourth Amendment with contemporaneous circumstances rather than

constitutional promulgations made by judicial fiat.

Justice Harlan dissented as well, taking issue with the haste of the Court in deciding the

constitutionality of the New York statute on its face, rather than allowing the state to hash out its

own protections against electronic eavesdropping and its courts to construe the statute within the

probable cause and particularity requirements of the Fourth Amendment. Past judicial glosses on

the same statute for other methods of electronic surveillance had brought it within Fourth

Amendment requirements, and those same glosses, if applied to the statute in this instance,

would have saved it from constitutional invalidation. For him, the affidavits used to issue the

warrant provided a reasonable basis for a magistrate to find probable cause and satisfy the Fourth

Amendment. They contained an adequate description of the conversations sought by the police

conducting the surveillance and limited their search and seizure to those items listed. Despite this

being sufficient for Justice Harlan, the warrants themselves did not describe particularly the

conversations sought and would have allowed for the “roving commissions” decried by Justice

Clark. For Justice Harlan, the sixty-day authorization was not excessive because police

uncovered the conspiracy in thirteen days, and because the sixty-day limitation in itself confined

the search within a set parameter. Like the plurality, he found that “searches by eavesdrop must

be confined in time precisely as the search for tangibles is confined in space.”141

Justice White did not accept electronic eavesdropping to be a general search because, like

a search for tangible items under the amendment, the officer will see other objects in searching

This time

constraint applies to all intangible interests protected by the Fourth Amendment, as the right to

exclude must overcome the government interest in public safety after certain duration of search.

141 Berger v. New York, 388 U.S. 41 (1967)

77

for the object described in the warrant. This assumes that the affidavit provided binding

construction upon the issued warrant, since its text did not particularly describe the conversations

sought. He then performed a long analysis of Congressional actions to regulate the use of

electronic eavesdropping and the results of a Presidential Commission noting both the

importance of electronic eavesdropping to police operations and its potentials for abuse, all to

show that the Court should not eagerly craft fourth amendment standards governing a developing

technology when other branches are attempting to do so. His argument obscures that those actors

may neglect to observe basic fourth amendment requirements, although he finds those standards

met by the New York statute in the case.

The overall impact of constitutionally protected areas and the inclusion of intangible

interests into the “effects” protected by the Fourth Amendment was a judicial approach that kept

the traditional structure of the Fourth Amendment and applied it to developing technologies,

offering those interests rigid protection once included. The Court, in allowing for the protection

of intangible interests, found a way to give equal emphasis to property and privacy in the

application of the Fourth Amendment. Though it began to substitute privacy for the traditional

emphasis on property, property with its inherent right to exclude remained entrenched while

welcoming its newly discovered intangible brethren, birthed from a brave new world of

surveillance technologies unimaginable to the framers of the amendment. The Court had the

opportunity to continue adding intangible interests within the protected “effects” of the first

clause of the amendment, extending to them a similar right to exclude and making them subject

to protection, without radically altering the application of the amendment. However, this route

soon received neglect.

78

Chapter 3

Reasonable Expectations of Privacy and a Return to Constitutionally Protected Areas

The Court made a fundamental shift in its application of the Fourth Amendment in the

case of Katz v. United States.142 From the preceding cases of 1967, the Court clearly was ready

to move the amendment away from its traditional application of the right to exclude

characterized by an emphasis on property and interests in security, liberty, and privacy, to an

overall emphasis on the protection of privacy. Justice Stewart led the effort with the plurality

opinion, refuting the framing of the issues that both the petitioner and the government asserted

based upon the facts of the case. FBI agents attached a listening device to the outside of the

phone booth that Petitioner used, allowing them to monitor and record conversations from

Petitioner’s end in which he transmitted wagering information in violation of a federal statute.

This surveillance occurred on multiple occasions, though the agents maintain they recorded

conversations only when petitioner occupied the booth and were careful to record only the words

spoken by the petitioner himself. Petitioner presented the issue as whether the phone booth was

a constitutionally protected area and whether a physical trespass was necessary for a search and

seizure to occur. Justice Stewart found this framing inappropriate because the amendment might

offer better protection through a concept other than constitutionally protected areas. He then

acknowledged that the Fourth Amendment imparts no general “right to privacy.” Instead, it

protects privacy in some instances and unrelated interests in others. These two factors

contributed to an undue emphasis on constitutionally protected areas by both parties, who should

have focused on the individual, as the amendment “protects people, not places.”143

142 389 U.S. 347 (1967)

He then

143 Katz v. United States, 389 U.S. 347 (1967)

79

described the telephone booth as a place where the individual is justified in his belief that certain

of his actions will be private:

One who occupies it, shuts the door behind him, and pays the toll that permits him to place a call

is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to

the world.144

Because the user takes action in paying his toll, he may assume that his action remains private.

The principle of acting in a way that justifies a reasonable expectation of privacy carries over to

other locations, such as in a taxicab, where the intention to pay the fare allows the individual to

assume some amount of privacy in his conversations and actions. Societal reliance on the

telephone for its general communicative function contributes to this expectation.

Justice Stewart then did away with the physical trespass requirement altogether, using the

holding in the Silverman case that conversations are subject to search and seizure, and relying on

his proposition that the amendment protects people, rather than places, to overrule Olmstead v.

United States145. He quoted Justice Brennan from the recent case of Warden v. Hayden146

144 Katz v. United States, 389 U.S. 347 (1967)

to

bolster his argument, which provides that “[t]he premise that property interests control the right

of the Government to search and seize has been discredited.” The property interests referenced in

that quote were those that determined whether a search could occur under the substantive

property-based restrictions that the Court overruled in that case, and did not reflect upon the

trespass doctrine at issue in Katz, already broadened to other areas other than the “home” listed

in the amendment. His determination that a physical intrusion was not necessary for a search and

seizure to occur was correct, but not because of his reasoning. Physical trespass no longer

controlled because past cases gave to conversations an intangible property interest, which

145 277 U.S. 438 (1928) 146 387 U.S. 294 (1967)

80

superseded the old physical trespass doctrine that relied on conversations being outside of fourth

amendment protection. It was not because property interests no longer had import on the

question of whether a search or seizure occurred. Justice Stewart finally concluded that a search

occurred when “[t]he Government's activities in electronically listening to and recording the

petitioner's words violated the privacy upon which he justifiably relied while using the telephone

booth”147 This determination clearly rests on a violation of individual privacy and completes the

transformation in the amendments application which Justice Black predicted in Berger v. New

York.148

Having established that a search and seizure occurred, Justice Stewart found that the

search was unreasonable since the agents lacked a warrant when performing it. However closely

they observed Fourth Amendment protocol of meeting the probable cause requirement and

tailoring the search and seizure to the Petitioner himself, their inability to obtain a warrant

rendered the entire endeavor unconstitutional. The search and seizure needed a neutral magistrate

to predetermine its scope so as not to leave the entire effort in the discretion of the police. As a

matter of established jurisprudence, “searches conducted outside the judicial process, without

prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment –

subject only to a few specifically established and well delineated exceptions,”

149

Justice Douglas concurred to note that no distinction should exist between domestic

crimes and those of national security; the executive, by his constitutional vesture, is an adversary

those being for

exigent circumstances and a “search incident to arrest.” In neither of those circumstances could

this kind of electronic surveillance be reasonable.

147 Katz v. United States, 389 U.S. 347 (1967) 148 388 U.S. 41 (1967). His prediction was that Court would interpret the first clause of the Fourth Amendment to read “The right of the people to be secure in their privacy…” rather than “The right of the people to be secure in their persons, houses, papers, and effects…” 149 Katz v. United States, 389 U.S. 347 (1967)

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to criminal proceedings, and is therefore unable to fulfill the neutral role of magistrate that the

Constitution demands for authorizing and monitoring such electronic surveillance as in this case.

This was in response to the concurrence of Justice White, who argued that requirements of

national security might allow for warrantless wiretapping. The question, in his mind, went

unanswered. Justice Black, in dissent, argued that nothing had changed. Instead, he found, just as

the majority in Olmstead, that the words of the Fourth Amendment in no way convey the

meaning attributed to them by the majority opinion. The two cases the majority cited as having

eroded the holding in Olmstead never actually achieved that result. The Court instead hoped to

bring the Constitution “into harmony with the times,” and he worried that such an authority

“would make [the Court] a continuously functioning constitutional convention,” a power never

bestowed upon it.150

The concurring opinion of Justice Harlan is important for its later influence on future

members of the Court. His concurrence operates within the constitutionally protected areas

concept, or at least does not abandon it, recognizing that the telephone booth receives similar

protection to the home once the toll is paid and the door is closed. While this appears great from

the perspective of the telephone user, realizing that the home receives similar protections to a

phone booth is a bit discomforting. The important part of his opinion is the enunciation of a two

part test to determine whether a fourth amendment violation occurs through search: “first that a

person have exhibited an actual (subjective) expectation of privacy and, second, that the

expectation be one that society is prepared to recognize as "reasonable."

151

150 Katz v. United States, 389 U.S. 347 (1967)

He then proceeds to

speak of the “reasonable expectation of privacy” throughout the latter part of the opinion,

determining that the Petitioner had such when he entered the booth and paid the toll. The right to

151 Ibid. I will evaluate this test in the next part of my thesis and compare it to my recommendation.

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exclude and intangible interests receive short thrift in this analysis, as privacy becomes the focus

of protection. The result was a radical shift from past application of the amendment, based upon

its text even with broad interpretation, for an application based upon how the Court best thought

it could protect privacy.

The reasonable expectation of privacy test came to dominate the application of the Fourth

Amendment in later cases dealing with developing technologies. After Katz, the Court “showed

some signs that privacy might be a vital source of protection of individual interests.”152 Professor

Thomas Clancy argues that the Court first sought to broaden fourth amendment protection

significantly through the newly fashioned privacy standard. A significant case was Delaware v.

Prouse153

An individual operating or traveling in an automobile does not lose all reasonable expectation of

privacy simply because the automobile and its use are subject to government regulation.

Automobile travel is a basic, pervasive, and often necessary mode of transportation to and from

one's home, workplace, and leisure activities. Many people spend more hours each day traveling in

cars than walking on the streets. Undoubtedly, many find a greater sense of security and privacy in

traveling in an automobile than they do in exposing themselves by pedestrian or other modes of

travel.

, in which the Court found police stops of motorists for no other reason than to check

their driver licenses and vehicle registrations too arbitrary an invasion into the protected privacy

of the individual.

Police had to demonstrate a reasonable suspicion for such searches because the Court found

motor vehicles to harbor a sufficient expectation of individual privacy to warrant protection. The

Court liberally construed the momentary detention of the motorist at the roadside by the officer a

“seizure” under the amendment, since it prevented the driver from the unrestricted use of his

152Clancy, Thomas K. 61 (2008) The Fourth Amendment: Its History and Interpretation. Durham, North Carolina: Carolina Academic Press. 153 440 U.S. 648, (1979)

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vehicle. The Court still recognized the right to exclude in form, though it abandoned it in name.

In the decades closely following the Katz decision, the Court found numerous instances where

society recognized the subjective expectation of privacy asserted by individuals, adding such

places as a home recently victim to arson154, the contents of a suitcase155, and even certain places

of business subject to inspection through statutory authorization156

Changes in the membership of the Court soon led to a contraction of the sphere of

protected privacy it recognized. In United States v. Place

to more traditional areas of

expected privacy such as the home, office, and hotel rooms.

157, Justice O’Connor, writing for the

majority, found that the use of a narcotics dog for a “sniff test” of luggage suspected of

containing drugs does not constitute a search under the Fourth Amendment. This is due to the

exceptional nature of the canine sniff; it does not require opening the luggage, protecting the

contents within from the fondling touch of government agents, nor does it reveal any information

of the enclosed materials other than an affirmation or rejection of the presence of contraband

narcotics.158

154 Michigan v. Taylor, 436 U.S. 499 (1978)

The Court found no reasonable expectation of privacy from a procedure so well

targeted, intimating that it might allow similar searches so particularized as to recognize only the

targeted item in other circumstances. This is no doubt an intrusion into the right to exclude, as

government agents obtain information of the contents of the suitcase, regardless of whether that

information concerns contraband or the type of pajama pants preferred by the owner. This small

and useful intrusion is a reasonable encroachment into the right of exclusion, although the

accumulation of such subtle exceptions may culminate in the introduction of despotic search

155 Arkansas v. Sanders, 442 U.S. 753 (1979) 156 Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978) 157 462 U.S. 696 (1983) 158 The canine nose is not always accurate, as Justice Souter acknowledges in his dissent in Illinois v. Caballes, 543 U.S. 405 (2005).

84

procedures into the law, the direst warning of Justice Bradley in Boyd v. United States159

In a later case on the reasonable expectation of privacy found in a home damaged by fire

and believed a victim of arson, the Court laid out several conditions that weakened the strong

expectation it previously espoused six years prior. In Michigan v. Clifford

. A

procedure that solely identifies a contraband item within an enclosed area without revealing any

other information is reasonable since it precludes the arbitrary use of police discretion and fails

to infringe on guaranteed security, so long as there is probable cause to validate the procedures

use. Developing technologies may engender future procedures that result in the procurement of

similar information about contraband items in the same manner accepted as reasonable in this

case. We should not discourage this method, as a procedure that reveals only whether contraband

is present within a confine based upon probable cause and is an efficient end to the wide range of

search required by other search methods increases the security of the individual. It does this

through eliminating the government eye from irrelevant areas and by increasing the likelihood of

the government ferreting out criminals from the public domain.

160

Privacy expectations will vary with the type of property, the amount of fire damage, the prior and

continued use of the premises, and in some cases the owner's efforts to secure it against intruders.

Some fires may be so devastating that no reasonable privacy interests remain in the ash and ruins,

regardless of the owner's subjective expectations. The test essentially is an objective one: whether

"the expectation [is] one that society is prepared to recognize as reasonable'" Katz v. United

States, 389 U.S. 347 (1967).

, Justice Powell

described:

161

Despite the objective description from Justice Harlan, the long list of determinative factors

revealed that under different circumstances, the same property receives different levels of Fourth

159 116 U.S. 616 (1886) 160 464 U. S. 287 (1984) 161 Ibid.

85

Amendment protection. Under an application of the right to exclude, the home receives absolute

protection form arbitrary search of the premises, regardless of the structural beams resting twelve

feet above the floor on proper supports, or smoldering as ashes upon the ground. As a bastion of

sacred tradition and refuge, its confines of protection do not yield to the flames like its

constituting materials. Though the tangible exterior may be gone, memories of childhood, Eros,

and family love remain.

The Court still recognizes the right to exclude in considering whether a seizure occurs,

exemplified by the case of Soldal v. Cook County.162 A property management company forcibly

evicted a tenant and his family from their mobile home by removing it from its position on a

rented lot two weeks before a proper eviction hearing occurred, under the protection and by the

acquiescence of local law enforcement. In rejecting lower court determinations that the action

was not a seizure under the Fourth Amendment because it did not intrude upon the privacy of

Soldal and did not occur through the regular actions of law enforcement, the Court found that

“our cases unmistakably hold that the Amendment protects property as well as privacy.”163

Searches rest upon the infringement of a reasonable expectation of privacy recognized by

society, while seizures occur when there is “some meaningful interference with an individual's

possessory interests in [] property” by government.164

162 506 U.S. 56 (1995)

Justice White noted that the Court never

abandoned property interests as a guide to applying the amendment, though it asserted privacy as

more important in considering the occurrence of a search. Justice Stewart actually expressly

denied in the Katz case that privacy was the only interest involved in applying the amendment,

noting that its protections often affect interests unrelated to privacy. In considering the “plain

view” doctrine, Justice White found that possessory interests were the basis for subjecting

163 Ibid. 164 Ibid.

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seizures of items within plain view to fourth amendment scrutiny, for otherwise the lack of

privacy in their position would render them immune from protection. This case was a

resurrection of the right to exclude, welcoming its return to fourth amendment analysis, though

the Court found it never left. This is at odds with the various appellate court decisions holding

that privacy interests determined whether a seizure actually occurred under the amendment. The

right to exclude dominates analysis for determining if a seizure of property occurs, restoring the

right of the people to be secure in their “effects” to its original force.

The Court hashed a middle ground to the dichotomous question of whether a subjective

expectation of privacy that society recognizes as legitimate exists or not, finding that in some

circumstances government interests outweigh interests in individual privacy due to the

reasonableness standard of the amendment. This lowered privacy expectation provides

constitutional sanction to “suspicionless searches and seizures to conduct drug testing of railroad

personnel involved in train accidents165, to conduct random drug testing of federal customs

officers who carry arms or are involved in drug interdiction166, and to maintain automobile

checkpoints looking for illegal immigrants and contraband167, and drunk drivers168.”169 The

reasonableness standard becomes the guide, evaluating lowered privacy expectations and the

protection of that privacy against legitimate government interests in protecting the health and

safety of the public. A telling example of this analysis is the case of Vernonia School District 47J

v. Acton170

165 Skinner v. Railway Labor Executives’ Association, 489 U. S. 602 (1989)

, involving the privacy of student athletes from a search and seizure of their urine for

drug testing.

166 National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989) 167 United States v. Martinez-Fuerte, 428 U.S. 543 (1976) 168 Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990) 169 Vernonia School District 47J v. Acton, 515 U.S. 646 (1995) 170 515 U.S. 646 (1995)

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Justice Scalia, writing for the majority, found that the societal recognition of legitimate

expectations of privacy varies with context, especially dependent upon the legal relationship of

the government to the individual it acts upon and the location that the action takes place. In the

context of public schools, the legal relationship between school and student is one of “custodial”

and “tutelary” responsibility, permitting the school a “degree of supervision and control [over

students] greater than it could exercise over free adults.”171 The location of the search is the

locker room, which Justice Scalia found “not for the bashful.”172 Many of the amenities there are

communal, with lockers, showers, and urinals together in the open. By the agreement, the search

itself occurs in an empty locker room, as a monitor observes the student athlete as he stands at

the urinal, or she sits in the stall, listening to ensure the urination is legitimate. Justice Scalia

found these conditions “nearly identical to those typically encountered in public restrooms,

which men, women, and especially school children use daily. Under such conditions, the privacy

interests compromised by the process of obtaining the urine sample are in our view

negligible.”173

171 Vernonia School District 47J v. Acton, 515 U.S. 646 (1995)

However common it may be to overhear the urination of a fellow patron while in

the public restroom, the deliberate attempt to listen and discern if it is genuine is certainly not

what many people would recognize to be a common experience. The whole ordeal implies that

the observed individual is suspect of the commission of a crime, a discomforting feeling

uncommon to many users of public restrooms. The student athletes further reduced their privacy

when they agreed to submit to greater school control over their behavior to join the team. Justice

Scalia then evaluated the actual examination of the urine, which revealed only the presence or

absence of drug use. This method was similar to the “sniff test” of luggage by narcotics dogs

172 Ibid. 173 Ibid.

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approved in United States v. Place,174

He then evaluated the school interest in preventing its students from using drugs, and

ending its contribution to disorderly conduct in the classroom that detracted from the learning

process. The data presented into evidence was sufficient to provide legitimacy to the interest.

The school targeted student athletes for these searches because they were the role models of the

school, the primary users of the drugs influencing other students to partake in similar

debauchery. By addressing the problem at its source, the school hoped to eradicate it from the

student body. In finding these school interests legitimate, Justice Scalia weighed them against the

reduced privacy of the student athletes, and found the suspicionless drug testing of the student

athletes a reasonable search and seizure under the Fourth Amendment. This balancing test

reduces Fourth Amendment protection because it allows for greater expansion of government

intrusion into spheres of privacy, even if the Court labels those spheres as less rigid than

traditional ones, such as the home. In this case, it was clear that the urine was subject to seizure;

a fact the majority, nor Justice O’Connor in dissent, seemed to mention. Though urine may have

left the body, the information it contains about the individual is enough to invest in it a right of

exclusion, prohibiting government agents from infringing that right without a properly issued

warrant. The time necessary to obtain the warrant is minimal and can be done in advance, though

it does require probable cause. While student athletes submit many of their interests in liberty

and security to school authorities to engage in competitive sports, protection from government

infringement of their security in their bodily fluids should not waver in force due to what a

majority of the Court views a diminished expectation of privacy.

though there individualized suspicion was necessary for

the search to occur.

174 462 U.S. 696 (1983)

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In dissent, Justice O’ Connor decried the majority acceptance of blanket searches, which

made no distinction between the innocent and the guilty. Past precedent that upheld such

searches did so only because there were no practicable alternatives to promote the legitimate

government interest advanced. Here, suspicion-based searches would likely have accomplished

the same goal, because teachers often knew of instances in which students were abusing drugs,

and school authorities could search for that contraband without a warrant under past doctrine.

The requirement that school authorities have some suspicion before searching students was the

last fourth amendment protection still in effect for students at public schools, which the majority

eliminated here for student athletes. She saw the student athletes as having a greater privacy

expectation with societal recognition of legitimacy because many of the required vaccinations

and physicals forced upon them were non-adversarial in nature, unlike the suspicionless search

and seizure here. The whole purpose of negating the need for a warrant might be to deny the

need for probable cause, so that the drug testing of student athletes is efficient and timely. But

absent suspicion for drug use, the innocent as well as the guilty fall within the prerogative of the

search and seizure. The length of time necessary to obtain a warrant is not an issue since school

authorities can plan drug tests, after gathering sufficient information to establish probable cause.

Even if a warrant is not required, there is still enough time to gather information showing

individual suspicion of such use before the actual urine test takes place.

The Court laid out its current doctrine governing developing technologies used to search

the interior of the home in Kyllo v. United States.175

175 533 U.S. 27 (2001)

Police used a thermal imaging camera to

measure the amounts of heat emanating from the walls and roof of the home of Petitioner,

hoping to find probable cause that he was growing marijuana in his home. The growing process

requires the grower to use heating lamps that will make the rooms they occupy abnormally

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warmer than the rest of the home, resulting in their having brighter spots on the thermal images

than their surroundings. Justice Scalia began his analysis by deciding whether Petitioner had a

subjective expectation of privacy in his home that society is prepared to recognize as legitimate,

finding that:

“[I]n the case of the search of the interior of homes--the prototypical and hence most commonly

litigated area of protected privacy--there is a ready criterion, with roots deep in the common law,

of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable.”176

Using the common law as the foundation for the privacy Petitioner reasonably expected in his

home, the majority adopted an approach to the home similar to the older right to exclude

approach that the Court diminished in its decisions after Katz. Justice Scalia found that

“obtaining by sense-enhancing technology any information regarding the interior of the home

that could not otherwise have been obtained without physical "intrusion into a constitutionally

protected area," Silverman, 365 U.S. 505, constitutes a search--at least where (as here) the

technology in question is not in general public use.”

177 The approach is striking for its reliance

on concepts used by the Court in its property-based approach to the Fourth Amendment, such as

the common law, constitutionally protected areas, and comparisons to physical intrusion.

Professor Thomas Clancy finds “this language has much more in common with Olmstead than

Katz.”178

Justice Scalia’s reliance upon the home and its traditional protection under the Fourth

Amendment is a reemergence of the right to exclude in Fourth Amendment analysis.

Homeowners have the right to exclude any unwanted intrusions into their home that otherwise

The Katz decision abhorred the concept of constitutionally protected areas, as it found

the Fourth Amendment to protect people, and not places.

176 Kyllo v. United States, 533 U.S. 27 (2001) 177 Ibid. 178 Clancy, Thomas K. 312 (2008) The Fourth Amendment: Its History and Interpretation. Durham, North Carolina: Carolina Academic Press.

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could only have been accomplished by physical intrusion, making intangible intrusions just as

unconstitutional as tangible ones. While the Court adopted this approach within the Katz

framework, its differences are striking enough to make it better than the Katz privacy approach.

The Court adopted a firm line at the entrance of the home for what action requires a warrant,

finding that any intrusion past that line by a developing technology is a search under the

amendment. This is an absolute approach, rather than a limited one based upon a subjective

expectation of privacy whose legitimacy society is prepared to recognize.

The thermal imaging camera in this case did not penetrate the walls of the home, but

rather viewed the heat emanating from the home. The dissent found this to be nothing more than

observing the outside of the home, similar to looking through the open window to gather

information about the occurrences in the home. The majority saw such a distinction as

dangerous, because some search technologies already reveal very intimate details about the

inside of the home using minimal emanations of light or sound, and the future may bring an

expanded production and use of these technologies. The majority breaks with tradition,

“take[ing] the long view from the original meaning of the Fourth Amendment forward,”179 rather

than evaluating each developing technology on a case-by-case basis. While often providing

examples of developing search technologies in past opinions, previous Courts never sought to

address “what limits there are upon this power of technology to shrink the realm of guaranteed

privacy.”180

179 Kyllo v. United States, 533 U.S. 27 (2001)

This approach recognizes the dangers inherent in judicial reticence to address the

use of developing technologies for search and seizure, finding that “it would be foolish to

contend that the degree of privacy secured to citizens by the Fourth Amendment has been

180 Ibid.

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entirely unaffected by the advance of technology.”181

Justice Stevens decried in dissent the majority caveat attached to this rule, holding that

the only intrusions into the home that are a search under the amendment are those done by

developing technologies “not in general public use.”

Without a clear and definite approach,

developing technologies will continue to erode the traditional protections afforded by the

amendment; the Court is often too slow to halt their advance.

182 In his words, “this criterion is somewhat

perverse because it seems likely that the threat to privacy will grow, rather than recede, as the

use of intrusive equipment becomes more readily available.”183

Lastly, Justice Stevens found application of the Court's new rule to "any information

regarding the interior of the home" unnecessarily broad.”’

If use of the thermal imaging

camera involved in this case spread throughout the public, then under the reasoning of the

majority opinion the use of this same technology would be reasonable. The right to exclude

should prevent others, and especially the government, from obtaining information about the

inside of the home that otherwise it could not have obtained but by a physical intrusion without a

warrant. The “general public use” exception opens the Fourth Amendment to future abuses.

184 He worried that previous actions the

Court found not to constitute a search, such as the targeted use of the canine sniff185, would fall

within that designation under the rule adopted here. The Court addressed this issue in Illinois v.

Caballes186

181 Ibid.

, which concerned the use of a narcotics dog to sniff test a car for the presence of

drugs during a lawful traffic stop. Unlike the canine sniff, which targets only the presence of

illegal contraband, “the device [in Kyllo] was capable of detecting lawful activity, [the] intimate

182 Kyllo v. United States, 533 U.S. 27 (2001) 183 Ibid. 184 Ibid. 185 United States v. Place, 462 U.S. 696 (1983) 186 543 U.S. 405 (2005)

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details in a home.”187

Despite the new direction that the Katz decision hoped to move Fourth Amendment

jurisprudence concerning developing technologies, subsequent cases relied on similar property

concepts rejected by that case, and even affirmed that the amendment protects both privacy and

property. The right to exclude has not disappeared from Fourth Amendment jurisprudence.

Rather, the Court reaffirmed its importance in the Soldal and Kyllo cases. It offers the best hope

for protecting the traditional protections of the amendment, offering absolute protection rather

than focusing on the subjective expectations of privacy held by the individual the government

searches and on the recognition by society of the legitimacy of that expectation.

The Court upheld the uniquely targeted procedure of the sniff test against

the physical intrusion analogy into a constitutionally protected area, intimating that future

technologies so narrowly prescribed might find favor with the Court as well.

187 Illinois v. Caballes, 543 U.S. 405 (2005)

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Chapter 4

A Critique of Katz and the Right to Exclude

The Katz test of Justice Harlan for determining whether a search has occurred under the

Fourth Amendment with a developing technology, whether the individual subject to government

surveillance had a subjective and reasonable expectation of privacy that society recognizes as

legitimate, is fraught with several problems that limit the protective benefits it purports to

provide. The Katz Court adopted the test in response to failure of the Olmstead Court to provide

adequate protection to the individual against such searches, abandoning the older standards of

tradition and the common law that had helped to keep Fourth Amendment doctrine grounded in

well-established and tried concepts. The general move towards the protection of privacy, a

position advocated by Justice Brandeis in his Olmstead dissent, offered the Court what it thought

to be a feasible alternative to the traditional right to exclude approach to the Fourth Amendment.

This approach originated in property concepts, as inherent in the right of property ownership is

the right to exclude others from using that property.

Though the Court never explicitly tied its approach to the right to exclude, “the

exclusionary function of the Amendment is so bound up with the right to be secure as to be

equivalent to it: There is no security if one cannot exclude the government from intruding.”188

188 Clancy, Thomas K. 78 (2008) The Fourth Amendment: Its History and Interpretation. Durham, North Carolina: Carolina Academic Press.

This can be seen throughout the Court’s long history of Fourth Amendment jurisprudence, as in

the early cases property concepts so dominated its application, in the Olmstead era the Court

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sought to provide absolute protection against physical intrusion into the protected area of the

home, and even in the Katz era of expected privacy the amendment still functions to allow the

individual to exclude the government from protected zones of privacy.

The right to exclude makes up the central recommendation of Professor Thomas Clancy

for the proper application of the Fourth Amendment, and I find his proposition the best for

preventing the erosion of Fourth Amendment protection by developing technologies. He defines

several problems with the privacy standard adopted by the Court in the Katz case. The first is the

substitution of privacy as the sole means for exercising the right to exclude provided by the

Amendment. Past Courts recognized several motivations guiding fourth amendment protections,

such as “personal security, personal liberty, [] private property,”189 and the privacy190 that the

Court has so emphasized. By focusing its analysis on one of these several motivations, the Court

limits the full thrust of the Amendment past its original intention. The amendment serves to

protect against unreasonable searches and seizures, not an invasion of a reasonable expectation

of privacy. An unreasonable search may have no effect upon privacy at all, though it should still

fall outside of constitutional sanction. As Professor Clancy notes, “the purpose of exercising

one’s Fourth Amendment rights neither adds to nor detracts from the scope of protection

afforded by the Amendment.”191

189 Boyd v. United States, 116 U.S. 616 (1886)

The Katz Court recognized that privacy is not the sole

motivation behind the amendment’s protection, but the test it adopted ignored that distinction

when evaluating if a method of government surveillance is a search within the text of the

amendment. Rather than focusing on whether government action in some way infringed on the

190 Katz v. United States, 389 U.S. 347, (1967) 191 Clancy, Thomas K. 79 (2008) The Fourth Amendment: Its History and Interpretation. Durham, North Carolina: Carolina Academic Press.

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individuals exclusionary right to the information he seeks to protect, the Court focuses on his

privacy expectation and its legitimacy.

While it seems that I am arguing the flip side of the privacy test because I still recognize

that privacy motivates certain individuals to exercise their exclusionary right, my position allows

for other motivations to initiate fourth amendment protection other than mere privacy. Security is

one such motivation, as the night searches found unreasonable at the adoption of the Fourth

Amendment were likely unreasonable not just for the protection of the privacy of the colonial

property owners, but for their security as well. The approach of government agents onto private

property in the dead of night would have frightened and disturbed colonial homeowners

accustomed to a limited rule of law, night raids, and frequent robberies.

By focusing solely upon privacy, increasing governmental regulation and the increased

dispersion of developing search technologies throughout the public allows for a decrease in

fourth amendment protection because of lessening expectations of privacy rather than the

increase necessary to help offset these infringements upon the individual’s right to exclude. The

Court uses a diminished expectation of privacy approach in such situations, which allows for a

balancing between the reduced privacy interests and the importance of the governmental

objectives advanced by its surveillance. This balancing test, which reduces the strong protection

the amendment affords in situations where the Court does not consider privacy diminished, can

only become more common under current jurisprudence. An example of the erroneous results

accompanying application of the diminished privacy standard is Vernonia School District 47 v.

Acton192

192 515 U.S. 646 (1995)

, “where the Court readily deprecated the privacy interests of school children and

permitted suspicionless urinalysis of student athletes by maintaining that they had a lesser

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expectation of privacy due to such considerations as the configuration of locker rooms.”193

Another criticism offered by Professor Clancy rejects the value of the subjective

component of the Katz analysis. While many people throughout the nation share similar views on

privacy, because one individual does not share such a view should not place him outside of

fourth amendment protection if government surveillance would otherwise be found a search for

other individuals. The Court has recognized this need for a normative evaluation of expected

privacy, and in Smith v. Maryland

Privacy is a subjective term, one that is relative from person to person, and should not diminish

fourth amendment protection merely because those persons see the world through different eyes.

194

Where an individual’s subjective expectations had been ‘conditioned’ by influences alien to well-

recognized Fourth Amendment freedoms, those subjective expectations obviously could play no

meaningful role in ascertaining what the scope of Fourth Amendment protection was. In

determining whether a ‘legitimate expectation of privacy’ existed in such cases, a normative

inquiry would be proper.

noted in dicta that:

195

For example, if a man grew up accustomed to government searches of his home on a regular

basis without probable cause and expected similar occurrences here, a warrantless government

search is not constitutional merely because he has no subjective expectation of privacy. Basing

protection upon subjective notions of privacy allows for too much variance between the

protections offered to individuals.

Professor Clancy further comments on the ease with which different Courts can

manipulate the test. The term itself is amorphous, and never clearly defined. It is related to the

privacy protection found under the Due Process Clause of the Fourteenth Amendment, being the

193 Clancy, Thomas K. 80 (2008) The Fourth Amendment: Its History and Interpretation. Durham, North Carolina: Carolina Academic Press. 194 442 U.S. 735 (1979) 195 Ibid.

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product of a similar reimagining of the Constitution to incorporate privacy as a protected

individual right. However, the Court explicitly decried in Katz that the Fourth Amendment offers

a general right to privacy like that advocated by Justice Brandeis, preferring to leave the concept

vague and formless. Justice Black found “That expression, like a chameleon, [to have] a different

color for every turning” when dissenting in Berger v. New York.196 “Thus, while a liberal Court

substituted privacy in lieu of property analysis to expand protected interests, a conservative

Court has employed privacy analysis as a vehicle to restrict Fourth Amendment protections.”197

Individuals have differing views on what is reasonable, and naturally conservative member of the

Court will find different areas of privacy more important than those of their liberal counterparts.

The firm and bright line that the majority of the Kyllo v. United States198

A final critique of the Katz test is its circular nature. Justice Scalia acknowledged this

criticism in his opinion in Kyllo v. United States, stating that the test “has often been criticized as

circular, and hence subjective and unpredictable.”

decision drew at the

entrance to the home requiring warrants for government searches by developing technologies is

one such example. Of course, this decision marked a return to the older property concepts and

the right to exclude character of pre-Katz Court Fourth Amendment jurisprudence.

199

196 388 U.S. 41 (1967)

This claim entails that societal recognitions

of legitimate expectations of privacy are not only influenced, but often engendered by, Court

opinions that declare the existence of their recognition. For example, because of the Olmstead

decision many in society came to recognize expectations of privacy from warrantless

wiretapping as illegitimate. However, after the Court asserted that society recognized an

expectation of privacy from warrantless wiretapping as legitimate, society came to adopt that

197 Clancy, Thomas K. 69 (2008) The Fourth Amendment: Its History and Interpretation. Durham, North Carolina: Carolina Academic Press. 198 Kyllo v. United States, 533 U.S. 27 (2001) 199 Ibid.

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view. This is a simplified example, as throughout society different individuals have different

views of privacy, but overall it shows that the Court often determines through judicial fiat what

society recognizes a legitimate expectation. Once the Court makes this determination, society

adopts the view with the assurance that a majority of the Supreme Court holds a similar view to

their own.

I suggest that the Court readopt the right of exclusion as the primary method of applying

the amendment. To better protect against the erosion of traditional Fourth Amendment

protections by developing technologies, the Court should recognize a search or seizure through

their use whenever the right to exclude is infringed upon by the gathering of information which

that right is meant to protect by means which otherwise would have required a physical entry

into or seizure of that property by police. This applies the physical intrusion analogy framework

of the Kyllo case to all searches and seizures under the amendment. Containers, an office, a suit

case, all are examples of areas whose confines protect inside property and intangibles through

the right of exclusion. Whenever police violate the right to exclusion, a warrant is required for

the search or seizure to be reasonable under the Fourth Amendment.

Courts must broaden the right to exclude to intangible objects to prevent its decimation

by the expanded capabilities of developing search and seizure technologies to infringe it without

physical intrusion or possession. For the Court to vest an intangible interest with the right to

exclude, the individual must take reasonable steps to demonstrate he seeks to withhold it from

government. For example, the Court vested conversation, an intangible interest, with the right to

exclude after it recognized the individual wished to keep it private in the confines of his

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office200, or after recognizing the importance of the telephone to society at large and the desire of

the individual to exclude the government from the telephone booth he occupied.201

There are several difficulties with my test, but they are the lesser of two evils when

compared with the Katz privacy analysis. The first is that the Court is already moving towards

my method of analysis, albeit through a different approach. This is no weakness, but it does

lessen the need for a return to traditional concepts if the Court is already using those concepts,

even under a different guise. Kyllo v. United States

202 marked a turning point in applying the

Katz privacy test as it attempted to root analysis of the amorphous term privacy into solid

concepts such as the common law and the meaning of the amendment at its adoption. Its

grappling for substance led it to adopt the older standard of constitutionally protected areas and

led to an emphasis on an analogy to physical trespass in determining whether an intrusion has

occurred. The right to exclude others from the sacred confines of the home permeates the

opinion, and suggests that future cases will receive similar treatment in other areas. The

subsequent case of Illinois v. Caballes203

The second criticism is that it may be just as subjective as the privacy analysis. While the

protection it offers is absolute, depending on no motivation other than to prevent unreasonable

searches and seizures, the Olmstead case demonstrates its inherent danger. If the Court chooses

not to expand the right to exclude in a broad manner then intangible interests requiring vesture of

protection will not receive it. The Court would have just as much discretion in determining what

bolsters this view, as the Court reaffirmed its past

holding in Kyllo, though it limited its breadth to protect only information relating to lawful

activity within the home. However, it is unclear whether this analysis will extend to other areas.

200 Silverman v. United States, 365 U. S. 505 (1961) 201 Katz v. United States, 389 U.S. 347, (1967) 202 Kyllo v. United States, 533 U.S. 27 (2001) 203 Illinois v. Caballes, 543 U.S. 405 (2005)

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intangible interests should receive the right, although the requirement that an individual take

reasonable steps to demonstrate his desire to withhold it from government would help guide this

process. There would be an inherent danger that another infamous decision equal in ill effects to

Olmstead v. United States204

My final critique is the permanency of the right to exclude itself. As Justice White noted

in several cases dealing with developing search and seizure technologies, the reasonable

expectation of privacy analysis allows the Court to circumscribe Fourth Amendment protections

during times of national emergencies. Surely, a nation at war does not expect the same privacies

it does under peaceful conditions, especially if enemy troops may be hiding within their homes.

Fortunately, we have never faced such an extreme situation. Under the right to exclude approach,

once the Court vests the right in a tangible or intangible object or interest, it is absolute and does

not waver. The Court could attempt to make the right relative and balance it against competing

government interests in health and safety, but such an action would violate the Fourth

Amendment’s prohibition against unreasonable searches and seizures. There is no exception for

such exigencies, because constitutional prohibitions apply during times of peace and war alike.

might come down, which adamantly protected the right to exclude,

but it interpreted it far too literally. However, the subtle erosion of Fourth Amendment protection

currently occurring under the diminished privacy standard, a process that will only continue to

increase with greater government regulation and the dispersion of developing search

technologies throughout the public, is far worse than an abrupt carving out of the amendment.

The latter has a better chance of creating strong public ire and engendering Congressional action

to uphold the right to exclude wrongly denied the intangible interest at issue as occurred in the

wake of the Olmstead decision.

204 Olmstead v. United States, 277 U.S. 438 (1928)

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The Court can consider the permanency of its decision whenever it considers whether to vest the

right to exclude into a tangible object or intangible interest.

Though my approach is not perfect, its benefits outweigh those of the reasonable

expectation of privacy test, and it is the lesser of two evils. It offers absolute protection for a

variety of motivations, rather than focusing solely on privacy to determine whether a search has

occurred by a developing technology. It does not allow protection to decrease as governmental

regulations increase, or as developing technologies disperse throughout the public. Finally, the

Court cannot manipulate an amorphous term to extend or restrain Fourth Amendment protections

as it sees fit.

In the words of Brutus: “we must take the current when it serves, or lose our ventures.”

Now is the ideal time for the Court to return to a traditional approach to the Fourth Amendment,

one that broadens its protections and limits the extent to which future Courts can restrain them.

Our innovative society continues to produce technologies that push the boundaries of Fourth

Amendment protection, and the future may bring the dispersion of these technologies throughout

the public. Their widespread use would diminish the importance of the Fourth Amendment under

its current interpretation. Government regulation will increase as technology expands its

surveillance abilities, enabling greater enforcement of those laws. As the Fourth Amendment is

currently interpreted, this will also diminish Fourth Amendment protections. The Court must

change its approach before technologies develop to such a level that the opportunity for return

becomes impossible, enabling freedom to withstand the test of time.