4th Amendment

                                                                                  by: Stanley C. Brubaker

                                                                                  Colgate University professor


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I T IS A TRUTH UNIVERSALLY ACKNOWLEDGED, THAT A GOVERNMENT IN WANT OF INFORMATION MUST BE IN POSSESSION OF A WARRANT. Or, if one prefers to quote the Warren Court, as do critics of NSA surveillance and the Patriot Act: “Searches con-ducted outside the judicial process, without prior approval by judge or magist-rate, are per se unreasonable under the Fourth Amendment.”

WELL, SORT OF. UNLESS, THAT IS, the police are in hot pursuit, or conducting a search incident to a lawful arrest, or have “reasonable suspicion” that a crime is about to be committed, or a suspect has given consent to a search, or a

suspect’s joint possessor (or roommate) has given consent—then no warrant is required. Or, come to think of it, unless federal administrators are checking whether a shop has followed minimum wage and maximum hour regulations, or a chemical company has complied with environmental regulations, or a liquor store’s bookkeeping conforms to federal standards. Or unless the IRS wishes to see just whether your income tax return squares with your bank records, or HHS wants to see if you have kept up your child support payments. Or unless you are visiting the House or the Senate or entering most any other government building. Or unless you are a high school student and the principal has reason to believe that you have cigarettes in your purse. Or unless you are hoping to board a plane, or a train, or to leave the country, or return to it. Each of these instances involves a government search; none requires a warrant.

In the 1967 case of Katz v. United States, Justice Potter Stewart qualified the “per se unreasonable” statement above by adding—”subject only to a few specif-ically established and well-delineated exceptions.” But in the face of such pervasive, and hardly “well-delineated,” examples of warrantless government searches, one must wonder if it isn’t warrants that are the exception.

And indeed, if one consults the text and history of the Fourth Amendment, an exercise often disdained by the Warren Court, one will find that such is the case. Ironically, a more originalist reading reveals a Fourth Amendment that is better suited both to protecting civil liberties and to fighting the war on terror.

Start with the simple text of the Fourth Amendment, which contains two clauses, as emphasized in the formatting below:

                              The right of the people to be secure in their

                               persons, houses, papers, and effects, against

                               unreasonable searches and seizures, shall not

                               be violated,


                              no warrants shall issue, but upon probable

                              cause, supported by oath or affirmation, and

                               particularly describing the place to be searched,

                               and the persons or things to be seized.

Note that these are independent clauses—the first concerning “unreasonable searches and seizures,” the second concerning “warrants” and “probable cause.” What is their relation to each other?

The Warren Court encouraged a “second clause dominant” approach. That is, the second clause defines what is meant by the first clause. What, under this approach, is a reasonable search”? It is one in which a warrant has been issued by a judge upon probable cause, etc.

This reading is possible, but hardly compelling. If this is what the Founders meant, why didn’t they say just say so? It would not have been difficult to subordinate the first clause to the second. They could have written, for instance, “As the people have a right to be secure in their persons, houses, papers, and effects, against all unreasonable search or seizures, no warrants shall issue, but upon probable cause, etc.” Or, even better, and in keeping with the Constitution’s celebrated concision, they could have simply eliminated the first clause entirely and stuffed its gist into the second. “No warrant shall issue {for search or seizure of persons, houses, papers, and effects], but upon probable cause......”

Of course, neither of these rephrasings leaves much room for Justice Stewart’s “few well-delineated exceptions.” But then, if room for exceptions was the point, the original phrasing, “The right of the people to be secure . .. against unreasonable searches,” seems an odd way of making it.

A GROWING NUMBER OF JURISTS AND SCHOLARS — most notably, Yale’s Akhil Amar—are coming to see that a “first clause domin-ant” approach to the Fourth Amendment better comports with the text, his-tory, and common sense. The first clause states the general rule: All searches must be “reasonable.” The second clause provides an important specification of the first: If a warrant does issue, it is per se unreasonable unless supported by probable cause, etc. Lacking such a warrant, the official can be sued for trespass if the search is otherwise unreasonable.

THIS READING IS BY FAR THE MORE COGENT ONE. It allows us to see the numerous and ill-defined “exceptions” not as exceptions at all, but simply as applications of the general standard of reasonableness. It gains some additional force when we realize that throughout the 18th, 19th, and early 20th centuries, the warrant requirement was not the primary way in which the people were rendered secure in their persons, houses, papers, and effects. Instead, as Bradford Wilson of Princeton has shown, the people were rendered secure against errant public officials by the right to sue them for trespass before a local jury. In the colonial period, in fact, warrants were viewed with suspicion precisely because they immunized the public official from such a suit. And for that very reason, the Founders sought to limit the circumstances in which a warrant could issue; otherwise, a warrant would license officials to barge into your home, rough you up, peruse your diary, rifle your private letters, and take some incriminating or embarrassing materials—all with literal impunity.

Understanding the original function of a warrant also allows us to see what a bizarrely ill-fashioned substitute the Warren Court gave us with the exclusionary rule—the doctrine that excludes from criminal trial evidence procured in violation of the Court’s warrant requirement, regardless of its reliability. Not only is the criminal to go free, as Benjamin Cardozo famously derided the idea, “because the constable has blundered,” but the constable is to go free despite his blñndering, and the suspect is to go uncompensated despite his injury. (That is, unless one considers acquittal—or better odds thereof—a form of compensation.) Members of the Warren Court no doubt believed they were broadening the scope of civil liberties and the rights of criminal defendants. But by teaching that every search under the Fourth Amendment requires a warrant and probable cause, they also implied the obverse: A search that by custom does not require warrant and probable cause—the installation of a device recording the telephone numbers of those you call or of those who call you, for example, or a subpoena of your bank records—is not really a real “search,” under the Fourth Amendment. Which is what the Burger Court concluded in precedents that still stand.

M ORE DISTURBING IS THAT THE WARREN COURT’S EXCLUSIONARY RULE FOSTERED THE MASSIVE MISUNDERSTANDING THAT THE FOURTH AMENDMENT PRIMARILY CONCERNS CRIMINAL PROCEDURE. Neither the constitutional text nor its history implies any such restriction. Regardless of the purpose of a search—criminal, civil, regulatory, disciplinary, or national security—the Fourth Amendment requires that it be “reasonable.”

Beyond its disregard of text and history, the Warren Court’s “second clause dominant” approach denuded the Fourth Amendment of the robust common sense implied in the concept of “reasonable.” “Probable cause” does focus on a very important question: What basis do you have for believing something? But that is only one element of a reasonable search, which allows and requires a broader array of considerations that interact in complex ways. How grave is the danger? Are we talking about teens smoking cigarettes in the school bathroom or terrorists smuggling VX nerve gas into the Capitol? How urgent? A ticking time bomb or the acquisition of potentially dangerous materials that will require months of processing? Just how intrusive is the search? Are there alternative, less intrusive means for conducting it? Are we talking about a metal detector or a strip search?

What if we face the worst concatenation of these dimensions? A grave and urgent danger—say, imminent detonation of a radioactive device—where only swift and drastic measures can succeed . Common sense demands that we allow them. Probable cause demands that government first say with a 51 percent certainty who holds the bomb or where it is—which it cannot do. And at the other extreme? Consider a minor infraction presenting no harm to others—a teenage girl has swallowed forbidden chewing gum, physical evidence of which is needed by the school for disciplinary action . It can only be obtained by an emetic . Common sense says forget it . Probable cause, standing alone, demands that government first say with a 51 percent certainty who holds the gum or where it is—which it can do. Of course, no sane jurist would forbid drastic action for the radioactive device or allow an emetic for the chewing gum, but that’s because they would be guided by the criterion of reasonableness, rather than by the Warren Court’s per se formulations.

Once we remove the mounds of misunderstanding that have covered it, we find a Fourth Amendment in far better shape to deal with the war on terror than the mis-shapen caricature bequeathed by the Warren Court. It is a robust and unstinting

Amendment that properly brings within its purview airport screenings and border searches, pen registers and track and trace devices, “national security letters” and other administrative subpoenas, FISA production orders, NSA taps of international communications, and more. At the same time, the protection it provides is against “unreasonable searches and seizures,” not ones measured by the narrow and rigid criteria of probable cause and particular description. The probability is minuscule that any given air passenger plots a shoe-bomb attack, yet the danger is so grave and the search so minimally intrusive that few could deem it unreasonable to place one’s shoes on a conveyer belt as a condition of boarding a plane.

The Fourth is also an agile amendment—misunderestimated, one might say—by those who think of it primarily as a rule of criminal procedure. In the war on terror, as jurist Richard Posner has pointed out, the urgent and grave task is knowing who the agents are . Too often, as with September 11, we can identify a terrorist with a probable-cause level of confidence only after an attack has occurred. Surveillance of international calls, where we have identified one party as an agent of terrorism, to take a current example, seems like an eminently reasonable way of obtaining such vital information.

And for the abuses of warrantless searches done in the name of national security, the original understanding of the Fourth Amendment suggests a remedy admirably fit: civil suits for compensatory damages. Warrants should still play their traditional role of conferring immunity . FISA court orders authorizing surveillance should afford individual officers immunity. (IT IS WORTH NOTING THAT FISA COURTS ISSUE “ORDERS,” NOT WARRANTS,” SO ALL ELECT-RONIC SURVEILLANCE FOR FOREIGN INTELLIGENCE, CONTRA-RY TO THE RHETORIC OF THE CRITICS, IS WARRANTLESS.”) Already FISA affords such civil remedies, supplemented through the Patriot Act, for unauthorized disclosures, with special procedures to maintain national security. FISA and NSA guidelines might be similarly reviewed through similar procedures in case of a civil suit. Of course, even in camera inspection of such guidelines presents legitimate concerns about national security . But on such issues, in time of authorized conflict, courts should recognize that they ar e not the only body with responsibility for determining the reasonableness of searches.

Moreover, the traditional tort remedy implies the traditional tort threshold for getting into court in the first place—a concrete legal harm. The J. Edgar Hoover era affords ample evidence that surveillance power can be abused. But internal guidelines, developed by professional legal staff of the FBI and NSA; inspectors general, acting as independent watchdogs; and administrative reporting requirements to the intelligence committees and other congressional overseers—all seem to function effectively to limit such abuses. Indeed, in spite of the frenzied attention brought to NSA surveillance by the leaks to the media, the only legal harm so far alleged is that of government spying on Iyman Faris, the Ohio trucker, who ironically makes essentially the same claim as the Bush administration: The evidence used to induce his guilty plea of plotting with al Qaeda to collapse the Brooklyn Bridge would not have been obtained but for this spying program.

Such “harm” also reminds us of the other side of the fundamental right to be secure in our person and property against unreasonable searches and seizures: the government's fundamental obligation to secure us against those who seek to destroy us and our freedom.


the weekly STANDARD Magazine

March 6/March 13, 2006 Volume 11, Number 24, (pgs. 29-31)

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