6.4: History and Evolution of the 4th Amendment

Pin It! Search and Seizure

Learn more about search and seizure in this video: search and seizure.

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As we will see throughout this course, the Constitution has set the foundations of our rights, but it is case law that helps define the meaning and application of these rights. The 4th amendment is no different. It is important to understand the foundation and structure and then examine the case law which has shaped the 4th amendment over time. There are several cases and legislation that have had a serious impact on the interpretation and application of the 4th amendment over time. This section will review the case law decisions and legislation that have allowed the 4th amendment to grow and evolve.

Pin It! Fourth Amendment: Exceptions to the Warrant Requirement

In these two videos, learn more about the fourth amendment and exceptions to the requirement for warrants.

• fourth amendment (part i)

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• fourth amendment (part ii)

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History

The history of privacy rights in the United States begins with the ratification of the Bill of Rights in 1791. An effort spearheaded by James Madison, the passage of the Bill of Rights offered new protections for the American people from overreach by the newly formed (and much more centralized) federal government. It included specific guarantees of personal freedoms and rights and placed clear limitations on the federal government’s power. One such protective amendment, and the one this analysis will focus on, is the Fourth Amendment. In general, the Fourth Amendment prohibits unreasonable and unwarranted searches and seizures so common in the Colonies under British dominion. It also protects against arbitrary arrests and is the basis of American law regarding search warrants, stop-and-frisk, safety inspections, and wiretaps, and other forms of surveillance.

Originally, the Fourth Amendment enforced the notion that “each man’s home is his castle,” secure from unreasonable searches and seizures of property by the government. But over the course of American history, the Supreme Court has delivered several rulings that have transformed the meaning of the Fourth Amendment to apply to modern technology available to law enforcement and the federal government. In these cases, it has generally been decided by the Court that an officer or agency must demonstrate to a judge that there exists “probable cause” to search or seize property and can only engage in that search or seizure upon attaining a warrant. According to the Legal Information Institute at Cornell University Law School, probable cause exists when there is “a reasonable basis for believing that a crime may have been committed (for an arrest) or when evidence of the crime is present in the place to be searched (for a search).” However, cases of “exigent circumstances” (circumstances in which a law enforcement officer has probable cause but no sufficient time to secure a warrant) may justify a warrantless search or seizure. Probable cause was enshrined in judicial doctrine in 1983 in Illinois v. Gates, 462 U.S. 213 in which the Court viewed it as a “practical, non-technical” judgment that calls upon the “factual and practical considerations of everyday life on which reasonable and prudent men act.”

For acting as the Amendment that safeguards Americans’ privacy, something is notably lacking from the text of the Fourth Amendment: the word “privacy” is never mentioned. In fact, nowhere in the Bill of Rights, or anywhere in the Constitution, is a discussion of privacy or privacy rights present. The first real mention of a fundamental “right to privacy” in the American legal community is in an article published in the Harvard Law Review in 1890 by Samuel Warren and Louis Brandeis entitled “The Right to Privacy.” In it, Warren and Brandeis argue for what they call “the right to be let alone,”5 and argue for the existence of the fundamental principle that “the individual shall have full protection in person and in property.”

The next chapter in the history of American privacy rights comes from the Supreme Court in the case Olmstead v. United States, 277 U.S. 438 (1928). New technology had brought about new questions regarding citizens’ privacy, the meaning of probable cause, and the right of government agencies to access citizens’ information. The plaintiff in the case, Roy Olmstead, was a suspected bootlegger. Without judicial approval, federal agents installed wiretaps in the basement of Olmstead’s building and in the streets near his home. Olmstead was convicted with evidence obtained from the wiretaps. Olmstead petitioned, and his case eventually reached the Supreme Court. The question before the Court was: did the use of evidence disclosed in wiretapped private telephone conversations violate the recorded party’s Fourth Amendment rights? In a 5-4 decision, the Court ruled against Olmstead. In the majority opinion, Justice William Howard Taft wrote:

[The Fourth Amendment] does not forbid what was done here. There was no searching. There was no seizure. The evidence was secured by the use of the sense of hearing and that only. There was no entry of the houses or offices of the defendants.

The Supreme Court understood privacy violations as physical intrusions, and because the evidence obtained was provided by devices installed outside of Olmstead’s home, it did not involve a physical trespass onto Olmstead’s property. As the Olmstead case demonstrated, focusing on physical intrusions was an outmoded way to determine the scope of Fourth Amendment protection. Unless the Court modernized its test for determining when the Fourth Amendment would apply, it would become effectively obsolete. This modernization finally came forty years later, in Katz v. United States, 389 U.S. 347 (1967).

Acting on a suspicion that Katz was transmitting gambling information over the phone to clients in other states, federal agents installed an eavesdropping device in a public phone booth used by Katz. Based on recordings of his end of the conversations, Katz was convicted. On appeal, Katz argued that the recordings could not be used as evidence against him. The question before the Court was: does the Fourth Amendment protection against unreasonable search and seizures require the police to obtain a search warrant in order to wiretap a public payphone? In a 7-1 decision that overturned the Olmstead ruling, the Court ruled that Katz was entitled to Fourth Amendment protection for his conversations and that a physical intrusion into the area he occupied was unnecessary to bring the Amendment into play. In the majority opinion, Justice Potter Stewart outlined the dramatic shift in the judicial doctrine concerning privacy:

[T]he Fourth Amendment protects people, not places. What a person knowingly exposed to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.9

In a concurring opinion, Justice John Marshall Harlan explained that the Fourth Amendment should apply whenever a person exhibits an “actual (subjective) expectation of privacy” that “society is prepared to recognize as ‘reasonable.” The “reasonable expectation” that Justice Harlan mentioned gave birth to the “reasonable expectation of privacy test,” which protects people from warrantless searches of places or seizures of objects that have a subjective expectation of privacy that is deemed reasonable in public norms. With one decision, the Court had successfully incorporated the right to privacy, previously a theoretical right, into American law. It took nearly eight decades, but the fundamental “right to be let alone” discussed by Brandeis and Warren in 1890 had finally been made law.

With the right to privacy now enshrined in the courts, it was time for the legislature to act. With technology rapidly changing, it soon became clear that the next arena of privacy rights litigation would involve electronic information. The legislature passed two bills in the twentieth century that further regulated the federal government’s ability to surveil its civilians. These were the Foreign Intelligence Surveillance Act of 1978 (FISA) and the Electronic Communications Privacy Act of 1986 (ECPA). Both FISA and the ECPA were meant to update surveillance laws with new technology in mind but were drafted in the years just prior to the internet age. The advent of the internet and a new interconnected, global society rendered many of the provisions of these acts obsolete. The Patriot Act of 2001 took advantage of these discrepancies, as will be discussed later.

The first act of Congress to address citizens’ electronic right to privacy was FISA, passed after two congressional investigations found that the executive branch had consistently abused its power and conducted domestic electronic surveillance unilaterally against journalists, civil rights activists, members of Congress, and others in the name of national security. Mindful of the threat unchecked electronic surveillance posed to Americans’ privacy, Congress strictly limited FISA’s scope so that it could only be used if the “primary purpose” of government surveillance of Americans was the gathering of foreign intelligence.

After the 9/11 attacks, the state of citizens’ electronic privacy changed tremendously. With both a judicial as well as a legislative conception of privacy rights in mind, I will now begin a discussion regarding how the Patriot Act updated, and in some ways rolled back, protections of citizens’ electronic privacy.

H.R. 3126: Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001 was signed into law by President George W. Bush on October 26th, 2001, just forty-five days after the Twin Towers fell. The final preamble of the bill reads as follows:

An Act to deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes.

The Act gave law enforcement permission to search a home or business without the owner’s or the occupant’s consent or knowledge, expanded the powers of the Federal Bureau of Investigation (FBI) to search telephone, email, and financial records without a court order, and, perhaps most notably, granted immense freedom to the National Security Agency (NSA) to collect domestic and international communications of Americans without a warrant based on probable cause. The Act also greatly expanded and altered the provisions of both the ECPA and FISA, the two greatest legislative protections for Americans’ electronic privacy.

The history of privacy rights in America is a rich and complex one, ebbing and flowing with monumental historical events. Though the “right to privacy” did not make it into the Constitution verbatim, the Framers sowed the seeds of this right in their protection from unreasonable searches and seizures present in the Fourth Amendment. Through the legal genius of Justice Brandeis, this now-fundamental right transformed from a legal theory published in a Harvard Law Review article to a fully incorporated and enforceable civil liberty in Katz. The twentieth century posed new challenges and questions regarding privacy in an increasingly electronic world, and the legislature did its duty by updating laws to meet the standards of judicial doctrine. In the face of new threats, most notably the scourge of global terrorism, the legislature again acted by passing the Patriot Act. In doing so, it passed legislation that, in some cases, lacked clear constitutional grounds. Though Congress may have had Americans’ best interest in mind, we have seen the Act come under fire from both sides of the aisle, and some pro- visions of the Act go contrary to the rulings of the Court. The story of privacy rights in America is not unique, but it does show both the beauty and the danger of the American federal system. At its best, the legislature and the judiciary work in tandem, ensuring security but never compromising liberty; however, as we have seen with the Patriot Act, the two branches are no strangers to conflict.