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A Moving Target: Protecting Fourth Amendment Rights in an Evolving Legal Landscape

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A Moving Target: Protecting Fourth Amendment Rights in an Evolving Legal Landscape

The Fourth Amendment’s vague directive, which prohibits the government from conducting unreasonable searches and seizures, has been subject to perpetual (re)interpretation since the Founding Era. This is in part, by design. The amendment’s key terms are undefined, and thus their meanings have remained unfixed. Adding to the morass is assessing how courts should best enforce Fourth Amendment safeguards in this constantly evolving legal landscape. In this course, we will analyze how the U.S. Supreme Court (and other courts) has applied Fourth Amendment protections in resolving novel legal questions. We will also explore unresolved legal issues that courts are facing or will likely face soon. Participants in this course will gain an understanding of how Fourth Amendment law has recently changed and how the amendment’s protections might apply to individuals today.

Presenters

Ethan Fallon
Assistant Attorney General
Office of the Attorney General for the District of Columbia

Transcript

 Hello, and welcome to this presentation on protecting Fourth Amendment rights in an involving legal landscape. My name is Ethan Fallon and I specialize in appellate litigation as an Assistant Attorney General in the office of the Solicitor General for the District of Columbia. Our office handles litigation for the district in the appellate courts, including the D.C. Court of Appeals, the U.S. Court of Appeals for the D.C. Circuit and the U.S. Supreme Court. Prior to this role, I served a special counsel to the Senate Judiciary Committee, where I assisted on the confirmation proceedings of U.S. Supreme Court and other federal court nominees. I was also a member of a law firm Supreme Court and appellate practice group, where I handled matters in various federal and state appellate courts, including successfully seeking cert before the us Supreme Court in a Fourth Amendment case heard in the October, 2020 term. Lastly, I also serve as an adjunct professor at the University of Virginia School of Law, where I teach a course on American Constitutional law. So today we'll gain an understanding of how Fourth Amendment law has developed, as both doctrinal matter and the practical consequences of those legal developments. The Fourth Amendment's vague directive, which prohibits the government from conducting unreasonable searches and seizures, has been subject to perpetual reinterpretation since the founding era. This is in part by design. The amendment's key terms are undefined and thus their meanings have remained unfixed. Adding to the morass is assessing how courts should best enforce Fourth Amendment safeguards in this constantly evolving legal landscape. In this course, we'll have five main objectives. First, to better understand the Fourth Amendment's Constitutional framework. Second, to review historical legal developments interpreting the amendment's key terms. Third, to analyze recent Supreme Court precedent applying Fourth Amendment protections. Fourth, to identify unresolved legal issues that courts are grappling with or will likely confront soon. And finally, to gain a practical understanding of how an individuals Fourth Amendment rights might be enforced today. Let's begin by discussing the Fourth Amendment's Constitutional framework, which is just 54 words. It states the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated and 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. And that's it. Those 54 words have been subject to interpretation and reinterpretation by the courts, scholars and everyday individuals. But before we get into the legal interpretations of the Fourth Amendment, let's discuss the plain meaning of the words it uses and let's focus on the search and seizure clause, which is the antecedent question to whether a warrant is required in a given situation. How does one define a seizure, for example? Does it mean grabbing someone, holding onto someone? What about preventing someone's movement or does it mean a combination of all three? And how does one define a search? Does that mean physically moving someone's personal papers and effects, or is it a search only if those things are studied carefully? What about searching a computer or a cell phone or some other digital device? And does it matter that type of search conducted? Is there a distinction between a cursory review of something versus an in depth dig? And what about the word unreasonable? Miriam Webster defines unreasonable as exceeding the bounds of reason or moderation, which is about as vague as the word itself. So who gets to decide what is considered an unreasonable search or seizure? Is it just the courts? Even so, what methodology do courts apply in making this determination? Moreover, can what is considered reasonable and unreasonable change over time, particularly in new context? For example, the digital age has provided new ways for individuals to store and utilize personal information that didn't exist in the past. Does that make a difference on defining any of these terms? Ultimately, as you can see, defining these terms independently can be quite tricky and even more so when applying them to circumstances governed by the Fourth Amendment, which brings up a key point in our discussion. Here, we're discussing what constitutes a Constitutional search and seizure for purposes of the Fourth Amendment versus searches and seizures that don't fall under the amendment's ambient, which is an important distinction to make. For example, an individual who freely publishes personal information on say Twitter, or in another public setting, might not be protected under the Fourth Amendment if a government agent searches such publicly available information. Another key issue to point out in the text of the Fourth Amendment is what's missing from it. If we look back to those 54 words, there exist no enforcement mechanism or other ways in which the Fourth Amendment's protections can be safeguarded. We'll discuss this in more detail later, but from a textual standpoint, it is quite interesting to observe that the founders didn't explicitly incorporate means in which citizens can enforce the freedom the Fourth Amendment provides. Today, those freedoms are protected or enforced in different ways, in both the civil and criminal contexts. But when we think about enforcement mechanisms, let's remember to separate substantive Fourth Amendment law with the application of Fourth Amendment protections as substantive Fourth Amendment law changes, how we view what the amendment protects. So does how those rights are enforced as a Constitutional matter and in conjunction with other statutory rights that aim to enforce those fundamental protections.


- Ultimately, the framers chose the Fourth Amendment's terms carefully and opted to apply somewhat vague, but nonetheless, traditional legal concepts. Terms like reasonable and unreasonable, permeate the common law, as well as other legal doctrines. The use of such terms is a means of keeping the Amendment's protections adaptable to a given situation and that makes practical sense because it would be an impossible task to list out every way in which a Fourth Amendment violation could occur. Rather, using imprecise terms provides a certain elasticity to interpret Fourth Amendment rights in a variety of contexts. Observe however, that this isn't unique to the Fourth Amendment. We see this in other amendments as well. For example, the First Amendment states that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof or abridging the freedom of speech. Phrases like free exercise and freedom of speech are similarly imprecise terms and thus, their meanings mutable. The Fifth Amendment is equally complex, using terms like liberty and due process of law. Again, those terms are inexact and subject to reinterpretation, given a set of circumstances. In sum, the framers deliberately included vague terms in the Bill of Rights, which has led to vigorous debate on their meanings, but it has also provided a robust framework to protect fundamental rights in an evolving social, political and legal landscape. But let's get back to the Fourth Amendment and look beyond its 54 words to tease out its purpose and place in the Bill of Rights. To start, Fourth Amendment protections developed as a response to the colonists' opposition to general warrants and writs of assistance, both of which armed British agents, with virtually unfettered discretion to engage in arbitrary invasions of personal privacy. Under the authority of general warrants, the king's agents used the power to search and seize to oppress others, often targeting disfavored, religious minorities and political opponents, such as those who published pamphlets criticizing the government or king. Some officials even used this power to settle personal scores. In the colonies, British officials were given blanket authority to conduct general searches in order to discover if any goods had been imported into the colonies in violation of tax laws. They essentially allowed the crown to break into the homes of any number of citizens in search of suspicious information without any sort of particularized suspicion and without limitation on its use. Writ of assistance not only authorized invasions of privacy, but also allowed the crown to enlist the help of other government officials and even private citizens to assist with these searches and seizures. These writs were nothing less than open-ended legal documents that gave British officials and their agents the authority to barge into homes and rummage through colonists' belongings. But a series of incidents and cases in the mid 1700s, in both the colonies and England, spurred colonial opposition to these much reviled warrants and writs. In 1761, in Paxton's case, a group of Boston merchants brought a legal challenge against the writs in Massachusetts State Court. At the time, local customs officials used these writs in an effort to quell the trade in smuggled goods. The merchants attorney, the famous lawyer James Otis, argued passionately against the writs, denouncing them as the worst instrument of arbitrary power, the most destructive of English liberty that was ever found in any English law book. Although Mr. Otis couldn't convince the colonial court to rule in the merchant's favor, he persuaded many others, including a young John Adams, who had heard him speak. Adams later stated that Otis was a flame of fire and that every man of a crowded audience appeared to me to go away as I did, ready to take up arms against writs of assistance. Then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child independence was born. John Adams of course, was a framer and architect of the U.S. Constitution and would later become the second president of the United States. On the other side of the pond, Wilkes v Wood and Entick v Carrington were two English cases that played a pivotal role in the drafting of the Fourth Amendment. In the first case in 1763, a prominent journalist named John Wilkes published an essay critical of King George II. Unhappy with this publication, the king's ministers issued a general warrant authorizing an agent to search Wilkes's house for any incriminating evidence. After his house was ransacked, Wilkes sued the agent for trespass, but under common law, a person with a valid warrant was immune to trespass suits. Instead, Wilkes argued that the warrant itself was invalid, claiming that the king and his ministers had no right to issue the general warrant against him. He further claimed that English law required warrants to describe the items to be discovered and where those items were expected to be found. Wilkes won his case and it established the principle that general warrants were typically illegal. The government cannot simply give the police the authority to search a person's possessions in hopes of finding incriminating evidence. The warrant must specify what government authorities believe they will find and where. Interestingly, the remedy Wilkes obtained with substantial monetary damages. We'll discuss the other case, Entick, more in depth later, but this 1765 case established that government officials acting in an executive capacity cannot exercise public power unless such exercise of it is authorized by some specific rule of law. In other words, government officials cannot enter private premises without legal authority. In sum, the colonists' experience with general warrants and writs of assistance, as well as the legal developments in England and the colonies, drove the framers to adopt the Fourth Amendment as a fundamental bulwark against government invasion of privacy of its citizens. Now, let's take a step back to consider the role of common law in understanding the contours of the Fourth Amendment. As you're aware, common law is generally understood as a body of unwritten laws or legal interpretations based on case precedent. Of course, the American legal structure is mixed system of both common law and code based law. The founding era legal doctrine is almost entirely common law based, particularly when it comes to Constitutional law. Plus, the unique circumstances motivating the framers to adopt the Fourth Amendment means common law played an outsized role in the amendment's early understanding and development. And even today, the Supreme Court has explicitly stated that the Fourth Amendment protects against unreasonable searches and seizures, in accordance with the common law meaning of those terms. So that tradition continues today. Observe however, that the nature of common law, which is inherently elastic and by definition evolves over time, fits well with the ambiguous language of the Fourth Amendment itself. The framers understood the role of common law in both their understanding of legal concepts and of how common law played a key role in adopting the Fourth Amendment. And an interesting tidbit here is that many colonial states adopted their own versions of the Fourth Amendment in their state Constitutions prior to the federal Constitutional version, which was ratified in 1791. In fact, eight states included provisions in their state Constitutions guaranteeing their citizens' rights against unreasonable searches and seizures immediately following independence. Moreover, most of the states had enacted these protections also enacted state Constitutional provisions or statutes incorporating English common law. So now that we've established the importance of common law in understanding the Fourth Amendment, let's talk a little bit more about two old cases that serve as fundamental foundations to understanding search and seizure law today. Let's first start off with Semayne's case, which was decided in 1603. Although this case predates the colonial era, it was heavily relied upon by British and American case law during the time search and seizure law was developing. In this case, a British court held that an English citizen could defend his home against unlawful entry, even by the king's agents. However, the court also upheld the power of the agents to break and enter to execute the king's process. Specifically, the court held in all cases, when the king is party, the sheriff, if the doors be not open, may break the party's house, either to arrest him or to do other execution of the king's process if otherwise he cannot enter. But before he breaks it, he ought to signify the cause of his coming and to make request to open doors for the law without a default and the owner abhors the destruction of breaking of any house, which is for the habitation and safety of man, by which great damage and inconvenience might ensue to the party when no default isn't him, for perhaps he did not know the process of which if he had notice, it is to be presumed that he would obey it. Out of this case, bore the basic principle of recognizing an individual's privacy in one's home and that notice is required when conducting a search. It also serves as a precursor for the knock and announce rule for officers effectuating a search warrant. This common law notice requirement quickly became a part of early American law. As noted, most of the states that ratified the Fourth Amendment had enacted Constitutional provisions or statutes incorporating English common law. These statutory and Constitutional provisions, coupled with the fact that colonial risk of assistance often included notice requirements, rapidly led American courts to rely on the principle that searches generally required some form of notice. Okay, now back to the mid 1700s colonial era. Perhaps the most important case to come out of this period is Entick v Carrington decided in 1765, which provided a template for the Fourth Amendment by rejecting the use of general warrants. This case was an action in trespass brought by John Entick, a pamphleteer, suspected of writing seditious documents against the king. The defendants were four of the king's messengers, who had acted pursuant to a warrant to search for and seize the plaintiff and his books and papers that was issued by Lord Halifax, who had recently been appointed Secretary of State. The defendants had broken into Entick's home with force and arms, and then proceeded over the next four hours to break down doors and open locks, in an effort to find evidence of seditious libel that could lead it to a criminal prosecution. Their charge from Lord Halifax was to make strict and diligent search for John Entick, the author, or one concerned in writing of several weekly, very seditious papers, entitled to monitor or British freeholder. In the course of their search, the defendant took out about 100 charts and 100 pamphlets. The particular actions were found to have caused 2,000 pounds in damages, which at the time was a considerable amount. In dealing with this case, the famous judge Lord Camden, addressed two related issues. The first was a scope of a prima facie case in trespass, and the second was the scope of the defenses that these four defendants could raise. Lord Camden stated that 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. If he admits the fact, he is bound to show by way of justification that some positive law has empowered or excuses him. The justification is submitted to the judges who are to look into the books, and if such a justification can be maintained by the text of the statute or by principles of common law. If no such excuse can be found or produced, the silence of the books is an authority against the defendant and the plaintiff must have judgment. So in other words, Lord Camden recognized that any sort of trespass required adequate justification and in this case, no justification could be found under English law for this evident abuse of official power, because "the great end for which men entered into society "was to secure their property." And in a similar case, Lord Camden observed that a general warrant "is a discretionary power given to messengers "to search wherever their suspicions may chance to fall. "If such a power is truly invested in the 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." Lord Camden then created a textual pathway between these principles and what would later become parts of the Bill of Rights by stating in Entick that, it is very certain that the law obligeth no man to accuse himself because the necessary means of compelling self accusation falling upon the innocent, as well as the guilty, would be both cruel and unjust and it should seem that search for evidence is disallowed upon the same principle. With those words, Lord Camden's rhetoric and language made its way into the Fourth Amendment's text, as well as a parallel clause in the Fifth Amendment. Thus, one way to examine the historical import of this language is to recognize that adopting it in the Fourth Amendment was an effort by the framers to emulate the principles that Lord Camden offered in Entick against a warrant to search and seize papers from general warrants. Accordingly, as the U.S. Supreme Court later observed, the Bill of Rights was fashioned against the background of knowledge that unrestricted power of search and seizure could also be an instrument for stifling liberty of expression. Okay, let's fast forward to American jurisprudence interpreting the Fourth Amendment. Not withstanding the legal development from British common law, the U.S. Supreme Court did not meaningfully address the Fourth Amendment until over a 100 years after the Revolution. In general, American courts were initially slow to regulate government searches and seizures for several reasons. For one, criminal cases were generally a matter of state law and the Supreme Court initially held that the Bill of Rights did not apply to the states. Thus, federal courts had little to say about searches and seizures early in the history of the republic until the Bill of Rights were incorporated. Relatedly, state Constitutions afforded some protection against searches and seizures, so there was no great need to develop Fourth Amendment law at the time. Second, the practice of government officials using illegally obtained evidence was not seriously questioned in the early republic. As we'll discuss later, the exclusionary rule would not be applied until the early 20th century. Third, as a practical matter, extensive centralized police forces hadn't really developed in the early years as they exist today. So a few cases implicated the Fourth Amendment, but in 1886, the Supreme Court decided Boyd v United States, the first major case addressing Fourth Amendment rights. Interestingly, the case was not a criminal one, but rather it was an in interim proceeding to obtain forfeiture of goods allegedly imported without paying proper taxes. Here, a dispute arose between the federal government and Boyd over the duty free importation of French plate glass windows used in the construction of a federal courthouse. The government asserted that Boyd imported far more glass than was needed for the project. So it brought a civil action seeking forfeiture of the excess crates of glass upon which no duty had been paid. The trial court ordered Boyd to turn over invoices showing the amount of plate glass that had been imported and based upon this evidence, the jury returned a verdict in the government's favor. On appeal, the Supreme Court held that complying with the government's order amounted to a Fourth Amendment search and seizure and excluded the evidence. The court held that a compulsory production of the private books and papers of the owner of goods sought to be forfeited in such a suit is compelling him to be a witness against himself within the meaning of the Fifth Amendment to the Constitution, and is the equivalent of a search and seizure and an unreasonable search and seizure within the meaning of the Fourth Amendment. Thus, the court construed the Fourth Amendment liberally rather than in the literal way, by concluding that complying with the order was the equivalent of an actual search and seizure, and thus was equally prohibited. Rather unusually, the court's ruling to exclude the evidence was based on the Fifth Amendment's prohibition of compelled testimony, while still holding that it was unreasonable to search for and seize Boyd's papers for use as evidence against him. Thus, the exclusionary rule crafted by the Boyd court had limited application, but it did provide a precursor basis for what would later become the exclusionary rule in the Fourth Amendment context. So now that leads us to Weeks v United States, a 1914 decision where the Supreme Court first enunciated the Fourth Amendment exclusionary rule in federal criminal cases. In this case, defendant Fremont Weeks was arrested at his place of employment and charged with using the mail to promote illegal gambling. His home was subsequently searched without a warrant and incriminating letters and other documents were discovered. Before trial, Weeks moved for the return of the illegally seized items, but the court declined the motion with respect to the letters that were used as evidence against him. On appeal, the Supreme Court framed the issue as whether Weeks' letters and correspondence could be retained and used as evidence in a criminal prosecution, where they had been seized in his house, in his absence and without his authority by a United States marshal, holding no warrant for his arrest and none for the search of his premises. The court distinguished these circumstances from warrantless searches conducted incident to a lawful arrest and thus, it held that exclusion of the evidence was required. The court explained that if private documents could illegally be seized and used in evidence against the defendant, the protection of the Fourth Amendment declaring the right to be secure against such searches and seizures is of no value and might as well be stricken from the Constitution. As for the officials, who acted under color of law, the court concluded that it need not inquire into any remedy against them, since the Fourth Amendment was not directed against individual misconduct. By ruling that the trial court should have granted Week's motion to return his property, taken as a direct result of the unlawful invasion of his home without a warrant, the court established the exclusionary rule, which is now the primary method of vergaturing violations of Fourth Amendment rights in the criminal context. Note, however, that Weeks was a federal case. Most criminal cases then as now, were brought in state courts for violation of state criminal laws. The decision in Weeks thus, did not reach them because it did not address whether the Fourth Amendment or the exclusionary rule would apply against state officials. For the next several decades, the Supreme Court continued to clarify the scope of the exclusionary rule, but it did not hold that the Fourth Amendment applied to state government officials acting under color of state law until 1949 and it did not require the states to adopt the exclusionary rule until 1961. Consequently, during this period states had developed their own jurisprudence to address unreasonable searches and seizures under their state constitutions. Okay, time for a quick recap before moving on to modern Fourth Amendment jurisprudence. As we discussed, early Fourth Amendment legal developments relied heavily on British common law as a starting point and American courts slowly began interpreting the amendment's contours, as well as ways in which to protect the rights it afforded. Importantly, the Supreme Court adopted an enforcement mechanism to protect Fourth Amendment rights in the criminal context. Otherwise, the amendment would've no teeth and law enforcement would not be induced to abide by it. As we'll discuss later, other enforcement mechanisms exist today, but the exclusionary rule is a Constitutionally based enforcement principle that endures today. Great. We've made it through some historical context for the inception and development of the Fourth Amendment, all while I've actively resisted speaking in a British accent, while quoting old English common law cases. But just as a Supreme Court settled on interpreting the basic contours of search and seizure law, an evolving societal landscape changed the circumstances in which to apply those contours. Like the nature of common law, the Fourth Amendment's evolving interpretive framework continues to change and adapt to the shifting times. But as we discussed earlier, the elastic nature of the amendment makes it well suited to evolve alongside the republic. So why so much legal movement, particularly in the last few decades? To start, technological booms have drastically increased the capabilities of police forces and other governmental actors. Surveillance technology like heat sensors, infrared imaging, and low flying aircraft have enabled the government to more effectively and efficiently surveil people. Police and government forces are also much more developed and organized to effectuate searches and seizures, making them much more common today than in the past. Relatedly, technological advancements have changed how individuals store personal information. Whole swaths of data can now fit on a cell phone or a small laptop. Historically, such large amounts of personal information would not be so easily accessible for private and governmental use, but modern methods of storing information make it easier to search and seize them, as governmental agents don't always need to physically intrude into private physical spaces to obtain suspected evidence. Evidence can now be gathered with the stroke of computer keys, a click of a specialized camera or activation of software to obtain access to personal devices. As intimated, in the past few decades, the Supreme Court has had to repeatedly address how the Fourth Amendment's protections apply in novel context. Additionally, there are three major shifts in the legal landscape that we'll be focusing on today. First, the development of a new legal standard for reviewing what constitutes a search for purposes of the Fourth Amendment. Second, the introduction of remedies and causes of action for violation of Constitutional rights and third, the rise of immunity doctrines. And as a related side note, the court also began to address Fourth Amendment questions in the civil context, much more than ever before. Now that we've mapped out the state of the legal landscape, let's review some modern case law applying the Fourth Amendment in new and interesting context, which coincidentally, begins with the case Mapp v Ohio. The Supreme Court's view that the exclusionary rule is constitutionally based reached the high water mark in Mapp, where it first applied the exclusionary rule to the states. In this case, police officers demanded entry to Dollree Mapp's home because they believed she was hiding a suspected bomber, but the police had no search warrant. So Mapp called her lawyer for advice and subsequently refused to allow them entry. Soon after, the police officers returned to Mapp's house and forced their way into her home, all while giving her a piece of paper they claimed was a search warrant. Once inside, officers did not find the suspect they were seeking, but instead found a trunk of pornographic books and photos. She was later charged with possessing obscene material, which was prohibited under Ohio state law at the time. At trial, the police officers could not produce the search warrant and gave no reason for not having it. Mapp argued that the police violated her rights under both the First and Fourth Amendments. She was nonetheless, found guilty and sentenced to jail. After losing her appeal in the Ohio Supreme Court, she took her case to the U.S. Supreme Court, where it held that all evidence obtained by searches and seizures in violation of the Constitution is by the same authority, inadmissible in a state court. The court reasoned that the application of the exclusionary rule to the states was logically and constitutionally necessary and to hold otherwise, would be to grant the right, but in reality, to withhold its privilege and enjoyment. The court highlighted that it had not hesitated to enforce as strictly against the states, as it does against the federal government, the rights of free speech and a free press, the rights to notice and to a fair public trial, including as it does the right not to be convicted by use of a coerced confession. Why should not that same rule apply to what is tantamount to coerced testimony, by way of unconstitutional seizure of goods, papers effects, documents? Justice Clark, writing for the majority, trace the history of the court's treatment of the exclusionary rule and observed that since Weeks was decided, the court has ever since required a federal law officer's a strict adherence to that command, which this court has held to be a clear specific and constitutionally required, even if judicially implied, deterrent safeguard without insistence upon which the Fourth Amendment would have been reduced to a form of words. It meant quite simply, that conviction by means of unlawful seizures and enforced confessions should find no sanction in the judgments of the courts and that such evidence shall not be used at all. The court also spoke of the importance of judicial integrity, stating that the criminal goes free if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws or worse, its disregard of the charter of its own existence. Importantly, the court also acknowledged that there are, in the cases with some passing references to the Weeks's rule as being one of evidence, but the plain and unequivocal language of Weeks to the effect that the rule is of constitutional origin remains entirely undisturbed. Thus, the court cemented the notion that the exclusionary rule is a constitutionally based principle that applies to all courts of law, whether state or federal. In sum, the Supreme Court affirmed its view that the exclusionary rule was an important check on the government infringement of Fourth Amendment rights, whether the government be state or federal. The rule is intended to deter police misconduct and remains as the Fourth Amendment's primary enforcement mechanisms. Though admittedly, the court has narrowed the rule's impact by developing certain exceptions to it, that we won't get into today. The practical impact of this decision cannot be overstated, as the vast majority of criminal cases are handled by state courts. Unfortunately for many defendants, in another case, the court did not apply the exclusionary rule retroactively. So the rule could be applied only moving forward. Six years later, the Supreme Court decided Katz v United States, a seminal decision resetting the parameters for what constitutes a search within the meaning of the Fourth Amendment. Up until this point, the Supreme Court's primary Fourth Amendment inquiry was whether the government committed a physical trespass. The Katz court changed this, famously declaring that the Fourth Amendment protects people, not places. In Katz, FBI agents had been surveilling Charles Katz, who suspected of playing a role in an illegal gambling operation. Over the course of two weeks, the agents watched him frequently using a public payphone and suspected he was transmitting information to a known illegal gambler in another state. They confirmed their suspicions by obtaining a record of the numbers he called while using the phone booth. After Katz left the booth one day, the agents removed the device and transcribed the recordings. Katz was later arrested on eight counts, which included illegal transmission of wagering information across state lines. At trial, the court allowed the tapes of Katz's conversations to be admitted into evidence and he was convicted on all eight counts, which the Court of Appeals affirmed after he appealed. Before the Supreme Court, Katz argued that the phone booth he used was a constitutionally protected area and that the agents physically breached this area by placing a listening device on it. Thus, he argued the device allowed the agents to listen in on his conversations, which was a clear violation of his right to privacy. In response, the government argued that Katz wasn't having private conversations because an outdoors phone booth is an inherently public space and cannot be considered a constitutionally protected area. Thus, the agents did nothing more than listened to a nearby conversation taking place on a public sidewalk, which the government argued, did not require a search warrant for them to listen to. The court sided with Katz, but concluded that whether or not police physically intruded upon a constitutionally protected area is irrelevant to the case. Rather, what matters is whether Katz had a reasonable belief that his phone call would be private inside the booth because the Fourth Amendment protects people, not spaces. In concurrence, Justice Harlan observed that there is a twofold requirement for an intrusion on a particular place to qualify as a search. That inquiry is whether a person has exhibited a subjective expectation of privacy in the location, and whether society is prepared to recognize that expectation of privacy as reasonable. If both are true and the government violates that expectation without a warrant or absent exception, then the action is deemed to have violated the Fourth Amendment. In this case, Justice Harlan explained, the critical fact was that one who occupies it, a telephone booth shuts the door behind him and pays the toll that permits him to place a call, is surely entitled to assume that his conversation is not being intercepted. The point is not that the booth is accessible to the public at other times, but that it is a temporarily private place, whose momentary occupants expectations of freedom from intrusion are recognized as reasonable. While Justice Harlan is responsible for the reasonable expectation of privacy test, in his Katz's concurrence, he further explained his views in another case about four years later, stating that while the expectation of privacy formulations represent an advance over the unsophisticated trespass analysis of a common law, they too have their limitations and can ultimately, lead to the substitution of words for analysis. The analysis must, in my view, transcend the search for subjective expectations or legal attribution of assumptions of risk. Our expectations and the risks we assume, are in large part, reflections of laws that translate into rules, the customs and values of the past and present. Since it is the task of the law to form and project, as well as mirror and reflect, we should not, as judges, merely recite the expectations and risks without examining the desirability of settling them upon society. The critical question therefore, is whether under our system of government, as reflected in the Constitution, we should impose on our citizens, the risks of the electronic listener or observer without at least the protection of a warrant requirement. Beyond the reasonable expectation of privacy test that Justice Harlan enunciated in his concurrence, the court decided Katz with the intent of expanding the scope of Fourth Amendment protection because at common law, a search was typically tied to trespass principles. Katz deviated from this property-based approach in part, because of the new reality that came with technological and communications advancements. Here, both the government's capability to wirelessly record conversation and Katz's ability to conduct a phone call in an outdoors public telephone booth were not possible at the time of the Fourth Amendment's inception and thus, set situations were not contemplated in early common law. But as I've kept hammering about, common law is by design intended to change over time and the Katz decision exemplifies this progression. Moreover, the thrust of their opinion and its privacy-based language, was the deliberate attempt to compel law enforcement agents to comply with the Fourth Amendment's requirements in cases in which they formally would've been unconstrained by the Constitution. This shift in emphasis from places to people was simply a recognition that Fourth Amendment interests extend beyond constitutionally protected physical spaces. Thus, the courting Katz held at any time police activity intruded on a protected privacy interest. It is governed by the Fourth Amendment. This holding also broadened judicial oversight on police practices to all cases in which a reasonable privacy expectation is implicated. The Katz court did not and of course, could not clarify the full range of interests and expectations to be protected. The fluidity and amorphous nature of the privacy model, make it impossible to delineate its contours and parameters perspectively, but that is a feature and not a bug. And as you can imagine, this model creates a certain level of uncertainty between what might be a protected privacy interest and what might not be. We'll discuss later how the courts have dealt with this uncertainty to better inform law enforcement and individuals on the rights protected under the Fourth Amendment, as the Supreme Court has attempted to inject some procedural stability into this expectations of privacy model. But as a quick aside, the Supreme Court did mark some clear boundaries on what isn't considered a legitimate expectation of privacy, which is particularly important to make clear in situations where citizens and police often interact. For example, in Rakas v Illinois, police officers stopped a vehicle that matched the description of a getaway car that was reportedly used in relation to a robbery. The police searched the vehicle and found a sawed off rifle and a box of rifle shells. The passengers of the vehicle were then arrested and charged for armed robbery and at trial, argued that the court should suppress the evidence found in the vehicle because it violated their Fourth Amendment rights. The trial court disagreed, concluding that defendants lacked standing to object to the lawfulness of the search because they were merely passengers in the car and had no possessory interest in the vehicle or in the evidence. On appeal, the Supreme Court affirmed the denial, holding that the petitioner's rights were not violated because they had no legitimate expectation of privacy in areas of a car in which they claimed no property or possessory interest. Beyond the merits of that decision, Rakas made clear to citizens and law enforcement agencies that generally, passengers in a vehicle do not have legitimate expectations of privacy. This of course, is helpful because vehicular stops are quite common and police officers interact with private citizens in this way on a daily basis. Now, if your spidee senses started tingling, when I read the Rakas holding, which was based on the fact that the passengers lacked possessory interests of the vehicle and evidence, you'd be right to question whether the court was veering back to a property-based model of interpreting Fourth Amendment protections. Although the court did still rely on the expectations of privacy formulation, the court seemed to conflate, or at least consider, property-based interests in determining whether there was a reasonable expectation of privacy. Later, we'll see the court more explicitly consider property-based interest in deciding Fourth Amendment cases though, the expectation of privacy test ostensibly still stands. Now, let's turn to another important case, Terry v Ohio, which concerns what is now known as a Terry stop or also stop and frisk. In this case, a police officer was on his routine beat through downtown Cleveland, when he noticed three men acting suspiciously and lingering around a jewelry store. The officer was concerned that the men were casing a job, a stickup, and were carrying weapons. The officer identified himself to the men and asked for their names. He then frisked them and found two guns on two of them. The men were then arrested and charged for carrying concealed weapons. At trial, the state court held that the officer's stop and frisk of the men was permissible, given the suspicious nature of their behavior and the officer's concern for his safety. The Supreme Court later affirmed the conviction, where it first articulated the reasonable suspicion standard. The court held that police may stop a person if they have an articulable basis for suspecting that the person has or is about to commit a crime. Reasonable suspicion is not enough of a basis for an arrest, but it is enough for the police to stop and briefly detain the person. After stopping the person, the police may make a limited frisk of the person for weapons if they have a further reasonable suspicion that the person is armed and presently dangerous. The reasonable suspicion for the stop is independent from the reasonable suspicion for the frisk. The court also made clear that probable cause is a higher standard of suspicion that must be shown before an arrest or more invasive search is carried out. Here, the Supreme Court interpreted the Fourth Amendment narrowly in order to provide the police with more leeway in conducting searches and seizures. In doing so, the court reasoned that societal changes have had an inevitable effect on law enforcement, believing that circumstances outside the probable cause context exist, in which it is impracticable for the police to secure a warrant. The court explained that there are certain times where the immediacy of a situation requires that an officer conduct a minimal search of a person, recognizing that the safety of the officer is one such justification. As a result, the court established this exigent circumstances exception, under which a search and seizure in the absence of probable cause or a warrant may be found lawful. Not withstanding this view, the court tried to avoid creating a broad exception to the warrant clause, recognizing that the scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge, who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. Accordingly, police must justify their actions with specific and articulable facts that would cause a person of reasonable caution to believe the action was appropriate. Note, however, that in the 2009 case of Arizona v Johnson, the court expanded this exception and held that an officer could stop and frisk an individual in a vehicle, so long as the officer had a reasonable suspicion that the person in the vehicle might be armed. Stop and frisk remains controversial today, as both legal and policy matter. You might recall that in 2013, Judge Sheindlin of SDNY ruled that New York police departments stop and frisk policy violated the Fourth and 14th amendments, due to racial profiling. Her judgment remains in effect today. Okay, so now that we've gone over some of the major Fourth Amendment cases that established the contours of the amendment's protections, let's quickly go over some of the more recent and novel applications that the Supreme Court has addressed before we switch gears to discuss statutory-based enforcement mechanisms aimed at protecting search and seizure rights. First, let's discuss how the Supreme Court has dealt with new technology. The development of thermal imaging cameras for instance, has changed the way in which law enforcement conducts certain searches, by allowing them to take images of relative heat sources. In 2001, the court addressed this technology in Kyllo v United States. There, an agent suspected that Denny Kyllo was growing marijuana inside his home. Because growing marijuana often requires high intensity lamps, the agent used a thermal imaging device to scan his home and based on informants, utility bills and the thermal images taken, a warrant was issued to search Kyllo's home. The search revealed that he was indeed growing marijuana and he was indicted on a federal drug charge. Once the case went to the Supreme Court, the question presented was whether the use of a thermal imaging device to detect amounts of heat emanating from a private home was an unconstitutional search in violation of the Fourth Amendment. The court held that where, as here, the government uses a device that is not in general public use to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a search and is presumptively unreasonable without a warrant. Note, however, that this technology is much more readily available for public use. So it would be interesting to see how the court would deal with this fact if it were brought up today. In 2012, the U.S. Supreme Court dealt with GPS technology in United States v Jones. In that case, police officers attached a GPS tracker to a defendant's vehicle to track his movements. The question presented there was whether the warrantless use of a tracking device on a defendant's vehicle to monitor its movements on public streets, violate his Fourth Amendment rights. The court held that such an act constituted an unlawful search because the Fourth Amendment provided some protection for trespass onto personal property, such as the vehicle. Note that again, the court seemed to use a property-based principle to ultimately determine that an individual has a reasonable expectation of privacy on the use of his car. In 2014, the U.S. Supreme Court dealt with drug sniffing dogs and whether or not they're used to detect marijuana growing in a home constituted a search under the Fourth Amendment. In Florida v Jardines, the court held that the government's use of trained police dogs to investigate the home and its immediate surroundings is a search within the meaning of the Fourth Amendment. The court's decision focused on the government's physical intrusion into a constitutionally protected area immediately surrounding the home, otherwise known as the curtilage. Interestingly, the court declined to address whether the officer search of the defendant's home violated his reasonable expectation of privacy, because it was sufficient to find a constitutional violation based on what the court characterized as the traditional property-based understanding of the Fourth Amendment. So once again, we see the court veering closer and closer back to a property-based model for understanding Fourth Amendment rights. In 2018, the Supreme Court considered whether the warrantless seizure and search of historical cell phone records, which revealed the location and movements of a user over the course of 127 days, is permissible under the Fourth Amendment. In Carpenter v United States, the court held that the government's warrantless acquisition of a defendant cell site records violated his Fourth Amendment rights. The court acknowledged that the Fourth Amendment protects more than just property interests and reaffirmed the reasonable expectation of privacy principle. The court discussed that the expectations of privacy in the digital age do not fit neatly into prior precedent, but here, tracking in individual's movements and locations through extensive cell site records, is far more intrusive than precedent might have anticipated. The court also declined to extend the third party doctrine in this case, which typically allows the warrantless disclosure of information if an individual voluntarily discloses that information to a third party. So as you can see, as technology continues to advance, it will become harder to rely on a property interest view of the Fourth Amendment, when assessing what constitutes a search. As mentioned, technology is making it easier for law enforcement to access information that many of us would consider private without physically trespassing on private property to get it. Moreover, it will be interesting to see whether the widespread use of a technology influences the court's decision making process. Okay, now that we've reviewed both historical and modern interpretations of substantive Fourth Amendment law, as well as the exclusionary rule, which applies in criminal cases, let's turn our attention to civil remedies that individuals may rely on to protect their Fourth Amendment rights. These civil remedies are primarily based on statutory law. This is because at common law, lawsuits against the state and its agents were barred by sovereign immunity. That changed however, when Section 1983 lawsuits came along and then Bivens Actions after that. Let's start off with Section 1983 suits. That statutory provision was enacted as part of the Civil Rights act of 1871, and one of its primary purposes was to provide a civil remedy against the abuses that were committed in the Southern states. Section 1983 was intended to provide a private remedy for such violations of federal law and has subsequently been interpreted to create a sort of tort liability. Interestingly, Section 1983 was not really used until after 1961, when the Supreme Court decided a case called Monroe v Pape. In Monroe, the Supreme Court held that a police officer was acting under color of state law, even though his actions violated federal law, which was the first case where the Supreme Court allowed liability to attach, where a government official acted outside the scope of their authority. To quote Section 1983, it now reads, "Every person who under color of any statute, "ordinance, regulation, customer usage "of any state or territory or the District of Columbia, "subjects or causes to be subjected, "any citizen of the United States or other person "within the jurisdiction thereof, "to the deprivation of any rights, privileges "or immunities secured by the Constitution and laws, "shall be liable to the party injured in an action at law, "suit in equity or other proper proceeding for redress." To be clear, a 1983 suit does not create any substantive rights. It only provides remedies for deprivation of rights established elsewhere under federal laws. To state a claim, a plaintiff is required to allege that the conduct complained of was committed by a person acting under the color of state law and that the conduct deprived them of a constitutional right. If an official is deemed to have violated an individual's constitutional rights, the remedies possible are monetary damages, which compensates for the violation itself, and injunctive relief, in cases where the violation might be ongoing. Punitive damages may be awarded as well, but that is a very rare occurrence because the defendant's conduct must be shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others. Relatedly, a Bivens claim is a special type of implied cause of action that was created by the Supreme Court, and in case involving an individual whose rights were violated when federal agents performed a warrantless search of his home without probable cause. This was an important decision because Section 1983 claims cannot be used against federal officials. So the Biven's decision changed that. To prove a Biven's claim, a plaintiff must be able to show a deprivation of a constitutional right at the hands of a federal official and that there is no other legal remedy available. The impact of Section 1983 in particular, cannot be overstated. It has been used as a key tool for civil rights enforcement that would not be possible otherwise. Most litigation to enforce federal civil rights is filed by private persons in federal court, most often relying on Section 1983. It is therefore, not very surprising, the Supreme Court's landmark rulings enforcing constitutional rights are quite often as the result of successful challenges under Section 1983. Cases like Shelley v. Kramer, where the court held judicial enforcement of racially discriminatory property covenants violated the equal protection clause, or Brown v Board of Education, where the court held that racial segregation in public schools violated the Constitution, or Obergefell v Hodges, where the court recognized same sex marriage. The list of cases goes on, but when you think about it, this isn't surprising because in the criminal context, the recourse an individual has for a constitutional violation is the suppression of evidence used against them. To be sure, the exclusionary rule is an important enforcement mechanism that citizens possess against Constitutional violation. But history has shown that the government has participated in illegal conduct that doesn't always result in criminal charges, meaning such violations would not come to the attention of the courts, if not for this important civil remedy. It is also important to note that there is a sort of associated relationship between criminal and civil cases involving Fourth Amendment rights. Typically, courts define the contours of a constitutional right in the criminal context, and later those decisions are the basis for understanding an individual's rights, and if violated, they can seek recourse under Section 1983 or a Biven's action. Our discussion of enforcement mechanisms for protecting Fourth Amendment rights would not be complete without also discussing judicially-created immunity doctrines. Absolute immunity applies to official conduct and it's typically extended to officials, like judges, prosecutors and lawmakers. Qualified immunity on the other hand, is a much broader immunity doctrine that shields state and federal officials who act in good faith, when an alleged civil rights violation occurred. Qualified immunity is an affirmative defense for civil rights suits. Specifically, qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights, of which a reasonable person would have known. To determine whether qualified immunity applies, the Supreme Court established a two part test. First, a court must determine whether the facts indicate a constitutional right has been violated, and second, whether that right was clearly established at the time of the alleged conduct. More often than not, qualified immunity protects government officials from being held accountable for constitutional rights violations, but beyond the merits of whether the expanse of scope of these immunity doctrines are virtuous, one unfortunate trend is that courts often decline to determine whether a constitutional violation occurred and instead, rely on the fact that the alleged violation wasn't clearly established. This is a problem because in the next case, a court will once again have to conclude that an alleged civil rights violation wasn't clearly established because the prior decision didn't make that determination. So it creates a never ending cycle of uncertainty of whether or not some conduct will be recognized by the courts as a violation of an individual's civil rights. As the Supreme Court put it, qualified immunity protects all but the plainly incompetent or those who knowingly violate the law. This practice also stymies substantive development of Fourth Amendment jurisprudence and prevents other courts from citing decisions to rely on what is established as violations of constitutional law. This past term, the Supreme Court doubled down on this practice, holding in City of Tahlequah v Bond, that an officer was entitled to qualified immunity in an excessive force claim because there was no single precedent finding a Fourth Amendment violation under similar circumstances. The court held we need not and do not decide whether the officers violated the Fourth Amendment in the first place, or whether recklessly creating a situation that requires deadly force can itself, violate the Fourth Amendment. On this records, the officers plainly did not violate any clearly established law. Thus, it appears that the federal courts are expansively applying the qualified immunity doctrine in a way that does not help clarify whether a Fourth Amendment violation occurred in the first place for a given set of circumstances. In my view, this is quite unfortunate because the purpose of qualified immunity is to allow some wiggle room for officers to act in good faith, and that purpose would not be lost in cases where the court provides guidance on whether certain conduct does indeed violate Fourth Amendment rights. I think therefore, that courts can both maintain a robust qualified immunity doctrine and provide greater clarity on the contours of Fourth Amendment rights, and as we can see, the Supreme Court's latest Fourth Amendment precedent almost exclusively results civil actions. Two years ago, in Torres v Madrid, the court held that the application of physical force to the body of a person with intent to restrain that person is indeed a seizure, even if the person does not submit and is not immediately subdued. So therefore, a Section 1983 suit can proceed. That same term, in Lange v California, the court held that pursuit of a fleeing misdemeanor suspect does not always or categorically qualify as a circumstance justifying a warrantless entry into a home. In 2021, in Thompson v Clark, the court decided that appellants showing that his criminal prosecution ended without a conviction satisfies the requirement to demonstrate a favorable termination of a criminal prosecution in a Fourth Amendment claim under section 1983 for malicious prosecution. Also in 2021, Egbert v Boule, the court held that the authority of a court to imply a cause of action under Bivens doesn't extend to either Fourth Amendment excessive force claims or First Amendment retaliation claims. And as mentioned earlier, in City of Tahlequah v Bond, the court held that the officers were entitled to qualified immunity because no precedent existed to show that the violation was clearly established. So as you can see, in five out of the last six cases, the Supreme Court resolved issues involving civil suits. Now, let's briefly discuss some unresolved Fourth Amendment legal issues that courts are currently grappling with. These next four examples come directly from either cert petitions the Supreme Court is currently considering, or they involve questions that have split the courts have appealed. The first issue comes from a cert petition that questions whether the special needs exception to the Fourth Amendment allows warrantless entry into the home of someone who is not subject to be penal control or supervision. This special needs exception typically applies when the government conducts programmatic searches that are aimed at advancing some special need other than criminal law enforcement. This petition also questions whether the court should overrule qualified immunity as to non-police state actors, which a number of other cases also argue. Another issue is whether the search of a purse in the possession of a visitor present at a residence during the execution of a warrant violates that person's Fourth Amendment rights. Finally, I couldn't leave without mentioning a dog-related Fourth Amendment issue, and that is whether a narcotics detection dog that briefly touches and sniffs a vehicle without direction from officials constitutes a Fourth Amendment violation. Okay, I think we've probably covered plenty of case law and new issues currently percolating in the courts. I want to conclude by discussing how Fourth Amendment rights can be best protected today. A criminal defendant may be facing serious consequences based on evidence that was illegally seized through a motion to suppress. That illegally obtained evidence might be thrown out if a court agrees it was a violation of constitutional rights. Note that qualified immunity doctrines don't apply in the criminal context. So defendant won't have to prove that the right was clearly established to be defensively protected. In the civil context, novel methods to search and seize often benefit the government because without established precedent saying that the conduct is illegal, it will be the defendant's burden to prove it was actually illegal and that the government should have known. So now that we're versed in how Fourth Amendment law has developed and how elastic and evolving it has been, let's discuss some strategies you might pursue on behalf of a plaintiff or defendant asserting their Fourth Amendment rights were violated. Admittedly, these decisions will depend on the particular judge or panel of judges, and so it is difficult to predict how a Fourth Amendment case might be decided. And at least in my experience, most suppression motions fail. That should not deter you of course, from asserting Fourth Amendment protection on behalf of your client, and oftentimes, these legal determinations come up on appeal and you might find a more favorable audience there. In civil cases, de-emphasizing novelty could be a useful strategy. What I mean by this is to show that a particular set of circumstances isn't really that unusual or so unique that a court would be unable to analogize it to another case or fact pattern. This is because novelty might doom the claim on whether or not the alleged action was clearly established at the time it occurred. Sometimes this works by discussing the facts with a higher level of generality than you might typically be used to, but doing so could allow you to more readily compare it to another case that you could use favorably. In the criminal context however, novelty won't be as harmful. Novelty may even attract greater interests of the court, and it could be a good candidate for appealing if a suppression motion is denied at the trial level. A related strategy is to analogize to similar fact patterns and not just legal holdings. This is especially true if there's no direct case on point finding similar patterns of behavior, especially regarding police practices will convey that the alleged behavior is not atypical and requires greater scrutiny. Additionally, emphasizing broader Fourth Amendment principles and the impact of the alleged violation puts into perspective how your individual case fits in the broader picture. Showing how the alleged violation fits in with established Fourth Amendment principles could be very helpful for the court's consideration. And if the violation is particularly egregious or offensive, make it personal and relatable for the court to understand what's really at stake. Sometimes stating the obvious is necessary because courts don't always make clear that there are particular set of actions that violate the Constitution. For example, in Torres v Madrid, which was decided just two years ago, the alleged violation was whether shooting someone twice constituted a seizure of that person. It seemed to painfully obvious that the answer was yes. However, the courts of appeal were divided on the issue and the Supreme Court hadn't directly addressed it before. So if you have one of those cases, where the violation seems so obvious and yet no direct case exists to support that view, state its obviousness anyway, and appeal to common logic. Finally, focusing on the antecedent question on whether a violation occurred and not whether there's a case on point, might lead the court to also focus on that question. Sometimes too much emphasis on case analogy distracts the court from really understanding what is at stake. Showing why your argument is right and principled is key, regardless of what else might exist in the case law. Additionally, straining too hard to match precedent might weaken your overall argument and make the case seem less legitimate. Well, I hope you enjoy discussing search and seizure law as much as I did. I'd like to end with the words of Justice Brandeis, in stating that the Fourth Amendment is the most comprehensive and most valid of rights, because it means one has the right to be let alone, which I will now do for you. Thank you.

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