Fourth Amendment
Privacy in a Digital Age, Policing in America, Search and Seizure
4th Amendment - Privacy in a Digital Age,
Policing in America,
Search and Seizure
Big Questions
4th Amendment - Privacy in a Digital Age,
Policing in America,
Search and Seizure
Big Questions (cont.)
4th Amendment - Privacy in a Digital Age,
Policing in America,
Search and Seizure
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.
Fourth Amendment
4th Amendment - Privacy in a Digital Age,
Policing in America,
Search and Seizure
Breaking Down the Fourth Amendment
4th Amendment - Privacy in a Digital Age,
Policing in America,
Search and Seizure
The Fourth Amendment places restraints on the government any time it searches or seizes a person or her property. True to the Amendment’s text, the government’s search or seizure must be reasonable.
The warrant requirement itself ensures that searches and seizures are generally cleared in advance by a judge. To get a warrant from a judge, the government must show “probable cause.”
4th Amendment - Privacy in a Digital Age,
Policing in America,
Search and Seizure
The Warrant Requirement
“Probable cause” simply means a certain level of suspicion of criminal activity—to justify a particular search or a particular seizure. Its suspicion that attaches to a particular person, place, or item—for instance.
4th Amendment - Privacy in a Digital Age,
Policing in America,
Search and Seizure
Probable Cause
Can they do that?
When thinking about the Fourth Amendment, we often start with a simple question: �Can they do that?
4th Amendment - Privacy in a Digital Age,
Policing in America,
Search and Seizure
Big Idea
4th Amendment - Privacy in a Digital Age,
Policing in America,
Search and Seizure
Before the government can search your home or seize your property, it needs a good reason. This is the big idea behind the Fourth Amendment’s warrant requirement. The government needs particularized suspicion—a reason that’s specific to each suspect—before it can get a warrant. Broadly speaking, our Constitution says that the police should only be able to invade a person’s rights to privacy, property, or liberty if they have a specific reason to think that the suspect has done something wrong.
Can the government track you 24 hours a day, 7 days a week, for an entire month, using your cell phone data and location information?
(Carpenter v. United States, 2018)
Hypothetical
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Policing in America,
Search and Seizure
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Writs of Assistance
Boston, 1761 �King George was using royal officials in the colonies to crack down on tax evaders and smugglers with the use of so-called “Writs of Assistance.” Writs of Assistance gave royal officials “free range” to break into the homes of colonists to search for evidence…anytime, anywhere, and for any reason.
King George III
4th Amendment - Privacy in a Digital Age,
Policing in America,
Search and Seizure
James Otis, a prominent Boston lawyer, publicly denounced the Writs of Assistance
Writs of Assistance
4th Amendment - Privacy in a Digital Age,
Policing in America,
Search and Seizure
James Otis
“It is a power that places the liberty of every man in the hands of every petty officer.”
Writs of Assistance
4th Amendment - Privacy in a Digital Age,
Policing in America,
Search and Seizure
John Adams
Otis’s argument was “the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child of Independence was born.”
4th Amendment - Privacy in a Digital Age,
Policing in America,
Search and Seizure
Writs of Assistance
James Madison
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Like Otis, James Madison and the Founding generation were primarily concerned about general warrants.
These warrants had allowed royal agents to conduct broad searches without limits and thus giving them arbitrary power to wield at disfavored colonists.
The Founding Era and General Warrants
Virginia Declaration of Rights
The Virginia Declaration of Rights banned “general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of fact committed.”
4th Amendment - Privacy in a Digital Age,
Policing in America,
Search and Seizure
The Founding Era and General Warrants
Several state constitutions—including those in Massachusetts and Pennsylvania—opened with a Preamble similar to the first clause of the Fourth Amendment, declaring the right of the people to be free from oppressive search and seizures.
The message here was simple. Warrants were often the instruments of tyranny.
4th Amendment - Privacy in a Digital Age,
Policing in America,
Search and Seizure
Massachusetts Constitution of 1780
The Founding Era and General Warrants
Before the government can search your home or seize your property, it needs a good reason.
Big Idea
4th Amendment - Privacy in a Digital Age,
Policing in America,
Search and Seizure
Was there a search or seizure?
If there’s no search or seizure, then there’s no Fourth Amendment violation.
Basic Framework for Analyzing �Fourth Amendment Cases
4th Amendment - Privacy in a Digital Age,
Policing in America,
Search and Seizure
Was the search or seizure reasonable?
Basic Framework for Analyzing �Fourth Amendment Cases
4th Amendment - Privacy in a Digital Age,
Policing in America,
Search and Seizure
If there’s a Fourth Amendment violation, what happens next?
Basic Framework for Analyzing �Fourth Amendment Cases
4th Amendment - Privacy in a Digital Age,
Policing in America,
Search and Seizure
Olmstead v. United States (1928)
ROY OLMSTEAD
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Olmstead v. United States (1928)
Facts of the Case: �Olmstead took place in 1928 during the height of Prohibition
Federal agents were investigating Roy Olmstead for running an illegal liquor business. Without a judicial warrant, they installed “wiretaps” on the phone lines leading to the office of the suspected illegal business, as well as to Olmstead’s home.
Able to listen to the suspects’ phone conversations, the agents uncovered evidence that Olmstead was selling liquor.
Olmstead argued that this violated the Fourth Amendment. He lost.
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Policing in America,
Search and Seizure
Olmstead v. United States (1928)
Majority Opinion:
No physical trespass, no constitutional violation.
The Founding generation linked Fourth Amendment protections to property rights, and Taft argued that the Court should do the same.
CHIEF JUSTICE WILLIAM HOWARD TAFT
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Olmstead v. United States (1928)
Brandeis Dissent:
“Progress of science and espionage is not likely to stop with wiretapping. Ways may some day be developed by which the government without physically intruding into the home may extract secret records and introduce them into Court.”
JUSTICE LOUIS BRANDEIS
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Policing in America,
Search and Seizure
Olmstead v. United States (1928)
Brandeis Dissent:
“At the time of the Framing, a far smaller intrusion—the general warrants that sparked the American Revolution—were held to be unconscionable violations of liberty. Can it be that the Constitution does not afford protections against similar invasions in light of new technology?”
JUSTICE LOUIS BRANDEIS
4th Amendment - Privacy in a Digital Age,
Policing in America,
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Katz v. United States (1967)
4th Amendment - Privacy in a Digital Age,
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Katz v. United States (1967)
Facts of the Case:
Acting on a suspicion that Charles Katz was transmitting gambling information over the phone to clients in other states, federal agents attached an eavesdropping device to the outside of a public phone booth used by Katz. Based on recordings of his end of the conversation, Katz was convicted for illegal gambling.
Katz argued that the government violated the Fourth Amendment by listening in on his conversation.
The Supreme Court agreed. And in the process, it overruled Olmstead and its requirement of a physical trespass.
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Katz v. United States (1967)
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 (Overruling Olmstead and its requirement of a physical trespass).
Although a public phone booth is a public space rather than private property, individuals have a strong expectation that such conversations will not be overheard.
The Fourth Amendment protects people, not places.
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In an influential separate opinion—a concurrence—Justice Harlan said that Fourth Amendment protections apply whenever the individual has a “reasonable expectation of privacy.”
JUSTICE JOHN MARSHALL HARLAN II
Katz v. United States (1967)
4th Amendment - Privacy in a Digital Age,
Policing in America,
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Justice Harlan’s Katz Test
JUSTICE JOHN MARSHALL HARLAN II
4th Amendment - Privacy in a Digital Age,
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Search and Seizure
Third Party Doctrine Cases
When the government tries to obtain “third-party” information—such as bank records or pen registers—that is generally not a search for Fourth Amendment purposes. And therefore, the government doesn’t need to get a warrant before getting access to that information.
4th Amendment - Privacy in a Digital Age,
Policing in America,
Search and Seizure
New Technology Cases
How do we apply the Fourth Amendment’s text and traditional Fourth Amendment principles to the new challenges of the digital age?
4th Amendment - Privacy in a Digital Age,
Policing in America,
Search and Seizure
Carpenter v. United States (2018)
4th Amendment - Privacy in a Digital Age,
Policing in America,
Search and Seizure
Can the government track you 24 hours a day, 7 days a week, for an entire month, using your cell phone data and location information?
(Carpenter v. United States, 2018)
Hypothetical
VOTE NOW!
4th Amendment - Privacy in a Digital Age,
Policing in America,
Search and Seizure
Carpenter v. United States (2018)
Facts of the Case:�In Carpenter, police officers arrested four men in a string of armed robberies. One of these men confessed. He gave his cell phone to the FBI and gave the agents the cell phone numbers of many of his accomplices. The FBI then used this information—and the suspect’s call log—to get the cell phone records of many other suspects.
Importantly, the government didn’t get a warrant. Instead, they requested this data through a national law—the Stored Communications Act. By using this law, the government only had to say that the cell phone records were relevant to a legitimate criminal investigation. This “relevance” standard is lower than the test for getting a warrant—known as “probable cause.”
The police eventually arrested Timothy Carpenter. And he was convicted and sentenced to 116 years in prison.
4th Amendment - Privacy in a Digital Age,
Policing in America,
Search and Seizure
Carpenter asked the question:
Can they do that?
Can the FBI gain access to my cell phone records without a warrant?
Carpenter v. United States (2018)
4th Amendment - Privacy in a Digital Age,
Policing in America,
Search and Seizure
Carpenter v. United States (2018)
In a 5-4 decision—authored by Chief Justice John Roberts—the Supreme Court ruled that the practice of acquiring cell phone location information from wireless service providers is a Fourth Amendment search because it violates a person’s “legitimate expectation of privacy in the record of his physical movements.” The Court also ruled that accessing those records without a warrant violates the Fourth Amendment.
4th Amendment - Privacy in a Digital Age,
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Search and Seizure
Dissenting:
Justice Kennedy argued that cell-site records are no different from the many other kinds of business records the government has a lawful right to obtain without a warrant because he believed users had in fact voluntarily given away their records to third-party businesses.
JUSTICE ANTHONY KENNEDY
Carpenter v. United States (2018)
4th Amendment - Privacy in a Digital Age,
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Search and Seizure
Dissenting:
Justice Thomas also stressed a property-based approach to Fourth Amendment questions. In Justice Thomas's view, the case should not turn on whether a search occurred, but whose property was searched.
JUSTICE CLARENCE THOMAS
Carpenter v. United States (2018)
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Dissenting:
Justice Alito distinguished between an actual search and an order “merely requiring a party to look through its own records and produce specified documents.”
JUSTICE SAMUEL ALITO
Carpenter v. United States (2018)
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Dissenting:
Justice Gorsuch offered a thoughtful dissent—probing the limits of each of the proposed approaches while offering some tentative thoughts of his own.
JUSTICE NEIL GORSUCH
Carpenter v. United States (2018)
4th Amendment - Privacy in a Digital Age,
Policing in America,
Search and Seizure
4th Amendment - Privacy in a Digital Age,
Policing in America,
Search and Seizure
Before the government can search your home or seize your property, it needs a good reason.
Big Idea