Saturday, March 4, 2017

The Fourth Amendment

“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.”

Before we talk about what this amendment protects I think it is important to take a few paragraphs to talk about the first five words.

“The right of the people,” is an expression found in the first, second, and fourth amendments.  For almost 200 years no one took serious issue with what the founders meant when they wrote that, but it has become an issue over the past thirty years as we bring more cases of government regulation to the Supreme Court of the United States (SCOTUS) for final resolution.  The Harvard Law Review[i] has an interesting article on this subject as defined by the SCOTUS in at least two cases, United States v. Verdugo-Urquidez, 1990, and District of Columbia v. Heller, 2008. 

In US v Verdugo-Urquidez, the US suspected Rene Verdugo-Urquidez of leading a drug cartel operating out of Mexico.  In the course of the investigation he was detained, brought to California and the DEA, working with Mexican authorities, searched his homes in Mexico.  The defendant sought to have all evidence from those searches suppressed because the DEA had not obtained a warrant.  The district court granted that motion, but on appeal the SCOTUS reversed the lower court -- siding with the government that the fourth amendment was not intended to prevent government action outside the boarders of the US.  In their opinion Justice Rehnquist writing for the court said “the people” “refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of the community.”[ii]

Although voting with the majority, Justice Kennedy disagreed with the limitations noted by Justice Rehnquist, saying “I cannot place any weight on the reference to “the people” in the Fourth Amendment as a source of restricting its protections.”

This has played out in a number of lower court rulings where the courts have cited the connection to the US as a discrimination between “the people” being a narrower class than “persons” as noted in the Fifth Amendment.

In District of Colombia v. Heller, the court cited the earlier case, but seemed to muddy the water by arguing “the people” as used in the Constitution referred to “all members of the political community.”  Again, Justice Stevens dissented with the narrowing of the definition of the term to include only law abiding citizens.  By adding “political” to the discussion the question is further muddled.

Clearly “The right of the people” is an expression that carries significant weight when talking about what the government can do with regard to restricting safeguards for certain people like criminals, the insane, or illegal aliens.  Unfortunately, there does not appear to be an open and closed definition used consistently within the judicial system.

This video, although dealing with the second amendment, has an interesting exchange on the subject of “the people” between Ted Cruz (R-TX) and Dianne Feinstein (D-CA).

So now, back to the protections offered by the Fourth Amendment.

This is probably the most used of all the Amendments in the Bill of Rights.  It clearly limits the government’s ability to unilaterally seized personal property, or gain evidence without some sort of due process where two of the branches of the government must concur that it is a viable need for the government.  It also provides defense counsel with the most likely path to challenge a prosecution on the grounds the government violated its protections.

Again, I turn to the Cornell Law website[iii] for a discussion of this amendment.

Cornell notes the Amendment protects the individual’s right to privacy and freedom from arbitrary government interference.  It deals with searches and seizures of property or of arrest without a warrant outlining the government’s determination of probable cause justifying the arrests or seizure.  Since 9/11 and the creation of the Patriot Act, the individual’s expectation of privacy has been reduced and the government now has the means and the right to eves drop on electronic conversations as it seeks intelligence to prevent another terrorist attack. 

I expect this will provide fodder for future cases to the SCOTUS.

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