“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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