…continued from A Man’s House is His Castle: Historic Development.
Interpretation of the Fourth Amendment
The Fourth Amendment has been in place for over 200 years. In that time, America and the world have changed drastically. Nations have literally come and gone within that time, and yet the United States Constitution and Bill of Rights have remained steadfast. There does, however, remain a question of how one should interpret the text of Fourth Amendment.
With the advent of electricity, telegraphs, telephones, radio communication, and the Internet, the question of what the Framers of the Fourth Amendment intended is more important now than it ever has been before.
Broken into sections, the Fourth Amendment seems straightforward in its meaning: People within America have the right not to be unreasonably searched themselves or in their place of residence. People within America also have the right not to have papers and other items seized unreasonably. These rights shall not be violated unless someone under oath (or affirmation) declares that there is probable cause that describes the places to be searched and/or the persons or items to be seized. Only then shall a warrant be issued for only the above-mentioned places described to be searched and/or the persons or items to be seized.
However, there remains much to interpret. Thomas Davis, an Associate Professor at the University of Tennessee College of Law, explains that “evidence indicates that the Framers understood ‘unreasonable searches and seizures’ simply as a pejorative label for the inherent illegality of any searches or seizures that might be made under general warrant…thus, they never anticipated that ‘unreasonable’ might be read as a standard for warrantless intrusions.”1
The idea that the Framers never considered there might be ‘reasonable’ searches and seizures is shown by the fact that the “ex officio authority of the peace officer [was] still meager in 1789. Warrant authority was the potent source of arrest and search authority. As a result, the Framers expected that warrants would be used. Thus they believed that the only threat to the right to be secure came from the possibility that too-loose warrants might be used.”2
Based on Davis’ research, it then becomes entirely reasonable to assume that the Framers intended warrants to be used significantly more liberally than warrants are used currently. Thus, the only reason warrants are not used as liberally would be due to the expansion of the ex officio authority of peace officers to search and arrest, which is exactly what happened during the 19th century3.
Throughout the 20th century, the Supreme Court often had to clarify ambiguous parts of the Fourth Amendment. In Olmstead v. United States, 27 U.S. 438 (1928), the defendant argued “that the wiretapping of ‘private telephone conversations between the defendant and others…amounted to a violation of the Fourth Amendment.'”4 In a five-to-four ruling, the Court held that the defendants Fourth Amendment rights were not violated because the Court could not “justify the enlargement of the language employed beyond the possible practical meaning of houses, persons, papers, and effects, or so to apply the words search and seizure as to forbid hearing or sight.”5 Moreover, the majority wrote that “[t]he reasonable view is that one who installs in his house a telephone instrument with connecting wires intends to project his voice to those quite outside, and that the wires beyond his house and messages while passing over them are not within the protection of the Fourth Amendment.“6(Emphasis added)
The Court interpreted the Fourth Amendment literally and since the telephone was not listed in the Amendment, it was not covered. The dissent countered that a “sealed letter entrusted to the mail is protected by the Amendments. The mail is a public service furnished by the Government. The telephone is a public service furnished by its authority. There is, in essence, no difference between the sealed letter and the private telephone message.”7
While the Olmstead decision was a blow to the right to be secure, Katz v. United States, 389 U.S. 347 (1967), overturned Olmstead and established a wider scope of protection given by the Fourth Amendment. The Court wrote, “For the Fourth Amendment protects people, not places. What a person knowingly exposes 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.”8 The Court also took time to correct the thinking in the Olmstead case, writing, “[the] Amendment was thought to limit only searches and seizures of tangible property. But ‘[t]he premise that property interests control the right of the Government to search and seizure has been discredited.'”9
The major development from Katz was the implementation of the “Katz test – whether the individual has an expectation of privacy that society is prepared to recognize as reasonable.”10
Kyllo v. United States, 533 U.S. 27 (2001), furthered the protection offered by the Fourth Amendment and affirmed the decision set forth by the Katz decision. However, Kyllo is not as straight forward as Katz. In Kyllo, an Agent of the United States Department of the Interior performed a thermal imaging scan of the petitioner’s home from the passenger seat of the Agent’s car and from the street behind the petitioner’s home. Performing the scan allowed the agent to “[conclude that the] petitioner was using halide lights to grow marijuana in his house.”11
The Court had already ruled that “[visual] surveillance [is] unquestionably lawful because “‘the eye cannot by the laws of England be guilty of trespass.'” Boyd v. United States, 116 U.S. 616, 628 (1886) (quoting Entick v. Carrington, 19 How. St. Tr. 1029, 95 Eng. Rep. 807 (K.B. 1765)).”12 Thus, one might think there is little thought required to assume that the passive surveillance conducted by the Department of the Interior Agent is “unquestionably lawful.” The Agent simply shifted the frequencies of the emitted energy rays into ones that could be perceived by humans. However, the Court took a more philosophical approach.
Referring back to the Katz decision, the Court writes, “We held that the Fourth Amendment nonetheless protected Katz from the warrantless eavesdropping because he ‘justifiably relied’ upon the privacy of the phone booth. Id., at 353. As Justice Harlan’s oft-quoted concurrence described it, a Fourth Amendment search occurs when the Government violates a subjective expectation of privacy that society recognizes as reasonable.”13
When the Katz test is applied, is becomes apparent that Kyllo‘s right to privacy as provided by the Fourth Amendment was, in fact, violated.
The Court concluded in its opinion:
While it is certainly possible to conclude from the videotape of the thermal imaging that occurred in this case that no “significant” compromise of the homeowner’s privacy has occurred, we must take the long view, from the original meaning of the Fourth Amendment forward.
“The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual citizens.” Carroll v. United States, 267 U.S. 132, 149 (1925).
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 warrant14.
Continued tomorrow with Statement of Question and Arguments Favoring Fourth Amendment Limitations…