In the 21st century, Americans are challenged with balancing the concern for individual rights with the need for public order through the administration of justice. We have seen license plates with the logo “Live Free or Die,” a message intended not to encourage violence but rather to illustrate how Americans have traditionally sought to protect their personal liberties against unnecessary government intrusion. This conviction is perhaps best reflected in Benjamin Franklin’s prophetic admonition that “they that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”
Beginning in the previous decade, however, in part through actions undertaken by President George W. Bush and his Attorney General Alberto Gonzales, questions have been raised about whose interpretation of the Bill of Rights is correct and whether the need for search warrants will prevail in all circumstances. Together, the president and attorney general chose to place a new test before the courts on the need for search warrants or similar lawfully issued orders. From 2002 until at least 2007, the National Security Agency (NSA) was directed to intercept international and domestic electronic communications without the authorization of a search warrant issued by a U.S. district court or other court order issued by the Foreign Intelligence Surveillance Act (FISA) Court.
Needless to say, these actions raised and continue to raise controversy among citizens, scholars, and the legal community as Americans have witnessed a loss of the historically strong standard needed to be met before agents of the government could enter a home, intercept mail, invade privacy, or collect electronic data from computers, cell phones, and bank records.
II. Legal Decisions
A. Execution of a Search Warrant
B. Exclusionary Rule
D. Stop and Frisk
E. Warrantless Automobile Searches
F. Emergencies and Hot Pursuit
G. Open Fields
I. Electronic Eavesdropping
J. Other Investigations
III. Warrantless Wiretapping
In general, the United States has set a very high standard for government conduct in the hope that our privacy would be maintained and that our rights would not be violated. At the very beginning of this nation, the Framers sought to build popular support for the new government by amending the Constitution in 1887 with the Bill of Rights, which included protections against invasive government searches, securing “the Blessings of Liberty to ourselves and our Posterity” (as noted in the Preamble to the U.S. Constitution, 1787). Their belief in such principles as no taxation without representation illustrated their apparent desire to protect themselves against unreasonable government intrusion without legal justification.
It has not always been the law that agents of the government needed a lawfully issued search warrant based upon probable cause and signed by a neutral, detached judicial authority. In the past, without meeting this standard, evidence could be seized and later used in a criminal prosecution. Over the years, however, our legal system evolved to a point where law enforcement officers who violate the law of search and seizure usually find their evidence excluded and any conviction reversed.
The strength of Americans’ belief in the sanctity of their homes and privacy is reflected in the words of the U.S. Constitution and its amendments. This document was designed to ensure that actions detested during British rule would not exist in the United States. And although it preserved the interests of the wealthy class of property owners (who else could afford to take six months off to travel to Philadelphia and write a Constitution?), the document also granted enough concessions to small property owners, middle-income merchants, and farmers, to build support for its ratification in the statehouses (see Zinn 2005).
During colonial times, representatives of the Crown routinely invaded citizens’ homes; American colonists were subject to the abuses of general warrants, which permitted searches that did not specify the items to be seized or the person or place where they were to be found. An example of a general warrants was the writ of assistance that permitted a British tax collector and the collector’s representatives to search colonial homes and other buildings to determine if there were goods present that did not bear the mark of a tax payment. These writs were not based upon probable cause and gave the bearer almost limitless authority. As was noted in Boyd v. United States (1886), the writs of assistance were “the most destructive of English liberty, and the fundamental principles of law, that ever was found in an English law book.”
The Fourth Amendment to the Constitution is just one response to what the colonists found to be unjust treatment. It reads as follows: “The right of the people to be secure in their persons, 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.”
Execution of a Search Warrant
The Fourth Amendment governs the proper execution of a search warrant. Police are generally required to knock and announce their identity and purpose before attempting forcible entry (see Wilson v. Arkansas 1995). In response to law enforcement concerns about the need for flexibility, the U.S. Supreme Court held that this requirement is governed by a reasonableness standard. In United States v. Banks (2003), the Court concluded that a 15- to 20-second interval from the time the officers “knock and announce” until they enter by force was reasonable, given the possibility of destruction of evidence. Situations allowing for unannounced entries include the threat of physical violence or escape (see United States v. Bates 1996). Where there has been a violation of the knock-and-announce requirement, without more, the Court recently determined that the evidence should not be suppressed at trial (see Hudson v. Michigan 2006).
Most court decisions have upheld an individual’s privacy right. When a search goes beyond the scope of the warrant or is conducted illegally or without a warrant, the defendant will move to have the evidence discovered during the search suppressed. After reviewing the facts surrounding the seizure of the evidence, the court, when appropriate, will support the suppression motion and the items will be excluded from being introduced during the trial. The key case for the exclusionary rule is Weeks v. United States (1914) in which the Court recognized that the use of illegally seized evidence against Weeks was a denial of his constitutional rights. In Wolf v. Colorado (1949), the Court recognized the importance of an individual’s privacy against “arbitrary intrusion by the police”; it also recognized the significance of the Weeks decision, which held that “in a federal prosecution the Fourth Amendment barred the use of evidence secured through an illegal search and seizure.” Mapp v. Ohio (1961) ensured that this right applied not only to federal law enforcement but also to state law enforcement through the due process authority of the Fourteenth Amendment.
The natural extension of the exclusionary rule came with cases involving derivative evidence, called the “fruit of the poisonous tree.” In Silverthorne Lumber Co. v. United States (1920), the Court determined that evidence derived from an illegal search and subsequent seizure of accounting records (books, papers, and other documents) could not be used; it denied the government any use of the material gathered as a result of a “forbidden act” (see also Silverman v. United States 1961). The Court found that the wrong committed by the government tainted all the secondary evidence flowing from that illegality and was inadmissible as well. There are also cases where the Court has found that the wrong committed by the government is so attenuated or distanced from the illegally obtained evidence that such evidence has been accepted at trial (see Nardone v. United States 1937; Wong Sun v. United States 1963).
There are numerous exceptions to the criteria for the issuance of warrants and the admission of evidence as set forth in the Bill of Rights. Although several of the Supreme Court’s decisions have upheld the constitutional requirements, other case decisions have reduced the strength of a warrant requirement. Several exceptions to the strict requirements of search warrants are reflected in the following paragraphs:
Inevitable discovery and independent source: In Nix v. Williams (1984), the Court determined that the efforts of law enforcement personnel would likely have located the evidence (a body) and admitted it despite a constitutional violation (illegal questioning). In Murray v. United States (1988), the Court found that law enforcement personnel obtained evidence from an independent source in addition to the illegal source; it chose not to remove the evidence from admission. The independent source in this case was seen as a cure to the constitutional violation regarding the evidence.
Good faith exception: The courts have also decided not to penalize a law enforcement officer who acted in good faith to enforce a warrant that was no longer valid (see United States v. Leon 1984; Massachusetts v. Sheppard 1984; Arizona v. Evans 1995).
Incident to arrest: In Chimel v. California (1969), the Court rejected a search of the defendant’s entire house without a search warrant; but incident to the defendant’s arrest it did permit a search of the immediate area for weapons and other evidence. The Court found in United States v. Robinson (1973) that with a search warrant, a law enforcement officer could search the entire body of a defendant incident to the defendant’s lawful custodial arrest. In New York v. Belton (1981), the Court permitted a search of the entire passenger compartment of an automobile incident to the lawful arrest of an occupant or recent occupant (see also Von Cleef v. New Jersey 1969; Thornton v. United States 2004). In Maryland v. Buie (1990), the Court found that as a “precautionary measure,” law enforcement officers could conduct a search or protective sweep of the entire premises (adjoining the place of arrest) without a warrant to ensure a “reasonably prudent officer” that the area did not harbor danger that might place the officer’s safety in jeopardy.
Stop and Frisk
In Terry v. Ohio (1968), the Court accepted a limited invasion of a person’s privacy by allowing a pat-down of a subject’s outer clothing. The Court determined that a law enforcement officer had the right to conduct a pat-down of an individual who was the subject of an investigative stop when the officer had a reasonable concern for his or her safety. The “outer clothing” was determined to include the passenger compartment of an automobile in Michigan v. Long (1983).
Plain touch or plain feel of an item incident to a “Terry stop” was noted in Minnesota v. Dickerson (1993). In this case the law enforcement officer, who had a reasonable concern for his safety, was legally permitted to conduct a pat-down of the defendant’s outer clothing for weapons; the officer felt what he immediately recognized to be a lump of crack cocaine. The Court noted that when the “contour or mass makes its identity immediately apparent” to the law enforcement officer, there is no violation of the Fourth Amendment (Minnesota v. Dickerson 1993, at 376; see also Coolidge v. New Hampshire 1971, which supported the seizure of items of an incriminating nature that were not specifically named in the search warrant, but were in “plain view”). The key behind the plain touch/plain feel doctrine is that the law enforcement officer must be in a place he or she is legally authorized to be and conducting himself or herself in a lawful manner.
Warrantless Automobile Searches
Warrantless searches of automobiles, based on the Court’s holding in Carroll v. United States (1925), were found constitutional. The Court determined that when law enforcement officers had probable cause to believe that the vehicle contained contraband, they could search the vehicle without a court-authorized search warrant. The key behind this search is the inherently mobile nature of the automobile and the potential for the destruction of evidence if not immediately seized; this has become known as the Carroll doctrine.
However, in Scher v. United States (1938), the Court also determined that a vehicle parked in an open garage by the defendant was still subject to a warrantless search by law enforcement officers applying the Carroll doctrine (see also Chambers v. Maroney 1970; Michigan v. Thomas 1982; United States v. Ross 1982; California v. Carney 1985; Maryland v. Dyson 1999). In United States v. Tartaglia (1989) the Court found the same exigent circumstances present in a train’s roomette and accepted the application of the Carroll doctrine (see also Cardwell v. Lewis 1974 regarding exigent circumstances).
Close to the issue of searches is conducting an inventory. An inventory of a vehicle that has been impounded should not be confused with the issue of a search. Although there is less of an expectation of privacy, an inventory is conducted to safeguard the contents of a vehicle and protect the law enforcement officers from liability for any purported loss of its contents. Inventories are an accepted practice and generally must be part of the standard procedures for that agency or the action could be seen as an illegal search (see South Dakota v. Opperman 1976).
Emergencies and Hot Pursuit
In both emergency situations and the hot pursuit of a suspect, law enforcement officers may legally enter the private premises of an individual. In each situation, the law enforcement officer is legally permitted to be in that place without a search warrant. The officer may be responding to a 911 call for assistance or see what he or she believes to be an emergency, or the officer may be in hot pursuit of a suspected felon (murder, robbery, etc.) and has a reasonable basis to enter the premises. Upon entry for this lawful purpose, any evidence that the officer observes in plain view cannot be ignored. This would include weapons used in a robbery, drugs, and so on (see Warden v. Hayden 1967; Mincy v. Arizona 1978; McDonald v. United States 1948; United States v. Gillenwaters 1989).
In Hester v. United States (1924), the Court noted that the “special protection accorded by the Fourth Amendment to the people in their ‘persons, houses, papers and effects’ is not extended to the open fields.” But the Court did not change the rule that a warrant was needed to search the house or its curtilage (see also Oliver v. United States 1984; See v. City of Seattle 1967; California v. Ciraolo 1986; United States v. Dunn 1987; Florida v. Riley 1989). Although not the same as an open field, the Court has determined that search warrants were not required in common or public areas, where individuals have less of an expectation of privacy (see United States v. Nohara 1993).
In any case where a search warrant is not present, an individual can always consent to a search. This would not violate the defendant’s Fourth Amendment rights unless the consent was not “knowing” and “voluntary.” Schneckloth v. Bustamonte (1973) noted that if there were police coercion, the consent would not be voluntary. Fraud or other forms of subtle coercion by a law enforcement officer would lead to the loss of the voluntariness of the consent (see also Bumper v. North Carolina 1968).
The subtle issue of an electronic invasion of privacy or searching without a warrant was once a simple issue. In Olmstead v. United States (1928), the Court determined that electronic eavesdropping (as in telephone communications) was not covered by the Fourth Amendment. The focus at that time was on the home/building and the concept of physical trespassing and not the individual’s privacy. However, this changed with Katz v. United States (1967). The Court found that an individual could have a privacy expectation even when he or she was using a public telephone booth. It concluded that a search warrant would be required to intercept electronic communications. In other cases, the Court has looked closely at various means used to enhance what can be seen from outside a building—the use of which would result in an invasion of privacy without a warrant. In Kyllo v. United States (2001), the Court determined that the use of thermal imaging technology to determine activities inside a person’s home was a clear invasion of his or her privacy and hence a warrantless search.
Although this section on search warrants is directed at warrants related to criminal investigations, it should be noted that the Foreign Intelligence Surveillance (FISA) Court is also authorized to issue orders similar to search warrants that are applicable in intelligence investigations. Congress passed the Foreign Intelligence Surveillance Act (FISA) in 1978 in an effort to ensure that Fourth Amendment rights and civil liberties would not be abridged by the use of electronic surveillances, especially in conducting national security investigations (United States v. United States District Court 1972). However, there is a question of whether this has been successful (see ACLU v. NSA 2006).
Although President George W. Bush’s position had been that it was not possible to conduct the surveillance program according to the FISA (“NSA Eavesdropping Was Illegal, Judge Says” 2010) and he argued that a warrant was not necessary because of the “war powers” provided to him in the Constitution and by the Congress, the American Civil Liberties Union (ACLU) challenged this position in U.S. District Court. In ACLU v. NSA (2006), the ACLU disputed the legality of the secret NSA program, commonly known as the Terrorist Surveillance Program (TSP). The district court held, in part, that the TSP violated the First and Fourth Amendments, the Constitution, and statutory law and then granted a permanent injunction regarding the continued operation of the TSP.
In a January 17, 2007, letter to Senators Patrick Leahy (chairman, Committee on the Judiciary) and Arlen Specter (ranking minority member, Committee on the Judiciary), Attorney General Gonzales stated: “any electronic surveillance that was occurring as part of the Terrorist Surveillance Program will now be conducted subject to the approval of the Foreign Intelligence Surveillance Court.” He also wrote that on January 10, 2007, a FISA Court judge “issued orders authorizing the Government to target for collection international communications into or out of the United States where there is probable cause to believe that one of the communicants is a member or agent of al-Qaeda or an associated terrorist organization.”
Further, in April 2010, on the basis of a case brought by an Oregon Islamic foundation that was being monitored by the government, a federal district judge ruled that the Bush administration had overstepped its authority in undertaking warrantless wiretapping. Among the comments in the judge’s 45-page ruling was that the “theory of unfettered executive-branch discretion” created an “obvious potential for abuse” (“NSA Eavesdropping” 2010).
Keith G. Logan and Jonathan Kremser
- ACLU v. NSA, 438 F. Supp. 2d 754 (D. Mich. 2006).
- Arizona v. Evans, 514 U.S. 1 (1995).
- Boyd v. United States, 116 U.S. 616, 625 (1886).
- Bumper v. North Carolina, 391 U.S. 543 (1968).
- California v. Carney, 471 U.S. 386 (1985).
- California v. Ciraolo, 476 U.S. 207 (1986).
- Cardwell v. Lewis, 417 U.S. 583 (1974).
- Carroll v. United States, 267 U.S. 132 (1925).
- Chambers v. Maroney, 399 U.S. 42 (1970).
- Chimel v. California, 395 U.S. 754 (1969).
- Coolidge v. New Hampshire, 403 U.S. 443 (1971).
- Florida v. Riley, 488 U.S. 445 (1989).
- Hester v. United States, 265 U.S. 57, 59 (1924).
- Hudson v. Michigan, 547 U.S., 126 S. Ct. 2159 (2006).
- Katz v. United States, 389 U.S. 347 (1967).
- Kyllo v. United States, 533 U.S. 27, 34, 40 (2001).
- Mapp v. Ohio, 367 U.S. 643 (1961).
- Marron v. United States, 275 U.S. 192 (1927).
- Maryland v. Buie, 494 U.S. 325 (1990).
- Maryland v. Dyson, 527 U.S. 465 (1999).
- Massachusetts v. Sheppard, 468 U.S. 981 (1984).
- McDonald v. United States, 335 U.S. 451 (1948).
- Michigan v. Long, 463 U.S. 1031 (1983).
- Michigan v. Thomas, 458 U.S. 259 (1982).
- Mincy v. Arizona, 437 U.S. 385 (1978).
- Minnesota v. Dickerson, 508 U.S. 366 (1993).
- Murray v. United States, 487 U.S. 533 (1988).
- Nardone v. United States, 308 U.S. 338 (1937).
- New York v. Belton, 453 U.S. 454 (1981).
- Nix v. Williams, 467 U.S. 431 (1984).
- Oliver v. United States, 466 U.S. 170 (1984).
- Olmstead v. United States, 277 U.S. 438 (1928).
- Scher v. United States, 305 U.S. 251 (1938).
- Schneckloth v. Bustamonte, 412 U.S. 218 (1973).
- See v. City of Seattle, 387 U.S. 541 (1967).
- Silverman v. United States, 365 U.S. 505 (1961).
- Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920).
- South Dakota v. Opperman, 428 U.S. 364 (1976).
- Steele v. United States, 267 U.S. 498, 503 (1925).
- Terry v. Ohio, 392 U.S. 1 (1968).
- Thornton v. United States, 124 U.S. 2127 (2004).
- United States v. Banks, 124 S. Ct. 521 (2003).
- United States v. Bates, 84 F. 3d 790 (6th Cir., 1996).
- United States v. Dunn, 480 U.S. 294 (1987).
- United States v. Gillenwaters, 890 F. 2d 679 (4th Cir., 1989).
- United States v. Leon, 468 U.S. 897 (1984).
- United States v. Nohara, 3 F. 3d 1239 (9th Cir., 1993).
- United States v. Robinson, 414 U.S. 218 (1973).
- United States v. Ross, 456 U.S. 798 (1982).
- United States v. Tartaglia, 364 F. 2d 837 (D.C. Cir., 1989).
- United States v. United States District Court, 407 U.S. 297 (1972)
- Von Cleef v. New Jersey, 395 U.S. 814 (1969).
- Warden v. Hayden, 387 U.S. 294 (1967)
- Weeks v. United States, 232 U.S. 383, 398 (1914).
- Wilson v. Arkansas, 514 U.S. 927 (1995).
- Wolf v. Colorado, 338 U.S. 25, 28 (1949).
- Wong Sun v. United States, 371 U.S. 471 (1963).
- Bloom, Robert M., Searches, Seizures, and Warrants: A Reference Guide to the United States Constitution. Westport, CT: Praeger, 2003.
- Bodenhamer, David J., Our Rights. New York: Oxford University Press, 2007.
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- Ivers, Greg, and Kevin T. McGuire, Creating Constitutional Change: Clashes over Power and Liberty in the Supreme Court. Charlottesville: University of Virginia Press, 2004.
- Moore, Robert, Search and Seizure of Digital Evidence. New York: LFB Scholarly Publishing, 2005.
- Newman, Bruce A., Against That “Powerful Engine of Despotism”: The Fourth Amendment and General Warrants at the Founding and Today. Lanham, MD: University Press of America, 2007.
- “NSA Eavesdropping Was Illegal, Judge Says.” Washington Post (April 1, 2010).
- Zinn, Howard, A People’s History of the United States: 1492–Present. New York: Harper Perennial, 2005.