The Erosion of the Fourth Amendment
The Fourth Amendment to the Constitution was a response to the British government’s abuse of writs of assistance. These writs served as a general type of search power allowing British soldiers to go onto any property without cause. Any place could be searched at the whim of the holder, and searchers were not responsible for any damage they caused, thereby putting anyone who held such a writ above the law. The Fourth Amendment engrained a unique principle of free people that a person’s home and property were beyond the scope of government officials unless a judicially approved warrant was issued. Furthermore, no warrant could issue unless it was supported by probable cause. The Fourth Amendment also encapsulated the idea of the “Castle Doctrine” (that was symbolically adopted in the Third Amendment), limiting the government’s ability to oppress its citizens property and land. Sir Edward Coke, in Semayne’s case (1604), famously stated: “The house of every one is to him as his castle and fortress, as well for his defence against injury and violence as for his repose.” Semayne’s Case acknowledged that the King did not have unbridled authority to intrude on his subjects’ dwellings but recognized that government agents were permitted to conduct searches and seizures under certain conditions when their purpose was lawful and a warrant had been obtained.
The United States Supreme Court enforced the principles of the Fourth Amendment via the “exclusionary rule.” That rule made evidence obtained without a proper warrant inadmissible against the defendant at a criminal trial. See Weeks v. United States (1914), Silverthorne Lumber Co v. United States (1920) and Nardone v. United States (1939). It is from the Nardone decision that we get Justice Frankfurter’s famous labeling of the evidence as “fruit of the poisonous tree.” In 1961 the Supreme Court extended the Fourth Amendment’s exclusionary rule to the States in Mapp v. Ohio (1961). The Court reasoned that the rule’s function “is to deter—to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it.” See Elkins.
The culture wars of the 1960’s led to a very severe and determined opposition to the Fourth Amendment who wanted to exclude and limit its application. By the 1980s, critics saw the “War on Drugs” as a means to an end for such a purpose. Starting in 1974 the Court ruled that grand juries could use illegally obtained evidence in grand jury proceedings. See United States v. Calandra (1974). The Court reasoned that “the damage to that institution from the unprecedented extension of the exclusionary rule outweighs the benefit of any possible incremental deterrent effect.” The 1980s saw a more bold approach to limiting the Fourth Amendment. In United States v. Leon, the Court, applying the “good faith” rule, ruled that evidence seized by officers relying in good faith on a warrant was still admissible, even though the warrant was later found to be defective. In Nix v. Williams the Court ruled that “fruit of the poisonous tree” evidence could still be introduced if a prosecutor could demonstrate that it would have been an “inevitable discovery” of legitimate investigation. In Segura v. United States, the Court ruled that evidence illegally found without a search warrant is admissible if the evidence is later found and legally seized based on information independent of the illegal search. The 1990s and 2000s saw further erosion. Arizona v. Evans (1995) and Herring v. United States (2009), ruled that the exclusionary rule does not apply to evidence found due to negligence regarding a government database, as long as the arresting police officer relied on that database in “good faith” and the negligence was not pervasive. In Davis v. United States (2011), the Court ruled that the exclusionary rule does not apply to a Fourth Amendment violation resulting from a reasonable reliance on binding appellate precedent.
Amie Stepanovich, director of the domestic surveillance project at the Electronic Privacy Information Center, offers three ways the government has attempted to erode Fourth Amendment protections.
- They’ve worked around it. In 1979, the Supreme Court denied constitutional protection to information voluntarily turned over to third parties. The government argues this permits warrantless collection of, among other things, information about Web visits, phone calls, location, and banking data.
- They’ve limited its scope. The Supreme Court has said that Fourth Amendment protections don’t apply in all places or at all times. For example, U.S. borders have become, practically speaking, Constitution-free zones. And the Department of Homeland Security has decided that the border consists of all land and sea boundaries, and extends out for 100 miles, placing the majority of the U.S. population within that region.
- They’ve limited its application. The government argues that nothing that occurs in public is actually a search. Public-space surveillance has been traditionally limited by available resources. But new technology like GPS tracking makes it easy to surreptitiously monitor a person’s location and activities in public.
- Amie Stepanovich on the Eroded Fourth Amendment (ivoter.com)
- Judge Says the NSA Can Look at Your Phone Records Because They’re Not Yours (reason.com)
- Senders’ Fourth Amendment Rights in E-mails Seized from the E-mail Accounts of Recipients (volokh.com)
- Fourth Amendment v. NSA (therightargument.com)