IJ’s Project on the 4th Amendment
Protecting Our Right to be Secure in Our Persons and Property
The Institute for Justice’s Project on the Fourth Amendment strives to protect one of America’s foundational property rights: The right to be secure from unreasonable searches and seizures. As government has grown in size and scope, judges have invented one exception after another, poking holes in the Fourth Amendment until it resembled Swiss cheese.
These exceptions let Big Brother snoop on our daily lives–including by coming onto peoples’ land to snoop on them and demanding records about who people called or what websites they visited–all without ever having to get a judge’s permission. The threat these exceptions pose grows ever more dire because under current search and seizure law, the further technology advances, the more privacy must retreat.
But IJ’s Project on the Fourth Amendment will restore Americans’ rights to security and privacy. It will persuade both courts and the public that the Fourth Amendment is a fundamental aspect of our property rights. It will eliminate loopholes that let the government investigate us and our property without having to get a warrant. And it will convince courts that whether a search or seizure is “unreasonable” turns not on their own personal views, but rather on the protections that Americans fought a revolution to secure.
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.
“the right of the people to be secure”
Americans have always cherished their right to be secure. Before the American Revolution, officials used general warrants to search colonists’ property at will, so citizens in the newly formed United States wanted guarantees their own government wouldn’t do the same. Those citizens believed in the idea that “a man’s house is his castle,” a phrase that meant, absent a valid warrant or a true emergency, the government could not search or seize you or your property. As Supreme Court Justice Joseph Story wrote, the Fourth Amendment “seems indispensable to the full enjoyment of the rights of personal security, personal liberty, and private property.”
But like all our rights, our right to be secure is only good so long as courts interpret and enforce that right. Early on, that’s what happened. But in the face of Prohibition, courts began to narrowly read the Fourth Amendment to give federal agents broader authority to search for illegal alcohol. Hope sprang anew a few decades later when courts announced a new “reasonable expectations of privacy” test for determining whether a search occurred. But that subjective standard put judges in the role of “balancing” our Fourth Amendment rights against the government’s law enforcement interests. Unsurprisingly, courts began creating Fourth Amendment exceptions that said that the government’s actions did not amount to searches or, if they were, that the government acting without a warrant was reasonable.
Of all our property, our own person comes first. No one can live their life if they are constantly fearful of being monitored, arrested, or worse by government officials. That’s why the Fourth Amendment protects “persons” from unreasonable searches and seizures. It guarantees that police and other officials cannot accost you without reason; instead, they must have objective evidence to suspect you of a crime before stopping you from going about your day.
But cracks in the Fourth Amendment have weakened our personal security. Despite the Fourth Amendment’s clear command that police can seize only when officers have “probable cause” that the person they’re stopping has committed a crime, numerous courts have blessed officers who stopped people—even pulling guns on them—when those officers had only “reasonable suspicion,” a weaker standard that appears nowhere in the Fourth Amendment’s text or history. And although many have heard of the federal government’s dragnet searches of Americans’ telephone records, did you know that numerous cities operate drones and sophisticated camera networks that track people as they move about, all without a warrant? Or that police frequently use subpoenas to demand that phone companies turn over their customers’ location information? Worse yet, “geofence” warrants let police identify everyone who was at a given location at a given time, all without presenting any evidence that any of those people did anything wrong. IJ’s Project on the Fourth Amendment will close these loopholes so that ordinary Americans are not unknowingly monitored and tracked using dragnet surveillance.
Our homes are our castles. They are where we retreat from the world with friends and family. They are where we keep our most private papers and treasured items. Their protection is essential to our right to be secure. The Fourth Amendment guarantees our personal security in our houses and on our land so that we have a private, secure space where we can live our lives free from the inspection and scrutiny of others.
But modern search-and-seizure doctrine has gutted that guarantee. The open fields doctrine, conceived during Prohibition, lets government officials come onto your private land without suspicion or a warrant to investigate you. In many jurisdictions, officials can force their way into renters’ homes and apartments to conduct intrusive inspections, even when the renters don’t want them there. And although the Supreme Court has said that officials generally need a warrant before inspecting businesses, lower courts have blown open what was supposed to be a narrow exception to that general rule. IJ’s Project on the Fourth Amendment will reverse these misguided decisions so that when officials want to come onto your private property, they’ll need a real warrant from a real judge.
Our papers are some of our dearest property, containing our most private thoughts and feelings. English courts held that letting royal officials inspect personal papers would be contrary to “all the comforts of society.” Similarly, in its first Fourth Amendment case, the U.S. Supreme Court held that the “constitutional guaranty of the right of the people to be secure…extends to their papers, thus closed against inspection, wherever they may be.”
Our papers today are more likely emails and digital photos than a locked diary under our bed. But that in no way diminishes their importance or the protections they should receive. Yet courts have held that under the “third-party doctrine,” we lose all Fourth Amendment protections in our papers merely because we turn them over to others, even when the other person contractually agrees to not share them with anyone else. The Supreme Court has started to dial back this misguided doctrine, albeit in an ad hoc manner. IJ’s Project on the Fourth Amendment will convince courts to plug these holes by adopting a plain-meaning definition of “search” that will ensure that all of our papers get the constitutional protection they deserve.
Effects are essentially everything that is not our home or land. But the term “effects” extends beyond just our personal possessions, as it also includes our businesses’ commercial items and goods. These goods often contained other property, including a person’s private papers. To ensure the security of Americans’ personal property, the Framers demanded that officials typically obtain a warrant before searching or seizing our goods. They recognized that absent these protections, governments could search and seize items at will, which would ultimately hit the poor and most vulnerable the hardest.
Yet over time, courts began to walk away from the warrant requirement. In a Prohibition-era case called Carroll v. United States, the U.S. Supreme Court held that officials could search someone’s automobile without a warrant if officers felt they had probable cause. It held that officers needed that authority because an automobile could be quickly driven away. Yet numerous states have rejected that reasoning and recognized that modern technology lets officers obtain a judicial warrant while out in the field. IJ’s Project on the Fourth Amendment will convince other states, and ultimately the U.S. Supreme Court, that our right to be secure demands that judges, not officers, be the ones to decide when the government may invade our security.
“unreasonable searches and seizures”
Americans have the right to be secure against “unreasonable searches and seizures.” But what do these terms mean? In the 20th century, the Supreme Court said that a “search” occurs when the government physically trespasses on our property or invades our “reasonable expectations of privacy.” Both tests attach unnecessary preconditions on government actions before courts consider them to be a search. But there is a better, far simpler approach: the “ordinary meaning test.” The Framers understood that the government conducted a “search” whenever it or its officers undertook “a purposeful, investigative act” with respect to your person or property. By using this simple-to-understand formulation, courts can keep the search question simple. And unlike the tests mentioned above, the ordinary meaning test is technologically neutral, thereby preserving our rights no matter what the future may hold.
Courts’ view of the term “reasonable” also needs serious reform. The Supreme Court has said its duty is to preserve “that degree of privacy against government that existed when the Fourth Amendment was adopted.” But often courts determine whether a search or seizure is “reasonable” by “balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.” This approach, which elevates judges into philosopher-kings and invariably diminishes our right to be secure, would shock the Framers. To them, whether the government’s actions were “reasonable” depended on whether they were consistent with English and American common law. By inserting the term “unreasonable,” the Framers were tying the scope of government’s search and seizure power to the bounds of the common law of 1791.
Warrants are what government officials must typically obtain before they can search or seize our property. Originally, warrants served to protect officials from lawsuits brought by aggrieved property holders. But judges in both England and America understood that warrants protected citizens by forcing officials to get a judge’s permission before infringing on citizens’ right to be secure. To get a warrant, officials had to present evidence showing that there was “probable cause”—which the Supreme Court has described as “a fair probability”—that a search would turn up contraband or evidence of a crime. Warrants also limit officials’ discretion by giving them clear instructions about when and where they could search and what they could seize.
In some instances, officials do not need to get a warrant before proceeding. For instance, when officials face “exigent circumstances”—a situation so dangerous and fast-moving that there is no time to apply for a warrant—they may act on their own accord. This is because requiring them to get a warrant in such a situation would threaten our security. But modern courts have further weakened the warrant requirement by excusing officials from getting warrants even when there is plenty of time for them to act, or by issuing warrants absent any showing of individualized probable cause. IJ’s Project on the Fourth Amendment will convince courts to roll back their weakening of the warrant requirement so that Americans can be confident that officials are not acting like a law unto themselves.
How Our Right to be Secure Got Eviscerated
The Fourth Amendment is a broad declaration of our right to be secure in our persons and property but it, like all our rights, is only good so long as courts interpret and apply the right consistent with the Framers’ understanding. Early on, that’s what happened. In the first major Fourth Amendment case that came before the Supreme Court, the Court rejected the government’s claim that it could open letters and packages travelling through the mail, holding that the “constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be.” Ex parte Jackson, 96 U.S. 727, 733, 24 L. Ed. 877 (1877). In another early case, the Supreme Court rejected the government’s attempt to subpoena a person’s private papers for use in a forfeiture proceeding and declared that
[C]onstitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta principiis [“resist beginnings”].Boyd v. United States, 116 U.S. 616, 6 S. Ct. 524, 29 L. Ed. 746 (1886).
How We’re Fighting Back
Our right to be secure deserves better than its current treatment. So IJ’s Project on the Fourth Amendment will persuade courts to get rid of the confusing and contradictory Fourth Amendment rules that currently exist. In their place, the Project is offering courts a fresh approach to search-and-seizure law that is simple to understand, consistent with original understanding, and broadly protective of our right to be secure.
IJ’s Project on the Fourth Amendment will take aim at the doctrines that allowed the horror stories that both IJ clients and others have experienced. And in so doing, IJ will convince courts that all purposeful investigative acts by government officials are “searches” and that whether those searches are “reasonable” turns not on judges’ personal beliefs, but on whether they are consistent with the protections the Framers intended. These reforms are critical to ensure that Americans can feel secure in our persons and property for generations to come.
Open Fields Doctrine
Private land isn’t really private if government officials can come onto it whenever they want. Learn more about how the open fields doctrine opened up our private property to public inspection, how modern technology now allows that inspection to continue 24/7, and how IJ’s Project on the Fourth Amendment is fighting back.
Our information is our property. But the second we share our information with others, we lose all Fourth Amendment protections, even if the other party contractually agreed to keep it secure. Learn how the Supreme Court wrongly applied a rule meant for mob stool pigeons to us all, and how IJ’s Project on the Fourth Amendment is pushing back.
Just because you open a business doesn’t mean you give up your right to be secure. Although the Supreme Court says the government typically needs a warrant to inspect the non-public parts of your shop, lower courts have gutted that guarantee by blowing open what was supposed to be a narrow exception for ultra-hazardous businesses.
Our home is our castle, and that doesn’t change depending on whether we own it outright or rent it from someone else. But numerous cities across the United States are demanding to enter renters’ homes, either by strong-arming landlords or by using administrative warrants that don’t require the government to have any evidence of a problem.
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