“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.

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“persons”

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.

“houses”

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.

Read more about the open fields doctrine, rental inspections, and business inspections.

“papers”

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.

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“effects”

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.

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“warrants”

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.

“supported by oath”

The requirement that warrants be supported by an “oath or affirmation” has been made practically meaningless by court decisions. Originally, courts interpreted the amendment as requiring officials seeking warrants to provide firsthand testimony under oath. But in 1960, the Supreme Court held in Jones v. United States that police officers applying for a warrant could use the hearsay statements of informants to support probable cause. Jones was based on naked policy considerations, and did not engage with the text, history, and tradition of the Fourth Amendment. Now, police and prosecutors can “swear” to the truth of information they’ve received from their colleagues or a witness.

Lowered standards for warrants can lead to serious mistakes. Sometimes, police get warrants based on faulty information from informants. Judges have no ability to question that information if the informants themselves never testify or even personally swear to the truth. With a warrant in hand, police can raid homes, detain the residents, and sort through their most personal possessions. When police raid the wrong home, innocent people are deprived of their constitutional rights and sometimes even lose their lives. Restoring the original meaning of the oath requirement would revive the protections the Founders intended to grant under Fourth Amendment

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