We The People, Our Bill of Rights, and Why we Should Care: Part 4

Why the fourth amendment still matters today, especially with the oppressive surveillance state.

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Amendment IV

What it says:

“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.” (1).

What it means:

Broadly speaking, the Fourth Amendment protects citizens from unreasonable or unwarranted intrusions by the government when the citizen has a reasonable expectation of privacy. However, this right is not absolute. A judge can issue a warrant if there are grounds for suspicion that a person has committed a crime. Further, a warrantless search is not illegal if the objects being searched are in plain view and the warrantless seizure of abandoned property, or of properties on an open field do not violate the Fourth Amendment. (2).

Where it came from:

The Fourth Amendment not only had a basis in the abuse Colonists suffered at the hands of the Crown by Writs of Assistance (3), but it also drew from English case law. “Every man’s house is his castle” in English law. (4). In this case, the Court of King’s Bench affirmed the right of a homeowner to defend his house against any unlawful entry, but also ruled that King’s agents could enter after giving notice to the occupants. In addition, there were numerous lawsuits in 1765 which sought to sue state messengers who, pursuant to general warrants, raided homes in search of “…very seditious papers, entitled The Monitor, or British Freeholder…” (5). The Framers drew from the plentiful sources of precedent in order to protect their new nation from the eye of the government.

Why it’s important today

In an era of expanding government power, there is always a danger of the government trampling on individual rights. One needs to look only as far as the Patriot Act passed after 9/11. The Patriot Act expanded the Executive power and limited the power of the Fourth Amendment. For instance, it expanded the government’s ability to look at records of an individual’s activity being held by a third parties (Section 215), it expanded the government’s ability to search private property without notice to the owner (Section 213), and it expanded a Fourth Amendment exception for spying that collects “addressing” information about the origin and destination of communications, as opposed to the content (Section 214). (6). These may seem like insignificant changes, but they still set a dangerous precedent: Americans are willing to give up their freedoms for the possibility of safety. Thankfully, the Supreme Court still fights to protect Americans from warrantless searches. In a case addressing if the warrantless use of a thermal imaging camera was considered a search, the Court held “It would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology.” (7). At the same time, the Court has held that there are reasonable limits on the Fourth Amendment. For example, schools need only reasonable suspicion in order to search students. (8). However, the need of government agents to maintain order and safety must be carefully balanced with an individual’s inherent right to privacy. (9). “The Fourth Amendment is to be construed…in a manner which will conserve public interests as well as the interests and rights of individual citizens.” (10). In order to protect those individual rights, Americans must be vigilant and fight to stop any encroachment on their natural rights; even against a Trojan Horse like the Patriot Act.

———————————————————

(1) U.S. Constitution, amend. 4

(2) Ryan Strasser, Fourth Amendment LII / Legal Information Institute (2008), https://www.law.cornell.edu/wex/fourth_amendment (last visited Jul 19, 2017).

(3) The Founders’ Constitution Volume 5, Amendment IV, Document 2, http://press-pubs.uchicago.edu/founders/documents/amendIVs2.html
The University of Chicago Press

(4) Peter Semayne v Richard Gresham, 77 ER 194 (1604).

(5) Entick v Carrington, 95 ER 807 (1765).

(6) Surveillance Under the USA/PATRIOT Act, American Civil Liberties Union, https://www.aclu.org/other/surveillance-under-usapatriot-act (last visited Jul 19, 2017).

(7) Kyllo v. United States, 533 U.S. 27 (2001).

(8) New Jersey v. TLO, 468 U.S. 325 (1985).

(9) See citation 7

(10) Carroll v. United States, 267 U. S. 132, 149 (1925).

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