Fourth Amendment

• Author: Peter Arenella
• Pages: 1092-1097

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The Fourth Amendment gives citizens the "right ? to be secure" in their "persons, homes, papers, and effects" by prohibiting the government from engaging in unreasonable SEARCHES AND SEIZURES. The nature and scope of this "right" depends on how the Supreme Court resolves three central questions of Fourth Amendment jurisprudence: which government information-gathering techniques merit Fourth Amendment regulation, what type of regulation applies to these "searches" and "seizures" to ensure their "reasonableness," and what remedies follow Fourth Amendment violations.

The amendment's text yields no answers to the questions of coverage and remedy. It does not specify the criteria for determining whether a particular governmental practice qualifies as a Fourth Amendment "search" or "seizure." Nor does the amendment say whether the evidentiary products of "unreasonable" Fourth Amendment activity should be excluded from a defendant's criminal trial to deter future governmental violations of the amendment. The Supreme Court resolved this latter problem when it "read" an exclusionary remedy into the Fourth Amendment in WEEKS V. UNITED STATES (1914) and applied it to the states in MAPP V. OHIO (1961).

The amendment does provide some clues as to what constitutes "reasonable" Fourth Amendment activity because its "warrant" clause identifies the conditions that must be satisfied for the issuance of a valid SEARCH WARRANT or ARREST WARRANT. The government must show a neutral magistrate that it has PROBABLE CAUSE for believing that it will find what (or whom) it is looking for and that the seizure of such EVIDENCE serves a legitimate governmental purpose. The warrant must contain a particular description of the place to be searched or person or items to be seized. The violation of these guidelines could provide the exclusive or primary criteria for assessing what constitutes an unreasonable search or seizure prohibited by the first clause of the amendment. But the text certainly does not dictate this interpretation, and the Court has not consistently embraced this "warrant" model of Fourth Amendment regulation.

To aid its interpretation of the text, the Supreme Court has sought to ascertain the goals and concerns of those who drafted and ratified it. Translating the "Framers' intent"?when it can be discovered?to a radically different social, cultural, and institutional context is, however, an exercise of dubious value. We know that the Framers wanted to eliminate GENERAL WARRANTS because such warrants placed few limits on the scope of the search or on what could be seized. More generally, the Framers wanted to confine the nascent federal government's powers. However, their vision of what those powers entailed bears little resemblance to the vast regulatory capacities of the modern welfare state. Drawing comparisons between their concerns and ours works only at the highest level of generality. The vague principles generated by such analogies

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cannot resolve the difficult interpretive questions the Court faces when it applies the amendment to governmental functions and uses of modern technology the Framers could not have imagined.

These intractable uncertainties in the text and historical record help explain why the Supreme Court has rarely relied on a "Framers' intent" methodology to resolve the three central questions of Fourth Amendment jurisprudence. Instead, the Court's fundamental interpretive strategy is to identify and balance the competing values implicated by this restraint on governmental power.

To resolve the threshold question of whether a particular governmental information-gathering practice constitutes Fourth Amendment activity, the Court has identified the individual "interests" protected by the Fourth Amendment and then determined whether that practice significantly implicates these Fourth Amendment values. A Fourth Amendment "seizure" of a person's tangible "effects" takes place when the government interferes with an individual's legitimate property interests. A fourth amendment "seizure" of a person occurs when the governmental agent takes some action that restrains a REASONABLE PERSON'S liberty of movement. A Fourth Amendment "search" occurs when the government intrudes on the individual's REASONABLE EXPECTATION OF PRIVACY as to the place searched (including the individual's body) or information examined.

The Court's test for evaluating what constitutes a reasonable expectation of privacy comes from Justice JOHN MARSHALL HARLAN'S CONCURRING OPINION in KATZ V. UNITED STATES (1967). Harlan articulated "a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as "reasonable." Harlan subsequently rejected the subjective component of his test, and the Court endorsed his rejection of it in Hudson v. Palmer (1984). Focusing on the individual's subjective expectations is unsatisfactory because the government can destroy our actual privacy expectations by engaging in the very type of intrusive surveillance practices that the amendment was designed to regulate. Harlan insisted that the question of reasonable privacy expectations demanded a normative inquiry into the types of privacy expectations a free society should protect. Or, as Anthony Amsterdam put it, the Court should determine "whether if the particular form of surveillance practiced by the police is permitted to go unregulated by constitutional restraints, the amount of privacy and freedom remaining to citizens would be diminished to a compass inconsistent with the aims of a free and open society."

Amsterdam's inquiry reminds us of the risks generated by the Court's decision not to subject some governmental information-gathering activity to constitutional constraints. When the courts hold that a surveillance practice does not qualify as Fourth Amendment activity, the government may employ the practice against any citizen without any basis...