The Watering Down of the Fourth Amendment

Respectfully submitted by Lawrence E. Rafferty (rafflaw)- Guest Blogger

We all know or should know the Fourth Amendment and how it protects all citizens from an illegal search and seizure of our property and person.  ‘ “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.’ ”  Cornell Law

Over the years, this valuable right has been watered down.  Recently, the Roberts Court heard arguments in a case that did not get much media attention.  That case involved a man who was arrested and detained after a traffic stop just because he had been in an apartment that the police had just exercised a search warrant.  The name of the case is Bailey v. United States and oral arguments in front of the Supreme Court were heard on November 1st, 2012.  Bailey v. United States  The narrow issue that the Supreme Court is deciding is whether an individual can be detained by the police merely because he recently left a residence before the police executed a search warrant at that location.  Sounds like a no brainer, doesn’t it?  

Approximately 30 years ago, the Supreme Court decided Michigan v. Summers.  In that decision, the Court decided that police officers can detain any and all occupants of a location where a search warrant was being executed.  That decision does not sound too bad, since police officers executing a search warrant could be in danger from the occupants of the location being searched.  The Supreme Court in the Michigan v. Summers decision muddied the waters somewhat when they went beyond the safety issue and reasoned that the occupants had to be detained and handcuffed to help in the orderly completion of the search process.

” Instead, the Court said the rule was also justified to facilitate “the orderly completion of the search” by forcing the occupants to remain in case their assistance was needed with opening locked cupboards and doors. But the police cannot compel people to assist in a search, and individuals can decide whether they wish to do so without being held captive. There are few people who become more cooperative by being handcuffed than being asked nicely.”  ACSLaw 

Can you think of any instances where this extension of the Michigan v. Summers holding would harm or denigrate your rights?  In theory, if the government case is upheld by the Supreme Court, any person who has recently been at or near a home or building where a search warrant is being executed, could be subject to detention and handcuffing by the police.  Without any evidence of the detained person or persons having any connection to the alleged activity that is the cause of the search warrant, people can be detained and interrogated.  It sounds like a very slippery slope to me.

“The government’s brief suggests that a recent occupant of the premises could be tipped off about the search and return to attack the officers. The briefs of both Bailey and amici ACLU pointed out that this is a slippery slope; if extensions to the rule can be justified based on the fear that an occupant might return to take on an entire SWAT team, there is no reason to limit the rule to those who have recently left the premises. Rather than proposing a clear boundary for the doctrine, the government’s brief somewhat surprisingly appeared to slide all the way down to the bottom of the slope, arguing that the Summers automatic-detention rule applies to anyone who usually lives in the house, regardless of whether they were near the house when the police began the search. If the Court accepts this theory, the government could try to detain any resident of a house to be searched, whether they were at work or grocery shopping, before the police had uncovered sufficient evidence linking them to the crime (or indeed, even sufficient evidence that there was a crime).”  ACSLAW

Without putting the police at further risk, wouldn’t it make sense to insist that the police must provide evidence that the person being detained pursuant to a search warrant, has some connection to the alleged illegal activities?  This is especially important when we have had numerous occasions where the police have searched the wrong residence!

If the government’s argument is accepted by the Supreme Court, isn’t the 4th Amendment’s importance dismissed, at least in regards to people who are detained on and off the site of the executed warrant?  How do you think the Supreme Court should decide this very important 4th Amendment case?  What are the reasons for “your” decision?

49 thoughts on “The Watering Down of the Fourth Amendment

  1. As I’ve observed laws written in order to be interpreted in these sorts of ways, (for example, provisions in the 2012 NDAA, the “secret PATRIOT ACT” Senators Udall and Wyden allege; hair splitting over whether detaining prisoners outside the US in Guantanamo excempts the military from obeying the Geneva Conventions, etc.), I’ve wondered about these types of Constitutional questions.

    I think the first thing to keep in mind is that the Constitution wasn’t really meant for people like us — unless you’re more like Mitt Romney than Ralph Nader. The Founding Fathers were really concerned with protecting their new aristocracy from the “interested combinations of the majority.” In this context, the US Revolution wasn’t so much a rejection of monarchy, as it was a casting off of our status as a colony. It was about replacing one aristocracy with another, first and foremost.

    That said, as Amendments have been added extending the sphere of “constitutional protections” there seems to be a counter-balancing force — a pushback. Does 24-hour electronic dragnet surveillance (or, the ability to surveil somebody “retroactively” because all data transactions are monitored) pose a problem for Miranda Rights or the 5th Amendment’s protection against self-incrimination? If internet service providers are granted retroactive immunity for illegal surveillance activity, and effectively deputized to spy on us (find a copy of the Yahoo Law Enforcement Compliance Guide, or the Sprint CALEA Compliance Guide — these are menus, for-profit ala carte law enforcement) — what does this mean for the Third Amendment where DSL enters your home?

    It’s been looking for a while now like the 4th Amendment is toast…

  2. It is important to note that while Fourth Amendment protection for real human people have been watered done to almost nothing corporations have been able to expand their rights thus avoiding inspections by various government agencies including but not limited to the FDA.

    The court has turned its back on the rights of humans allowing police and other “law enforcement” agencies to treat every one as a criminal, guilty until proven innocent. Not what the founders would have wanted at all.

  3. Well done Larry, quite apropos for this blog. I think that these detentions should not be allowed, without direct evidence of a link to the purported criminal activities. This appears to me to be yet another increment of the Constitutional erosion begun with the “War on Drugs”. In effect it makes the scope of search warrants far broader than the intent justifying the warrant itself. Contained within this is a presumption of guilt via association, where one must prove themselves innocent, rather than the other way around.

    “The Supreme Court in the Michigan v. Summers decision muddied the waters somewhat when they went beyond the safety issue and reasoned that the occupants had to be detained and handcuffed to help in the orderly completion of the search process.”

    I would also wonder if the SCOTUS judges who decided this had ever been handcuffed themselves. I’ve described before being handcuffed 40 years ago for a minor traffic violation for which I was eventually fined $15. Being handcuffed, with yours arms in back is a painful proposition, that somewhat borders on torture. While I understand the need for police to ensure their safety, sometimes the issue is less safety and more humiliation and pain.

  4. Factual background

    “In 2005, police officers in Suffolk County (N.Y.) obtained a no-knock search warrant for a.380-caliber handgun in the basement of a house at 103 Lake Drive. The warrant was based on a tip by a confidential informant – a repeat offender recently arrested for driving a stolen car – that he had seen such a gun the previous weekend while visiting an apartment there to buy drugs from “Polo,” a “heavy set black male with short hair.”

    Several officers, along with the Emergency Services Unit – a kind of local SWAT team – gathered at 103 Lake Drive to conduct the search. Police officers watching the house from an unmarked car saw two men, later identified as Chunon L. Bailey and Bryant Middleton, coming from a gate at the top of the stairs to the basement – an area allowing access to both the basement and the upstairs of the house. Both men fit the informant’s description of “Polo.” The officers decided not to detain the men on the scene, fearing that doing so might alert anyone present in the apartment to their presence and thereby eliminate the element of surprise authorized by the no-knock warrant to protect officer safety and prevent destruction of evidence.

    As the two men started driving away, two officers followed in their unmarked car, with their lights off. Five minutes after leaving the scene, and about a mile away, the officers stopped Bailey’s car, ordered the men out of it, and patted them down. They did not find any weapons, but they seized Bailey’s keys from his pants pocket and questioned him. Bailey said he was coming from his house at 103 Lake Drive, but he then produced a driver’s license with an address several miles away in the town of Bay Shore – which was consistent with the informant’s statement to police that “Polo” previously lived and sold drugs in Bay Shore.

    The officers handcuffed the men. Officer Gorbecki told them that they were not being arrested but were being detained incident to the execution of a search warrant at 103 Lake Drive. Bailey responded, “I don’t live there. Anything you find there ain’t mine, and I’m not cooperating with your investigation.” The handcuffed men were then driven back to 103 Lake Drive. By that point, the Emergency Services Unit had entered the apartment, where they found a gun and drugs in plain view. The officers then formally arrested Bailey and Middleton, approximately ten to twelve minutes after having stopped Bailey’s car. The search of the apartment also uncovered two more guns, ammunition, and drug-related paraphernalia, but not the .380 handgun that had prompted the search. The officers also discovered that one of the keys taken from Bailey’s pants pocket opened the apartment’s door.”

    http://www.scotusblog.com/?p=154192

  5. Excellent job, Raff. I’m sure you’re not shocked to find out that I think 4th Amendment rights should be narrowly construed in favor of the citizen. A slope of any kind, slippery or not, should be viewed with the greatest of scepticism all the while keeping in mind the admonishment of Franklin that “[t]hey who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”

    And what Justice Holmes, Indigo Jones and Mike S. said.

  6. Scotusblog,
    Thanks for the factual background.
    Mike,
    As one who has also been handcuffed, it is not a fun exercise. Especially if the officer in question has a pea in his saddle. The issue of importance is that the government’s argument can lead to to some exteme situations where innocent citizens are detained merely because of their proximity to a specific location. The handcuffing is just part of the process of being “detained”, albeit an uncomfortable part!

  7. ““The government’s brief suggests that a recent occupant of the premises could be tipped off about the search and return to attack the officers.”

    Oh by ALL means. Let’s trample on the rights of the citizen so that we can insure the safety of the well armed and over-militarized SWAT team.

    Good job, Raff. This is something that needs more attention.

  8. So supposedly this group is not sympathetic to me because they think I’m self centered or stupid to try to push for my rights even though I don’t have a lawyer, but I was detained 3 times for 5 months with no oath or affirmation — my case was initially about what a warrant is; whether there can be a federal bench warrant not requested by a government prosecutor, not stating a crime. Then even if you believe that there is an offense called federal civil contempt, in my case there was no affidavit under penalty of perjury by anyone that there was cause to charge or arrest me. Then they went straight from arrest to detention with no intermediate steps, no arraignment, no bail hearing, no complaint, no indictment, no trial etc. And I wasn’t voluntarily without a lawyer, they said in Court that I didn’t have a right to an attorney.

    Things are a lot different now because in July 2011 the FBI revealed that the USMS actually entered non existent criminal charges against me into DOJ computers. In July 2012 the feds revealed that they don’t have a record of a statute under which I was detained.

  9. Kraaken,
    My pretty twenty-four year old daughter just left the house for work. Wearing her black and green uniform, tactical utility belt and spit-shined boots. I am leaving the porch light on for her when she gets off duty tonight.

    I do not want a guy in uniform knocking on my back door at midnight a second time. Once is quite enough. Whatever it takes to keep her safe, I am for it.

  10. “We all know or should know the Fourth Amendment and how it protects all citizens from an illegal search and seizure of our property and person.”

    This is why the idea that the Constitution living is troubling: if it is living, we can never know what protection the 4A will give us.

  11. OS, I have much empathy for your daughter and you. May the Good Lord protect her and give her the wisdom to handle difficult situations. I would worry about my wife when she worked in maximum security prisons, so I do have a frame of reference.

  12. @mahtso

    Something more like the “living document” theory is probably what the Founding Fathers had in mind, as ethnic Brits.

    As I understand it, the Magna Carta is still on the books and the British aren’t technically citizens, but subjects: from a certain perspective, the Bill of Rights we Americans enjoy — that we treat as sacred — may have been a more or less inevitable result of European (and specifically English) legal tradition. A lot of European countries enjoy “American-style” liberties without having waged a violent anti-colonial struggle, or having cast off monarchy. It’s worth noting in this connection too that Europe didn’t really cast off the last vestiges of the feudal system until WWI (the new, American aristocracy wanted to avoid at all costs the communal, feudal social order from re-emerging). And state-run health care hasn’t turned Germany into a Fourth Reich yet: they seem quite comfortable with it.

    It you take a strict constructionist approach to the Constitution, you’re left with certain really basic problems, like: the Constitution doesn’t give you a right to vote, or to quit a crappy job.

  13. What Indigo said.

    If the Founders had intended for Originalist interpretation to hold, they wouldn’t have amended the Constitution nor left a mechanism in place for future amendments. They knew the law had to be flexible enough to change with both society and circumstance. They also hoped their descendants would be well educated and civic minded enough to understand the difference between an absolute threshold in a right versus reasonable restrictions on a right (see Free Speech and its reasonable restrictions for an example). We know what the 4th affords us, but the question is how much of it will we let those against the right erode it in the name of safety and in the name of fighting something – terrorism – that is just as likely to kill you as your own furniture.

  14. Excellent article and not slanted in the least…. Reporting just the facts….. My opinion would be that the problem police are a little too late…..for what he date…. The sct will probably say…. It’s justified….

  15. It is due to the non-originalists’ perspective that we now have such fkt up 4 amendment jurisprudence.
    The 4th amendment has been twisted, mangled and contorted by the very logic that says the constitution is a ‘living’ document.
    That is a false view that seeks to empower our rulers to make the constitution anything they want it to be for the moment, to suit their purposes.
    As Gene here said, the founding fathers knew that the Constitution needed to be flexible and changeable as the times changed, But that is why they provided a due process procedure in which to do that.
    If the Constitution is to be changed, it is to be via the amendment process, where the whole nation has a say in it. Not 9 individuals who we can only hope to do the right thing, but have way too much ‘flexibiity’ in their interpretative power.

  16. Gary,

    You are not alone in your suspicions about the power of SCOTUS. In fact, Alexander Hamiliton expressed the same trepidation about SCOTUS. If you haven’t seen Justice Breyer’s talk “On Democracy” – part of the “Due Process” series, I highly recommend them. Here it is on YouTube.

    However, I think he addresses those concerns of both you and Hamilton quite well.

  17. One may live to be of service, but Breyer deserves all the thanks. One of the sharpest and well informed jurist in Court history, he does all the heavy lifting here. Of our recent Justices, I think Breyer is going to be treated well by history. A great legal mind of our times.

  18. Gene,

    “They also hoped their descendants would be well educated and civic minded”

    That bears repeating: Thomas More’s Utopia wasn’t an especially groundbreaking work, but was part of a larger tradition that pervaded the Renaissance and the Enlightenment : Campanella’s City of the Sun, modeled on Adocentyn from the very start of the Renaissance, Bacon’s New Atlantis, and his program for “the advancement of learning…” Bacon was a prick, but he was promoting “the advancement of learning” because it was already a hot topic.

    What we’re seeing today is a rejection of the Enlightenment values of rationality, tolerance, liberty and equality; in favor of a Weberian sort of Protestant work ethic, eliminating the idolatrous Saints’ holidays in favor of a more rigorous work schedule. And let us not forget Luther’s invective to “pluck the eyes out of your reason.” These are the same people today who burned witches to suppress Renaissance culture, who tried to suppress mathematics because it suggested magic (all that scary stuff like flying through the air and seeing distant lands through a magic mirror…). This was why Francis Bacon, for all his “advancement of learning” rejected Copernicanism: math was voodoo and it scared King James I.

    The current issue of Scientific American is publishing an article that suggests a similar result, with respect to a wide-spread cultural rejection of the Enlightenment tradition that created the Constitutional Republic (though their writer attributes this result to “postmodernism”). I’ve been tracking the same phenomenology, but suggest this is part of a civilizational clash dating back several hundred years (and possibly with origins in certain contradictory assertions resulting from the appeasement approach towards Roman authorities — and especially Pontius Pilate — of the later Gospel writers).

  19. “It you take a strict constructionist approach to the Constitution, you’re left with certain really basic problems, like: the Constitution doesn’t give you a right to vote, or to quit a crappy job.”

    I can’t speak to what the results of a strict constructionist approach are, but I have always understood that the Constitution grants no rights and was intended to set out the limited powers of the federal government. As I have heard it, some of the framers thought the the Bill of Rights was not necessary and that by creating that list they were opening the door for people to argue that the list was all-inclusive.

  20. “What Indigo said.
    If the Founders had intended for Originalist interpretation to hold, they wouldn’t have amended the Constitution nor left a mechanism in place for future amendments.”

    I’ve got to admit that I have never read (or heard) anyone assert that the amendment process is what is meant when people refer to the living Constitution.

  21. @mahtso

    That’s one view; you could also argue that the Framers, as bourgeois capitalists, were most interested in the contract law, which they were sure to get down in the body of the Constitution itself.

    For example:

    “Article 6.

    “All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this
    Constitution, as under the Confederation.”

    This was the key right — for the creditor class over the debtor class — that later enabled Hamilton to pay off the national debt (which, at the time of Ratification, was held largely by speculators).

  22. Lawrence,

    This was a well presented post. I don’t agree with each conclusion you make about the degree to which a resident’s rights are violated due to detainment and search when they are outside of the residence being searched. However, you present us with the opportunity to further clarify our reasoning on where slippery slopes exist related to this critical Constitutional protection which I believe literally protects our democracy from a police state. Thank you.

  23. Raff: —- Doesn’t Prof. Turley’s article about Eric Holder’s NWU speech & the existence of Obama’s “Kill List” as reported by the NY Times render the Bill of Rights moot insofar as the Presidential power to judge, jury & execute a citizen presupposes nullification of the 4th Amendment as well as all the other amendments?

  24. Thanks Nal and Gene.
    Joseph, if the government’s argument is accepted by the Supreme Court, the scenarios that I proposed are a possible reaction to that decision.
    Karl,
    I don’t disagree that the kill list is an issue that needs to be further discussed, but I do not think it renders the Bill of Rights moot.

  25. When I hear “for the safety of the LEO’s” I hear the echo of “for the children” which was a dog whistle at the forefront of every argument for censorship and much of the “war on drugs” for over a decade. No difference to my ears and both equally poor arguments for chipping away at the Bill of Rights. I hope the SCOTUS sees through it.

    Great article Raff!

  26. [Karl,
    I don’t disagree that the kill list is an issue that needs to be further discussed, but I do not think it renders the Bill of Rights moot.]

    ________________________________________________________

    So the US citizen that Obama droned to death without a trial, then a week later vaporized his uncharged US citizen son without a trial, didn’t constitute a complete and utter violation of their 4th ammendment rights? Or was it that it didn’t constitute an International War Crime? Which is it Raff?

    You see I’m confused because Professor Turley has written that it’s both a decimation (not just a watering down) of the 4th amendment as well as an International War Crime.

  27. First of all Karl, I do not agree with everything Prof. Turley writes. That being said, he is the real expert.
    Secondly,
    The killing of th US citizen without due process is disturbing, but the Bill of Rights survived. A bit bruised, but still breathing.

  28. “A bit bruised” eh? How long before that rotten apple spoils the whole barrel is the real question nobody here asks?

    Moreover, should a Constitutionalist give a vote of confidence to somebody that has so capriciously threatened that precious barrel?

    Turley doesn’t think so, and he’s, after all, “the expert.”

    It’s quite unfortunate that your brave dad didn’t live as long as he richly deserved for if he had the wherewithal to speak his mind today — whose to say that you just might be the son who got his 4th amendment right “bruised.”

    Ask not for whom the bell tolls. It tolls for thee.

  29. KF,

    “How long before that rotten apple spoils the whole barrel is the real question nobody here asks?”

    We ask that question here all the time, Karl, but don’t let that get in the way of your again sweeping and hasty generalizations about this blog and its contributors.

    Some of us think the Kill List is a not just as abusive to the Bill of Rights as Bush ordering torture, we think it is an afront to the Separation of Powers Doctrine and a direct assault on the checks and balances our Founders installed to prevent the tyranny of a unitary executive.

  30. Karl,
    Your decision to talk to me about my Father is not only disgusting and over the top, it is just the type of outrageous and incendiary attack that someone who has no morals and no common sense would use in a discussion. You sicken me.

  31. OS,
    Thanks, but Karl doesn’t owe me an apology. He owes my Dad and every soldier, sailor and airman who made the ultimate sacrifice because they fought and died to allow me to state my views and for everyone else to state their views. No matter how vile or disgusting Karl’s statements were, this site is designed for a free flow of ideas and opinions. However, Karl’s statements were not a view or an opinion, but a personal attack that was not initiated by my words.

  32. Raff: With all due respect to you & yours — nothing is more sickening than prattling on about the “watering down of the 4th amendment” while apologizing & voting for a president who keeps a secret “kill list” that doesn’t just water down but obliterates the entire Bill of Rights.

  33. Karl

    Which brings up my miserable DOJ experience — that I was arrested and incarcerated for 5 months without an accusation that I committed a federal offense and without an oath or affirmation and without a bail hearing. AND that DOJ pled in Federal Court that everything they did was legal.

  34. Karl,
    What is more sickening than “prattling” on about the 4th amendment is your garbage. Stick to the issues and keep family members out of the discussion. You should be ashamed of yourself.

  35. Karl,

    Raff doesn’t need me to defend him or his father, but really (and I rarely say this), you should consider STFU about other people’s deceased relatives. With all due respect. That kind of smack talking in extremis (in particular one poster talking about another poster’s dead son) did lead to one of the very few bannings in this blog’s history for behavior that was simply beyond the pale socially unacceptable. If you want to peddle the rest of your whatever it is? Fine. No one objects to your exercise of your 1st Amendment rights, however, you are getting into known dangerous territory on the civility policy. You should really leave the dead relatives out of it. You should consider apologizing and then moving on and apology or no you should really just move on. Now I’ve been one of the more accommodating members of this forum to what you’ve said in the past. I’ve even agreed with you on points and principle on a few rare occasions. So take this advice as it is offered: a friendly warning that you are really heading down a wrong path. Take heed or no, the choice is yours and so are any potential consequences of your choice.

    And that is all I have to say about that.

  36. As I’ve identified before Karl is a dedicated Marxist, probably of the Trotskyite variety, though I find that actually researching his position on the Marxist spectrum would be tedious and boring. This is true for most Marxists. The problem is that Karl Marx, someone who did believe in doing good, did not have the insights of Freud to help modify his belief that all is economics. Like all prophets, though he was a minor one philosophically, their views are distorted by their followers and descendants into their personal projections to justify their “will to power”.

    Click on Karls name and you will find “iskraagent”, which you can google if you actually care to know more about him. Though he will protest that I am “red-baiting” with this, nothing could be further from the truth. In some ways I feel more affinity with Marxists than I do with Right Wingers, since at least on some dim level they pretend to support human rights. The problem with them is that they have as much an Authoritarian Mindset as those in the “Tea Bag” movement. What they want ultimately is for things to get so bad in society that the people will be forced to revolt against their moneyed oppressors. What they miss is that the revolt could go in another direction and lead to something let’s say like Stalin and/or Mao, because in the end it is the Sociopaths who most gain from revolution.

    Given the above, it is understandable why Karl talks of compassion for the masses, yet himself exhibits little empathy. His remark regarding Larry’s father was not only in the worst of taste, purposely meant to harm, lacking humanity, but was also preconceived with malice aforethought. He has been lurking around our fringes for quite some time now and I know from his past attacks on me, that he mentally catalogues what personal information that we provide, to be used viciously against us.

    Stupidly, he no doubt prays for a Romney victory so that things will really collapse for the 99%, all the better to bring on the revolution. The only problem is that he and his forces, while always talking organization, usually spend their time in internecine argumentation’s as to who hews most closely to their “divine” theories ad so bore the hell out of those they try to organize.

  37. […] Over the years, this valuable right has been watered down. Recently, the Roberts Court heard arguments in a case that did not get much media attention. That case involved a man who was arrested and detained after a traffic stop just because he had been in an apartment that the police had just exercised a search warrant. The name of the case is Bailey v. United States and oral arguments in front of the Supreme Court were heard on November 1st, 2012. Bailey v. United States The narrow issue that the Supreme Court is deciding is whether an individual can be detained by the police merely because he recently left a residence before the police executed a search warrant at that location. Sounds like a no brainer, doesn’t it? Read more of this post […]

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