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. 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.

  2. “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.

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

  4. [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.

  5. 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!

  6. 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.
    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.

  7. 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?

  8. 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.

  9. When we dogs pee on something we dont refer to it as “watering down”. Let others wallow in Watergate.

  10. @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).

  11. “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.

  12. “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.

  13. 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).

  14. 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.

  15. 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.

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