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Fourth Amendment Privacy in a Digital Age, Policing in America, Search and Seizure 4th Amendment - Privacy in a Digital Age, Polic...

Fourth Amendment Privacy in a Digital Age, Policing in America, Search and Seizure 4th Amendment - Privacy in a Digital Age, Policing in America, Search and Seizure  Big Questions Why did the Framers put the Fourth Amendment in the Bill of Rights? What was the Founding generation’s vision for the Fourth Amendment and its protection against unreasonable 4th Amendment - Privacy in a searches and seizures? Digital Age, When does the Fourth Amendment Policing in America, allow the government to search you or Search and Seizure seize your property? When is a government’s search of seizure “reasonable”?  Big Questions (cont.) How has the Supreme Court interpreted the Fourth Amendment over time? And how has it dealt with the challenge of shaping the Fourth Amendment’s meaning in light of new 4th Amendment - Privacy in a technologies, especially as it applies Digital Age, to public schools? Policing in America, Search and Seizure  Fourth Amendment 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 4th Amendment - Privacy in a no Warrants shall issue, but upon Digital Age, Policing in probable cause, supported by Oath or America, Search and affirmation, and particularly describing Seizure the place to be searched, and the persons or things to be seized.  Breaking Down the Fourth Amendment Which things are protected: Persons, houses, papers, and effects. What are “effects”? They’re our stuff. 4th Amendment Against what: - Privacy in a Digital Age, unreasonable searches and Policing in America, seizures by the government. Search and Who’s the government here? Seizure Usually police officers.  The Warrant Requirement The Fourth Amendment places restraints on the government any time it searches or seizes a person or her property. True to the Amendment’s text, the government’s 4th Amendment search or seizure must be reasonable. - Privacy in a Digital Age, Policing in The warrant requirement itself ensures America, Search and that searches and seizures are generally Seizure cleared in advance by a judge. To get a warrant from a judge, the government must show “probable cause.”  Probable Cause “Probable cause” simply means a certain level of suspicion of criminal activity—to justify a particular search or a particular seizure. Its suspicion that 4th Amendment attaches to a particular person, place, - Privacy in a or item—for instance. Digital Age, Policing in America, Search and Seizure  Can they do that? When thinking about the Fourth Amendment, we often start with a simple question: Can they do that? 4th Amendment - Privacy in a Can police officers stop me on the Digital Age, Policing in America, street? Search and Can they search my car, my desk, or Seizure my nightstand? Can they look at who I’ve called, where  Big Idea Before the government can search your home or seize your property, it needs a good reason. This is the big idea behind the Fourth Amendment’s warrant requirement. The government needs particularized 4th Amendment suspicion—a reason that’s specific to each - Privacy in a Digital Age, suspect—before it can get a warrant. Policing in America, Broadly speaking, our Constitution says that Search and the police should only be able to invade a Seizure person’s rights to privacy, property, or liberty if they have a specific reason to think that the suspect has done something wrong.  Hypothetical Can the government track you 24 hours a day, 7 days a week, for an entire month, using your 4th Amendment cell phone data and location - Privacy in a Digital Age, information? Policing in America, Search and (Carpenter v. United States, Seizure VOTE NOW! 2018)  Writs of Assistance Boston, 1761 King George was using royal officials in the colonies to crack down on tax evaders and 4th Amendment smugglers with the use - Privacy in a Digital Age, of so-called “Writs of Policing in Assistance.” Writs of America, Search and King George Assistance gave royal Seizure III officials “free range” to break into the homes of colonists to search for Writs of Assistance 4th Amendment - Privacy in a Digital Age, Policing in America, Search and James Otis, a prominent Seizure Boston lawyer, publicly denounced the Writs of Assistance Writs of Assistance “It is a power that places the liberty of every 4th Amendment - Privacy in a man in the hands Digital Age, Policing in of every petty America, officer.” Search and Seizure James Otis Writs of Assistance Otis’s argument was “the first scene of the first act of opposition 4th Amendment to the arbitrary claims - Privacy in a Digital Age, of Great Britain. Then Policing in and there the child of America, Search and Independence was Seizure John Adams born.”  The Founding Era and General Warrants Like Otis, James Madison and the Founding generation were primarily concerned about general 4th Amendment warrants. - Privacy in a Digital Age, These warrants had Policing in America, allowed royal agents to Search and conduct broad searches Seizure without limits and thus James Madison giving them arbitrary power to wield at disfavored colonists.  The Founding Era and General Warrants The Virginia Declaration of Rights banned “general warrants, whereby an 4th Amendment officer or messenger - Privacy in a may be commanded Digital Age, to search suspected Policing in America, places without Search and evidence of fact Seizure Virginia committed.” Declaration of Rights  The Founding Era and General Warrants Several state constitutions— including those in Massachusetts and Pennsylvania—opened with a Preamble similar to the first 4th Amendment clause of the Fourth - Privacy in a Digital Age, Amendment, declaring the Policing in right of the people to be free America, Search and from oppressive search and Seizure Massachusetts seizures. Constitution of 1780 The message here was simple.  Big Idea Before the government can search your home or seize 4th Amendment - Privacy in a your property, it needs a Digital Age, Policing in good reason. America, Search and Seizure  Basic Framework for Analyzing Fourth Amendment Cases Was there a search or seizure? Entering someone’s home to look for evidence is a search, but passively observing someone in plain view in public is not. 4th Amendment - Privacy in a When the government restrains someone or Digital Age, Policing in takes her property, there’s a seizure. When America, the government doesn’t, there isn’t. Search and Seizure If there’s no search or seizure, then there’s no Fourth Amendment violation.  Basic Framework for Analyzing Fourth Amendment Cases Was the search or seizure reasonable? Generally, the police need to go to a judge and secure a warrant supported by probable cause before searching a home or seizing property. 4th Amendment Probable cause requires a “fair probability” that, - Privacy in a Digital Age, for instance, the relevant evidence of a crime Policing in will be found in the place (or thing) to be America, searched. Search and Seizure There are times when a warrant is not required: the police may search you during an arrest. Or at a check point. Or when there’s imminent danger that someone might be hurt, a suspect  Basic Framework for Analyzing Fourth Amendment Cases If there’s a Fourth Amendment violation, what happens next? Generally, courts will apply what’s known as the exclusionary rule—throwing out 4th Amendment evidence in a criminal trial that the police - Privacy in a Digital Age, got by violating the Fourth Amendment. This Policing in is meant as a check on police abuses. America, Search and Seizure But again, there are exceptions, for example, if police officers were acting in good faith and made a mistake.  Olmstead v. United States (1928) 4th Amendment - Privacy in a Digital Age, Policing in America, Search and Seizure ROY OLMSTEAD  Olmstead v. United States (1928) Facts of the Case: Olmstead took place in 1928 during the height of Prohibition Federal agents were investigating Roy Olmstead for running an illegal liquor business. Without a judicial 4th Amendment warrant, they installed “wiretaps” on the phone lines - Privacy in a Digital Age, leading to the office of the suspected illegal business, Policing in as well as to Olmstead’s home. America, Search and Seizure Able to listen to the suspects’ phone conversations, the agents uncovered evidence that Olmstead was selling liquor. Olmstead v. United States (1928) Majority Opinion: No physical trespass, no constitutional violation. The Founding generation 4th Amendment linked Fourth - Privacy in a Amendment protections Digital Age, Policing in to property rights, and America, Taft argued that the Search and Court should do the Seizure same. CHIEF JUSTICE WILLIAM HOWARD TAFT  Olmstead v. United States (1928) Brandeis Dissent: “Progress of science and espionage is not likely to stop with wiretapping. 4th Amendment Ways may some day be - Privacy in a Digital Age, developed by which the Policing in government without America, Search and physically intruding into Seizure the home may extract JUSTICE LOUIS secret records and BRANDEIS introduce them into  Olmstead v. United States (1928) Brandeis Dissent: “At the time of the Framing, a far smaller intrusion—the general warrants that sparked the 4th Amendment American Revolution— - Privacy in a Digital Age, were held to be Policing in unconscionable violations America, of liberty. Can it be that Search and Seizure the Constitution does not JUSTICE LOUIS afford protections against BRANDEIS similar invasions in light of Katz v. United States (1967) 4th Amendment - Privacy in a Digital Age, Policing in America, Search and Seizure  Katz v. United States (1967) Facts of the Case: Acting on a suspicion that Charles Katz was transmitting gambling information over the phone to clients in other states, federal agents attached an eavesdropping device to the outside of a public phone booth used by Katz. Based on recordings of his end of the 4th Amendment conversation, Katz was convicted for illegal gambling. - Privacy in a Digital Age, Policing in Katz argued that the government violated the Fourth America, Amendment by listening in on his conversation. Search and Seizure The Supreme Court agreed. And in the process, it overruled Olmstead and its requirement of a physical trespass.  Katz v. United States (1967) The Court ruled that Katz was entitled to Fourth Amendment protection for his conversations and that a physical intrusion into the area he occupied was unnecessary to bring the Amendment into play (Overruling Olmstead and its requirement of 4th Amendment a physical trespass). - Privacy in a Digital Age, Policing in Although a public phone booth is a public space America, rather than private property, individuals have a Search and Seizure strong expectation that such conversations will not be overheard. The Fourth Amendment protects people, not  Katz v. United States (1967) In an influential separate opinion—a concurrence—Justice Harlan said that 4th Amendment Fourth Amendment - Privacy in a protections apply Digital Age, whenever the Policing in America, individual has a Search and “reasonable Seizure JUSTICE JOHN expectation of MARSHALL HARLAN II privacy.”  Justice Harlan’s Katz Test 1) Did the individual have a subjective expectation of privacy? 4th Amendment - Privacy in a Digital Age, 2) Was the Policing in America, expectation of Search and privacy one that Seizure JUSTICE JOHN society would MARSHALL HARLAN II recognize as reasonable?  Third Party Doctrine Cases When the government tries to obtain “third- party” information—such as bank records or pen registers—that is generally not a search for Fourth Amendment purposes. And therefore, the government doesn’t need to get a warrant 4th Amendment - Privacy in a before getting access to that information. Digital Age, Policing in United States v. Miller (1976) America, Search and Smith v. Maryland (1979) Seizure  New Technology Cases How do we apply the Fourth Amendment’s text and traditional Fourth Amendment principles to the new challenges of the digital age? 4th Amendment - Privacy in a Jones v. United States (2012) Digital Age, Riley v. California (2014) Policing in America, Search and Seizure Carpenter v. United States (2018) 4th Amendment - Privacy in a Digital Age, Policing in America, Search and Seizure  Hypothetical Can the government track you 24 hours a day, 7 days a week, for an entire month, using your 4th Amendment cell phone data and location - Privacy in a Digital Age, information? Policing in America, Search and (Carpenter v. United States, Seizure VOTE NOW! 2018)  Carpenter v. United States (2018) Facts of the Case: In Carpenter, police officers arrested four men in a string of armed robberies. One of these men confessed. He gave his cell phone to the FBI and gave the agents the cell phone numbers of many of his accomplices. The FBI then used this information—and the suspect’s call log—to get the cell phone records of many other suspects. 4th Amendment - Privacy in a Digital Age, Importantly, the government didn’t get a warrant. Instead, Policing in they requested this data through a national law—the Stored America, Communications Act. By using this law, the government only Search and had to say that the cell phone records were relevant to a Seizure legitimate criminal investigation. This “relevance” standard is lower than the test for getting a warrant—known as “probable cause.”  Carpenter v. United States (2018) Carpenter asked the question: Can they do that? 4th Amendment - Privacy in a Digital Age, Can the FBI gain access to Policing in America, my cell phone records Search and Seizure without a warrant?  Carpenter v. United States (2018) In a 5-4 decision—authored by Chief Justice John Roberts—the Supreme Court ruled that the practice of acquiring cell phone location information from wireless service providers is a Fourth Amendment search because it violates a 4th Amendment person’s “legitimate expectation of privacy - Privacy in a Digital Age, in the record of his physical movements.” Policing in The Court also ruled that accessing those America, records without a warrant violates the Fourth Search and Seizure Amendment.  Carpenter v. United States (2018) Dissenting: Justice Kennedy argued that cell-site records are no different from the many 4th Amendment other kinds of business - Privacy in a records the government has Digital Age, Policing in a lawful right to obtain America, without a warrant because Search and he believed users had in Seizure JUSTICE ANTHONY fact voluntarily given away KENNEDY their records to third-party businesses.  Carpenter v. United States (2018) Dissenting: Justice Thomas also stressed a property-based approach to Fourth 4th Amendment Amendment questions. In - Privacy in a Digital Age, Justice Thomas's view, the Policing in case should not turn on America, whether a search occurred, Search and but whose property was Seizure JUSTICE CLARENCE searched. THOMAS  Carpenter v. United States (2018) Dissenting: Justice Alito distinguished between an actual search 4th Amendment and an order “merely - Privacy in a requiring a party to look Digital Age, Policing in through its own records and America, produce specified Search and documents.” Seizure JUSTICE SAMUEL ALITO  Carpenter v. United States (2018) Dissenting: Justice Gorsuch offered a thoughtful dissent—probing the limits of each of the 4th Amendment proposed approaches while - Privacy in a Digital Age, offering some tentative Policing in thoughts of his own. America, Search and Seizure JUSTICE NEIL GORSUCH  Big Idea Before the government can search your home or seize 4th Amendment - Privacy in a your property, it needs a Digital Age, Policing in good reason. America, Search and Seizure