Know Your 4th Amendment Rights and The Patriot Act

How does the Patriot Act really apply to the legal concepts of search and seizure.  Most Americans have no clue!


By Greg Szymanski, JD
July 25, 2007

Without question, The Patriot Act has made it easier for officials to
undertake warrantless searches and seizures previously protected by the 4th amendment of the U.S. Constitution.

In theory, prior to The Patriot Act officials needed probable cause or in some cases reasonable suspicion to invade a citizen's privacy. Now, mere suspicion of wrongdoing whether reasonable or not is enough, destroying a cherished legal standard.

The two most disturbing elements in the Patriot act are the words
"suspicion" and "domestic terrorism" as this gives officials an open door policy into a citizen's home or personal items without clearly defining what constitutes domestic terrorism, leading to mere criticism of government as a possible violation.

Although this may seem trivial to the average person, it's legal
ramifications are grave since it opens the door for abuses of privacy
reminiscent to Nazi Germany.

However, in light of the grave ramifications most Americans remain
compliant to governmental abuses and ignorant of their 4th amendment rights as well as the legal exceptions to that cherished Constitutional protection.

Here is a brief overview:

The 4th Amendment protects against unreasonable searches and seizures of
persons and property. This applies to citizens and resident aliens,
applying to state court proceedings through the 14th amendment.

A "Search" under the law means any governmental intrusion of a
reasonable, justifiable expectation of privacy. A reasonable expectation
of privacy must be both objectively and subjectively reasonable,
according to the Katz case. Objective and subjective are important legal
words and in a privacy case both standards must be met.

When it comes to legal Standing to raise a privacy complaint, it must be
remembered a third party cannot assert the privacy rights of another, as
the complainant must have a reasonable and legitimate expectation of
privacy.

For example, co-conspirators don't automatically have standing to assert
other co-conspirator's rights. Overnight guests have standing, but
visitors for a commercial transaction do not.

One interesting area in hot debate concerning the right to privacy is the
widespread field of electronic surveillance. Remember, surveillancece is
always permitted with the consent of one of the parties and "false
friends" can give consent.

Prior to the Patriot Act, warrants were needed based upon probable cause
and no consent (a difficult legal standard to meet), but now mere
suspicion may suffice, making electronic surveillance a handy
governmental tool to spy without judicial oversight.

In summary, with the passage of the Patriot Act we have allowed the
government to by-pass probable cause a standard which meant: the
likelihood of evidence being discovered, other procedures to obtain the
evidence have failed, and wired facilities are connected to some type of
crime. Further the warrant must describe a person, conversation and be
limited in time. Surveillance must stop after conversations are recorded
and are not applicable to pen registers and bank accounts.

However, now with the Patriot Act all these limitations have disappeared.

And here in a nutshell are some other limitations and legal concepts put
into jeopardy with the passage of the Patriot act:

Aerial surveillance: no search was previously allowed from public
navigable airspace and it must not have been physically intrusive.

Curtilage (a legal concept determining the boundaries of your living
space): This previously applied to the 4th Amendment protections but
without judicial oversight can easily be ignored. Factors included
proximity to one's home, area fenced, nature of the land's use and
whether steps were taken to protect the area from observation.

Open Fields: there is no reasonable expectation of privacy and even 4th
Amendment doesn't apply.

Trash: no reasonable expectation of privacy if left at curb. 4th Amendment
also doesn't apply to dumpsters left in the alley.

Other terms important to understanding your 4th Amendment rights:

Seizure of Person: when a person submits to a show of authority or when a
reasonable person would not feel free to walk away from police. An arrest
is an example of a "seizure", but not all police questioning is
considered a "seizure of person."

Seizure of Property: This relates to the government's physical control
over a thing. Warrants were usually required unless a legal exception
existed. This is not applicable to electronic tracking devices and de
minimus drug field tests.

Probable Cause To Arrest: This requires substantial trustworthy evidence
that a violation of law has been committed and the person to be arrested
committed the violation. Remember, with the passage of the Patriot Act
this evidence can be obtained without probable cause protections.

Probable Cause to Search: This requires evidence which supports the
conclusion that the specific items to be searched are connected with
criminal activity and the items will be found in the place searched.

Reasonable Suspicion: This is a lesser standard than probable cause which
existed prior to the Patriot Act in certain limited situations, including
stop and frisk, administrative areas, school, border and workplace
searches. This, however, requires specific facts that criminal
activity is afoot. It also can justify without probable cause limited
search and seizure if police believe the suspect is about to or recently
has committed a crime.

Individualized Suspicion: This is not required if a neutral criteria is
used. For example, sobriety checkpoints and airport searches are
considered areas where the public benefit outweighs the private
concerns, allowing everyone to be searched without even mere suspicion.

Search Warrants: To make sure it is legal watch for three things: Validly
issued by a neutral magistrate concluding fair probability that evidence
will be found based on sworn affidavits containing specific facts.
Particularity, meaning items seized must be described in detail. Scope,
meaning area searched limited to areas that listed evidence could
reasonably be found. Remember, the arrest must be timely and not stale and
the officer presenting the warrant must knock and announce unless
reasonable suspicion of exigent circumstances exist.

Student Searches: Only reasonable suspicion is needed for student
searches, including drug testing for sports.

Public Employees: Drug testing is OK even if absent individual suspicion
if real and substantial risk to public safety or national security.

Exceptions to Warrants: (Reasonableness applies) exigent circumstances or
hot pursuit; searches incident to a lawful arrest; auto exception; stop
and frisk; consent; plain view; inventory searches;
administrative/regulatory searches; border searches and sobriety
checkpoints.

Note: Every one of the exceptions mentioned has a detailed analysis, but
for the sake of brevity we will forego those explanations, leaving the
following two legal concepts as our ending to this cursory overview of
your 4th amendment rights.

Exclusionary Rule: This legal concept is applied also to the states in a
case called Mapp v. Ohio and deters police misconduct by excluding
illegally obtained and seized evidence. This also applies to the 5th and
6th amendments. Remember, evidence itself and the "fruit of the poisonous
tree" doctrine makes all evidence obtained after excluded from the
prosecutor's case-in-chief, but can be used to impeach a witness or in
grand jury proceedings.

Limitations to the Exclusionary Rule: illegally seized evidence can be
used to impeach if no motion to suppress is made and if no taint is purged
by other factors including intervening time, voluntariness, inevitable
discovery, evidence obtained from a non-police informant or independent
source, good faith belief in validity of warrant and a statute
authorizing seizure or a harmless error.

We hope this helps you understand your rights better and how the Patriot
Act interferes with established legal principles. Further, it is sad
the many lawyers in Congress, who understand these principles, have bowed
down to the New World Order, making the Constitution as President Bush
stated "Just a God Damn piece of paper."

Further, the focus on the 4th Amendment stated above revolved around
criminal procedure, but interestingly enough the origins of search and
seizure law arose from seditious libel investigations closely connected
to our 1st amendment free speech rights. Here is a portion of a legal
article written by William J. Stuntz, explaining the origins of the 4th
Amendment and criminal procedure.

by William J. Stuntz


The focus of Fourth and Fifth Amendment law is day-to-day criminal
investigation: police searches and seizures, interrogation of suspects,
and so forth. In this Article, Professor Stuntz argues that Fourth and
Fifth Amendment history has a very different focus. The Fourth and Fifth
Amendments arose out of heresy and seditious libel investigations, in a
time when police forces did not exist. In the late nineteenth century,
when the Supreme Court first took a hand in crafting Fourth and Fifth
Amendment doctrine, the key cases involved railroad and antitrust
regulation - a far cry from ordinary criminal investigations, and far
removed from the common concerns of police misconduct. In both the
eighteenth and nineteenth centuries, Fourth and Fifth Amendment law's
primary effect seems to have been to make it harder to prosecute
substantively controversial crimes: heresy, sedition, or unpopular trade
offenses at the time of the Founding, regulatory offenses in the late
nineteenth century. Criminal procedure 's history thus has little to do
with day-to-day criminal investigation - little to do with the police -
but has a great deal to do with substance, with what conduct the state
may criminalize. This unusual history, Professor Stuntz contends, is
crucial to any understanding of the strange features of the current law
of criminal investigation. In particular, it goes far toward explaining
that law's failure to come to grips with police violence, surely the most
important category of police misconduct.

I. INTRODUCTION

Consider the following anomaly: The law of criminal procedure closely
regulates when a police officer can look in the glove compartment of my
car or ask me questions about a crime, but it pays almost no attention to
when (or how often or how hard or with what weapon) he can strike me. We
have very detailed law governing a host of evidence-gathering issues, but
surprisingly little - and surprisingly lax - legal regulation of police
coercion and violence. This state of affairs is both strange and wrong.
It is also a product of criminal procedure's odd history.

One aspect of that history is familiar. Fourth and Fifth Amendment law
are the traditional guardians of a particular kind of individual privacy
- the ability to keep secrets from the government. The most famous and
important search and seizure cases of the eighteenth, nineteenth, and
twentieth centuries involve government officials rummaging through
private papers, subpoenaing private documents, or eavesdropping on
telephone conversations.(1) Similarly, the privilege against
self-incrimination arose in part from claims that one should not be
required to disclose one's thoughts or beliefs under pain of criminal
punishment.(2) This strand of thought about the privilege has mostly died
out today, but as recently as a generation ago privacy was the dominant
explanation for why the privilege existed.(3) And the privilege at its
heart has always protected a form of secrecy - the right not to share
one's testimony with the government.

But there is another, less noticed strand of Fourth and Fifth Amendment
history. Privacy protection in the past had little to do with ordinary
criminal procedure. The Fourth and Fifth Amendments arose out of heresy
investigations and seditious libel cases, not murders and robberies. In
the late nineteenth century, when the Supreme Court first took a hand in
crafting Fourth and Fifth Amendment law, the key cases involved railroad
regulation and antitrust - again, a far cry from ordinary criminal
litigation. In both the eighteenth and nineteenth centuries, the law's
primary effect seems to have been to make it harder to prosecute
objectionable crimes - heresy, sedition, or unpopular trade offenses in
the seventeenth and eighteenth centuries, regulatory offenses in the late
nineteenth century. To a surprising degree, the history of criminal
procedure is not really about procedure at all but about substantive
issues, about what conduct the government should and should not be able
to punish.

Fourth and Fifth Amendment history thus has more in common with the First
Amendment and Lochner v. New York(4) than with criminal procedure as we
know it today. Fourth and Fifth Amendment law has traditionally limited
government evidence gathering in order to guard individual privacy, but
the limits and the protection have mattered most in settings in which
there have been serious concerns about the government's power to regulate
the relevant conduct. Meanwhile, those bodies of law had only a small
effect on run-of-the-mill criminal investigations and prosecutions. It is
as if privacy protection were a proxy for something else, a tool with
which courts or juries could limit the government's substantive power.(5)

This system began to break down near the turn of this century, with the
advent of the Interstate Commerce Act, the Sherman Act, and other
statutes designed to regulate business. These statutes dramatically
altered the substantive effect of constitutional privacy protection,
transforming it into a tool for preventing unwelcome regulation of
business. Some courts embraced this transformation (this was, after all,
the Lochner era), but by the end of Theodore Roosevelt's presidency that
path was already largely abandoned. Foreshadowing the switch in time of
1937, the Supreme Court began to erect unprincipled boundaries around
Fourth and Fifth Amendment protections in order to limit their
restrictive effect on regulatory statutes. Yet the underlying focus of
the law - the idea that the Constitution places great value on one's
ability to keep information out of the government's hands - remained,
setting the stage for the conflicts and inconsistencies that riddle
Fourth and Fifth Amendment law today.

The results of this history can be seen today both in what the law
regulates and in what it leaves alone. If the law of search and seizure
now seems obsessed with evaluating the privacy interest in jacket pockets
or paper bags, that is a consequence of the strong tradition of using
Fourth and Fifth Amendment law as a shield against government
information-gathering - a tradition that has more to do with protecting
free speech than with regulating the police. If privacy seems
surprisingly unprotected when government agencies search regulated
businesses or when government employers search their employees, that is a
consequence of the early twentieth-century conflict between privacy
protection and the emerging regulatory state. Finally, if the law all but
ignores police violence outside of interrogation rooms, if it pays more
attention to what police officers can see than to what they can do, that
too is a consequence of the Fourth and Fifth Amendments' odd history.
Except for the last generation or so, that history has had surprisingly
little to do with the police. It has had more to do with the substantive
law of crimes, with what activities the government should and should not
be able to punish.

Of course, the substantive issues that shaped Fourth and Fifth Amendment
law are long since settled. The government cannot prosecute people for
sedition or heresy. Regulatory crimes abound, and few people think they
raise serious constitutional problems.(6) Meanwhile, the law of criminal
procedure still follows the path marked out by these old battles. We have
taken a privacy ideal formed in heresy cases and railroad regulation
disputes, an ideal that had no connection to ordinary criminal law
enforcement, and used it as the foundation for much of the vast body of
law that polices the police. Predictably, the combination has not worked
out very well.

Part II of this Article discusses the Fourth Amendment's
eighteenth-century roots. Part III turns to the origins of the privilege
against selfincrimination. Part IV examines the role both doctrines
played during the late nineteenth and early twentieth centuries. Finally,
Part V offers an account of how we got to where we are, of the transition
from Lochner-era Fourth and Fifth Amendment law to the Warren Court, and
from the Warren Court to today. These discussions are not detailed, and
there are no impressive new discoveries. The basic outlines of Fourth and
Fifth Amendment history have long been fairly clear. I wish only to
suggest that those basic outlines, especially the eighteenth-century
disputes that led to the Fourth Amendment together with Boyd v. United
States and its nineteenth-century progeny, paint a different picture than
the one we usually see.

II. THE SUBSTANTIVE ORIGINS OF THE FOURTH AMENDMENT

The literature on the Fourth Amendment's origins is sparse, but that may
be because agreement is so widespread. Like the rest of the Bill of
Rights, the Fourth Amendment was prompted by complaints pressed during
the Constitution's ratification.(7) Also like other items in the Bill of
Rights, the Fourth Amendment echoed several state constitutional
provisions.(8) But its real source, historians seem to agree, was the
same as the source of those state provisions: a trio of famous cases from
the 1760s, two in England and one in the colonies.(9) All of the
literature on the Fourth Amendment's origins focuses on these three
cases, which were not only well known to the men who wrote and ratified
the Bill of Rights, but famous throughout the colonial population. Any
effort to understand the Fourth Amendment's roots, then, must start with
these cases and the legal context within which they operated.

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Here are some famous quotes concerning freedom and liberty:

"In the end more than they wanted freedom, they wanted security. When the
Athenians finally wanted not to give to society but for society to give
to them, when the freedom they wished for was freedom from
responsibility, then Athens ceased to be free."- Edward Gibbon
(1737-1794)Source: Decline and Fall of the Roman Empire, 1909

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"If men use their liberty in such a way as to surrender their liberty,
are they thereafter any the less slaves? If people by a plebiscite elect
a man despot over them, do they remain free because the despotism was of
their own making?": -- Herbert Spencer - (1820-1903) British author,
economist, philosopher 1884

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It is foolish in the extreme not only to resort to force before necessity
compels, but especially to madly create the conditions that will lead to
this necessity." : Benjamin Tucker, Liberty, May 22, 1886

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"The industrial way of life leads to the industrial way of death. From
Shiloh to Dachau, from Antietam to Stalingrad, from Hiroshima to Vietnam
and Afghanistan, the great specialty of industry and technology has been
the mass production of human corpses." -Edward Abbey

=
"Civil disobedience is not our problem. Our problem is civil obedience.
Our problem is that numbers of people all over the world have obeyed the
dictates of the leaders of their government and have gone to war, and
millions have been killed because of this obedience. . . Our problem is
that people are obedient all over the world in the face of poverty and
starvation and stupidity, and war, and cruelty": Howard Zinn

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The feeling of patriotism - It is an immoral feeling because, instead of
confessing himself a son of God . . . or even a free man guided by his
own reason, each man under the influence of patriotism confesses himself
the son of his fatherland and the slave of his government, and commits
actions contrary to his reason and conscience.": Leo Tolstoy, Patriotism
and Government