Searches and Seizure

“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.”
– Fourth Amendment to the U.S. Constitution

The Fourth Amendment was put into the Bill of Rights to protect one’s private property interests in his “person[], houses, papers, and effects.”  Any government intrusion upon such property is per se “unreasonable,” unless the government has a superior property interest in the person or things to be searched or seized.

Thus, even if the government has probable cause and a warrant, a search or seizure of property is unreasonable unless the government can show that the thing to be seized is:  (i) the fruit of a crime; (ii) the instrumentality of a crime; or (iii) contraband.  If the only interest of the government is to obtain “evidence,” that would be an impermissible (“unreasonable”) seizure.  For many years, this was the law of the land, known as the “mere evidence rule.”

Additionally, even if the government may search for and seize such property, it must first establish to the satisfaction of a member of the judicial branch that there is probable cause, supported by a sworn affidavit, and particularly describing the place to be searched and the property to be seized.  The warrant requirement ensured that the government was not engaging in an unjustified search, but required an affidavit of someone with personal knowledge of the presence of one of the three types of property that could be seized.  Should the affidavit be false, the person who signed it could be sued for trespass, as could the government officials wrongfully carrying out the search.

All aspects of the Fourth Amendment have been eroded during the Twentieth Century, to the point that the government now asserts the right to search and seize: (i) on many occasions, without any warrant; (ii) on other occasions with a warrant from someone other than a judge; and (iii) on all occasions, seeking anything whatsoever it wants if it has a warrant.  The mere evidence rule has been abandoned.  The warrant requirement is riddled with exceptions.  And the property basis of the Fourth Amendment has been undermined by an atextual standard known as “reasonable expectation of privacy.”  The first legal writing in America about a right of privacy did not occur until the 1890’s, and thus it could not be said that the Founders were referring to privacy in crafting the Fourth Amendment.

CLDEF focuses on restoring the original understanding of the Fourth Amendment.  The first breakthrough occurred when the position advanced in CLDEF’s amicus curiae brief in United States v. Jones, was largely adopted by the U.S. Supreme Court — bringing back the property basis of Fourth Amendment.

These important Fourth Amendment principles were set out in a 2013 Law Review article by CLDEF lawyers Herbert W. Titus and William J. Olson, entitled
“U.S. v. Jones: Reviving the Property Foundation of the Fourth Amendment,” published in the Case Western Reserve University School of Law Journal of Law, Technology & the Internet.

Below are some of the Searches and Seizures matters in which CLDEF has been involved.