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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.

United States v. Seerden

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One of the areas of focus by CLDEF has been to urge courts to return to a proper, historic understanding of the Fourth Amendment as a protection of property rights.  That approach was adopted by the U.S. Supreme Court in 2012 in the United States v. Jones case.  Nonetheless, many lawyers and judges continue to evaluate Fourth Amendment challenges as though the Amendment only protected a person’s “reasonable expectation of privacy.”  Of course, the word privacy is not even in the Constitution.  That test is being used by judges who wish to be able to decide cases however they want — rather than as the Framers specified in the Constitutional text.  In this case, a service member had his cell phone unconstitutionally searched and seized, and our brief explains how the property principles were violated, based on a textual and contextual analysis of the Fourth Amendment. Read More

Graham v. United States

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The Graham case involves law enforcement’s access of Cell Phone Location Information obtained from a phone company, based on a subpoena — not a warrant — issued by an Article I magistrate — not an Article III judge.  We urged the court to re-examine its third-party doctrine which limits the protection of an individual’s records in the hands of a third party, in view of the Supreme Court’s recent Jones and Jardines cases.

Manuel v. City of Joliet

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Today an amicus brief was filed on our behalf in the U.S. Supreme Court defending the right of a person who was unlawfully incarcerated for several weeks to be able to bring an action under 42 U.S.C. section 1983 based on a violation of the Fourth Amendment.

Wikimedia Foundation v. National Security Agency

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Today, a third amicus brief was filed on behalf of CLDEF opposing NSA’s program of “Upstream” Internet surveillance of Americans.  This brief urges the Fourth Circuit to reverse the decision of the District Court in Maryland which found that neither Wikimedia Foundation — which runs Wikipedia — nor the other plaintiffs in the case, had standing to challenge that surveillance.

Birchfield v. North Dakota

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Today an amicus brief was filed on behalf of CLDEF in the U.S. Supreme Court urging the High Court to reverse decisions from the Supreme Court of North Dakota and Minnesota which authorized police to force drivers to submit to warrantless blood and breath tests.  The brief urges the Court to apply to principles of its prior decisions in United States v. Jones, and Florida v. Jardines, which re-established the property basis of the Fourth Amendment.  The brief opposes reliance on the modern notion that the Fourth Amendment only protected a nontextual “expectation of privacy” — a false notion on which the two state supreme courts relied.

Jewel v. NSA
(opposing the NSA’s mass internet surveillance system)

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Several customers of AT&T sued the NSA because of the NSA’s mass internet dragnet surveillance.  The district court first dismissed the case for lack of standing on the part of the plaintiffs, but the Court of Appeals reversed, ruling that the plaintiffs had shown a particularized injury.  Despite the government’s admission of its surveillance program, the case was dismissed because the district court concluded once again that the plaintiffs did not have standing because, using secret information filed by the government and not provided to the plaintiffs, the plaintiffs failed to explain the secret operational details of the surveillance program. Read More

City of Los Angeles v. Patel
(opposing L.A.’s ordinance requiring warrantless disclosure of hotel guest registers)

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A group of Los Angeles hotel owners challenged a Los Angeles city ordinance which authorizes police to search through hotels’ guest registers without a warrant.  The City claimed that hotel owners have no expectation of privacy in a business record that they are required by the City to keep.  And the City claimed it has a significant interest in fighting crimes committed in and around the hotel property.  Thus, the City asserted that, in such a highly regulated industry, there is no need for probable cause, much less a warrant.  In short, Los Angeles argued that the Fourth Amendment does not apply. Read More

Rodriguez v. United States
(opposing extended traffic stop without reason or warrant as an unlawful seizure)

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Rodriguez is a Fourth Amendment case involving a search and seizure after the predicate traffic stop had ended.  In this case, the police stopped a vehicle, and the officer wrote the driver a warning for momentarily veering onto the shoulder.  However, even though the stop had ended, the officer continued to talk to the occupants and asked them if they minded him searching the vehicle with his drug dog.  When the driver declined, the cop seized the car and occupants, ordering them not to move.  He then performed a dog-sniff drug search. Read More

Heien v. North Carolina
(opposing warrantless stop and search based on police mistake of law)

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Heien is a Fourth Amendment case involving a traffic stop for something that the officer incorrectly believed was a crime.  Although the car should not have been stopped, the North Carolina courts upheld the police’s seizure of the car’s passenger’s illegal property because the police’s mistake in stopping the car was “reasonable.”  Heien sought U.S. Supreme Court review, and CLDEF submitted an amicus curiae brief in support of his position.  CLDEF’s brief critiqued the use of the “reasonable expectation of privacy” test that has been routinely used by federal courts to justify intrusions of liberty through a multitude of subjective shades of grey.  Instead, armed with an understanding that the Fourth Amendment protects property rights, the inquiry becomes objectively black and white — whether the government does or does not have a superior property interest in the person and/or vehicle it wishes to detain.  Viewed in that light, the police had no right to stop someone who had violated no law, regardless of how “reasonable” an officer’s mistake may seem to a court. Read More

United States v. Wurie
(opposing warrantless searches of cell phone pursuant to a lawful arrest)

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Wurie was a Fourth Amendment case involving the warrantless search of a cellular phone pursuant to an arrest.  The government argued that, any time it makes an arrest, it has the right to search a person’s cell phone without a warrant as a matter of course, “incidental” to the arrest.  Wurie was convicted based upon information found in the search, and he sought U.S. Supreme Court review. Read More

Cotterman v. United States
(opposing border exception to the Fourth Amendment)

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Cotterman was a Fourth Amendment case about whether the federal government can seize a laptop at a border checkpoint and copy the contents without a warrant, probable cause, or even reasonable suspicion.  Cotterman was convicted based on such a search, and he sought review by the U.S. Supreme Court.  CLDEF’s amicus curiae brief, in support of the petitioner, argued that the case should not be analyzed based on non-textual “reasonable expectation of privacy” standards, but instead involved a “general search” absolutely prohibited by the Fourth Amendment.  This would be no different than if the government seized a person’s firearms and copied down the serial numbers as part of a general search to see if they were stolen.  CLDEF’s effort in this case continues to press for a revitalized Fourth Amendment principle to protect property, not just some watered-down notion of a reasonable expectation of privacy — an expectation which is rapidly shrinking in the digital age. Read More