Does CIA Nominee Michael Hayden Understand the Fourth Amendment?

Orin Kerr analyzes this.

Christopher Cooke:
I would say that a better reason to oppose Hayden would be his violation of the 4th Amendment, and the Federal Wiretap statute, not his interpretation of the 4th Amendment.

Of course, the Supreme Court has largely gutted the original meaning of the 4th Amendment, once it started down the "reasonable" searches path and watered down the warrant requirement explicit in the amendment's plain language. Here, one would hope, the "Original Intention" right-wingers would step up to the plate and defend the warrant requirement, but, alas, most simply kowtow to their right wing political masters' views. So much for ideological purity.
5.11.2006 12:42am
John Jenkins (mail):
Christopher, Are you lamenting that there are judges who have right-wing masters, or that their masters aren't left-wing? It's not inconceivable that people might have different views from yours for some other reason that political (political choices, after all, can be the result of belifs, not necessarily the cause) The warrant requirement is separate from the reasonableness requirement. A fair reading of the text of the Fourth Amendment seems to make that clear. One can argue that the only reasonable searches are those that are conducted pursuant to a warrant and that might be one reading of the Fourth Amendment, but it's not one that the Court has adopted, and that's not really anything new. What do you mean by watered down the warrant requirement, exactly? Do you mean that courts require something less than probable cause for a warrant, or that too many searches are permitted absent warrants. What policy rule would you advocate?
5.11.2006 12:57am
It's not at all clear to me that the plain language of the IVth Amendment requires warrants for anything at all. It says that when warrants are issued, they need probable cause. I think this is a bug, not a feature, of the plain language approach.

In any case, the problem with this guy is definitely his involvement with the President's illegal domestic spying program.
5.11.2006 1:11am
Woohoo! Always cool to get a link from the Volokh Conspiracy.
5.11.2006 1:21am
Christopher Cooke:
Mr. Jenkins: I am arguing for judicial independence, not loyalty to left or right wing ideologies. If you read the long history of Supreme Court 4th Amendment jurisprudence, which originally recognized a 4th Amendment as requiring a warrant except in very narrow circumstances, and which now uses "reasonableness" as the touchstone and limits the express warrant requirement to narrow circumstances, you will catch my drift. See the following link for a discussion:
5.11.2006 1:37am
Cornellian (mail):
It's not at all clear to me that the plain language of the IVth Amendment requires warrants for anything at all. It says that when warrants are issued, they need probable cause. I think this is a bug, not a feature, of the plain language approach.

This works for Fifth Amendment takings as well. You get to say the government can take your property for private use without paying just compensation because the Fifth Amendment only requires just compensation when it's taken for public use.
5.11.2006 1:40am
Dean Esmay (www):
When the courts started down what path? When and where was it ever held that no one may ever be searched without a warrant? At any time in our history did that hold true?

If the Supreme Court "gutted" the 4th amendment once it "started down" this path, can you please explain to me when it was held that all searches require warrants? Or, failing that, when it was held that all wiretaps require warrants?

Surely if the amendment has been "gutted" ever since a certain path was "started down" you can tell us when and where.
5.11.2006 1:42am
Robert Schwartz (mail):
[Deleted by Eugene Volokh on grounds of rudeness. Folks, keep it polite; it's nicer, it's more likely to yield useful discussion, and it's more persuasive.]
5.11.2006 1:47am
Dean Esmay (www):
I didn't see Christopher Cooke's reference to this interesting Cornell Law Review article on the 4th amendment--I was apparently writing while he was, but, still, it's a very long article and in skimming it I'm not seeing the smoking gun, the point where the amendment suddenly no longer meant what it used to mean, where it was "gutted."

If he could point us to the point where he feels the amendment was effectively gutted I'd appreciate it. Because the language of the amendment seems plain to me, as a non-lawyer citizen, and I find nothing unreasonable at all about listening in on conversations (electronic or in person) if the entire justification is finding and killing an enemy in wartime. That seems well within the spirit and letter of the amendment to me.
5.11.2006 1:53am
Dean Esmay (www):
I've now finished reading the entire thing. I don't even see a direct reference to listening to conversations except indirectly, in footnotes, and nothing addressing the issue of intelligence gathering in wartime.

It continues to strike me that if the objective is to find and arrest U.S. persons and put them on trial (or even just publish embarrassing details about them), then that is one thing, but if the entire objective is to find and kill enemy combatants, then there is simply nothing in this article, or the amendment, that strikes me as requiring a warrant.

If there was some pristine time when this was not so--during, say, World War II, or World War I, or the Civil War, or the War of 1812, or, the Revolutionary War, or, really, if there was any time ever in American history--where having spies listening to suspected enemy conversations for the purposes of finding and killing the enemy was ever thought to need a warrant, can someone tell me please?
5.11.2006 2:05am
USA Today is reporting that the NSA has gathered a huge database of landline and cell phone records and is data mining them to find "terrorists". That's a lot of records, but I certainly doubt that this is the largest database in the world.

The story mentions that courts have required warrants to obtain call records in the past. Would one of the Profs care to comment or point out any case history on this? It is interesting that the NSA specifically avoided taking this issue to the FISA court after Qwest pushed back on providing the data.

Another issue: without warrants, do the Telecoms have any protection against civil suits over this disclosure? It seems that the class of affected people is a signifigant percentage of the US population.

Personally I find this quite a disturbing development (much more than the international call wiretapping) and it will be interesting if this story, printed in the everyman's newspaper of record, finally breaks through with the huge percentage of Americans that are apathetic about privacy issues.
5.11.2006 2:22am
Christopher Cooke:
Mr. Esmay:

since you ask a reasonable question --when did the Supreme Court "gut" the 4th Amendment-- I will attempt a reasonable answer: over time, not all at once, by slow drips of applying a "reasonableness" test to erode the warrant requirement. The point is this: the original meaning of the 4th Amendment was likely to prohibit "general warrants" or invasions of one's home without a warrant that was based upon probable cause to believe that evidence of a crime could be found therein. The thinking was that one's home was one's castle, and the British had ignored that by allowing searches of homes based on "general warrants" i.e., warrants issued by a judicial officer but without any showing that there was probable cause to believe that evidence of crime may be found inside. There is a law review article by Professor Thomas Davies, in the Michigan Law Review, called something like "the Original Understanding of the Fourth Amendment" that makes this point rather well.

Now, let us jump 200 years or so to the future, to take up your question about electronic eavesdropping conducted by the NSA and why isn't this okay. If you believe that wiretapping is a search or seizure, then the 4th Amendment governs and a warrant is generally required. That, at least, was the view of the Supreme Court; in Katz v. U.S., 389 U.S. 347, 357 (1967), which addressed the lawfulness of domestic wiretaps, the court stated, ''Searches conducted outside the judicial process, without prior approval of judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-defined exceptions.'' Now, foreign intelligence gathering, foreign wiretaps, have many tricky issues, having to do with the powers of the president, exigent circumstances, the reason for gathering the intelligence etc., that can give you a different answer to whether an intercepted communication was lawfully or unlawfully obtained. But, what is clear to me is that Congress thought, in enacting the Foreign Intelligence Surveillance Act, that it had set up the only 2 lawful means of intercepting electronic communications occuring at least partially in the US: under the Federal Wiretap statute (for wiretaps used for criminal prosecution purposes), or under FISA (for wiretaps used for foreign intelligence gathering purposes). Congress didn't say: "or, whenever the President feels like it and tells a few Senators what he is doing in vague terms." This third way, however, is essentially the Bush administration's argument as to why the surveillance program is lawful. Of course, whether it "should" be lawful, is another issue. But, there are many laws with which I don't agree, and I presume it is better for society that I obey them, nonetheless, and seek to change them legislatively or through the courts, and not simply ignore them. FYI, however, the first "wiretap" case, Olmstead, said that wiretaps weren't governed by the 4th Amendment, because they weren't physical invasions of one's property; Katz overruled Olmsted on this point. Regarding your point about spies intercepting enemies conversations to allow the government to kill them: first, no, I don't know of a case talking about this issue explicitly, but the FISA statute is quite clear in saying what is allowed and not allowed (Professor Kerr has posted many discussions on this); second, the whole point of the 4th amendment is that maybe some of the people being spied upon aren't enemy agents and their conversations shouldn't be intercepted at the whim of Gen. Hayden and his friends at the NSA.
5.11.2006 2:33am
Dean Esmay (www):
Are we apathetic? Or do we just find nothing unreasonable about certain types of data monitoring?

I suggest to you that most people care plenty, there are just things they find reasonable and not particularly upsetting or intrusive. Data mining phone numbers called for the purposes of finding terrorists (no scare-quotes necessary for most of us, we actually believe there are terrorists), or listening in on conversations when the entire purpose is to find and kill the enemy in wartime (we don't need scare-quotes around "the enemy" or "wartime" either) to be unreasonable or anything we're scared of.

When they start using it to blackmail American citizens, or to put Americans on trial, or to hurt political opponents, maybe we'll start getting upset. But otherwise, maybe we aren't in the least bit apathetic, we just don't see it your way.

It's rather like listening to someone scream that judges are very dangerous because they can overrule the democratic decisions of elected legislatures. Well yes they can, and is that dangerous? Yes. Are we "apathetic" about it, or are we basically convinced that overall the system is working the way it's supposed to, whatever its flaws?

There's an old saying: never ascribe to conspiracy what may be ascribed to stupidity. Well I'll add a corrolary: never ascribe to apathy what may be ascribed to assent.
5.11.2006 2:33am
Dean Esmay (www):
Well Mr. Cooke, having read the entire article you posted, all I can say is that it looks to me like the courts have gone back and forth on this issue for many decades, and it doesn't seem clear at all to me that it was always held, or understood to be, that all searches are unreasonable unless they're incident to criminal arrest. I read the amendment and I find nothing in it to say that the government can't listen to conversations if the purpose is finding information about the enemy. Sorry, I don't. I don't see anything about the 4th amendment, or its history, to make this "clear."

As for FISA: the arguments over FISA come down, it seems to me, over the limits of Congress' own ability to limit executive authority, and whether or not legislation subsequent to the FISA statutes--namely, the declaration of war--overrule some of those requirements. In any case, it's clearly not a matter of Hayden and the NSA doing whatever they want whenever they feel like it; they've been authorized by the Executive, with notification to Congress, that there's been a change in policy in how the statute will be determined.

I think you will find that the vast majority of Americans do not find any of this unreasonable, and do not think it a violation of the 4th amendment or any rights they hold precious, and indeed that if politicians run trying to say otherwise those politicians will be badly hurt at the polls--I certainly know I'll vote against them, and I'm hardly a hard-line right-winger.

But I'm not a lawyer, just a concerned citizen who cares about national security, actually belives we're at war, actually believes there's an enemy, and actually believes that enemy must be found and killed where he sleeps. And I don't see any gutting of my rights on that.

Nor am I in the least bit apathetic about it.
5.11.2006 2:40am
John Jenkins (mail):
It seems Mr. Cooke's argument is that the warrant exceptions have swallowed the warrant requirement. I think the Fourth Amendment is considerably weaker than I would like it to be, but I think it still has teeth. My question remains what the right policy would be. You might begin with revisiting Katz, for example, on the issue of what is a "search." This would broaden protections (Does anyone really believe the sophistry that a dog sniff is not a search? It's idiotic.)

Nonetheless, I don't need an education on the Fourth Amendment, I am familiar with the doctrines. Mr. Cooke, I am asking you what you would propose as the alternative to the present Fourth Amendment jurisprudence. Would you remove the good faith exception? Would you curtail exigent circumstances? What about searches incident to arrest (which have always been permitted)? What do you think is the desirable policy. Reasonableness has ALWAYS been the Fourth Amendment standard, but that just pushes our inquiry back a step (e.g., what is reasonable?).

While you're considering that, you might also consider the exclusionary rule. If the exceptions are too broad, might that be because the remedy is too broad as well? Could the problem be cured by tightening the exceptions and tightening the remedy (suits in tort, stautory civil liability, criminal penalties, etc.)?

What is your argument re: judicial independence? Was the Warren court beholden to liberal masters? Why does any judge have to be beholden to anyone to decide a given way? Why can't the judge believe what he or she is saying? Do you have any evidence or logic to back it up, or is it merely a paranoid rant because you don't want to address their reasons (or lack thereof, if there are none, which should make the task easy)?
5.11.2006 2:40am
Dean Esmay (www):
... in how the statute will be determined.

I meant interpreted, not determined. Sorry.
5.11.2006 2:42am
Christopher Cooke:
Well, Mr. Jenkins, I am far from an expert on the 4th Amendment, but my own view is now tending to the argument that we should return to a fairly strict warrant requirement for searches in ones' homes, persons, and papers, at least as that phrase was originally understood. That would mean anything that constitutes a search of one's home, person or papers, should require a warrant, issued upon a showing of probable cause, unless the type of search, such as a search incident to an arrest, was clearly thought not to require a warrant at the time of the 4th Amendment's enactment. I have no overarching view of the policy issues, one way or another, nor a prescription for deciding each of them. There are obviously costs to the exclusionary rule that have to be considered and yes, you may be right that one problem with a strict warrant requirement is that it pushes courts to say "well this isn't a search" in situations where the search seems very reasonable and to serve good societal purposes. I don't think the Warren court was beholden to liberal masters, far from it. Warren, as the Republican govenor of California, oversaw the internment of the Japanese during WWII, and was not a political liberal; in fact, he was thought to be Nixon's rival for the presidency, which is why Eisenhower appointed him to the CJ. I do think that Rehnquist, however, was somewhat beholden to the Republican presidents who appointed him and was very much a political animal, in 4th Amendment jurisprudence and in other areas of the law, and his court oversaw a large erosion of the warrant requirement, by making reference to the "reasonable" expectations of privacy test, which is really nothing more than a tautology for saying that someone doesn't have a reasonable expectation of privacy because either the courts have previously allowed erosions of their privacy in this area so the expectation no longer exists or because the court through ipse dixit simply says says the expectation is unreasonable.

Mr. Esmay, as far as the being "at war" argument goes, yes, we are fighting people, but no, technically, Congress did not declare war on anyone, it authorized the use of military force. The Congressional research office published a long article about the differences between the two (declaration of war v. AUMF), which are quite substantial. You can find it on Google, if you are curious. There are a whole host of federal statutes that don't apply or are modified when war is formally declared, and there are many other, more mundane legal issues that kick in when war is declared ("war" clauses in insurance and other contracts), and none of these have occured. As for whether the "vast" majority of Americans find the surveillance unreasonable, I would say (1) that is irrelevant to whether the conduct is illegal; and (2) it may be an argument for changing FISA, but not for ignoring it. Good night gentlemen.
5.11.2006 3:11am
Wintermute (mail) (www):
This was faced squarely by the White concurrence vs. the Douglas/Brennan concurrence in Katz, as laid out clearly in my February post, You Be the Judge.
5.11.2006 3:24am
Ross Levatter (mail):
I am amazed that so many can comment on the erosions of 4th amendment safeguards without anyone mentioning (unless I missed it) the War (not on Terror, but) on Drugs, which has mightily contributed to it.
5.11.2006 4:04am
Wait, wait. What does a warrant _mean_. It means that you are compelled to assist. If a police officer comes to your home and you invite him in that's your decision. If he comes with a warrant it isn't. Evidence so discovered in either case is admissible.

So lets go back a few steps here, who is being compelled despite lack of a warrant? From what I've heard reported: no one. The telephone companies seem to have just voluntarily aided the NSA.

As for it being "illegal." That is an argument without much traction--aren't we lucky to be in a country where the presumption is that an action is "legal" until proven otherwise by the concurrence of all _three_ branches of government and often a jury as well.

If congress disagrees with the executive's contribution to defining whether an action was "illegal", there is a clear method for dealing with that: impeachment and conviction in the Senate.

In the meantime, I happen to appreciate the idea that whether something I do is "illegal" takes more than merely the words in an act of congress or the state house. e.g., Virginia, you might do well to remember, has a law in the statute books which asserts women showing bare ankles to be engaged in illegal conduct. It's a good thing that neither the executive nor the judiciary is likely to concur.
5.11.2006 4:29am
Although I share Mr. Cooke's concerns about the current administration's approach to individual privacy rights, I believe his anxiety about the "reasonable expectation of privacy" is misplaced. The Amendment has been interpreted to protect individuals' privacy, not private places. The Court held in U.S. v. Watson that a warrant is never required for a search or seizure with probable cause if the search or seizure takes place in the absence of a reasonable expectation of privacy. Therefore, the reasonableness requirement isn't an exception - that analysis is essential for determining whether the Fourth Amendment provides any protection at all.
5.11.2006 4:55am
Bruce Hayden (mail) (www):
I find it interesting that everyone here is moaning about the erosion of the 4th Amdt., when it says nothing at all about wiretapping. Remember, for wiretapping, the feds don't set foot in your house at all. Typically, it was done either at the local substation, the local box, etc. Worse, the NSA tapping is apparently being done out of the switches where the fiber is coming out of the ocean. One the east coast this appears to be NJ/NY, and on the west, CA/WA. For those of us in the center of the country, that means that the tapping is being done better than 1,000 miles from our homes. It is hard to envision an Amdt. designed to protect you within your home from the state expanded to tapping conversations sometimes thousands of miles away from your houe being considered an erosion.

Rather, I buy on to the argument that sometimes it expands, and sometimes it shrinks.
5.11.2006 6:39am
Getting back to the original question for a moment, I suspect that General Hayden, having advanced to his present grade in an organization which prizes nothing so much as bureaucratic loyalty, will understand the Fourth Amendment to mean whatever his superiors want it to mean.
5.11.2006 7:16am
Bruce Hayden (mail) (www):
I am not sure if it is his job to truly understand the 4th Amdt. application to the NSA program. That is what he has lawyers for. Rather, I would suspect that the conversation might have gone something like this:

Hayden: Is the program legal under the 4th Amdt.?

Lawyers: Well, it depends, and here are some of the considerations... (for a dozen pages, and maybe even some PowerPoint slides)

Hayden: I need a yes or no answer, not all this legal double speak and gobblygook.

Lawyers: Ok, then yes, it is legal.
5.11.2006 8:05am
Ross, don't forget also that the War on Drugs has had a horrible effect on lots of legal protections, most notably the seizure of property with essentially no review at all. The loosening of legal protections in the name of the War on Drugs is a travesty.
5.11.2006 8:17am
Cybrludite (mail):
I'm still wondering where this "domsetic wiretapping" meme comes from. The program, as described, only applies to calls that cross our borders. If something crossing the border is domestic, I want back the excise taxes tacked on to my collection of single malts. Here's a hint, guys, if something crosses the border then it is subject to being searched. Doesn't matter if it's a phone call or a case of Talisker. (Yes, I know there's an exception if it crosses the southern border and answers to "Pedro", but that's a rant for another time...)
5.11.2006 9:09am
Bruce Hayden (mail) (www):
I am a lot more worried about what the WoD[rugs] did to the 4th Amdt. than the WoT[error]. Recently, in Frisco, CO, the neighbors complained about some odors around their neighbors house (as part of a larger dispute). The inter-county drug team, et al., in their SWAT outfits, masks, etc., broke down the door, caused a couple of thousand dollars in damage, and served a warrant to search for drugs (in particular, a meth lab) in the middle of the night. They found - nothing. The couple, so traumitized, moved away, and is suing everyone involved, and will probably lose.

It is a bad situation in this country when law enforcement is able to get away with such flimsy evidence as probable cause, and then routinely uses such intrusive methods for presenting warrants. A man's home may be his castle these days, until an neighbor complains about strange odors to the police.

It is hard to believe that the police couldn't have tested for metho precursors outside the house before breaking down the door. But why bother, when they don't need to?
5.11.2006 9:25am
Bruce Hayden (mail) (www):
That is really what it is, a meme. The MSM has been calling it "domestic" spying and "domestic" surveilance since it was exposed, and now a lot of people are using "domestic" when describing the program. That is why the term "international" is much more accurate, indicating that one end of the conversation is foreign and the other domestic (if both ends are foreign, arguably there are neither 4th Amdt. nor FISA concerns).
5.11.2006 9:31am
Christopher Cooke:
the Supreme Court has largely gutted the original meaning of the 4th Amendment, once it started down the "reasonable" searches path and watered down the warrant requirement explicit in the amendment's plain language.

Christopher, you're totally off base here. The warrant clause limits warrants, not searches.

Here, for your learning pleasure:
Fourth Amendment First Principles, by Akhil Reed Amar
5.11.2006 11:57am
Jam (mail):

"Fifth Amendment only requires just compensation when it's taken for public use."

Could it not be that the amendment is not granting "takings" for any other reason? Nah. That would be too constraining on the governments.
5.11.2006 12:25pm
Wince and Nod (mail) (www):
Here is the text:

Amendment IV - Search and seizure. Ratified 12/15/1791.

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.

I think Sandy007 is right. From a pure textual standpoint, the Fouth Amendment does not require a warrant for anything. Wonder what the ratifiers thought it meant?

5.11.2006 2:09pm
Bruce Hayden (mail) (www):

I am not sure if you are correct there. The author seems to be arguing more from what the historical wording meant when enacted and should mean now, than what it does mean now.

Nevertheless, the author makes a lot of good points, and asks some very good questions. Notably, he points out that traditionally, that warrants were provided for in order to partially immunize against tort damages for unreasonable searches. He points out that part of the problem with the Exclusionary Rule doing this duty is that first, it is too drastic, allowing obvious criminals back on the street, and, as a result, judges are often loath to implement it. On the other hand, it only is implicated when the state attempts to introduce evidence. The result here is that there is no remedy if state actors merely cross the line for harassment, etc.

And this makes sense. How often have we seen police on TV use these methods to further their investigations? Who knows how often this happens in real life, but does happen. You see people routinely physically assaulted by the police. What is their remedy? It should be in tort, since the search and/or seizure would often be unreasonable in the eyes of a jury. Instead, we have provided the state with a shield against liability. I would suggest that assessing tort damages against both the state and its actors for this sort of thing would go a long way towards minimizing this sort of thing.

I should go on an point out the obvious - if the question in the NSA survielance program is reasonableness and not lack of a warrant, then it most likely passes with flying colors. Pretty much the entire argument against it from a 4th Amdt. point of view is that the surveilance was being down without a warrant. This also may explain some of Gen. Hayden's testimony.
5.11.2006 2:21pm
Bruce Hayden (mail) (www):

The article suggests that the founders looked at it in two parts. First, searches and seizures had to be reasonable. If not, then those doing the searching and/or seizing would be open to tort damages, as appropriate - trespass for coming into your house, false imprisonment and assault/battery for seizing you unreasonably, etc. Then, the warrant provision was included to give the government and its actors some protection against such tort damages. But one thing the author pointed out was that at that time, there was a significant suspicion of warrants, as they had been granted by Crown officials. The probable cause requirement was, I think, introduced to limit the government's ability to issue them. Part of the problem with intermixing the two is that the discussion turns from reasonableness to probable cause, and the judges' determination of probable cause is typically taken by the same judges as binding, thereby taking the fact finding out of the hands of juries, where the founders preferred it to be. It also takes it from a reasonable standard, which includes all the relevant circumstances, to a probable cause standard, which is reviewed based on much more limited evidence.
5.11.2006 2:32pm
Jam (mail):
What I read has an AND which binds the antecedent with what follows: "searches and seizures" are required a warrant and such warrant to be obtained "upon probable cause." Otherwise, it is ureasonable.

The people are "to be secure in their persons, houses, papers, and effects" unless there is "probable cause" and a warrant is obtained. Otherwise, it is ureasonable.

But what do I know, I am not a goverment official trying to keep the public in fear, err safe.
5.11.2006 2:49pm
Wince and Nod (mail) (www):

Skim Sandy's linked article. It's quite a good explanation of now the Fourth Amendment could mean exactly what it says, that searches must be reasonable, but Warrants must only be issued under a higher standard, that is probable cause.

Originally, warrants didn't protect you they protected the police. Without a warrant you can sue the officer for trespassing if the search wasn't reasonable. So, officers must make only reasonable searches. If they don't your remedy is a civil suit which a good lawyer could take on a contingency basis, for example. If the officer doesn't want to be sued he can seek a warrant. A warrant however requires a higher standard than just reasonableness. It requires probable cause. And it may shift responsiblity from the officer to the issuing judge, allowing you to sue him, but under the higher standard. That would make the judge more careful, wouldn't it?

But the Supreme Court, over time, has not chosen this original meaning interpretation. If I were a lawyer I'd be really angry about losing this large potential source of income!

5.11.2006 3:56pm
Jam (mail):
I appreciate you explanation. I am going from what I read in text, following punctuation and grammar.

"If the officer doesn't want to be sued he can seek a warrant."

You lawyers out there, how realistic/succesfull is this?

Especially, will it ever be deemed unreasonable if a homeowner shoots an intruder that turns out to be a police officer entering the wrong house?

Is an act of defiance by a homeowner to an officer demand for entry makes the officer's forcible entry "reasonable?"

Does a car driver negative response to the officer's "may I look in the car" make a search "reasonable?"

Sorry, I just do not see the "reasonableness" of a warrantless search in the text.
5.11.2006 5:10pm
Jam (mail):
As I read Sandy's work I keep thinking of the cases where cash is confiscated as "ill gotten from drug trasactions" with no evidence whatsoever that the "victim" was engaged in such activity. My reaction to Sandy's piece thus far is, nice, the Feds have been violating our rights since the "get go."
5.11.2006 5:23pm
Jam (mail):
There it is, in conclusion: The government can search to their heart's content. Good luck suing!

Yes, that is a lot more stable and sustainable than requiring "probable cause" and warrants.
5.11.2006 5:29pm
Wince and Nod (mail) (www):

Yes, the War on Drugs has been rather hard on our rights. I think that Akhil Reed Amar's piece gives one of the reasons - people are fed up with the exclusionary rule.

As regards the text of the Amendment, I simply cannot see how it requires that a Warrant precede a search. That's just not how English works. I can see a requirement in the text that searches be reasonable. I can see a requirement in the text that Warrants only be issued when there is probably cause. The idea that searches require Warrants just isn't in the text, and it appears that no Court was even able to infer such a requirement either, for about a hundred years. Amar's work, emphasizing the familiarity that everyone then had with the Wilkes case, explains this rather nicely.

5.11.2006 5:38pm
Wince and Nod (mail) (www):
I see we cross posted. Well, people do have good luck suing city governments when police step out of line. And those successful lawsuits do modify police behavior.

I mean really. You are expecting lawyers and judges to protect your Constitutional rights, and yet you turn around and say "good luck suing"? When you could have not just a lawyer, but a jury on your side? The same juries who like sticking it to the man when the man is a drug company or MacDonalds also like sticking it to the man when the man is the city. How do you think those million dollar awards against the city come about?

5.11.2006 5:47pm