4th Amendment question

[D. Scarlatti]

Here is how the 4th Amendment to the U.S. Constitution reads:

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.

Let's call the green portion "the Unreasonableness Clause" and the red portion "the Warrants Clause."

Setting aside anything you might know about police procedure, caselaw, or Law & Order episodes, do you think that:

1) The Amendment requires a warrant for searches and seizures;
2) The relationship between the two clauses is "unclear";
3) If 2), why.

[Dingfod]

1) No warrant is required when there is consent.
2) I don't think it's unclear, you have a right to be secure and safe from unreasonable searches and seizures except when there is a warrant issued upon probable cause.

[Carnivale Ed]

1) Yes, a warrant is required (assuming it's not voluntary)
2) It's not unclear - the caveats on the issuing of a warrant make it 'reasonable'

[D. Scarlatti]

Thanks. So far you are in agreement with just about everyone except Justices Thomas and Scalia, and prospective Justice Sam Alito. According to Thomas and Scalia the 4th Amendment doesn't even require a warrant. Thomas and Scalia are George W. Bush's favorite judges.

[Dingfod]

What part of "the right of the people to be secure" don't they understand?

[D. Scarlatti]

Here is what Thomas (joined by Scalia) says:

The precise relationship between the Amendment's Warrant Clause and Unreasonableness Clause is unclear. But neither Clause explicitly requires a warrant. While "it is of course textually possible to consider [a warrant requirement] implicit within the requirement of reasonableness," the text of the Fourth Amendment certainly does not mandate this result. Nor does the Amendment's history, which is clear as to the Amendment's principal target (general warrants), but not as clear with respect to when warrants were required, if ever. Indeed, because of the very different nature and scope of federal authority and ability to conduct searches and arrests at the founding, it is possible that neither the history of the Fourth Amendment nor the common law provides much guidance.

Citation omitted. The quotation is from a prior Scalia opinion.

[Dingfod]

Given that, I see a clear and present danger to an essential Constitional right if ScAlito is confirmed.

[D. Scarlatti]

Thankfully Scalia and Thomas are somewhat less than adept at convincing other members of the Court to share their views. They couldn't even convince Rehnquist to join the opinion above. And it remains to be seen where Roberts is going to come down on similar questions. But if Bush gets a couple more picks, be prepared to bend over for a warrantless cavity search.

[Dingfod]

They'd have to "disappear me" from Canada or somewhere in order to do it.

[Ensign Steve]

Is there anything in the Constitution about the spririt of the law versus the letter of the law? Or is that just an expression people use? Because, come on.

[rigorist]

Originally Posted by D. Scarlatti

Here is what Thomas (joined by Scalia) says:

The precise relationship between the Amendment's Warrant Clause and Unreasonableness Clause is unclear. But neither Clause explicitly requires a warrant. While "it is of course textually possible to consider [a warrant requirement] implicit within the requirement of reasonableness," the text of the Fourth Amendment certainly does not mandate this result. Nor does the Amendment's history, which is clear as to the Amendment's principal target (general warrants), but not as clear with respect to when warrants were required, if ever. Indeed, because of the very different nature and scope of federal authority and ability to conduct searches and arrests at the founding, it is possible that neither the history of the Fourth Amendment nor the common law provides much guidance.

Citation omitted. The quotation is from a prior Scalia opinion.

Cite?

I've been suspicious of Thomas's analysis of any sort of Constitutional rights ever since I read his dissent in Foucha v. Louisiana when I was researching civil commitment cases for Peter Erlinder's article on Minnesota's statute. (warning - expensive Lexis link)

[viscousmemories]

I don't know, it almost seems as if the text might refer to two different situations:

1. Search and seizure without a warrant (which is allowed only if reasonable)

and

2. Obtaining a warrant to perform search and seizure (which is allowed only if there is probable cause, etc.)

So I guess I'd have to answer your questions:

1. No
2. Maybe
3. Depends

[alphamale]

The fourth amendment is about privacy, and if ya stare real hard at it and squint your eyes, you'll discover a right* to off your senile grandparents, because they are not "persons" in the living, breathing, exercizing, pizza-ordering modern constitutional sense.

*Must be done in private to qualify.

[viscousmemories]

No wonder it appears to be ambiguous. It seems the existing phrasing of the amendment was a defeated modification of the original, but slipped in anyway. Had Madison's original wording remained intact (as it apparently should have, given that the House defeated the motion to change it) I think it would be a lot more clear that the two clauses are related and that the only reasonable searches are those that meet the listed conditions required to obtain a warrant (ie. probable cause, et al.)

Scope of the Amendment.—The language of the provision which became the Fourth Amendment underwent some modest changes on its passage through the Congress, and it is possible that the changes reflected more than a modest significance in the interpretation of the relationship of the two clauses. Madison’s introduced version provided ‘‘The rights to be secured in their persons, their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.’’ 8 As reported from committee, with an inadvertent omission corrected on the floor, 9 the section was almost identical to the introduced version, and the House defeated a motion to substitute ‘‘and no warrant shall issue’’ for ‘‘by warrants issuing’’ in the committee draft. In some fashion, the rejected amendment was inserted in the language before passage by the House and is the language of the ratified constitutional provision. 10

As noted above, the noteworthy disputes over search and seizure in England and the colonies revolved about the character of warrants. There were, however, lawful warrantless searches, primarily searches incident to arrest, and these apparently gave rise to no disputes. Thus, the question arises whether the Fourth Amendment’s two clauses must be read together to mean that the only searches and seizures which are ‘‘reasonable’’ are those which
meet the requirements of the second clause, that is, are pursuant to warrants issued under the prescribed safeguards, or whether the two clauses are independent, so that searches under warrant must comply with the second clause but that there are ‘‘reasonable’’ searches under the first clause which need not comply with the second clause.11

8 1 ANNALS OF CONGRESS 434-35 (June 8, 1789).

9 The word ‘‘secured’’ was changed to ‘‘secure’’ and the phrase ‘‘against unreasonable searches and seizures’’ was reinstated. Id. at 754 (August 17, 1789).

10 Id. It has been theorized that the author of the defeated revision, who was chairman of the committee appointed to arrange the amendments prior to House passage, simply inserted his provision and that it passed unnoticed. N. LASSON, THE HISTORY AND DEVELOPMENT OF THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION 101-03 (1937).

11 The amendment was originally in one clause as quoted above; it was the insertion of the defeated amendment to the language which changed the text into two clauses and arguably had the effect of extending the protection against unreasonable searches and seizures beyond the requirements imposed on the issuance of warrants. It is also possible to read the two clauses together to mean that some seizures even under warrants would be unreasonable, and this reading has indeed been effectuated in certain cases, although for independent reasons. Boyd v. United States, 116 U.S. 616 (1886); Gouled v. United States, 255 U.S. 298 (1921), overruled by Warden v. Hayden, 387 U.S. 294 (1967); but see id. at 303 (reserving the question whether ‘‘there are items of evidential value whose very nature precludes them from being the object of a reasonable search and seizure.’’)

-source (pdf)

[Fencesitter]

Originally Posted by viscousmemories

No wonder it appears to be ambiguous. It seems the existing phrasing of the amendment was a defeated modification of the original, but slipped in anyway. Had Madison's original wording remained intact (as it apparently should have, given that the House defeated the motion to change it) I think it would be a lot more clear that the two clauses are related and that the only reasonable searches are those that meet the listed conditions required to obtain a warrant (ie. probable cause, et al.)

Cool stuff, vm. Thanks for researching this.

Fence

[viscousmemories]

Originally Posted by Fencesitter

Cool stuff, vm. Thanks for researching this.

Fence

You're welcome! Hopefully I'm not just talking through my hat. I admit I only read the first eight pages of the eighty page document I linked to.

[ms_ann_thrope]

1. "Reasonable" search and seizure does not require a warrant
2. If a warrant is required (for an "unreasonable" search, I guess), the warrant must specify who and what are the subjects of the search

Just don't ask me to define reasonable. I have my thoughts, but I haven't had any coffee yet.

[Dingfod]

Originally Posted by ms_ann_thrope

1. "Reasonable" search and seizure does not require a warrant
2. If a warrant is required (for an "unreasonable" search, I guess), the warrant must specify who and what are the subjects of the search

Just don't ask me to define reasonable. I have my thoughts, but I haven't had any coffee yet.

In my ever so humble IANAL opion, without consent of the person, any search or seizure requires a warrant.

[D. Scarlatti]

Originally Posted by CaDan

Cite?

Groh v. Ramirez, 540 U.S. 551, 571 (2004) (Thomas, J., dissenting).

[D. Scarlatti]

Incidentally no researching was to have been allowed. What I was (and am) looking for is simply a literal, "textualist" reading of the Amendment. Remember, there's no requirement in the Constitution that judges of the Supreme Court be trained as lawyers.

Why do people think that the searches and seizures referred to in the Warrants Clause are not the same searches and seizures in the Unreasonableness Clause? Are they not the same subjects of the same sentence (that's grammatical sentence, not penal sentence)?

[alphamale]

Why don't y'all take this legal crap to a law forum?

[Al Terego]

Is there a law forum here? Besides the News, Politics and Law that this thread is already in?

[rigorist]

Originally Posted by alphamale

Why don't y'all take this legal crap to a law forum?

'Cause we knew it would piss you off.

It's all about alphamale!

[Fencesitter]

Originally Posted by D. Scarlatti

Incidentally no researching was to have been allowed. What I was (and am) looking for is simply a literal, "textualist" reading of the Amendment. Remember, there's no requirement in the Constitution that judges of the Supreme Court be trained as lawyers.

Yes, but does that mean that they're illiterate and/or can't look things up on Google as well?

Fence

[viscousmemories]

Originally Posted by D. Scarlatti

Incidentally no researching was to have been allowed.

Hey, you said "Setting aside anything you might know [...]", you didn't say anything about what I didn't know but could learn through a little research.

Anyway my first response was how I read it before I did any research. The way it's written it genuinely reads like two separate statements to me: One about an individual's right to be secure from unreasonable search and seizure, the second about the requirements for any warrants that entail search and seizure.