Balkinization  

Thursday, September 27, 2007

Quick Take on Judge Aiken's FISA Decision

Marty Lederman

Judge Aiken of the U.S. District Court in Oregon has declared that the new PATRIOT-ACT-enacted standard for FISA warrants is unconstitutional. I only have time right now to quickly describe the issue:

Way back in the day, before FISA, the Supreme Court had ruled that in an ordinary criminal law investigation, and, for that matter, in a non-criminal-law context involving investigations of domestic security issues, the Fourth Amendment generally imposes certain requirements before a search may be made. The most important of these requirements is that the government demonstrate to a court that there is probable cause to believe that the target of the search has committed a crime. In addition, the Fourth Amendment ordinarily requires that the subject of a search be notified that the search has occurred; requires that the warrant describe with
particularity
the things to be seized as well as the place to be searched; and (at least according to the Ninth Circuit), limits the surveillance to 30 days. (Caveat: These are very simplified descriptions of the law.)

FISA does not require any of these things. Most importantly, it does not require a court to find probable cause to believe that the person being searched has committed unlawful acts -- instead, the required proof is only that the person be an agent of a foreign power, and in making that determination, the FISA Court is very deferential to the government's representations.

How can FISA do that? Why don't the ordinary Fourth Amendment rules apply? Well, the Supreme Court specifically preserved the question of whether these same Fourth Amendment rules apply where the government's objective is not criminal law enforcement or domestic intelligence collection, but is instead the collection of foreign intelligence information. And in a series of cases in the years preceding FISA, several courts of appeals held that in such a foreign-intelligence investigation, all the Constitution requires is probable cause to believe that the target is an agent of a foreign power.

OK, but what about a case in which the government has both objectives -- in which it wants to investigate crimes and collect foreign intelligence? After all, virtually all terrorism-related criminal investigations will also serve the purpose of collecting foreign intelligence information, as well. Mixed motives, in other words, will be very common. What then? Well, the leading pre-FISA case (Truong) held that as long as the primary purpose of the investigation is foreign-intelligence collection, rather than criminal law enforcement, then the ordinary Fourth Amendment rules are loosened.

What Congress did in the PATRIOT Act, however, was to lower this standard: Under FISA as amended, the much less burdensome FISA rules apply not only where foreign-intelligence collection is the primary purpose of the search, but also where it is merely "a significant purpose" of the search. This standard, of course, will virtually always be satisfied whenever the government is investigating an international crime, especially an international terrorist crime. As David Kris previously testified on behalf of DOJ:
Even when the government’s prosecutorial purpose is at its zenith, there will still always (or almost always) be a “significant” non-prosecutorial purpose for conducting a FISA search or surveillance. For example, detection of espionage or terrorist communications networks, taskings, and other tradecraft will invariably assist in developing appropriate diplomatic, military, economic, or other non-law enforcement countermeasures. Use of these or other non-law enforcement countermeasures [such as for stopping an ongoing conspiracy] almost always is at least a significant purpose for conducting a search or surveillance under FISA. . . . [Thereore] the government should be able to meet that [significant foreign intelligence information] test, even when prosecution is its dominant motive.

Therefore, what the PATRIOT Act does, in effect, is to say that the ordinary Fourth Amendment rules do not apply when the crime being investigated involves foreign terrorism.

And that's exactly what happened in the Mayfield case decided yesterday. Brandon Mayfield is an Oregon lawyer who happens to be Muslim, and who the government (wrongly) suspected of being connected to the Madrid bombings. (As the Associated Press notes, "[t]he Mayfield case has been an embarrassment for the federal government." That's for sure. See the DOJ Inspector General's Report. The government last year settled part of Mayfield's lawsuit for a reported two million dollars and a formal apology.)

The government did not have probable cause to believe that Mayfield was connected with the Madrid bombings. Instead, all that the government demonstrated to the FISA Court was probable cause to believe that Mayfield was an agent of a foreign power (which, again, turned out not to be true). And therefore, it received a FISA Court order permitting searches of Mayfield's home and possessions -- searches in which all the ordinary Fourth Amendment rules (see above) were ignored, even though the government's primary objective was to investigate a crime. (I should note that the DOJ IG Report concluded (see pages 224-226) that the primary purpose of the searches was for obtaining foreign intelligence information. But the government made no such showing to the FISA Court, and apparently the government therefore conceded a primary criminal law-enforcement objective for purposes of the motion before Judge Aiken, as she wrote: "Notably, the primary purpose of the electronic surveillance and physical searching of Mayfield's home was to gather evidence to prosecute him for crimes. Mayfield was ultimately arrested to compel his testimony before a Grand Jury investigating his alleged involvement in the crimes of bombing places of public use, providing national support to terrorists and conspiracy to kill, kidnap, maim or injure persons or damage property in a foreign county. The government stipulated that it did not demonstrate to the FISC that its primary purpose in wiretapping, electronically eavesdropping, or physically searching Mayfield's home or law office was to gather foreign intelligence. "In the FISA applications, the government did not seek to establish, and under the terms of FISA was not required to establish, [a primary foreign-intelligence-collection purpose].")

The district court held, consistent with Truong and with the basic thrust of Supreme Court decisions, that as long as criminal law enforcement is the primary purpose of the search, ordinary Fourth Amendment rules apply, and the fact that the government also would obtain foreign-intelligence information (again, something that is true in virtually all investigations of foreign terrorist crimes) is not a sufficient reason for relaxing those constitutional rules. As the Fourth Circuit explained in Truong (629 F.2d at 915):
[T]he executive should be excused from securing a warrant only when the surveillance is conducted “primarily” for foreign intelligence reasons. We think that the district court adopted the proper test, because once surveillance becomes primarily a criminal investigation, the courts are entirely competent to make the usual probable cause determination, and because, importantly, individual privacy interests come to the fore and government foreign policy concerns recede when the government is primarily attempting to form the basis for a criminal prosecution. We thus reject the government's assertion that, if surveillance is to any degree directed at gathering foreign intelligence, the executive may ignore the warrant requirement of the Fourth Amendment.
So, if this was the constitutional law prior to September 11, 2001, why did Congress feel free to enact a statute lowering the Fourth Amendment standards whenever foreign-intelligence collection is a "significant" additional purpose of a criminal investigation? Because the FISA Court of Review, in 2002, disagreed with the Fourth Circuit, and concluded (310 F.2d at 746) that the ordinary Fourth Amendment rules do not apply where the primary purpose of the surveillance or search, even if law-enforcement-related, is to obtain evidence of foreign intelligence crimes (rather than other sorts of crimes). It was this opinion by Judge Silberman, and Congress's subsequent action in reliance on the Silberman opinion -- rather than yesterday's decision by Judge Aiken -- that represented the dramatic shift in the Fourth Amendment doctrine, a development that (as Judge Silberman conceded) created a stark conflict with the prevailing lead precedent, Truong, which Judge Silberman described as "rest[ing] on a false premise" and as establishing a test (the "primary purpose" test) that "was inherently unstable, unrealistic, and confusing."

In her decision yesterday, Judge Aiken sided with the old Fourth Circuit ruling (which in my view is much more consistent with, although not entirely compelled by, existing Supreme Court precedents), and expressly rejected the FISA Court of Review's contrary view. [UPDATE: I just noticed Dan Solove's fine post on the case. Dan is grateful that Judge Aiken did not follow Judge Silberman's decision, which Dan describes as "rather glib and not very convincing."]

The resulting split of authority is not surprising. As my former OLC colleague Patricia Bellia has written:
By shifting the required certification from "the purpose" to "a significant purpose," . . . [the PATRIOT Act] necessarily reopens the seemingly settled question of FISA's constitutionality under the Fourth Amendment. First, to the extent that courts have recognized a foreign intelligence exception to the Fourth Amendment's warrant requirement, the question is whether that exception should apply where the gathering of foreign intelligence information is not the main purpose of the surveillance or search. Second, in applying Keith's directive to assess the reasonableness of FISA's procedures in relation to the government interest at stake and the rights of individuals, courts have measured whether FISA's probable cause standard was properly adapted to the peculiarities and complexities of foreign intelligence gathering--an inquiry that seems less appropriate when foreign intelligence gathering is not the principal purpose of FISA coverage. Whether the shift to the Patriot Act's "significant purpose" is constitutional remains an open question. In its first ever decision, the Foreign Intelligence Surveillance Court of Review (FISCR) . . . has concluded that the change is constitutional, at least when construed to permit use of FISA where the primary purpose of the surveillance or search is to obtain evidence of foreign intelligence crimes (as distinct from ordinary crimes). The FISCR nevertheless acknowledged that "the constitutional question presented by this case . . . has no definitive jurisprudential answer."
Because there is no clear-cut answer, and because there was already a sharp "circuit"-split on the question even before yesterday's ruling, this is a question that the Supreme Court is likely to confront soon. And its ramifications are very significant: The question, in effect, is whether many of the most important Fourth Amendment protections simply do not apply whenever the government is investigating a "foreign intelligence"-related crime, such as most cases of international terrorism (because, again, in virtually all such cases the government will also have a genuine and significant intelligence-collection objective, even where the law-enforcement objective is primary or dominant).

Comments:

Thanks for the extended review. This general issue is one that I've dubbed "bootstrapping (criminal) probable cause from foreign intelligence surveillance."
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At some point, the issue will be debated on the grounds of "what constitutes foreign intelligence," because there some foreign intelligence does implicate a criminal enterprise.
 

The bright line drawn in the 4th Circuit Truong decision always made eminent sense to me. The 4th Amendment does not require warrants for surveillance of agents of foreign groups where the primary purpose is intelligence gathering, but does require a warrant when the purpose shifts to gathering criminal evidence.

Judge Aiken's decision really does not break any new ground. It simply reestablishes the Truong line.

As most here are well aware, I have an expansive view of Article II foreign policy powers. However, this Patriot Act provision, which essentially strips 4th Amendment rights from criminal suspects in foreign terrorism or spying cases, crosses the line.

Indeed, ifTruong is correct, the entire FISA system as it is presently constructed has serious Constitutional problems. FISA warrants do not appear to meet normal 4th Amendment standards for criminal evidence gathering and, because the 4th Amendment does not require warrants for foreign intelligence gathering and Congress does not have the power to direct the targets of intelligence gathering, the FISC has no power to require warrants for foreign intelligence gathering.

Congress would be well advised to simply make the FISC a secret court to issue standard 4th Amendment warrants for cases involving classified matters.
 

cboldt said...

At some point, the issue will be debated on the grounds of "what constitutes foreign intelligence," because there some foreign intelligence does implicate a criminal enterprise.

I would suggest, as I believe the Truong decision does, that the deciding factor is the purpose to which the gathered information is put rather than whether the information reveals criminal activity.

Nearly all actionable intelligence also involves criminal activity. The government crosses the line from intelligence gathering to criminal prosecution when its intent becomes to use the information as evidence in a criminal prosecution. The Truong decision discusses factors a court can consider to make that intent determination.
 

-- The government did not have probable cause to believe that Mayfield was connected with the Madrid bombings. --

.

I disagree with this however. In hindsight, the probable cause was in error, but there was a reason to have suspicion. The fingerprint fragment existed, the investigators drew an erroneous suspicion from it.

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The declaratory judgement was litigated separately, after the instant case was settled with a payment, to address the systematic/procedural issue at the intersection of foreign intelligence and criminal search regimes.

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In other words, the knock-down of the modified FISA language was done as a matter of forward-looking principle, rather than to preclude introduction of evidence.
 

-- the deciding factor is the purpose to which the gathered information is put rather than whether the information reveals criminal activity. --

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The bootstrapping issue will still exist in principle, even using that (useful and proper) distinction. The question involves the source of suspicion.

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Where the government is free to snoop without a warrant, and without suspicion of criminal activity, but suspicion of foreign intelligence, it may find cause to suspect criminal activity. That fact pattern isn't present in Mayfield, because the suspicion ostensibly came from external fingerprint evidence.

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But a different relationship may exist in a different fact pattern, and the government might find itself in a position where its suspicion in the first place came from a snoop that was conducted without suspicion of criminal activity.
 

This is possibly the worst set of facts possible to raise these issues. There is no criminal case and therefore no question of supression. The mis-identified fingerprint would have been probable cause for either a conventional or FISA search warrant. The difference is that a FISA warrant does not require that the search be disclosed, although it certainly was disclosed eventually.

No matter how this plays out on appeal, if the same set of facts were to reoccur, the worst case would be that officials should use the fingerprint to get both a conventional search warrant and a FISA warrant. If they want to "sneak and peek", they can execute the FISA warrant, but keep the conventional warrant around for any future legal challenges.

In other cases where there isn't criminal probable cause, the most likely consequence if this decision is upheld would be to separate the investigation into a national security component working with a FISA warrant and a criminal component that would not have direct access to the material gathered through the FISA search. There would then be years of litigation to determine whether material gathered through the FISA process could be used directly to provide probable cause for a second criminal search, or is it just that information gathered through FISA could be used to identify a source for probable cause.
 

Howard said...

In other cases where there isn't criminal probable cause, the most likely consequence if this decision is upheld would be to separate the investigation into a national security component working with a FISA warrant and a criminal component that would not have direct access to the material gathered through the FISA search. There would then be years of litigation to determine whether material gathered through the FISA process could be used directly to provide probable cause for a second criminal search, or is it just that information gathered through FISA could be used to identify a source for probable cause.

In the Truong decision, the court reasoned that the purpose of the surveillance transitioned from intelligence gathering to criminal prosecutions when the previously gathered information was provided to Justice for possible prosecution.

If memory serves, the 4th Circuit allowed evidence gained from warrantless surveillance for the purpose of intelligence gathering to be admitted as criminal evidence, but not that gained from warrantless surveillance after Justice got involved.
 

Prof. Lederman [from the post]:

FISA does not require any of these things. Most importantly, it does not require a court to find probable cause to believe that the person being searched has committed unlawful acts -- instead, the required proof is only that the person be an agent of a foreign power, and in making that determination, the FISA Court is very deferential to the government's representations.

The In re: Sealed Case decision talked at length about the intertwining of "purpose", and suggested that it was not very easy to define a clear line at which "intelligence" stops and "criminal investigation" begins (pointing out helpfully that spying is a criminal activity as well as a national security threat). In the face of a Fourth Amendment challenge to the FISA law in that case, they suggested that the close parallels of the FISA requirements with the corrsponding Fourth Amendment rules for criminal investigations was enough to withstand a Fourth Amendment challenge.

[Prof. Lederman]: How can FISA do that? Why don't the ordinary Fourth Amendment rules apply? Well, the Supreme Court specifically preserved the question of whether these same Fourth Amendment rules apply where the government's objective is not criminal law enforcement or domestic intelligence collection, but is instead the collection of foreign intelligence information. And in a series of cases in the years preceding FISA, several courts of appeals held that in such a foreign-intelligence investigation, all the Constitution requires is probable cause to believe that the target is an agent of a foreign power.

OK, but what about a case in which the government has both objectives -- in which it wants to investigate crimes and collect foreign intelligence? After all, virtually all terrorism-related criminal investigations will also serve the purpose of collecting foreign intelligence information, as well. Mixed motives, in other words, will be very common. What then? Well, the leading pre-FISA case (Truong) held that as long as the primary purpose of the investigation is foreign-intelligence collection, rather than criminal law enforcement, then the ordinary Fourth Amendment rules are loosened.


But the latest case (that I know of) prior to this one, In re: Sealed Case, suggests that the line is blurry, and that the Fourth Amendment is not just a piece of paper.

Cheers,
 

I said:

But the latest case (that I know of) prior to this one, In re: Sealed Case, suggests that the line is blurry, and that the Fourth Amendment is not just a piece of paper.

Following on, In re: Sealed Case found enough parallels in the FISA procedures to the Fourth Amendment to satisfy them under the circumstances of the specific 'exigencies' of "foreign intelligence crimes". It seems that the Mayfield case says that you can't just 'follow along' in some simulacrum tailored to the 'exigencies' and competing interests in "national security"; you have to obey the law. This kind of guts FISA as a "compromise" between national security needs and the dictates of Fourth Amendment.

Cheers,
 

I'd note, FWIW, that the Fourth Amendment says nothing about crimes, and is distinct from the Fifth and Sixth Amendments which deal with criminal prosecutions.

Not that this means anything.

But one's privacy interests ("[t]he right of the people to be secure in their persons, houses, papers, and effects") are not present only when the gummint is investigating crimes. The principal person who is protected against searches is the person who has committed no crime and for whom no "probable cause" exists for any search. If we are to extent the "reasonable search" category to include those needed for national security investigations (in addition to the compellng need for law enforcement), I see no reason why "probable cause" should not remain the threshold for such "reasonable searches", and the Title III warrant procedure apply.

Cheers,
 

Does anyone know whether any of the pre-FISA cases holding that no warrant is needed to gather foreign intelligence involved international terrorism? All the ones I have seen involved either spying for foreign government or were too vague to tell. It seems to me the distinction between intelligence gathering and prosecution is much easier to maintain in a Cold War context of rivalries between nation states than fighting terrorism today.

A great deal of intelligence gathering against foreign governments would be independent of prosecution. For instance, foreign embassies are obvious sources of important intelligence, even if they are not doing anything illegal. Many of the leading individuals targeted will be embassy employees with diplomatic immunity, so prosecution will not be possible. Finding non-immune spies can truly be considered a secondary objective in such a context. But there are no important but non-criminal targets, and no diplomatic immunity in fighting international terrorism.

Does anyone know if there are Fourth Amendment cases on international terrorism before FISA?
 

So the choice is:

1. FISA process may be used when the primary purpose is foreign intelligence; or

2. FISA process may be used when a purpose is foreign intelligence.

Can anyone think of a situation in which the government could claim that Option 2 is satisfied but could not plausibly claim that Option 1 is satisfied?
For example, in this case, the suspect was linked (incorrectly) to terrorist act abroad. What court would accept that foreign intelligence (detecting terrorist networks) was a purpose of the requested surveillance but would reject a claim by the government that foreign surveillance was the primary purpose? What kind of a showing would convince a court that there was some other primary purpose? Who would make that showing if we're talking about the FIS Court and the only party providing information is the government? If the evidence collected under the FISA warrant was later the subject of a motion to supress, how would the criminal trial court be able to tell that the primary purpose of the original warrant was something other than foreign intelligence, particularly given the secrecy likely to surround evidence of that purpose?
 

Sorry about the off topic post, but I thought that some of you might find it interesting that the Administration may have just gone all in at the high stakes poker game hosted by the Supremes in the Gitmo habeas corpus case by allowing the 14 worst detainees (including KSM) to get attorneys to potentially join the suit.

Will Kennedy grant KSM habeas corpus review to seek release?

No matter what you think of Bush, the man has guts.
 

A. The 14 are allowed to get lawyers to seek DTA review, not habeas. The Administration is desperate to put lipstick on that pig, hoping for a fifth vote for the adequacy of the DTA remedy as a substitute. The government's request, today, to stay most of the pending DTA cases because they can't get the documents together they were supposed to have gathered back in 2004, makes the pig look all the more piggy.

B. I personally think Truong et al. wrongly decided. Nothing in the Fourth Amendment says anything about purposes, primary or otherwise, or anything about foreign intelligence. Want to spy on someone in the US? Get a warrant.
 

arne/charleycarp:

The 4th Amendment only requires a warrant for unreasonable searches and seizures. Surveillance for the purpose of gathering intelligence against the agents of foreign groups is just one of many searches the courts have found over the years to be reasonable and not to require a warrant.
 

-- The 4th Amendment only requires a warrant for unreasonable searches and seizures. --

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You'll want to revisit the text of the 4th amendment on that one. The people are to be free from unreasonable searches, period. Separately, warrants won't issue unless the court is given probable cause.

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Usually (almost always, but not literally always) a search pursuant to a warrant is a reasonable search. Many (I'm inclined to sa most, hedging only to cover the possibility of massive secret invasions of privacy) searches without a warrant are likewise reasonable.
 

"Bart" DePalma:

arne/charleycarp:

The 4th Amendment only requires a warrant for unreasonable searches and seizures. Surveillance for the purpose of gathering intelligence against the agents of foreign groups is just one of many searches the courts have found over the years to be reasonable and not to require a warrant.


I think you asserted this same load'o'crap a while back and I called you on it then, but I'm not going to waste time digging through the archives. You really should have flunked the bar, "Bart". This is basic stuff.

Searches conducted pursuant to a proper warrant are (generally or typically) "reasonable". "[U]nreasonable" searches are, by the very language of the Fourth Amendment, prohibited. One of the touchstones of Fourth Amendment law is whether the search was "reasonable" and one hallmark of that is whether there was a search warrant, as detailed in the second part of the amendment.

(FWIW, one of the "end-arounds" to avoiding the strictures of the Fourth Amendment has been not to ask if it was "reasonable", but instead to constrict what is considered a "search" in the first place).

Cheers,
 

Arne Langsetmo said...

But one's privacy interests ("[t]he right of the people to be secure in their persons, houses, papers, and effects") are not present only when the gummint is investigating crimes. The principal person who is protected against searches is the person who has committed no crime and for whom no "probable cause" exists for any search. If we are to extent the "reasonable search" category to include those needed for national security investigations (in addition to the compellng need for law enforcement), I see no reason why "probable cause" should not remain the threshold for such "reasonable searches", and the Title III warrant procedure apply.

BD: The 4th Amendment only requires a warrant for unreasonable searches and seizures. Surveillance for the purpose of gathering intelligence against the agents of foreign groups is just one of many searches the courts have found over the years to be reasonable and not to require a warrant.

arne: I think you asserted this same load'o'crap a while back and I called you on it then, but I'm not going to waste time digging through the archives. You really should have flunked the bar, "Bart". This is basic stuff.

Searches conducted pursuant to a proper warrant are (generally or typically) "reasonable". "[U]nreasonable" searches are, by the very language of the Fourth Amendment, prohibited. One of the touchstones of Fourth Amendment law is whether the search was "reasonable" and one hallmark of that is whether there was a search warrant, as detailed in the second part of the amendment.


The 4th Amendment is not the blanket guarantee of privacy you imagine it to be.

To start, by its own terms, the 4th Amendment warrant requirement only applies to unreasonable searches and seizures.

You are incorrect that all searches and seizures are per se unreasonable if you do not have probable cause. Under the Katz analysis, the Courts have determined that a search is unreasonable and falls under the 4th Amendment requirement only when the target has a reasonable expectation of privacy. For example, there is no reasonable expectation of privacy in things in open view, open fields, in the trash, etc; thus no requirement for a warrant.

Likewise, agents of foreign groups have no reasonable expectation of privacy from surveillance whose primary purpose is intelligence gathering. The courts have repeatedly held that these searches simply do not fall under the 4th Amendment warrant requirement.

You and cboldt are of course correct that a search pursuant to a warrant with probable cause of a crime can make reasonable an otherwise unreasonable search. However, if the search is reasonable in the first instance, the 4th Amendment does not apply and you do not need a warrant. That was the extent of my analysis and I never proceeded to the second step of discussing the affect of warrants.
 

"Bart" still doesn't 'get it':

To start, by its own terms, the 4th Amendment warrant requirement only applies to unreasonable searches and seizures.

U.S. Constitution, Fourth Amendment:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,..."

There it is. No "unreasonable searches". Period.

... 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.

This is an explication of the guidelines for "reasonable", in particular, stating the form that a "reasonable" warrant shall take (as opposed to, say, "general warrants", which is one thing the Founders objected to strongly).

Perhaps "Bart", in his days as a 'criminal prosecutor', swore out affidavits in application for unreasonable searches, but that would hardly be something to brag about.

Cheers,
 

"Bart" soldiers on:

You are incorrect that all searches and seizures are per se unreasonable if you do not have probable cause....

Well, I would be wrong if
I'd actually said that. I didn't, but "Bart" sees things that others can't see.

But here's what Katz had to say about that: "... searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment - subject only to a few specifically established and well-delineated exceptions."

... Under the Katz analysis, the Courts have determined that a search is unreasonable and falls under the 4th Amendment requirement only when the target has a reasonable expectation of privacy....

Katz sad no such thing. Leaving aside the fact that Katz disallowed the search at bar there (and can thus not be taken for the holding that "only" when there's a reasonable expectation of privacy does the Fourth Amendment apply), here's from the opinion:

"The Government urges that, because its agents relied upon the decisions in Olmstead and Goldman, and because they did no more here than they might properly have done with prior judicial sanction, we should retroactively validate their conduct. That we cannot do. It is apparent that the agents in this case acted with restraint. Yet the inescapable fact is that this restraint was imposed by the agents themselves, not by a judicial officer. They were not required, before commencing the search, to present their estimate of probable cause for detached scrutiny by a neutral magistrate. They were not compelled, during the conduct of the search itself, to observe precise limits established in advance by a specific court order. Nor were they directed, after the search had been completed, to notify the authorizing magistrate in detail of all that had been seized. In the absence of such safeguards, this Court has never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities to the least intrusive means consistent with that end. Searches conducted without warrants have been held unlawful "notwithstanding facts unquestionably showing probable cause," Agnello v. United States, 269 U.S. 20,33, for the Constitution requires "that the deliberate, impartial judgment of a judicial officer . . . be interposed between the citizen and the police . . . ." Wong Sun v. United States, 371 U.S. 471, 481-482. "Over and again this Court has emphasized that the mandate of the [Fourth] Amendment requires adherence to judicial processes," United States v. Jeffers, 342 U.S. 48,51, and that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment - subject only to a few specifically established and well-delineated exceptions."

... For example, there is no reasonable expectation of privacy in things in open view, open fields, in the trash, etc; thus no requirement for a warrant.

The rationale for that is that these aren't considered "searches".

Likewise, agents of foreign groups have no reasonable expectation of privacy from surveillance whose primary purpose is intelligence gathering....

And criminals have no "reasonable expectation of privacy" when the cops come snooping around investigating a crime, either. Most of the Fourth Amendment cases are appeals to the "exclusionary rule" where the fruits of illegal searches are disallowed in court. They were criminals fer chrissake, so what were they thinking that the cops had no valid reason to search? Answer, of course, is above.

... The courts have repeatedly held that these searches simply do not fall under the 4th Amendment warrant requirement.

True, but I think the jurisprudence here is screwy (as I indicated in my comment above on this thread).

It would be a real gutting of the Fourth Amendment to read it as protecting from only searches in criminal investigations. If the gummint is free to search at will even the more intimate details of someone's life, as long as it's not for "criminal investigation" purposes, they could do so to develop, say, census data, gummint actuarial data, income tax data, and even urban planning and road construction. This is obviously not true, and I think the "national security" exemption is a bit of a 'sport', and doesn't withstand scrutiny. It's another of those "exigent circumstances" exceptions that keep chiping away at the Fourth Amendment, and I don't like it one bit.

You and cboldt are of course correct that a search pursuant to a warrant with probable cause of a crime can make reasonable an otherwise unreasonable search. However, if the search is reasonable in the first instance, the 4th Amendment does not apply and you do not need a warrant....

Oh, piffle, "Bart". Read the freakin' case you cited!!!

... That was the extent of my analysis and I never proceeded to the second step of discussing the affect of warrants.

I agree that was the "extent of [your] analysis". I wouldn't commit that "analysis" to the perpetual archives of the Internet if I were you, "Bart".....

BTW, here's Douglas (with Brennan) concurring in Katz:

"Neither the President nor the Attorney General is a magistrate. In matters where they believe national security may be involved they are not detached, disinterested, and neutral as a court or magistrate must be. Under the separation of powers created by the Constitution, the Executive Branch is not supposed to be neutral and disinterested. Rather it should vigorously investigate and prevent breaches of national security and prosecute those who violate the pertinent federal laws. The President and Attorney General are properly interested parties, cast in the role of adversary, in national security cases. They may even be the intended victims of subversive action. Since spies and saboteurs are as entitled to the protection of the Fourth Amendment as suspected gamblers like petitioner, I cannot agree that where spies and saboteurs are involved adequate protection of Fourth Amendment rights is assured when the President and Attorney General assume both the position of adversary-and-prosecutor and disinterested, neutral magistrate."

Cheers,
 

arne:

But here's what Katz had to say about that: "... searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment - subject only to a few specifically established and well-delineated exceptions."

Dude, all this says is that searches are unreasonable except when they are not. Searches which are not unreasonable are per se reasonable.

BD: ... For example, there is no reasonable expectation of privacy in things in open view, open fields, in the trash, etc; thus no requirement for a warrant.

The rationale for that is that these aren't considered "searches".


Rooting around someone's trash looking for incriminating evidence is not a "search?"

Please.

The very use of the qualifier "unreasonable" to limit the universe of searches covered under the 4th Amendment implies that there are "reasonable" searches which are not covered by the 4th Amendment.

BD: ... The courts have repeatedly held that these searches simply do not fall under the 4th Amendment warrant requirement.

True, but I think the jurisprudence here is screwy... I think the "national security" exemption is a bit of a 'sport', and doesn't withstand scrutiny. It's another of those "exigent circumstances" exceptions that keep chiping away at the Fourth Amendment, and I don't like it one bit.


Why didn't you just make this critique from the beginning? The problem with the 4th Amendment is the term "unreasonable," which is an invitation to the courts to insert their own ideas of what searches are reasonable and which are unreasonable and require a warrant.

Both of us have our own ideas of what are "unreasonable" searches requiring a warrant and the Courts will inevitably disappoint us both.

I think that we can agree that the 4th Amendment was intended to apply to searches for criminal evidence. Beyond that, it gets very subjective.
 

"Bart" DePalma soldiers on:

[Arne]: But here's what Katz had to say about that: "... searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment - subject only to a few specifically established and well-delineated exceptions."

Dude, all this says is that searches are unreasonable except when they are not....


No. Please do read for comprehension. What it says is that searches w/o a warrant, etc. are per se "unreasonable". Why does this matter? Well, to someone with a few neurones to click to together, it's because "unreasonable" searches are prohibited (and any evidence so obtained is excludable). Under "Bart"'s bizarre formulation, once (and only if) they are "unreasonable" (due to, e.g., lack of a warrant, as Katz indicates, one has to ask whether they have a warrant so as to be permissible ("Bart" is of the crazy notion that "only" "unreasonable" searches need warrants to be permitted; any other "reasonable search requires no warrant) ... which would then make them "reasonable" under the Katz formulation above. "Bart" tips his hand by claiming (see his quote above) that Katz is proclaiming an obvious tautology, when in fact they're explaining what makes a search reasonable. Judges generally don't state tautologies for the benefit of slow learners like "Bart", and it's insulting of him to say so.

... Searches which are not unreasonable are per se reasonable.

Wow. I'm in awe of "Bart"'s brilliance. He should get nominated for an appellate judgeship.

["Bart"]: ... For example, there is no reasonable expectation of privacy in things in open view, open fields, in the trash, etc; thus no requirement for a warrant.

[Arne]: The rationale for that is that these aren't considered "searches".

Rooting around someone's trash looking for incriminating evidence is not a "search?"


Yes. That's the formulation. At least it's not a "search" of a "person['s] house[], papers, [or] effects".

The dividing line drawn seems to be that a person has a right to be secure from unreasonable searches (i.e., ones w/o a warrant) only where they have a "reasonable expectation of privacy", and that they do not have "in open view, open fields" ... or "in the trash" that they discard and leave on the street.

Please.

The very use of the qualifier "unreasonable" to limit the universe of searches covered under the 4th Amendment implies that there are "reasonable" searches which are not covered by the 4th Amendment.


The word "reasonable" by its very composition means that there must be a "reason" (and as elicidated in the Fourth Amendment, a specific one) to do the search (unlike the hated "general warrants").

Yes, the Fourth Amendment prohibits only "unreasonable" searches, and then goes on to describe which ones are "reasonable" (from a legal standpoint: supported by oath or affirmation as to probable cause for engaging in the search, and with particularity, and vetted by a judge). As Katz says, if there is no warrant, etc. the search is per se "unreasonable" (with only a few exceptions). As long as the conditions cited by Katz have been met, the search is "reasonable", so this malarkey that "only" "unreasonable" searches require this is obvious bovine efflux.

To re-re-state the obvious, a quick read of the first clause of the Fourth Amendment should be enough to settle the issue.

["Bart"]: ... The courts have repeatedly held that these [national security] searches simply do not fall under the 4th Amendment warrant requirement.

True, but I think the jurisprudence here is screwy... I think the "national security" exemption is a bit of a 'sport', and doesn't withstand scrutiny. It's another of those "exigent circumstances" exceptions that keep chip[p]ing away at the Fourth Amendment, and I don't like it one bit.

Why didn't you just make this critique from the beginning? ...


I did, "Bart". You just didn't pay attention.

... The problem with the 4th Amendment is the term "unreasonable," which is an invitation to the courts to insert their own ideas of what searches are reasonable and which are unreasonable and require a warrant.

No. Because the Fourth mendment is nice enough to explan it to you, "Bart".

Both of us have our own ideas of what are "unreasonable" searches requiring a warrant and the Courts will inevitably disappoint us both.

Your formulation of the law is simply wrong, "Bart". Regardless, how they (analytically) get to the results they get is less important than what they decide under specific circumstances. Redefining "searches" as not being "searches" under certain circumstances seems to be a bit disingenuous and counter-intuitive, but it's part of the long tradition of chopping away at our civil rights under the flag of "exigency", "efficiency", "necessity", or de minimus treatment.

I think that we can agree that the 4th Amendment was intended to apply to searches for criminal evidence. Beyond that, it gets very subjective.

As long as you don't put the qualifier "only" in there.

Care to explain why the same violations of privacy should be tolerated from a census taker but not from a cop on the beat? Should a census taker be free to break in and rummage through your closets? Is it that we only care enough about our privacy when we are at risk of criminal incarceration? I don't think so. As I said, the majority of persons protected under the Fourth Amendment are the law-abiding citizens not suspected of any crime....

I think that if you want to argue for a "national security" exemption from the Fourth Amendment, you need to go with the "exigent circumstances" type loop-hole, similar to the Terry pat-down and the Chimel "reaching area" carve-out, both exceptions tolerated in the nominal name of safety of the "public" (and/or "the state").

Cheers,
 

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