Stretching the Parameters of the Fourth Amendment

By Tiffany Dimm ’16

The recent controversy over the National Security Agency (NSA) brought national attention to the issue of the legal limits of the extent of the right of the people to privacy and the limits of searches since NSA secrets were leaked this past summer. Most recently, it was revealed that the agency was intercepting millions of contact lists from private accounts. As watchdog and Internet rights groups raged, the American people wondered about the limits to the rights to search and seize and the right to privacy in the Constitution. To answer that question, we must take a closer look at the law regarding searches and seizures as laid down in the Fourth Amendment to the Constitution.

“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.” These are the precise words with which our Founding Fathers delineated the parameters of authority’s right to search and seize and the people’s right to privacy with regards to said right. But what do they mean, and how are they interpreted? And what defines unreasonable?

The Founding Fathers were legally protecting future Americans such as ourselves from searches of our persons, property, or activities, or seizures of our belongings, without a warrant describing exactly whom and what to search, and such a warrant could only issued with probable cause that the person searched had committed a particular crime. In other words, a search or seizure is unreasonable if done without a warrant, and a warrant may not be issued unless there is probable cause, or, as the Free Dictionary defined it, “Apparent facts discovered through logical inquiry that would lead a reasonably intelligent and prudent person to believe that an accused person has committed a crime.” To obtain a warrant to search a person, probable cause is needed that that particular person, not just “someone,” had perpetrated the crime in question. If a bank has been robbed in a town, the police may not search every person in the town because one person committed the crime: they may only search those whom probable cause indicates could likely have participated in the deed.

It must be noted that in situations in which society would expect a certain degree of privacy, such as in a public restroom, any violation of that privacy, such as the placement of a surveillance camera in said restroom, would be considered a search and subject to the regulations of the Fourth Amendment.

However, in situations in which society would not have an expectation of privacy, an inspection would not be considered a search: for example, looking for a weapon that might be sitting on top of a desk would not be considered a search as there would be little expectation of privacy. In the Supreme Court case Bond v. U.S., it was determined that a passenger on a bus did have an expectation of privacy regarding an opaque bag place on a luggage rack above the owner’s head. It should also be remembered that the “expectation of privacy” rule and probable cause applies only to governmental law enforcement officers such as policemen–it does not, currently, apply to private security guards working for a private employer, as established in the 2009 Supreme Court case State of New Mexico v. Luis Santiago. In addition, probable cause does not apply to such searches as airport and border security checks.

If a search or seizure is performed which goes beyond the limits of the Fourth Amendment, any evidence acquired from that search may not be used in a prosecution. This does not automatically mean that the defendant goes free–if the prosecutor can procure other evidence sufficient to prove his case, the defendant can still be convicted. In addition, although evidence obtained beyond the parameters of the Constitution may not be used to prosecute in a criminal case, it may be used by a judge in determining a sentence after the defendant has been convicted, and may also be admitted in civil cases, according to the Nolo legal encyclopedia.

How does this relate to the question of the NSA? They probed through the private e-mail correspondences of thousands of American citizens for whom they had no probable cause to believe were affiliated with terrorist organizations. It could be argued that individuals are aware that information sent over the Internet can be seen by anyone; Facebook, for example, is notorious for giving users’ information to other companies. But Facebook users give their consent each time the social network requests permission to grant such companies access to their personal information. And even if this argument is made, one cannot deny that there is a reasonable expectation of a degree of privacy in a telephone call. The NSA most certainly violated the Fourth Amendment–and, according to CNN, some employees even abused their usurped power to spy on their love interests. Legal? No.