South Florida Criminal Lawyers Blog

As every law student knows, words have meaning. Over the course of American history, the words of the Fourth Amendment have never changed. The meaning of those words, however, have changed dramatically. Recently, the United States Supreme Court issued a new Fourth Amendment ruling in United States v. Jones, 565 U.S. _____(2012). In the decision, the Court revitalized an old concept of Fourth Amendment jurisprudence: the government's trespass upon an individual's property interests can render a search unreasonable. This decision harkens back to a bygone era of Fourth Amendment jurisprudence, and adds a new link in the evolutionary development of our understanding of what constitutes a reasonable search and seizure. For a brief overview of the Fourth Amendment's evolution, let's stroll through the history of the Fourth Amendment through the lens of Hollywood.

To begin our journey through history, we must first travel to our mother country in the early 18th century. In May, 1707, well before the establishment of the United States of America and the ratification of the Fourth Amendment, the Kingdoms of England and Scotland unite to form a new political entity: the Kingdom of Great Britain. During this era, in the highlands of Scotland, lives an Irish actor named Liam Neeson. As a Scottish highwayman, Liam Neeson finds himself at odds with Tim Roth, an effeminate Englishman working for John Hurt, a wealthy Scottish noble. Presumably acting in the name of the Crown, John Hurt orders Tim Roth to take Liam Neeson into custody. Tim Roth dutifully takes a squad of British soldiers to the home of Liam Neeson and burns down the home and kills the cattle (and commits sexual battery upon Liam Neeson's wife, Jessica Lange, which is a separate matter altogether).

Unfortunately for Liam Neeson, as an 18th century Scottish highwayman, he does not enjoy the protections of the Fourth Amendment's proscriptions against unreasonable searches and seizures. Nevertheless, as a British subject, Liam Neeson does benefit from the protections of the English common law. At the time of Tim Roth's dastardly invasion of Liam Neeson's home, British law had already recognized the significance of individual property rights in relation to government searches and seizures. In 1603, the legendary Sir Edward Coke, acting as the Attorney General for England and Wales, reported on the famous Semayne's Case, in which Sir Coke wrote: "In all Cases when the King is party, the Sheriff (if the doors not be open) may break the parties house, either to arrest him, or to doe execution of the King's process, if otherwise he cannot enter. But before he break it, he ought to signify the cause of his coming, and to make request to open doors."

Thus, in the context of TIm Roth's invasion of Liam Neeson's home, Liam Neeson has legal recourse against Tim Roth, provided that Tim Roth acted without a warrant and/or did not "knock and announce" prior to "breaking the home." Clearly, Semayne's Case established a limit to the government's ability to enter the homes of British subjects, even with a warrant. This limitation was further bolstered in 1767, when the King's Bench ruled in the case of Entick v. Carrington; a case which would greatly influence the development of the Fourth Amendment.

In Entick, officers of the Crown, acting under the authority of a warrant, entered the home of a British subject, where they arrested the subject and confiscated his papers and books. The King's Bench held that the crown violated the subject's rights because the warrant (1) was not specific as to what papers were to be seized; and (2) the warrant was not based upon probable cause. The court reasoned that because the warrant was insufficient, the Crown had trespassed upon the property of the subject, and thus had violated the subject's rights, rendering the search and seizure unreasonable. Aware of this ruling, with its emphasis on property rights, America's founding fathers ratified the Fourth Amendment in 1791.

Let us then fast-forward to the era of prohibition and the Jersey Shore of the roaring 1920's. Ruling the Jersey boardwalk is Steve Buscemi, the flashy and corrupt treasurer of Atlantic City, who oversees a massive bootlegging operation. Michael Shannon, a crusading evangelist with a desire to sweep Atlantic City clean of its vice and sin, is a prohibition agent sent to investigate the burgeoning market of illegal booze. Shannon, who goes to great lengths to follow the activities of Buscemi, uses numerous methods to aid in his investigation. One of the options available to Shannon is an emerging technology: wiretaps. By attaching a wiretap to the telephone lines outside of Buscemi's home, Shannon can listen into all of Buscemi's private telephone conversations without trespassing upon Buscemi's property.

Unfortunately for Steve Buscemi, the Fourth Amendment of the 1920's does not prohibit the government from attaching wiretaps to an individual's phone lines without a warrant, provided that the government doesn't trespass on the individual's property. In the case of Olmstead v. United States, 277 U.S. 438 (1928), the Supreme Court ruled that it was permissible for prohibition agents to attach wiretaps to the phone lines outside of a bootlegger's office, because the Fourth Amendment only protected individuals from government intrusions into "material things--the person, the house, his papers or his effects." In the case of Olmstead, the government did not search a "material thing;" it attached a wiretap to an outside phone line to capture a private conversation.

As is evident from the Court's ruling in Olmstead, the meaning of the Fourth Amendment was closely connected to the concept of property rights and the protection of "material things." This remained the case for most of the 20th century.

Let us then move onto the tumultuous years of the early 1970's, when Clint Eastwood is protecting the mean streets of San Francisco. A crusty, no-nonsense cop, Eastwood takes down the bad guys with magnum force, and doesn't get "all broken up" when he violates their rights. Which is unfortunate for the District Attorneys in the Bay Area, because the Fourth Amendment is evolving to provide greater protections against unreasonable searches and seizures. Even if Clint were to do something rather tame, like attach a microphone to a phone booth with the intent of recording a conversation, he would no longer be acting within the constraints of the Fourth Amendment.

This is because in 1967, the United States Supreme Court deviated from its understanding of the Fourth Amendment, as articulated in Olmstead. In Katz v. United States, 389 U.S. 347 (1967), FBI agents affixed a microphone to the outside of a telephone booth to record the defendant's conversation. This wasn't very different from the actions of the prohibition agents in Olmstead, who tapped the phone lines of a defendant to listen to the defendant's private telephone conversation. In both Katz and Olmstead, the law enforcement officers never trespassed on the defendant's property. Nevertheless, the Court in Katz found that the FBI had violated the defendant's Fourth Amendment rights.

Famously stating that "the Fourth Amendment protects people, not places," the Court held that because the FBI recorded a conversation that the defendant justifiably believed would remain private, the FBI violated the defendant's Fourth Amendment rights. Writing in concurrence, Justice Harlan expressed his understanding of the Fourth Amendment as protecting an individual's "reasonable expectation of privacy." Under Harlan's analysis, if law enforcement, without a warrant, conducted a search that violated an individual's reasonable expectation of privacy, then a violation of the Fourth Amendment occurred. This new approach to the Fourth Amendment, which emphasized protecting the privacy of individuals, remained the status quo for over 40 years.

In the Supreme Court's most recent Fourth Amendment case, however, the Court has breathed new life into the old approach. In United States v. Jones, federal agents attached a GPS tracking device, without a warrant, to the undercarriage of a defendant's vehicle. The government argued that because the vehicle traveled upon public roads; and because the GPS device was attached to the vehicle's exterior, the defendant did not have any reasonable expectation of privacy in the location of the vehicle. Surprisingly, the Court refused to rule on whether or not the defendant had a reasonable expectation of privacy. Instead, the Court held that the agents trespassed upon the defendant's property when they attached the device, and thus the search was unreasonable.

Thus, the Court turned back the clock on Fourth Amendment jurisprudence, embracing an important tenet to the original understanding of the amendment: the government may not trespass upon an individual's property rights when conducting a search or seizure. This holding seems to raise doubt about the famous words in Katz: "the Fourth Amendment protects people, not places." If the Fourth Amendment didn't protect places in the 1960's, it certainly does now.

The United States Supreme Court recently issued a new Fourth Amendment ruling, in which the Court upheld the exclusion of GPS evidence against an alleged drug trafficker. The basis for the Court's decision was that the federal government trespassed upon the defendant's property rights by installing a GPS monitor on the defendant's vehicle without a warrant. In the short term, the decision has the potential to impact prosecutions in South Florida, as it provides an additional theory through which Florida defense attorney's may attempt to suppress evidence. On the other hand, the decision does not touch on whether the GPS monitoring of a vehicle violates an individual's "reasonable expectation of privacy." Thus, the decision falls far short of creating a new, protected privacy interest.

It was the Court's failure to address this issue that resulted in an interesting 5-4 split among the justices. While all 9 justices agreed on the result of the case, the Court split 5-4 as to the legal basis for the decision. Interestingly, the 5-4 split didn't reflect the typical divide between conservatives and liberals. Scalia, Roberts, Kennedy, Thomas, and Sotomayor voted in the majority, while Alito, Breyer, Ginsburg, and Kagan voted as a concurring minority. Justice Alito wrote on behalf of the minority, urging the Court to recognize a broader privacy interest against the use of prolonged GPS monitoring. Although Justice Scalia left open the possibility that prolonged GPS monitoring may violate an individual's "reasonable expectation of privacy," he and the majority decided the case on the more narrow grounds that law enforcement officers trespassed upon the defendant's property interests when they attached the GPS monitor to the bottom of the defendant's vehicle.

In what could only have happened in sparring legal opinions between Scalia and Alito, the justices debated the likelihood of 18th century "constables" stowing away in horse-drawn coaches, where they could secretly record the movements of revolutionary-era criminal defendants. While Justice Scalia accepted the possibility of such an occurrence, Justice Alito wrote: "this would have required either a gigantic coach, a very tiny constable, or both--not to mention a constable with incredible fortitude and patience."

While the above scenario and debate is somewhat silly (and "irrelevant," in the words of Scalia), it highlights the evolving technology of criminal investigations, and the potential constitutional limitations to the use of such technology. In its opinion, however, the Court "punted" on this issue, which leaves unanswered the pressing concern of whether prolonged GPS monitoring violates an individual's Fourth Amendment rights.

For instance, what if the government electronically tracked the movement of a suspect, without a court order, and without trespassing on an individual's property? With current GPS technology, as well as with upcoming imaging technology and the advent of data-mining, it is not far-fetched to imagine the federal government capable of collecting massive amounts of data on individuals, which could reveal an individual's personal secrets.

For example, if the government could employ prolonged GPS tracking of an individual without court order, the government could amass information regarding an individual's private life, including an individual's sexual, business, political, and/or religious life. Utilizing this technology, the government could track how often an individual goes to church; travels to a gay bar; what business contacts an individual engages with; or whether an individual goes home to his/her family after work or goes to a motel with a colleague of the opposite sex. Essentially, the ability of the government to track every movement of any individual without court order would provide the government with the power to invisibly look over the shoulder of every American citizen.

There is little doubt that the Court will eventually have to address the constitutional implications of new surveillance technologies. Until then, law enforcement will continue to develop and use new sophisticated techniques to track the movements of suspected wrongdoers. However, the days of attaching GPS devices without a warrant are over. Although the Supreme Court's decision could have gone further, it nevertheless provides an additional argument for defense attorneys to move to suppress evidence that was collected in a manner inconsistent with the Constitution.