Sen. Russ Feingold exposes the fraud that the Patriot Act “Sneak and Peek” search warrants, would be used only for suspected terrorism cases. When in actuality only 3 of the 763 warrants issued had anything to do with terrorism. With the majority being drug related investigations.

http://www.youtube.com/watch?v=XtqK-oEY3oI

Perhaps this isn’t directly relevant to the pre vs post 9/11 4th amendment discussion in this thread: but i think it sheds some light on post 9/11 civil liberties issues. One one side, the govt used the warrant process to obtain sneak and peak warrants. Yay! On the other, the terrorists just turned out to be routine drug dealers. Boooo. There was fear that giving govt any more power to fight terrorists (with the patriot act modifications or whatever) would trickle down to purely routine domestic investigations. Like with FBI national security letters and other assorted things, this has most certainly been proven true.

I am not saying that pretextual public health concerns justify any and every government intrusion automatically. I am not expressing an opinion as to where the line should be drawn as far as a minimal threat to public safety that would justify a home entry, or (worse yet) a surprise home entry.

What I am saying is:

(i) Justice Frankfurter seemed to think that these issues should be divorced from 4A and its warrant requirements. This doesn’t mean that there would be no lmits on public health investigations. It just mean that they would be governed by Constitutional provisions other than 4a.

(ii) There are some problems with Justice Frankfurter’s approach (eg, health worker finds kid napped child).

(iii) Despite the problems, there may have been creative approaches that could have separated public health investigations from criminal/punitive “searches” and thereby separated the public health investigations from 4A. By creative approach, I don’t mean simply saying that a public health worker entry is not a “search” by judicial fiat. If you want to see what I was suggesting, on this head, pls reread my above posts. Anyway, it is water under the bridge now. The law is settled that public health entries are 4a subject matter, and this is hardly the worst thing to happen within the realm of 4a law.

Cleanville Tziabatz: The rat thing wasn’t about property damage. It was about the spread of fatal diseases. One can argue that rats had stopped carrying fatal diseases by 1959, but not like Justice Frankfurter was trying to justify an investigation (which may or may not be properly considered a “search”) for tent caterpillars or termites or tall grass. To the extent it is a credible threat, stemming Bubonic plague is an appropriate governmental function.

So the standard we should accept is simply the assumption that rats might possibly carry some fatal disease, and that an intrusion on my property is therefore justified, without first seeking a warrant to set forth the basis for such intrusion? I think not.

On such theory, one could as easily enter any property where mosquitos might be, or fleas, or mice. A “public health exception” to a warrant requirement would seemingly approve a search where some person might be smoking, or any number of other activities where there is some non-0 (as opposed to negligible)possibility of harm to a remote person in the community at some future time. In such situations, there is no emergency, no immediate need for action to protect the public as there might be if someone was cutting down a power line, or discharging a firearm at random passers-by, or pouring antifreeze into the local water supply.

Not that I’m shortchanging the dangers of the various plagues, mind you — European history between roughly 800 and 1600 was my “thing” for a substantial portion of my educational career. I have some appreciation for the population decimation various diseases have caused in the not so distant past. I’m simply suggesting that the proposed rule is so broad as to render our protections against unreasonable searches illusory.

2. To explain what I meant by “equivalent in probabilistic rigorousness to the probable cause standard,” it must first be understood that there are two conceptually separable aspects to “probable cause” as follows:

(a) There is a subject matter requirement. What is cause? Let’s say that I convince an officer of the law to a 99.999% certainty that poster Oren is in his kitchen drinking a tall, frosty glass of diet orange soda. Is there probable cause? No, or at least not unless the diet orange soda murders have resumed again. This is because drinking a tall, frosty glass of diet orange soda is not a crime or evidence of a crime. The requisite level of certitude is there, but the subject matter about which the certitude has been formed is the wrong subject matter.

(b) there is the probabilistic rigorousness requirement. Let’s say that poster Whit saw Dick Cheney go into his house with a small child and an axe. Then, not even ten minutes later, he hears a child crying and then the crying stops. It is possible that Dick Cheney murdered his great-great grandson with the axe. Just like having some beers and shooting your buddy in the face, that is a crime. More specifically, terminating the great great granson with the axe would be the crime murder (which is actually illegal in every state). The hacked up child is evidence. Ahhh, so we have the right subject matter possibly present in that house. Whit goes in, right? No. Wrong. The subject matter is right, but the probabilistic rigorousness just is not there. Sure, Dick Cheney might have murdered his great great grandson, but the problem is that he might not have murdered him, too. Now, we can argue about what this probabilistic standard of rigorousness is, what it means, how and whether it can be expressed in numbers or words, but I think we can both agree that some standard of probabilistic rigorousness is necessarily implied by any “probable cause” requirement.

3. The exigency law currently requires exigency and probable cause. Brigham City did not erase, and indeed could not have erased, the probable cause requirement for the reasons explained in my previous post.

4. My previous post argued that what might make sense is for the Court, in an appropriate case, to change the law to drop the 2(a) subject matter requirement of probable cause, but make it clear that the requirement 2(b) applies to the existence of the emergency. By basically quoting Stacey v. Emery, Brigham City sets up the court to do just that. I was not saying that this has already happened. I was saying that maybe it ought to happen. (I also suggested, in the alternative, that community caretaker might better address situations with strong evidence of exigency, but weak evidence of any crime).

Okay, I stand slightly corrected. If that patdown (and you really should watch it) happened before 9/11/01, then it would have been considered as an abuse. Unlike now.

Is that why it is a news story gathering hundreds of comments and a police investigation — because it is not now considered an abuse? I see.

As for Brigham, when you say your theory that the law is that “the exigent circumstances must be evident to the police by a standard equivalent in probabilistic rigorousness to the probable cause standard,” can you point to authority that requires that? To be candid, I don’t think I know what that means, other than the general reasonableness balancing you see in the cases (both pre 9/11 and post 9/11).

Orin Kerr. . . I can’t understand how you can argue that a particular patdown by a particular officer NEVER would have happened before 9/11.Terry abuses happened all too often before 9/11 and they happen all too often now. . . .

Okay, I stand slightly corrected. If that patdown (and you really should watch it) happened before 9/11/01, then it would have been considered as an abuse. Unlike now.

We both know that the Chief Justice wants to get rid of the probable cause requirement, but he can’t do that in a case where probable cause is manifest. He must wait await a case where there was no probable cause.

That said:

1. The cases which clearly say that there is both an exigent circumstances requirement and a probable cause requirement should probably have instead said that the exigent circumstances must be evident to the police by a standard equivalent in probabilistic rigorousness to the probable cause standard, instead of setting forth probable cause as a separate, freestanding requirement. I can imagine plausible situations where a sufficiently serious emergency is apparent and probable, but where there is no reason to believe that a crime has been committed.* Probable cause is better used as a framework for evaluating the likelihood that the emergency is real, rather than as a separate, conjunctive, freestanding requirement.

2. What is described in the previous paragraph (1) is pretty much what Brigham City did anyway. Brigham City’s evidentiary test for exigency is a “reasonable basis for BELIEVING.” (emphasis added). If you perceive that there is a 49% chance that a thing has happened, then it is NOT reasonable for you to “believe” that the thing has happened. In effect, Brigham City’s reasonable-basis-for-believing standard for the probability of the actual existence of the exigency: (i) strongly echoes the classic Stacey v. Emery restatement of the standard for . . . wait for it . . . probable cause; and (ii) is actually probably higher than a probability in fact standard because it is arguably not reasonable to form a “belief” on 51% or 52% evidence.

FOOTNOTE

* On the other hand, other exceptions, like community caretaker, might (or might not) be a more appropriate framework for these situations.

Actually an exigent circumstances warrantless entry requires both exigent circumstances and probable cause, not either exigent circumstances or probable cause.

No, exigent circumstances requires sufficient emergency or pressing need to make the entry reasonable: There is no general requirement of probable cause, see, e.g., Brigham City v. Stuart. Some state courts have said that there is such a requirement in some specific settings, see, e.g., the Utah Supreme Court opinion reversed in Brigham City, but that is not a generally recognized requirement, see the Supreme Court’s opinion.

To take an example, I can’t understand how you can argue that a particular patdown by a particular officer NEVER would have happened before 9/11. Terry abuses happened all too often before 9/11 and they happen all too often now. It’s much better today than before Terry — in the bad old days, cops just did whatever they wanted — but whatever you think the state of practice, it’s hard if not bizarre to say 9/11 is to blame.

http://www.ky3.com/home/video/64314967.html

This patdown (performed 9/11/09) NEVER would have happened in a similar situation before 9/11/01. Just one teeny, tiny, exemplary manifestation of the large & obvious change that has happened.

Really?

........ Actually an exigent circumstances warrantless entry requires both exigent circumstances and probable cause, not either exigent circumstances or probable cause.

–» You are right, of course.

In my case, if there had been allegations of significant fire danger or some other dangerous condition on my property, then there would certainly have been less for me to argue about, even if said allegations were plainly untrue. Particularly if said allegations were made by an identified person. But these non-specific, annonymous allegations did not justify the proposed intrusion. I also found it astonishing that the City Inspector would claim she would seek a warrant to determine whether my grass was more or less than 4 inches tall. Most people would not be aware that they could decline to permit this intrusion, and the notices threatened that over $600 penalty fines would be levied in short order for non-correction of alleged “violations”. Even a request for a 2 week extension of time triggered a $100 “penalty”, although it remains to be seen if they will push that.

CarLitGuy . . . While the municipality may have some dubious claim to an obligation to suppress rats, such a remote premise does not, in my mind, overcome my explicit rights to be free of unreasonable search or seizure.Should my neighbors believe I am the source of their rat concern, and that said rats are causing damage to their property, they are more than welcome to bring a civil case against me for their claimed damages.“Excessive” grass height, likewise.The government’s connection to my claimed wrong, and their damages that flow from same, seems far to remote to justify any other result.To argue otherwise seems a tacit acceptance that anything I do which might have some affect on property values (and government revenue that stems from such values)grants government control over my actions.I don’t accept that premise as compatible with liberty.

The rat thing wasn’t about property damage. It was about the spread of fatal diseases. One can argue that rats had stopped carrying fatal diseases by 1959, but not like Justice Frankfurter was trying to justify an investigation (which may or may not be properly considered a “search”) for tent caterpillars or termites or tall grass. To the extent it is a credible threat, stemming Bubonic plague is an appropriate governmental function.

While the municipality may have some dubious claim to an obligation to suppress rats, such a remote premise does not, in my mind, overcome my explicit rights to be free of unreasonable search or seizure. Should my neighbors believe I am the source of their rat concern, and that said rats are causing damage to their property, they are more than welcome to bring a civil case against me for their claimed damages. “Excessive” grass height, likewise. The government’s connection to my claimed wrong, and their damages that flow from same, seems far to remote to justify any other result. To argue otherwise seems a tacit acceptance that anything I do which might have some affect on property values (and government revenue that stems from such values)grants government control over my actions. I don’t accept that premise as compatible with liberty.

Val F.. . . either a clear demonstration of an acute and undisputed emergency — true exigent circumstances, not pretextual — or a demonstration of sufficient probable cause to justify issuance of a warrant for such entry.
Period.

Actually an exigent circumstances warrantless entry requires both exigent circumstances and probable cause, not either exigent circumstances or probable cause.

Long ago and far away I dealt with 4th Amendment issues in my criminal defense practice on a regular basis. Not so much these last few years but, as a US Citizen, I am always interested in the ever changing boundaries between my privacy and government intrusions. It has always amazed me to hear folks opine that such intrusions really don’t matter as long as you are innocent.

Recently, an annonymous call was apparently made to my local municipality’s Community Preservation office, complaining that my front and rear yards had long grass and weeds, that a tree in the back yard is dead, and that my car was inoperable. I have been traveling a lot lately for business and my car was, admittedly, unwashed for a long period. I wrangled with the city over their demands that I must submit to their inspection, must demonstrate that my car is operable, and also cut down the 30 foot cedar tree in my back yard — all within a week. The Inspector conceded that my front yard is not weedy and does not have grass exceeding the “legal height”, but she could not see the enclosed rear yard to inspect it. I ultimately demonstrated to her that my car is operable and that my cedar tree is clearly not dead, which she was able to determine for herself by more carefully viewing said tree while standing on the public sidewalk. When I voiced my objection to her demand to enter and inspect my residence’s back yard, the inspector actually stated that she would seek a warrant to permit her entry therein for the purpose of verifying that my grass is under a height of 4 inches. A warrant. From a superior court judge, one of the judges I have appeared in front of for over 25 years. I was amazed but not, alas, agreeable.

Her supervisor later conceded that said warrant would not be likely to be granted, that no such application would be made, and that no attempt would be made to force entry into my back yard to inspect the height of grass therein.

In my book, technical or historical debates aside, any non-consensual government intrusion into the privacy of my home (as well as into related private spaces: garage, sheds, yards) requires either a clear demonstration of an acute and undisputed emergency — true exigent circumstances, not pretextual — or a demonstration of sufficient probable cause to justify issuance of a warrant for such entry.
Period.

Also, in that case the issue has little practical significance, since it’s not hard to obtain warrants to search for the source of a rat infestation when there is evidence of the infestation. (How precisely do you have to describe the rats?) It would just add a little more to the inefficiency of government, which makes it an odd libertarian priority.

I don’t see how government could possibly lack the authority to investigate the possibility that rats are living on one person’s property, leaving that property to invade the property of others, and harming those others — whether it’s with the first property owner’s knowledge or consent or not. A government that can’t prevent A (through his property) from harming B or his property is no government at all.

Frank is an interesting example of how perceptions of government priorities can be used to justify broader government power

Is the libertarian objection to Frank based primarily on the fact that the Court authorized warrantless health and safety inspections of homes, or does the objection reach further to reject the idea that the government has the authority to inspect private residences for health and safety issues? If it’s the former, the issue seems to be whether a rat infestation constitutes an exigency sufficient to overcome the warrant requirement (or whether the community caretaker exception applies). I.e., a rat infestation just isn’t pressing enough to justify immediate entry. If it’s the latter, the issue seems to be outside the scope of the Fourth Amendment and instead touches on the scope of government generally.

I didn’t say “Supreme Court precedent” ... I said “the 4A” ... as in “the 14A protects blacks in such and such a way” even if the SC once said no it didn’t. So, this is sort of wordplay, isn’t it?

But, okay, original intent ...

Douglas in Frank argued that the original intent was not only applicable to criminal conduct but also civil conduct. He opposed the “fallacy in maintaining that the Fourth Amendment was designed to protect criminals only.” The text also does not reference “crimes” as such; he references history that does not so limit things as well.

And, he did not mean “criminals” only as in those things that shouldn’t have been criminalized in the first place. That is, he supported the search here, but only with a warrant. I’m not sure how his dissent in Terry changes this any.

Redman: Does it make a difference if the government is not conducting the search to look for evidence that could lead to prosecution?

I think the Framers were also concerned with the situations where the searches and seizures were meant to be punitive in and of themselves.

But a public health search for disease vectors does not fall into this category either.

It didn’t actually happen, as far as I can tell: the post-9/11 Fourth Amendment is pretty much the same as the pre-9/11 Fourth Amendment.

“Pretty much” is an interesting qualifier.

For instance, I think it depends in large part on whether you believe that a roving wiretap satisfies the particularity requirement.

Joe: Cleanville Tziabatz appears to suggest the 4A is only concerned with criminal conduct.

No, Cleanville Tziabatz is suggesting that the original intent of 4A was only concerned with “criminal” conduct. “Criminal” being in tone quotes here because the crimes were often things that shouldn’t have been crimes. The original intent of 4A had to do with the things James Otis inveighed aginst. Read the Douglas dissent in Terry and you will see.

Now, more recent decisions have decided that 4A should be concerned about things that are not crime-related searches. I have asserted that the Court when down this path bcs of the difficulty of separating out the crime-related searches. I have also suggested how the Court might have handled this problem in a different way, and thereby stayed more true to the original intent of 4A.

Cleanville Tziabatz (me) isn’t saying that 4a IS limited to criminal searches, but rather that 4A OUGHT to be so limited. Justice Frankfurter tried to so limit it, but his efort failed because his plan for separating criminal and non-criminal investigations was a weak one. If he had had me as a clerk, thing might have gone his way in the end. O well.

Dave N: Do you have a source for this assertion?

Sure. Henry v. United States, 361 U.S. 98, 100–102.

The whole point of the Frank dissenters (who joined its reversal) is that this isn’t the case — it is concerned with invasions of privacy that are both civil and criminal in nature.

So, finding a kidnapped child etc. isn’t necessary. As to how the 4A has survived post-9/11 ... time will tell. For instance, the national security state (see Professor Jack Balkin et. al.) probably threatens it, more so after 9/11.

Anyway, the original opinion is a bit disgusting ... images of rats ...

Of course searches, stops and frisks were regulated before Terry and Mapp. Stops and frisks were considered illegal, and there were various remedies for unConstitutional searches, warranted and otherwise.

Do you have a source for this assertion? I ask because, you know, I am much more willing to accept the word of a law professor posting under his own name and is an expert on criminal procedure than someone who feels compelled to call himself “Cleanville Tziabatz.”

Mapp made the primary remedy more uniform at a national level (and sadly chose a bad remedy to be the main one), but Mapp did not invent the idea of enforcing the Fourth Amendment.

More fundamentally, we are talking apples and oranges here. You are talking about your perception of what the legal standards have been over time, while I am talking about an average American’s (and especially an innocent average American’s) de facto probability of being stopped, frisked, strip searched, vehicle searched, home searched or being subjected to a door-busting, pet-shooting home search. You are looking at the process, in order to avoid looking at the bottom line. 4A was hurting before 9/11, but those hi-jacked planes were the real death blows. The cases can be argued to say whatever, but the numbers aren’t subject to that kind of gamesplaying.

As far as Professor Kerr’s what-me-worry crack about 4A and 9/11: Just look at how many warrantless stops (traffic and non), warrantless pat downs, warrantless searches and warrantless violent searches there have been on a year-by-year, per capita basis going back 20–40 years. You can clearly see the margin moving (esp since 9/11) and that 4a thing being reduced to meaningless words on a “piece of paper.”

I find this comment odd, as these things were not regulated *at all* by the Fourth Amendment at the time of Frank v. Maryland. It took Mapp in 1961 and Terry in 1968 for the Warren Court to regulate these things for the first time, and the law that the Warren Court announced in those cases is basically the same today as it was then. Now, maybe you might want the Warren Court to have regulated these things more strictly than they did, but that would be a complaint best directed at the Warren Court, not the courts post 9/11.

and per capita warrant-based home searches, and warrant based violent home searches. Numbers are moving dramatically there, too. Anywhere “probable cause” and/or “reasonable suspicion” are supposedly required.

Of course, the problem with it not being considered as a “search” is that sometimes the inspector will find a kidnapped child or something like that. That is why the Court eventually decided that these inspections are “searches.”

The Court could have gone a different way. The Court could have decided that they can only be considered as not-searches so long as evidence of criminal activity is never reported (except in cases of imminent threat to life or limb or serious sex crimes). Then the health inspectors would have a choice: (i) report crimes, but get warrants before all inspections; or (ii) don’t report crimes and don’t worry about warrants. I am not sure which they would choose, but giving them this choice would be a better system and probably more consistent with the originalist intent on 4A.

As far as Professor Kerr’s what-me-worry crack about 4A and 9/11: Just look at how many warrantless stops (traffic and non), warrantless pat downs, warrantless searches and warrantless violent searches there have been on a year-by-year, per capita basis going back 20–40 years. You can clearly see the margin moving (esp since 9/11) and that 4a thing being reduced to meaningless words on a “piece of paper.”

Matt: Didn’t the KGB/NKVD used to use fire inspections as a pretext for searches and other mischief? Perhaps someone knows a Russian who can comment.

Russian isn’t necessary. American officials are equally adept at using administrative searches for corrupt mischief.

For years Radley Balko covered the ongoing case of a VA club owner, in which police (with involvement of local politicians) used administrative searches as an instrument of harassment.

In that case, the administrative searches were under the guise of “routine” alcoholic beverage control searches. But the principle, using “administrative” searchs to harass, is the same. Balko reported:

The police initially sought a criminal search warrant for the raid. They couldn’t find a judge to grant them one. So instead, they claimed they were conducting a routine alcohol inspection, and raided the place anyway. This “regulatory inspection” was clearly intended to intimidate Ruttenberg and his customers, and to find evidence of criminality—the police brought more than 70 officers from Manassas Park and surrounding jurisdictions, some in uniform, some in plain clothes, and still others in ski-mask hats and camouflage pumping shot guns as the stormed the place (on Ladies’ Night).

If this was a routine alcohol inspection, you have to wonder what an actual drug raid might have looked like.

Mahan Atma: “It’s hard to imagine any of today’s Justices speaking about a government search of a home using such language today.”I can imagine Justice Roberts writing such a passage quite easily.

That says more about you than it does about Justice Roberts.

And he often is overwhelmed by this instinct even when confronted with issues of fundamental enumerated rights — like those in the Fourth Amendment.