Looking for Arguments for Limited-Use Exceptions to Normal Fourth Amendment Rules:

I'm looking for a very specific kind of argument, and I'd love some help. What I want is examples of arguments

  1. made by conservatives (this part is important)

  2. urging allowing government officials to engage in certain kinds of searches that would otherwise be unconstitutional

  3. but only on condition that the results of the searches wouldn't be usable in certain kinds of proceedings (any trials, trials for offenses other than terrorism-related offenses, and the like).

Here's a hypothetical example: A conservative scholar, judge, or commentator suggests, "We ought to allow the police to engage in house-to-house searches, even without a warrant or individualized probable cause, for dirty bomb materials. True, this would normally be unconstitutional, but the courts ought to recognize a new exception from the normal Fourth Amendment probable cause / warrant requirements here. And one thing that makes the exception permissible -- "reasonable" for Fourth Amendment purposes, because it's not an excessive invasion of privacy -- is that anything the searchers find (e.g., drugs, child porn, etc.) would, by the terms of the new exception, inadmissible except in prosecutions for crimes related to the making of dirty bombs."

I'm pretty sure I've seen such examples in the past, but I'm not sure where. If any of you can help, I'd be much obliged. (I don't want to explain my purpose right now because I don't want to affect people's judgment about what to pass along. I'm also not looking for arguments about whether such exceptions would be proper or improper; for my purposes, what's important is that such exceptions had been urged.) Many thanks!

John (mail):
I don't quite understand this. Since the searches are unconstitutional, what is being offered by the "condition" that the results of the search not be used in criminal proceedings? It seems like an argument that is very hollow and thus would be unlikely to be offered by anyone, conservative or otherwise.

Although, I guess I have seen hollow arguments before.

For what it's worth, I'm quite confident that this sort of thing came up in the whole FISA mess.
8.15.2007 1:37pm
When I was in high school, a bomb threat was called in. The whole building was searched, including student lockers. After no bomb was found, the administration announced that no contraband (alcohol, pot, etc.) was confiscated from the student's lockers. It was asked that such items be removed. I thought that was an class act by the school.
8.15.2007 1:41pm
TomH (mail):
The issue seems to be with the application of the statutorily defined remedy for search &seizure violations the exclusionary rule. I key in on the word "usable" in Prof. Volokh's example.

e.g. the exclusionary rule will not be applied to evidence of terrorism, but will be applied to everything else.
8.15.2007 1:42pm
Grumpy (mail):
"only on condition that the results of the searches wouldn't be usable in certain kinds of proceedings"

Would "certain kinds of proceedings" include hearings to obtain a fresh warrant to seize the items which were found earlier?
8.15.2007 1:52pm

The most prominent example is probably Stuntz, Local Policing After the Terror, Yale LJ.

I believe John Yoo has also suggested that the TSP was okay in part because in his view the evidence should/could never be used on the criminal side.

I vaguely recall that Dick Posner also has some discussion along these lines in "Not a Suicide Pact: The Constitution in a Time of National Emergency"
8.15.2007 1:56pm
Rich B. (mail) (www):
My first thought was also Richard Posner, who discusses the issue on his blog a little, such as here .

He argues for the creation of a "domestic intelligence agency," which apparently could perform unlawful searches to root out terrorists, but would have no arrest authority. It is not clear, however, what the DIA would do once it had found the terrorists, so it doesn't get you all the way to your #3. The implications, however, are there.
8.15.2007 2:01pm
Kelvin McCabe:
Okay - here's an obvious choice: Esteemed Judge Richard Posner, 7th Cir. Ct of Appeals.

In his famous pro national security surviellance-state book, "Not a Suicide Pact: The Constitution in a Time of National Emergency" where he defends almost all types of intrusive snooping by the government to fend off the threat of terrorism. For example, Posner writes: "I believe that the government could, in the present emergency, intercept all electronic communications inside or outside the United States, of citizens as well as of foreigners, without being deemed to violate the Fourth Amendment, provided that computers were used to winnow the gathered data, blocking human inspection of intercepted communications that contained no clues to terrorist activity." (p. 99-100).

I guess one could quibble with whether he is proposing violations of the 4th amendment, since he thinks such interceptions of purely domestic communications (all of them mind you) would somehow be reasonable under the 4th amendment because of the grave terrorist threat. I think he would run into a slew of domestic wiretapping/interception statutory violations, likely FISA violations (at least the old FISA law as it concerned foreigners in the u.s.), and of course, the whole problem of casting a net so wide as to ecompass every single electronic communication ever made in America!!

But, his drift net would necessarily exclude use of evidence of child porn, drug trafficking, etc...with his proposed caveat that humans would only view communications determined by the "computer" to deal with the subject of terrorism.

Personally, I think he is full of **** on whether wholesale interception of every single u.s.citizen's electronic communication would not violate the 4th amendment or could ever be reasonable, regardless of the terrorist threat. And i seriously doubt such a program, if ever put in place, would ever be so limited to just "terrorism."
8.15.2007 2:15pm
How about President Madison authorizing the army to spy on the British invaders as they burned Washington, bombarded Ft. McHenry, etc.?

Or Lincoln spying on communications between the Confederacy and citizens in the Border States? Between the Confederacy and the Confederate Army troops in Gettysburg? Or Lincoln spying on the communications within the Confederacy? (After all, the whole point of dispute in that war was that the territory, citizenry and soldiers of the Confederacy were US territory and US persons.)
8.15.2007 2:43pm
While we're at it, does Sherman's March to the Sea count? There was a whole lot of not just searching, but also seizing and burning along the way. Not to mention "quartering of troops in private homes..."
8.15.2007 2:45pm
I believe Giuliani (questionable whether he counts as a conservative) instituted a program of random searches without probable cause. When guns or drugs were discovered, they were seized but the individuals were let go.
8.15.2007 2:55pm
Just an Observer:
You probably don't want to score Lewis Powell as a "conservative," but his opinion for the court in United States v. United States District Court included the broad suggestion that surveillance for preventive purposes in domestic security matters could follow a relaxed regime:

We recognize that domestic security surveillance may involve different policy and practical considerations from the surveillance of "ordinary crime." ... Often, too, the emphasis of domestic intelligence gathering is on the prevention of unlawful activity or the enhancement of the Government's preparedness for some possible future crisis or emergency. Thus, the focus of domestic surveillance may be less precise than that directed against more conventional types of crime.

Congress sort of followed that advice when it enacted FISA, except that it adopted a novel standard for foreign-intelligence surveillance, not domestic security cases. So a search targeting a Timothy McVeigh still must clear a higher bar than a search targeting a Mohammed Atta.
8.15.2007 3:24pm
Don Miller (mail) (www):

While we're at it, does Sherman's March to the Sea count? There was a whole lot of not just searching, but also seizing and burning along the way. Not to mention "quartering of troops in private homes..."

I believe this is the type of realm that gets into the whole "Constitution is not a suicide pact" thing.

Despite the US's view of that the Confederacy was in rebellion, they (the Conderacy) believed they were a seperate country, with it's own court system, that was being invaded. The residents of the South would never have considered the possibility that they sue in US courts for Constitutional Protection since they believed the US Constitution no longer applied to them.

I doubt there were very many Northern Lawyers that were willing to go to bat to protect the Constitutional rights of people in rebellion either.

Remember Lincoln suspended Habeus Corpus. I can't imagine he would have been sympathetic to these kinds of constitutional claims either.
8.15.2007 4:21pm
Howard Gilbert (mail):
A dangerous criminal escapes from jail and disappears into a subdivision with between 2 and 100 houses. He must have entered one of the houses. The police go to one house and ask the homeowner for permission to search for the fugitive. Depending on the size of the subdivision they have between 50% and 1% probability that he is in that house (that is, variable "probable" in the probable cause). If the homeowner refuses permission, they would have to go to a judge to see if the cause is probable enough to get a warrant.

The homeowner may be growing something in the basement he does not want the police to find. However, he probably doesn't want a dangerous escaped fugitive in his house. If he is smart, he might say something like, "I will not give you permission to search my house, but if you search my house without my permission I won't complain or sue you or anything." If the police accept this arrangement, they capture the fugitive but anything else they find in the basement would be excluded as an illegal search. The fugitive has no expectation of privacy in a home he broke into.

Now an al Qaeda commando unit comes ashore in a rubber raft, are detected, and one member escapes into the same subdivision persued now not by police but by a unit of soldiers. They need neither permission nor a warrant to search any house because the Fourth Amendment doesn't apply to military action in contact with the enemy. [In the entire Civil War, no army or general got a warrant to march through any property, position troops on Little Round Top, or use Farmer Brown's cornfield to fight the bloodiest battle in US history. Search and seizure in military deployment is inherently "reasonable" and cause is strategy and tactics better measured by generals than judges.] Again, if they break into a house and find plants growing in the basement, that could not be used against the owner in a court of law.
8.15.2007 4:57pm
TruePath (mail) (www):
Don Miller:

I agree with your conclusion but I'm not so sure about the reasoning. The southerners may not have thought of suing to protect their rights but that doesn't mean they didn't exist. Moreover, the claim that they were not citizens of the United States was precisely what was in question. The fact that they probably could have been tried on treason after the war seems to suggest that the southerners were still US citizens.

I'm leaning towards saying that almost any search is reasonable in an active war zone but maybe there is a more interesting argument.
8.15.2007 5:03pm
Duncan Frissell (mail):
Google Chemical Warfare Convention and 4th Amendment.

Apparently Yoo has a paper with an example you want.
8.15.2007 5:26pm
Howard Gilbert (mail):
[Continuing previous point] If anyone doubts that military search is outside the normal Fourth Amendment rules, remember that a privileged enemy combatant is not a criminal even if, as part of combat, he does things that would be criminal to a civilian like killing people, blowing things up, and simple breaking and entering. Thus if you decide the soldiers need a warrant, you are at a deadlock. No crime has been committed or is even alleged, so there is no basis for the civilian courts to issue a warrant permitting the search no matter how much evidence exists to prove that the enemy soldier in in a particular house. Since this result is obviously absurd, "reasonableness" as defined in a criminal case must be different from military necessity.

Now you move from both extremes toward the center. How do things change as you across the spectrum from ordinary criminal to terrorist to enemy saboteur to uniformed enemy soldier? A lot seems to depend on whether when you are done, the captured person ends up in civilian court or in military detention.

Remember that, except for the recently overturned Detroit NSA case, the courts have consistently ruled that a warrantless search for the purpose of national security is inherently reasonable, while a warrantless search for criminal prosecution is presumtively unreasonable.
8.15.2007 5:36pm
Robert Weiss (mail):
I realize I'm off by one amendment, but transactional immunity seems like a pretty close match.
8.15.2007 7:31pm
Cal Adler (mail):
I may be way off base (I'm not a lawyer), but would "special needs" searches such as airport screenings qualify?
8.15.2007 7:48pm
It isn't uncommon, I think, for evidence obtained via a warrentless search made without probable cause, e.g. seized drugs or a firearm, to be admissible vis-a-vis a parolee, who have forfeited his 4th Amendment rights as a condition of parole, but not against his companions. This is, I think, beyond the "plain sight" rule, particularly if the companion is not aware of the parolees status. Thus, the evidence would be admissible at the parole revocation hearing, but not at a criminal trial of any other person.

While not strictly a matter of the 4th Amendment, I seem to recall that SCOTUS recently ruled in a similar situation that a confession obtained in arguably coersive conditions (at a hospital bedside of a traumatically injured declarant) in the absence of Miranda warnings, and hence clearly not admissible against the declarant in a criminal prosecution, is never the less admissible against a co-conspirator of the declarant (it may have been a certiorari petition that was denied).

A similar more logical argument for such a result would go something like this: A search made in violation of the 4th Amendment is subject to the exclusionary rule, period. But, under a variety of circumstances, the victim of the 4th Amendment breach may, never the less, be without a remedy for the constitutional violation by way of a civil action because the unconstitutional search was contrary to a stated policy of the employer of the person conducting the search, and the searcher was not personally liable.

The searcher might be protected by the doctrine of qualified immunity, because the constitutional right under the 4th Amendment, while it existed, was not well established, or might be protected because the unconstitutional search was unintentional and instead merely negligent, or might be protected by some equitable or procedural consideration barred a remedy (e.g. maybe a dirty bomber is barred by the doctrine of unclean hands from bringing a civil rights claim when an unconstitutional search discovers his dirty bomb).

Another analogous situation involves different statutory standards that apply at driver's revocation v. criminal DUI proceedings. Often DUI statutes place elaborate requirements on what kind of evidence can be admitted in a criminal DUI hearing if a breath test is refused in favor of a blood test, but the same requirements don't always apply at revocation hearings. To the extent that a statutory requirement is incorporated in determining what is reasonable under the totality of the circumstances analysis under the 4th Amendment reasonableness analysis (much like private property rules of state law are).
8.15.2007 8:23pm
JohnThompson (mail):
I don't recall the party about the right of the people to be free from unreasonable searches or seizures being tied to any threat of future court action. You have the right not to be subjected to such searches without regard to what the government's rationale or future plans re litigation may be.
8.15.2007 8:43pm
cboldt (mail):
Can't help you with example, but I see ways that a bad guy might try to game that sort of system.
Depending on what the "can't use the evidence for" exceptions are, a clever criminal might attempt to get something resembling immunity, by fooling the authorities into a warrantless review because they think he's a terrorist (or whatever class is carved out as worth targeting without a warrant).
If the warrantless target is drug dealers, but you're an arms dealer, fake like being a drug dealer, but BE an arms dealer (or vice versa). Once the investigators check you out for drugs -- whammo, immunity!
The bad guy might not game the system on purpose, if the trade off is relatively worthless. But if the trade-off is worthless, then there's no incentive to avoid the warrantless search in the first place -- and incentive to use it if for nothing else than it's less work.
8.15.2007 8:51pm
Oren (mail):

e.g. maybe a dirty bomber is barred by the doctrine of unclean hands

Always with the hyper-literalism eh?

PS. Having worked at a nuclear reactor, I can assure you that handling radioactive material inevitably leads to cleaner hands than when you started, owing to the fact that the vast majority of bacteria on your hand have perished.
8.15.2007 11:18pm
Howard Gilbert (mail):
A search cannot be challenged if during the search the police find and free someone who has been kidnapped, or even evidence leading to the location and freeing of a kidnap victim. Similarly, someone who is assembling a bomb large enough to pose an immediate threat to his neighbors should not be able to challenge a search that prevents the bomb from being assembled. Here the key principle should be that the purpose of the search was to prevent or disable an immediate threat of physical harm, and gathering criminal evidence was only an incidental result.

Of course, if you do not actually acquire a physical component that interferes with the construction of the bomb but only end up with evidence, then the evidence cannot be admitted in court, just as if you don't free a hostage then nothing from the other search is usable.

Can this exception be institutionalized?
8.16.2007 12:05am
fishbane (mail):
Of course, if you do not actually acquire a physical component that interferes with the construction of the bomb but only end up with evidence, then the evidence cannot be admitted in court, just as if you don't free a hostage then nothing from the other search is usable.

Just to push the edges a bit (and I apologize for going off-topic)...

- People and (more importantly) nation states are getting more and more interested in 'infowar'.
- National security could, theoretically, be impacted by a sufficiently well timed successful attack in IT infrastructure.

Given that until there is an attack, there is no evidence, what is one to do? Just as a real example, I used to do security, and set up a sandbox to test against. I wrote code that successfully attacked the network. I don't do security anymore, so I'm out of date, but having the ability to potentially do so seem different than, say having the ability to kidnap someone (something I think nearly anyone could do, if they thought about it). So it falls back to proving intent and/or conspiracy. But if the analogue to the bomb making materials is brain + laptop + time, I see interesting times ahead for Orin's favorite branch of crimlaw...
8.16.2007 8:25pm
fishbane (mail):
Oh, I should have mentioned in my self-example: I still have that old code, dozens of other attack scripts I've written, and a library of thousands of various forms of malicious code. That's all several years old and so worthless for attacking any modern system, and I wouldn't attempt to do so anyway. Hundreds or thousands of other security researchers can say the same. Do they look like 'bomb making material' analogues?
8.16.2007 8:28pm