TSA Searches and the 4th Amendment

So, then, the answer is the feds are outside their jurisdiction, and while they are free to call local law enforcement, they have no right to detain Joe until local officers get there. The feds just need to make the call and leave.

As you can see, a rule like that would not last very long. And so, if what you suggest is the correct reading, it would be quickly amended. Perhaps amendment in that regard would be best anyway, since it is not written very well to begin with.

But as it is, the 4th is what it is, and if we are going to rely on it for the time being until it is later amended, we have to use some reasonable form of construction.

As it stands, the prevailing line of authority (which I know you could care less about) reasons that if it is reasonable to get a warrant, then, a warrant is required. If exigent circumstances exist, making the warrant requirement not reasonably workable under the circumstances, warrants are not required.

In the case of the TSA searches, you can bet nobody would opine that it is reasonable to have every person boarding a plane wait until warrants can be obtained. And so, that's how the cookie crumbles.

The only alternative is to disallow the search altogether, but we have evolved into a nifty police state supplied by Chertoff and friends who supply the feds with this lot of high-dollar gadgetry so they can make their bundles. It's a "matter of safety," they tell us, and being the rightful, Muslim-fearing Americans we are, we lap it up and ask for more.

How the feds have convinced us to live in fear of terrorism or nuclear war is a real shame. The odds of dying from either are NIL. As far as I am concerned, my life and health are in greater jeopardy walking down the stairs in my home or swallowing a bite of beef jerky.

But oh well, we always need some foreign enemy to fear. It's good for the economy, you know.

citibank? they should call in a local law enforcement emergency - and let them deal with the need for a warrant based on state constitution and state law. (or lack thereof)

that is not a federal issue. this is about jurisdiction.

local laws and state constitutions might determine that such evidence would not require a warrant, and since it's a state issue, the 4th doesn't apply anyway.

... and now, under question by agents who've found the fertilizer, detonator and plans, Joe Blow says, "Get a warrant. Get out of my house. And when you return, I'll be long gone, and I'm taking my stuff with me. Adios!"

What if the plans were not of the Pentagon, but of Citibank's headquarters? No war issue; he just hates Citibank because they charged him one too many $39 NSF fees.

If the original counterfeiting suspicions turn out to be unfounded, must the agents say, "Sorry," and just leave? Or can they detain (seize) Joe and all his stuff until the matter can be turned over to proper authorities?

Remember, they don't have a warrant and there is no counterfeiting. Now, they must get a warrant to bother Joe any further, right?

Must they walk away or allow Joe to pack his belongings in his car and leave? After all, it'll take a few hours, at least, to get a warrant.

sure - stopping crime is a good thing, even though the worst of it comes from government, in general.

As far as the latest scenario - if they see it happening, churning out 20's, then yes, they would not need a warrant.

If they find explosives while going after the 20s, then they would need to figure out if this was an act of war, or a criminal act. most acts of terrorism qualify as the latter - and should be handled by local law enforcement. A simple call would get them there quickly.

The 4th stands whether or not there is reasonable suspicion, in my view.

I know that we (both you and I) know the legal requirements in the examples I gave. Those were to make you think of all the possibilities, not to answer based on those facts and think the solution is easy.

What if counterfeiter forgets to close the drapes as his printer starts churning out $20's? What if the FBI agent is on the sidewalk and happens to see the $20's being ginned out - right there in plain view? What if it turns out, during the warrantless arrest and search, a bong, two hand grenades, 600 pounds of fertilzer, a detonation device and various communications and plans to blow up the Pentagon are found? Then, as to the original crime for which the search was made, it turns out that the things only "looked like $20's," but were not. "Oops!," says the agent, but we uncovered something much more sinister, and the reason for the search was valid.

The possibilities are limitless. Obviously, you cannot presuppose "crime" as a condition to the search. Everyone is innocent until proven guilty. The search obviously occurs well in advance of a trial. So, what you have left as the standard is "reasonable suspicion" of a crime.

If there's anyone who I enjoy discussing these things with, it's you.....I like the challenges you bring to the table!

But, as far as the 4th goes, I can clarify. If a crime is being committed in front of a federal agent's face, then the 4th doesn't apply - the 5th does.

If not - including counterfeiting on a pc at home - then warrants must be issued.

If a person is plotting to blow-up the Pentagon and is in the midst of placing orders for fertilizer, is there a "crime in progress?" Maybe not, and you'd define "in progress" to mean actual fruition of the desired end-result.

So, alright. What about counterfeiting - clearly a federal crime. If a person is ginning out counterfeit $20's on his home computer, this clearly is a crime "in progress." Is no warrant required? Why not?

It's not so easy and cut and dry. A person can spend all his life on the topic of search and seizure, itself.

.... not that either of us will do that. ;-) I just want to point out the the 4th is an extremely convoluted issue. The 5th does not solve the problems with the 4th. The 4th was destined to become controversial and incapable of being followed along any objectively measurable bright-line rule. It is what it is....

Keep in mind that the federal government is also not authorized through the enumerated powers to be involved in local law enforcement. So for most of the situations you have brought up, it is nothing more than a state or local issue, where the 4th does not apply anyway. but, that does not allow the feds to engage in those activities.

the only situation where the federal government is not required to have a warrant before a search or a seizure is when a crime is already in progress. Otherwise they need one. that solves that.

Now if there is a crime in progress - as you were talking about in comments above - then the 5th applies.

I doubt the 5th covers any of this. Also, keep in mind that there is a HUGE, very broad gamut of activity. Arresting a felon in progress. Detaining a guy who fits the description given by an eye-witness just one hour ago, flying over a farm and taking video, the plain-view doctrine, the curtilage doctrine, pulling over a vehicle and "smelling smoke." It just goes on and on..... It is a very ripe ground for debate and dissent.

However, if we are going to refer to the 4th to examine whether it is violated by the TSA activities, then, we have to either (1) recognize the 4th does not apply at all, in which case what TSA does is legal, (2) argue warrants are required under the 4th, when we know of plenty of circumstances where warrants are not required - thus, leading us to conclude we will ultimately have to rely on the "reasonable" standard regarding searches.

Either way, the answer is either not palatable or too capable of owing its discernment to whatever "reasonable" means.... not exactly a precise legal term of art.

If you find anything else of note, please share! I think the key thing here that tends to throw people off if what you brought up - what about a crime in progress? the 4th, from my reading, is not applicable in those situations. That would be more of a 5th amendment issue....

I know it does not apply to states insofar as putting aside the issue of incorporation.

As to the federal government, I have looked around a bit. Unfortunately, there is not much early case law which deals with the issue. Commentators have noted in their articles that the 4th was largely a result out of concern due to prior abuses of general warrants and high profile cases that were thought to involve government abuse, like the Wilkes case.

The articles I have seen tend to indicate that the impetus for the 4th was to curb government's ability to randomly search people's effects without probable cause - that there really was not any impetus based on arresting "criminals." The 4th was written, they say, to protect people who were considered political dissidents.

One article suggests that there were two concepts in force - ordinary warrantless policing activities and investigative activities which required warrants. Thus, the author suggests, warrantless policing was not even a consideration under the 4th at the time it was ratified.
http://www.law.utk.edu/faculty/davies/4thamend.pd...

I did not read all of the article, but it does seem to make some sense, given the obvious issue we have been discussing.

that is actually misunderstanding the amendment and the entire bill of rights. in the preamble, it says that further declaratory and restrictive clauses were added. Some of the 4th is declaratory and some restrictive.

Here is how it breaks down:

The right of the people to be secure in their persons, houses, papers, and effects, (declaratory)
against unreasonable searches and seizures shall not be violated, (restrictive) and
no Warrants shall issue, (declaratory) but
upon probable cause, supported by Oath or affirmation, (restrictive) and
particularly describing the place to be searched, (restrictive) and
particularly describing the persons or things to be seized. (restrictive)

Remember, this view does not apply to states functioning how you describe. But that has to be addressed in each state constitution.

And, just because it appears to be impractical does not make it wrong.

Dealing with crimes in progress is a different issue, of course.

Warrantless arrests have happened continually throughout history and have never been questioned. We did them when as colonies, and we continued the same practice after ratifying the amendments. That practice has always been accepted. Nobody has ever doubted it. You are the first. Maybe you're on to something nobody has realized since the day after the 4th was ratified.

I guess after Hinkley shot Reagan, they were not allowed to arrest him since he did not have a warrant? They should have let him continue shooting, so maybe he could have completed his intended murder?

But I am beating a dead horse. Maybe one of our Constitutional scholars like Natelson or Gutzman can chime in.

I will add that your proposition that warrants should be required does sound more appealing in the context of criticizing the airport searches. But, still, the only way you can realistically make the argument is on the basis of the "reasonable" standard - i.e., any warrantless search of people at random wanting to board a plain is unreasonable. That, you can do, but the standard is "reasonable" and not an inflexible, "every search, no matter what the circumstances, requires a warrant."

and yes, the founders required federal searches and seizures to have a warrant in every situation.

I make no reference to cops, though...

Your comments are too restricted and only pertain to cops searching under your bed for contraband. Now, read the 4th for what it really covers, which is MUCH, MUCH more. It deals with ALL searches and ALL seizures.

You must keep in mind that "seizure" also applies to seizing persons, e.g., arresting them. Is it your reading of the 4th that an officer who witnesses a mugger in action and fleeing from the scene has to let the person get away because he has no authority to arrest him without a warrant? Surely, you can see nobody ever thought warrants were to be required in every case of a search or seizure.

What about once he catches the mugger? Muggers running from cops can be dangerous people. Do you think the cop has no right to make sure the mugger is not carrying a gun or knife in his pocket upon the arrest? Nobody would think, or ever thought, the cop just had to take his chances and hope he was arresting and transporting an unarmed guy.

Once you take this inquiry beyond snooping under your mattress, you can see just how the language works.

English law had required that a law enforcement officer searching property
first had to swear to a magistrate that he had good reason to believe
(“probable cause”) that evidence of crime was on the premises. The
premises had to be named with specificity, and the magistrate had to be
sufficiently convinced to issue a warrant. Similarly, a law enforcement
officer desiring to arrest a person not caught in the act of crime needed
to identify the person to the magistrate under oath and convince the
magistrate to issue a warrant.

During the colonial era, these procedures sometimes were disregarded.
Parliament authorized officers looking for contraband to proceed under
“general warrants”—warrants with descriptions of places and contraband
so general as to authorize trawling operations. The Fourth Amendment
responded to these abuses by requiring that searches and seizures be
“reasonable” in the opinion of the presiding magistrate. The Fourth
Amendment limited warrants to those that were supported by probable
cause and that “particularly describ[ed] the place to be searched, and the
persons or things to be seized.”

not interested in cases....just the meaning of the 4th. While it may be different for local police under modern law, the founders created the 4th to require that all searches require warrants. It really is just old english here. A search, by definition, required a warrant. And, no warrant shall issue...

According to the founders, all reasonable searches by the federal government required a warrant. I will paste Natelson's brief overview on it here in a moment..

Keep in mind that this view would be applicable to the feds only.