EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, June 9, 2011

Article Of Interest: Thomas Crocker's The Political Fourth Amendment

I have written five previous posts (herehereherehere, and here) about court opinions and articles addressing the issue of whether police should be required to obtain a search warrant before attaching a GPS device to a suspect's vehicle. Invariably, federal courts find that there is no warrant requirement under the Fourth Amendment pursuant to United States v. Knotts, 460 U.S. 276 (1983), and United States v. Karo, 468 U.S. 705 (1984), because a person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. See, e.g., United States v. Cuevas-Perez, 2011 WL 1585072 (7th Cir. 2011). State courts are divided on the issue, but not based upon differing interpretations of the Fourth Amendment. Instead, while some courts adhere to federal precedent, other courts find that attaching a GPS device to a suspect's vehicle without a warrant violates state constitutional law provisions (for instance, Massachusetts found such an attachment to be a seizure under its state constitution).

Neither the majority nor the concurring opinion in Foltz v. Commonwealth, 706 S.E.2d 914 (Va.App. 2011), deviated from standard operating procedure, but the concurring opinion suggested a fundamental recalibration of how we think of the Fourth Amendment. The same goes for a terrific recent article, The Political Fourth Amendment, 88 Wash. U. L. Rev. 303 (2010), by Thomas Crocker, a professor at the University of South Carolina School of Law. This post will consider the trenchant arguments made by both the opinion and the article.

At first glance, Foltz looks like a run of the mill modern GPS tracking case. Police suspected that David Foltz was committing sexual assaults, they affixed a GPS device to his work van (without a warrant), they tracked his van, and they caught him in the act. The trial court denied Foltz's motion to suppress, he was convicted of abduction with intent to defile, he appealed, and a panel on the Court of Appeals of Virginia affirmed. Foltz then asked for and received en banc review on the issue of whether the warrantless attachment of the GPS device violated the Fourth Amendment, which provides that 

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.

Ultimately, the court quickly affirmed, concluding that the Fourth Amendment only applies when an individual has a reasonable expectation of privacy and that Foltz lacked such expectation by driving his van on public thoroughfares. 

It was not until Judge Humphreys' concurring opinion that things got interesting. Really interesting. Judge Humphreys of course acknowledged the existing "reasonable expectation of privacy" framework that the Supreme Court has developed, which is why he merely concurred (rather than dissented), but then he started to dismantle it. He began by noting that

although "privacy" is the centerpiece of current Fourth Amendment jurisprudence, the word "privacy" does not actually appear in the text of the Fourth Amendment. The constitutional protection actually promised is "security," and the time may be ripe for the courts to reconsider that term as it was used and understood by the framers of the amendment in the context of our current "Information Age" where privacy is becoming an increasingly scarce commodity. While "privacy" and "security" are overlapping concepts, they are not congruent. Granting that we as a people feel freer and more secure when our government and its agents respect our privacy, the limits of government intrusion that reasonable citizens find unacceptable are not necessarily circumscribed only by what they choose to keep private.

What this meant for Judge Humphreys was that

Perhaps the time has come that courts recognize that by its own terms, the Fourth Amendment actually stipulates that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...." U.S. Const. amend. IV (emphasis added). Courts tend to abridge this phrase essentially to "the right against unreasonable searches and seizures shall not be violated." Thus, the words "people" and "secure" get lost in the editing. Nevertheless, the framers presumably chose those words with some care and deliberation. With regard to their use of the word "people," they were certainly capable of speaking in the singular. For example, in the Fifth Amendment they provide, "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury,...nor shall any person be subject for the same offense to be twice put in jeopardy...." U.S. Const. amend. V (emphasis added). This indicates to me that their choice of the plural in the Fourth Amendment was deliberate. In other words, the protection afforded by the Fourth Amendment is not just concerned with how government searches and seizures affect the interests of particular individuals, but it is also concerned with those that affect the public generally. Moreover, the overall purpose of the Bill of Rights was to restrain the arbitrary and capricious use of government power. Thus, given the Fourth Amendment's ratification in the aftermath of a revolution largely precipitated by such abuse of governmental power, it seems obvious to me that "security" was actually a significant legal concept in the minds of the framers—something free people enjoyed in contrast to the insecurity generated by the arbitrary exercise of government authority as experienced by the framers and their fellow colonists prior to our independence as a nation.

If we consider the increasingly ubiquitous presence of public video surveillance camera networks, the use of electronic scanners that perform a virtual "strip search" of those who make use of some forms of public transportation along with the increasing use of GPS tracking devices, whatever intuitive unease we feel about the methods employed by agents of the government has less to do with a sense that the individual "right to privacy" of any particular person has been violated than with concerns about our sense of security from governmental monitoring of the citizenry as a whole.

That said, Judge Humphreys wasn't quite willing to flip the switch from concurring to dissenting opinion, but he did issue a missive that read like an amicus brief to the Supreme Court should it take a GPS tracking case:

Although the Supreme Court of the United States will ultimately have the last word, "the Fourth Amendment must keep pace with the inexorable march of technological progress, or its guarantees will wither and perish."...Therefore, as the courts consider how to construe the confluence of revolutionary advances in technology with the fundamental principles embodied in the Fourth Amendment, it may be time, in cases where these issues may be more appropriately addressed than this one, for the courts to do so with the express language and the original purpose of the Fourth Amendment in mind. Perhaps in addition to determining whether an individual's reasonable expectation of privacy has been violated, we might also consider whether reasonable people would remain secure in their liberties if a particular investigative or surveillance method were pervasive. If they would not, the courts should determine what restrictions—such as requiring reasonable articulable suspicion of criminal activity or a judicially authorized warrant based upon probable cause—would sufficiently narrow the method's application in a way that leaves all reasonable citizens with a realistic sense of security from arbitrary and invasive governmental monitoring of their daily activities.

Judge Humphreys' discussion dovetails nicely with Professor Crocker's aforementioned article, The Political Fourth Amendment.

Twin Falls: The Fourth Amendment, Protecting Privacy, and Regulating Police

When I was a junior tennis player, my only training consisted of daily matches against the garage door followed by matches against other neophytes. I adopted a two-handed backhand that was roughly taken from how I held a baseball bat. After several years of playing, I finally went to a tennis camp, where the coach diagnosed my backhand as a case of "fighting hands." My left hand was pulling the racquet up and my right hand was pulling the racquet down. Sometimes, my hands worked in harmony, and I would hit a great shot. Other times, I would hit the ball into the bottom of the net or over the fence. According to Professor Crocker, the Supreme Court's current Fourth Amendment jurisprudence is kind of a case of fighting hands.

He notes that the Court has interpreted the Amendment as serving two masters: protecting privacy and regulating the police. And, according to Professor Crocker, "[t]he twin goals of protecting privacy and regulating police sometimes complement each other, but at other times operate in significant tension." Indeed, this tension often exists within a single case.

As Professor Crocker notes, in Belton v. New York, 453 U.S. 454 (1981), the majority focused almost exclusively on providing a bright line rule to law enforcement in finding that police can automatically search the passenger compartment of a vehicle after arresting its recent occupant. In his dissent, Justice Brennan mocked the majority's devotion to creating a bright line rule, concluding that it would justify the search of passenger compartments even if suspects were handcuffed and placed in the back seats of police cruisers. And indeed, Justice Brennan's forecasting proved prescient as this "Belton fiction" persisted for decades before the Court recently decided that the scales had been tipped too far against privacy in Arizona v. Gant, 129 S.Ct. 1710 (2009).

In Gant, the tables were turned, with the majority dismantling the Belton fiction and holding that an automobile search incident to a lawful automobile arrest is only justified when the arrestee in unsecured and within reaching distance of the passenger compartment at the time of the search. Meanwhile, Justice Alito's dissenting opinion, unlike the majority opinion, ignored privacy concerns and focused singularly on regulating and protecting the police.

Professor Crocker then points out that in certain cases, such as Wyoming v. Houghton, 526 U.S. 295 (1999), "[t]hese twin purposes are sometimes mediated by the textually determined standard of reasonableness, adding further occasions to consider regulatory interests." But as he notes

Under such a balancing approach, what is reasonable will depend, however, on how a court characterizes the interaction between the citizen and police. “Reasonableness” is not an independent inquiry. To conclude that a search is “reasonable,” courts must make prior judgments about the importance of a particular police practice or a particular privacy interest. When conducting a balancing inquiry, if the citizen is construed to have a diminished expectation of privacy, then the needs of effective law enforcement will almost always predominate.

So, is there a way to read the Fourth Amendment so that litigants, citizens, and law enforcement officals do not need to depend on whether the Court decides to prioritize privacy or police on a given day? Professor Crocker contends that the answer can be found in Justice Ginsburg's dissenting opinion in Herring v. United States, 555 U.S. 135 (2009). In Herring, the majority created the good faith exception to the exclusionary rule, finding that because "[t]he exclusionary rule was crafted to curb police" misconduct, only "deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligen[ce]," will justify its application. Under this exception, courts are to determine, on a case-by-case-basis, whether applying the exclusionary rule based upon this officer's (misconduct) in this case would deter future misconduct; "the Court does not consider the social cost of losing trust in government, the social cost to innocent victims, or the social cost of having the judicial system confer its imprimatur on lawless conduct by police." Therefore, the warrantless search conducted in Herring, based upon a compute data base error, did not justify exclusion.

Conversely in her dissent, Justice Ginsburg focused "on future constitutional violations that innocent persons will suffer." She noted that "'[t]he offense to the dignity of the citizen who is arrested, handcuffed, and searched on a public street simply because some bureaucrat has failed to maintain an accurate computer data base' is evocative of the use of general warrants that so outraged the authors of our Bill of Rights." She also recognized that given how much information is increasingly accessible about individuals through national and local databases, the risk of harm from the majority's good faith exception is not insignificant and "raise[s] grave concerns for individual liberty."

Professor Crocker thus points out that

the dissent's conception of the Fourth Amendment is focused on protecting individual liberty and citizen dignity. Dignitary harms result from unjustified physical contact by state agents. They are experienced by particular persons and shape how persons view their own security and how they fulfill their promise of liberty. Extending beyond individual acts of particular police officers, Fourth Amendment violations shape how individual persons experience their everyday relations to the institutions of government. Because individuals may rarely have direct interactions with state officials, they may suffer additional harms when subjected to an illegal search. These interactions can influence how particular individuals view the trustworthiness of state officials and can shape their overall view of governing institutions and authority. Unremedied Fourth Amendment violations can also impact an individual's sense of political belonging within a community. If constitutional protections fail to apply to them, then persons may legitimately question their standing within the political community. The limitation on searches and seizures, as a "right of the people," does more than regulate the conduct of particular officers. It establishes a political relation between "the People" and the institutions that exercise sovereign power in their name. 

In other words, the Herring majority read the Fourth Amendment alongside the criminal procedure provisions of the Fifth and Sixth Amendments as a provision having merely a regulatory purpose. It is this same reading which for decades has supported the "third-party" doctrine, under which a person loses Fourth Amendment protections over anything she knowingly exposes to another person.

Conversely, by using a wider frame, "Justice Ginsburg recognize[d] the liberty and dignity interests of persons made vulnerable when barriers are removed from government use of illegally obtained evidence." And this "wider frame allows us to see the connections between First and Fourth Amendment protections, and thus to see more than a contrast between protecting privacy and regulating police.

According to Professor Crocker, the Herring majority was like a horse with blinders, missing the Constitutional forest for the trees. He compares its conception of the Fourth Amendment to Josef K. in Franz Kafka's The Trial, focusing upon a single guard in a painting, not realizing that the painting is of Christ's entombment. He just as easily could have compared it to Cameron staring at "A Sunday Afternoon on the Island of La Grande Jatte" in Ferris Bueller's Day Off, seeing all the points and thus missing the point of how they fit into the larger mosaic.

Professor Crocker views the Herring majority as making the same mistake and gives three reasons for a judicial vision of the Fourth Amendment focused on liberty and dignity, placing it alongside provisions like the First Amendment that secure "the People's" rights to political liberty:

•First, government officials have at their fingertips ever more powerful sources of information that can be used to intrude into our lives. The anonymity of the public speaker may increasingly be a creature of the past, as recognition and tracking technologies make it easier for government officials to monitor our public movements and activities;

•Second, searches and seizures directly impact personal participation in community and political life. When a person's race, religion, or political preferences contribute to whether she is subject to search, more than her privacy or equal status is implicated. Her full political participation in the polity is at stake; and

•Finally, flourishing political life requires the freedom to think, listen, and speak with others openly in public space, without the fear of repercussions, whether in the form of sanctions or in the form of unwanted government surveillance. Uninhibited and robust political life therefore requires the protections afforded by both the First and Fourth Amendments. If the First Amendment protects no more than the ability to speak in private, then it would protect little that is of political value.

A People's History of the United States

But it is not just these reasons that support Professor Crocker's claim. Instead, he gives both textual and historical arguments. As noted, the concurrence in Foltz assumed that the Fourth Amendment must have been a response to the abuse of governmental power that the framers had just revolted against. Professor Crocker corroborates this claim, pointing out that "[t]he Fourth Amendment is rooted in cases that have as much to do with political speech as they do with searches and seizures." These cases

focused on limiting the political power of government officials to investigate and prosecute political crimes. In relation to seditious libel or the arbitrary power of customs officials, liberty was the central value. 


a value in protecting only what is publicly undisclosed does not fit well with an eighteenth-century conception of ordinary life. Communities and homes were not constructed or occupied in ways that led to expectations of privacy as undisclosed to others. Community life was life lived in public, not private. There was no fully modern equivalent of "private life" lived apart from the community. Modern privacy is a social construct, conceptually cultivated and practically produced in forms of everyday life. 

Therefore, while privacy his become the linchpin of Fourth Amendment jurisprudence, liberty and security can and should remain equally important, "even if they are often latent Fourth Amendment values."

Why? Well, again, recall that the Foltz concurrence assumed that there was something behind the framers casting the Fourth Amendment as "[t]he right of the people...." Professor Crocker engages in a similar analysis. As noted above, the question is whether the Fourth Amendment is merely a criminal procedure provision or something broader.

In addition to the Fourth Amendment's protection of the "right of the people," the First Amendment protects "the right of the people peaceably to assemble, and to petition the Government for a redress of grievances," while the Second Amendment refers to a "right of the people to keep and bear Arms." Indeed, the Ninth Amendment assures against denial or disparagement rights "retained by the people," and the Tenth Amendment confirms powers "reserved...to the people."

Given this fact, it makes sense to see the Fourth Amendment as the Constitutional sibling of these collective rights rather than the atomistic criminal procedure right envisaged by the Court. Indeed, this point is driven home by the fact that

The Fifth Amendment protects persons under due process and other provisions, while the Sixth Amendment guarantees rights to the accused in criminal prosecutions. Both the Sixth and Seventh Amendments protect the role of juries, a political body closely associated with "the People" themselves. "We the People," however, are not synonymous with the individual persons who comprise the sovereign body. 

Thus, the criminal procedure provisions of the Amendments to which the Fourth Amendment have been compared merely protect the rights of "persons" while the Fourth Amendment protects the collective right of "the people." In essence, then, the narrower lens used by the Herring majority is like the pan and scan version of a movie that distorts the original and chops off its sides while the wider lens used the Herring dissent allows us to see the whole as it was originally intended.

The problem with the Herring majority and those who have viewed the Fourth Amendment as focused on individual persons is that

Narrowly focusing on a personal right to privacy ignores the "numeric problem" of "the right of the people," who appear in different guises as individual persons and as a collective people. Persons can be viewed as individual persons who enjoy the particular "Blessings of Liberty" in their private lives and homes, and simultaneously they can be viewed as part of a collective political body that has a popular sovereign right to the "Blessings of Liberty" in their public and political lives. To appreciate this dual aspect, we must recognize that, at times, something more than an individual right is at stake. For example, a First Amendment "right of the people to peaceably assemble" is one that can be invoked by individual persons while simultaneously protecting collective interests. Privacy protections are only particular manifestations of political liberties. More than self-expression, the First Amendment protects a value that is collective and public. "At the heart of our jurisprudence lies the principle that in a free nation citizens must have the right to gather and speak with other persons in public places." They do so in order to make possible the political realization of popular sovereignty, the very people the Fourth Amendment seeks to protect. More than personal privacy, the Fourth Amendment protects a value of noninterference in our everyday lives that makes possible the political appearance of popular sovereignty, "the [very] People" on whom the First Amendment depends. Recognizing the textual significance of protecting a "right of the people" allows the Court to see the individual case as part of a collective interest.


In order to see the Fourth Amendment's broader role within the Constitution that does more than regulate police practice, we must take seriously the fact that the Fourth Amendment's textual purpose is to secure a "right of the people," which places it textually alongside the First, Second, and Ninth Amendments that similarly seek to protect "rights of the people." "[T]he People" who assemble in the First Amendment and "the People" who have a right "to keep and bear arms" in the Second are "the [same] People" who have a right "to be secure in their persons, houses, papers, and effects." This same political body created a new polity out of a commitment to words ordained in the voice of “We the People." To ignore the political importance of the Fourth Amendment's protections, and to remain anachronistically focused on the practices of an institution whose existence was not yet imagined, is to miss entirely an available guiding feature of constitutional text and design. It also misses important conceptual connections among the various constitutional values that form the system of liberties whose blessings the Constitution seeks to secure.

Chasing Liberty

So, if the Fourth Amendment does not encompass merely an individual right to privacy but also a collective, political right to liberty and security, how might that right look? According to Professor CrockerLawrence v. Texas, 539 U.S. 558 (2003), in which the Supreme Court struck down a ban on sodomy, provides a partial blueprint, "a basis for reading the Fourth Amendment as part of a Constitution focused on protecting liberty and not only on privacy." According to Professor Crocker,

Beginning like a Fourth Amendment case, the opinion quickly moves through substantive due process concerns over "spheres of our lives" to First Amendment values of "freedom of thought, belief, and expression," suggesting that the Constitution protects liberty through an interrelated web of textual connections. Without citations, we are invited to read the Constitution's protection for liberty holistically as purposing to "secure the Blessings of Liberty" in all their manifestations. Moreover, Justice Kennedy acknowledges that liberty is realized in multiple ways, unlike the Court's increasingly narrow understanding of privacy as secret.

Professor Crocker acknowledges that "Lawrence is no doubt a due process case, striking down a criminal statute that denigrated the lives and dignity of homosexual persons." But he goes on to note that

Lawrence also makes salient the Constitution's protections for liberty across a number of doctrinal frameworks, purposefully glossing over the specific decision rules designed to implement constitutional principles. As a model of constitutional interpretation, it suggests that specific substantive issues can be addressed by examining larger constitutional contexts. The Lawrence Court did not first decide a tier of scrutiny and then balance the state's interests and chosen means against the nature of the right affected. Lawrence began where the Constitution itself begins, with the "Blessings of Liberty" that "We the People"sought to secure.

Using Lawrence as a model for examining Fourth Amendment issues requires courts to look at the broader implications of everyday social practice when making particular decisions. Moreover, it requires rethinking the "third-party" doctrine. Having a certain amount of security in the ability to interact with other persons free from the fear that they are effective agents of the state is analogous to speaking without fear of seditious libel. Security in everyday commerce with others is part of the essence of political liberty. Although the "third-party" doctrine provides scant privacy protection against pervasive government surveillance through data mining and other activities, a Fourth Amendment attuned to the liberty interests of persons would provide more robust grounds for regulation. Just as First Amendment activities may be chilled by overly broad regulations of speech, "the People's" political life lived in the company of others, both in and out of doors, can be chilled. And just as the First Amendment is doctrinally attuned to this prospect, a reoriented Fourth Amendment should be as well.


As Professor Crocker notes, in the classic Fourth Amendment case, Boyd v. United States, 116 U.S. 616 (1886), the Supreme Court held that

It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; but  it is the invasion of his indefeasible right of personal security, personal liberty and private property...

In a world where we have gone from a cop on a stakeout to the possibility of 24/7 monitoring, in a world where most information about most people is only a few clicks of the mouse away, has the Court torn the heart out of the Fourth Amendment by finding that it only applies when an individual has the reasonable expectation of privacy? Has the Court deracinated the Amendment not only from its political roots but also from its place in the Constitutional mosaic? That's the implication of the concurring opinion in Foltz, and it is certainly the contention of Professor Crocker. I asked Professor Crocker what led him to write his article, and he responded:

I was led to write the article based on the following two observations: Because so much about our lives gets shared with others (friends or businesses), but the Supreme Court's third party doctrine says that what is shared is no longer private, the scope of Fourth Amendment protections can be rather narrow.  Even when information or spaces are private, the Supreme Court often focuses on the needs of law enforcement in a way that fails to balance appropriately the privacy interests at stake.  So, if privacy is increasingly inapplicable, or not even discussed in light of law enforcement needs, perhaps it is time to concentrate on other constitutional values, such as liberty, that might have greater purchase in these situations.



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