Category Archives: Fourth Amendment

ABA Journal's Blawg 100 (2015)

by John Wesley Hall Criminal Defense Lawyer and Search and seizure law consultant Little Rock, Arkansas Contact / The Book http://www.johnwesleyhall.com

2003-16, online since Feb. 24, 2003 real non-robot URL hits since 2010; approx. 18k posts since 2003

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Fourth Amendment cases, citations, and links

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Congressional Research Service: --Electronic Communications Privacy Act (2012) --Overview of the Electronic Communications Privacy Act (2012) --Outline of Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012) --Federal Statutes Governing Wiretapping and Electronic Eavesdropping (2012) --Federal Laws Relating to Cybersecurity: Discussion of Proposed Revisions (2012) ACLU on privacy Privacy Foundation Electronic Frontier Foundation NACDLs Domestic Drone Information Center Electronic Privacy Information Center Criminal Appeal (post-conviction) (9th Cir.) Section 1983 Blog

"If it was easy, everybody would be doing it. It isn't, and they don't." Me

I still learn something new every day. Pete Townshend, The Who 50th Anniversary Tour, "The Who Live at Hyde Park" (Showtime 2015)

"I can't talk about my singing. I'm inside it. How can you describe something you're inside of?" Janis Joplin

"Love work; hate mastery over others; and avoid intimacy with the government." Shemaya, in the Thalmud

"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced." Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).

"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence." Mapp v. Ohio, 367 U.S. 643, 659 (1961).

"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment." Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).

"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today." Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).

"The great end, for which men entered into society, was to secure their property." Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)

"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment." United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)

"The course of true law pertaining to searches and seizures, as enunciated here, has notto put it mildlyrun smooth." Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).

"A search is a search, even if it happens to disclose nothing but the bottom of a turntable." Arizona v. Hicks, 480 U.S. 321, 325 (1987)

"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." Katz v. United States, 389 U.S. 347, 351 (1967)

Experience should teach us to be most on guard to protect liberty when the Governments purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding. United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)

Libertythe freedom from unwarranted intrusion by governmentis as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark. United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)

"You can't always get what you want / But if you try sometimes / You just might find / You get what you need." Mick Jagger & Keith Richards

"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for meand by that time there was nobody left to speak up." Martin Niemller (1945) [he served seven years in a concentration camp]

You know, most men would get discouraged by now. Fortunately for you, I am not most men! ---Pep Le Pew

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HuffPo: Heres A Good Reason For The Fourth Amendment To ...

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The 4th Amendment to the United States Constitution was added as part of the Bill of Rights on December 15, 1791. It deals with protecting people from the searching of their homes and private property without properly executed search warrants. The 4th Amendment reads like this:

"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."

The 4th Amendment requires that in order for a government official, such as a police officer, to search a person's home, business, papers, bank accounts, computer or other personal items, in most cases, he must obtain a search warrant signed by the proper authority, which usually means by a judge.

In order for a warrant to be issued, someone must affirm to the judge that he has a reasonable belief that a crime has been committed and that by searching the premises of a particular location, he believes he will find evidence that will verify the crime. The person submitting this information to the judge is usually a police officer. The police officer does not have to be correct in his assumption, he just has to have a reasonable belief that searching someone's private property will yield evidence of the crime.

The judge then reviews the information and if he also believes the information the officer has submitted shows probable cause, he will issue the warrant. In order for the warrant to be good, it must identify the place and the particular items or persons that are to be seized if they are found. A warrant is not a general order that can be used to search for anything, anywhere the officer wants. In order for the warrant to be in compliance with the 4th Amendment, the warrant must be very specific about what is being looked for and where the officer can look for it.

The 4th Amendment idea that citizens should be protected from unreasonable searches and seizures goes back far into English history. In 1604, in the famous Semayne's Case, the Judge, Sir Edward Coke, first identified this right. He ruled that, "The house of every one is to him as his castle and fortress, as well for his defence against injury and violence as for his repose."

In this case, it was determined that subjects of the kingdom had the right to be protected from searches and seizures that were unlawfully conducted, even if they were conducted by the king's representatives. The case also recognized that lawfully conducted searches and seizures were acceptable. This case established a precedent that has remained a part of English law ever since.

The most famous English case dealing with the right to freedom from illegal search and seizure is called Entick vs. Carrington, 1765. In this case, royal representatives had broken into the private home of John Entick in search of material that was critical of the king and his policies. In the process, they broke into locked boxes and desks and confiscated many papers, charts, pamphlets, etc. The officers were acting on the orders of Lord Halifax.

During the trial, Entick charged that the entire search and seizure had been unlawfully conducted, and the Court agreed. The Court said that Lord Halifax had no standing to issue the order to search the premises, that probable cause that a crime had been committed had not been demonstrated and that the warrant allowed a general confiscation of anything the officers found, not specifying exactly what they were to look for or could seize. In addition, there were no records kept of what the officers seized.

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Charles Pratt, Lord Camden

This ruling essentially declared that the government was not allowed to do anything that was not specified by law. It required the search and seizure be carried out according to the law. It also established that the right to be able to protect one's private property was an important right to be safeguarded by the government. In his ruling, Lord Camden, the Chief Justice made this famous statement:

"The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole. The cases where this right of property is set aside by private law, are various. Distresses, executions, forfeitures, taxes etc are all of this description; wherein every man by common consent gives up that right, for the sake of justice and the general good. By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my license, but he is liable to an action, though the damage be nothing; which is proved by every declaration in trespass, where the defendant is called upon to answer for bruising the grass and even treading upon the soil. If he admits the fact, he is bound to show by way of justification, that some positive law has empowered or excused him. The justification is submitted to the judges, who are to look into the books; and if such a justification can be maintained by the text of the statute law, or by the principles of common law. If no excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment."

In 1886, in a case called Boyd vs. United States, the Supreme Court of the United States referred to Entick vs. Carrington as a "great judgment," "one of the landmarks of English liberty" and "one of the permanent monuments of the British Constitution." This established the Entick decision as a guide to understanding what the Founding Fathers meant concerning search and seizure laws when they wrote the 4th Amendment.

The British government generally looked at the American colonies as a money making enterprise. Consequently, they passed many revenue collection bills aimed at generating as much money from the colonists as possible. The colonists naturally resented this and engaged in substantial smuggling operations in order to get around the customs taxes imposed by the British government. You can learn more about these and other causes of the American Revolution here.

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King George III

In response to the widespread smuggling, Parliament and the King began to use "writs of assistance," legal search warrants that were very broad and general in their scope. Customs agents could obtain a writ of assistance to search any property they believed might contain contraband goods. They could enter someone's property with no notice and without any reason given. Tax collectors could interrogate anyone about their use of customed goods and require the cooperation of any citizen. Searches and seizures of private property based on very general warrants became an epidemic in colonial America.

In response to this, the Massachusetts legislature passed search and seizure laws in 1756 outlawing the use of general warrants. This created a great deal of friction between the Royal Governor and the people of Massachusetts until the death of King George II in 1760. Writs of assistance by law were good until 6 months after the death of the king who issued them. This meant that the Royal Governor had to have new writs of assistance issued by the new king.

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James Otis

by Joseph Blackburn

James Otis, a Boston lawyer, had recently been appointed Advocate General of the Admiralty Court, which meant he was essentially the top lawyer for the Crown in the colony. In this position, Otis was required to defend the use of writs of assistance by the government. He strongly objected to these arbitrary searches and seizures of private property and consequently resigned his position. Instead, he became the lawyer for a group of over 50 merchants who sued the government claiming that the writs of assistance were unjust.

James Otis represented these merchants for free. His speech condemning British policies, including writs of assistance and general search warrants, was so powerful and eloquent, that it was heard of throughout the colonies and catapulted him to a place of leadership in the swelling tide of disillusionment toward Great Britain.

Future President, John Adams, who was 25 at the time, was sitting in the courtroom and heard Otis' famous speech that day. Later he said:

"The child independence was then and there born, every man of an immense crowded audience appeared to me to go away as I did, ready to take arms against writs of assistance."

He viewed Otis' speech "as the spark in which originated the American Revolution."

Later, in 1776, George Mason's Virginia Declaration of Rights, which was a document on which Thomas Jefferson relied heavily when he wrote the Declaration of Independence, included prohibitions against general warrants that did not specify probable cause or exactly what was to be searched for. The passage of the Virginia Declaration of Rights dealing with general warrants reads like this:

"That general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive and ought not to be granted."

You can read the Virginia Declaration of Rights here and you can read the Declaration of Independence here. You can also read more about how Thomas Jefferson wrote the Declaration of Independence here.

Once the Constitution was written, each state held a convention to debate its worth. Many people opposed the Constitution because they thought it gave the federal government too much power at the expense of the states and of individual rights. Those opposing the Constitution were known as anti-Federalists. They were led by such men as Patrick Henry, George Mason and Elbridge Gerry.

The anti-Federalists were concerned that the federal government would trample on the rights of individual citizens. They believed the Constitution did not specify clearly enough which rights of individuals were protected from government interference. Some of them called for the addition of a bill of rights to the Constitution, which would specify exactly which rights of the citizens were protected.

Those who were in support of the Constitution were known as Federalists because they did support a strong federal government. The Federalists were led by such men as James Madison, Alexander Hamilton, John Adams and George Washington.

In order to convince enough anti-Federalists to support the Constitution to pass it and have it go into effect, the Federalists made a promise that if the anti-Federalists would vote to accept the Constitution, the First Congress would address their concerns by adding a bill of rights to it. This promise succeeded in persuading enough anti-Federalists to support the Constitution that it passed and became law. It also ensured that the Founders concerns about illegal searches and seizures would eventually become law embodied in the 4th Amendment.

On June 8, 1789, James Madison kept the promise of the Federalists by proposing to the First Congress twenty amendments to be added to the Constitution. You can read James Madison's June 8, 1789 speech here.

One of these amendments, that dealt with search and seizure laws, eventually became what we know as the 4th Amendment. Congress approved twelve of the amendments suggested by Madison on September 25, 1789 and ten of those were eventually ratified by the states. The First Ten Amendments, also known as the Bill of Rights, became law on December 15, 1791. You can read more about the History of the Bill of Rights here.

The 4th Amendment only applied originally to the federal government, but through the Due Process Clause of the 14th Amendment, the Supreme Court has now applied most parts of the Bill of Rights to state and local governments as well.

The 4th Amendment only provides protection from illegal search and seizure by government officials, not by private citizens. So, if an employer unreasonably searched your possessions at work, the 4th Amendment would not have been violated.

There are certain exceptions to the 4th Amendment right to have a properly executed search warrant issued before a search or seizure of private property can be conducted. The Supreme Court has ruled that, for example, a police officer may conduct a pat down search of someone he has observed engaging in suspicious behavior, if he has reasonable suspicion that some crime is being committed. Also, if a police officer observes someone committing a crime, or believes that he has probable cause to suspect someone has committed a crime, he may arrest the person without a warrant.

There are a number of other exceptions to the 4th Amendment warrant rule:

Supreme Court of the United States

In general, any evidence that is obtained in an illegal search and seizure is not admissible in court by the prosecution in a criminal defendant's trial. This is known as the 4th Amendment Exclusionary Rule because evidence obtained in this manner is excluded from the trial. The Supreme Court established this rule in a case called Weeks vs. United States, 1914. Before that time, any evidence, even if it was gathered in an illegal search and seizure, was admissible in court.

There are some exceptions to the 4th Amendment Exclusionary Rule. For example, Grand Juries may use illegally obtained evidence to question witnesses. The method of gathering the evidence can be challenged later if the defendant is charged. Evidence gathered in good faith by an officer can be used in court. This means that if an officer is following the directions of a warrant that is faulty, not realizing that it is faulty, the evidence may be used.

Evidence obtained through illegal search and seizure can also be used in the following circumstances:

Read about some of the most interesting and significant Fourth Amendment Court cases here.

Preamble to the Bill of Rights Learn about the 1st Amendment here. Learn about the 2nd Amendment here. Learn about the 3rd Amendment here. Learn about the 4th Amendment here. Learn about the 5th Amendment here. Learn about the 6th Amendment here. Learn about the 7th Amendment here. Learn about the 8th Amendment here. Learn about the 9th Amendment here. Learn about the 10th Amendment here.

Read the Bill of Rights here.

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The Fourth Amendment of the United States Constitution protects against unreasonable searches and seizures. The text of the Fourth Amendment provides as follows:

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.

By way of the Fourteenth Amendment due process clause, the Fourth Amendment applies to the fifty states. Its protection ensures that peoples privacy interestespecially in their own homesis not violated.

What is meant by unreasonable searches and seizures? The Fourth Amendment specifically protects against unreasonable searches and seizures. In other words, the Fourth Amendment protects against the exploratory searching of a person as well as the persons house, papers and effects. A valid search warrant must provide a description of the place to be searched and the person or things to be seized.

What constitutes probable cause to support a search warrant? In order for a search warrant to be issued, it must be supported by probable cause. Probable cause is a legal term that is defined on a case-by-case basis. Essentially, a valid warrant must contain a sworn statement that alleges reasonable grounds to believe that a crime has occurred on the premises to be searched.

What is the consequence for a Fourth Amendment violation? Before 1914, if police obtained evidence in violation of the Fourth Amendment, they could still use the evidence at trial. However, in a case called Weeks v. United States, the United State Supreme Court created the exclusionary rule. Pursuant to the exclusionary rule, any evidence obtained in violation of a suspects Fourth Amendment rights (or in violation of any of a suspects Constitutional rights) is excluded from use at trial. In 1961, in a case known as Mapp v. Ohio, the United States Supreme Court made clear that the exclusionary rule applies to the fifty states.

If you believe that your Fourth Amendment rights have been violated, you need to hire an experienced criminal attorney. If the police have seized evidence against you, an experienced attorney will be able to challenge the use of the evidence against you in court. Contact an attorney today for a case evaluation either in person or by telephone.

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Introduction

The explosive growth of digital data in the twenty-first century has been both a boon and a curse for law enforcement. On one hand this growth has heralded a golden age of surveillance owing to the massive amount of information that is available about actual and potential lawbreakers,1E.g., Peter Swire, The Golden Age of Surveillance, Slate (July 15, 2015, 4:12 PM), http://www.slate.com/articles/technology/future_tense/2015/07/encryption_back_doors_aren_t_necessary_we_re_already_in_a_golden_age_of.html [http://perma.cc/957N-QFL4]. but on the other hand the government now has that much more data to sort through. To search this ever-expanding haystack, the government has adopted various techniques, including algorithmic queries. But in order to apply these queries to search for the needle the government must first collect the hay. One technique that law enforcement has adopted is to take mirror images of digital data for later off-site review.

A persistent question, though, is how the Fourth Amendment applies to both the initial act of duplicating digital data and the continued retention of that data. It goes without saying that the drafters of the Fourth Amendment did not contemplate its application to the digital era. And Fourth Amendment jurisprudence, accordingly, has long since departed from a strict originalist understanding. Beginning with Katz v. United States,2 389 U.S. 347 (1967). the Supreme Court adapted [t]he right of the people to be secure ...against unreasonable searches and seizures3U.S. Const. amend. IV. to cover modern technological developments by finding such a violation when the government surreptitiously recorded a phone conversation in a public phone booth.4See Katz, 389 U.S. at 359.

Since then, the Court has considered the Fourth Amendments application to a variety of new technologies ranging from airplane surveillance to thermal imaging.5 See, e.g., United States v. Karo, 468 U.S. 705 (1984) (radio tracking); California v. Ciraolo, 476 U.S. 207 (1986) (airplane surveillance); Florida v. Riley, 488 U.S. 445 (1989) (helicopter surveillance); Kyllo v. United States, 533 U.S. 27 (2001) (thermal imaging); United States v. Jones, 132 S. Ct. 945 (2012) (GPS tracking); Maryland v. King, 133 S. Ct. 1958 (2013) (DNA swabs); Riley v. California, 134 S. Ct. 2473 (2014) (cell phones). In Riley v. California,6 134 S. Ct. 2473. for example, the Supreme Court analyzed the application of the Fourth Amendment to searches of a cell phone seized incident to arrest. Noting that modern cell phones contain vast troves of personal information, far beyond what one historically could keep in ones pocket, the Court found that the rationale for the search-incident-to-arrest exception to the warrant requirement did not extend to a cell phones digital contents.7Id. at 249495.

This Note attempts to address a narrow question in modern Fourth Amendment jurisprudence: should government duplication and retention of electronically stored information be characterized under the Fourth Amendment as a search, as a seizure, as both, or as neither?8 Although this Note does explore Fourth Amendment reasonableness balancing as applied to duplication and retention in Part IV, its primary focus is on the predicate question of whether a search or seizure has even occurred. Duplication and retention arise in many contexts.9 For example, many warrants include temporary seizure provisions that require the government to return seized items after a certain period of time. The government could potentially make a copy of any hard drives seized and retain the copy beyond the warrant period. See, e.g., United States v. Ganias, 755 F.3d 125 (2d Cir. 2014) (finding such conduct a seizure of the data and applying the exclusionary rule), rehg en banc granted, 791 F.3d 290 (2d Cir. 2015); cf. United States v. Cote, 72 M.J. 41 (C.A.A.F. 2013) (applying exclusionary rule to exclude evidence obtained from an original hard drive retained beyond the authorized period). Additionally, the technology certainly exists to enable the government to remotely access computers connected to the Internet, potentially allowing remote copying without requiring a physical trespass. Cf. United States v. Gorshkov, No. CR00-550C, 2001 WL 1024026 (W.D. Wash. May 23, 2001). But somewhat shockingly, it is not entirely settled that the government conducts either a search or a seizure when it makes a copy of locally stored data,10 Under current law, information shared with third parties (such as with cloud storage) may lose the veneer of privacy and thus is no longer protected by the Fourth Amendment. See Smith v. Maryland, 442 U.S. 735, 743 (1979). This Note focuses on locally stored data for simplicity, but the Court in Riley suggested that the Fourth Amendment protections would apply equally to data stored in the cloud, see 134 S. Ct. at 2491; see also Jones, 132 S. Ct. at 957 (Sotomayor, J., concurring) (noting that the third-party doctrine is ill suited to the digital age); Daniel J. Solove, Digital Dossiers and the Dissipation of Fourth Amendment Privacy, 75 S. Cal. L. Rev. 1083 (2002) (warning against rigid application of this rule in the digital era). and then retains that data without further reviewing it.11 Later review by a government agent would most likely constitute a search. However, because the items being searched are duplicates in government possession, not originals, even this issue may not be fully settled. See Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531, 56265 (2005). As Justice Sotomayor worries, [t]he Government can store such records and efficiently mine them for information years into the future.12Jones, 132 S. Ct. at 95556 (Sotomayor, J., concurring).

One technique the government has adopted to address the growth of relevant data, a technique which some courts have blessed, is to take a mirror image of a hard drive (or other data repository) on site, leave the original with the owner, and then perform the search off-site at a later time.13 See, e.g., Ganias, 755 F.3d at 135 ([T]he creation of mirror images for offsite review is constitutionally permissible in most instances ....); United States v. Veloz, No. 12-10264, 2015 WL 3540808, at *5 (D. Mass. June 4, 2015); cf. United States v. Tamura, 694 F.2d 591, 59596 (9th Cir. 1982) (noting that off-site review may be appropriate subject to prior approval by a magistrate when on-site review is infeasible). A mirror image is an exact duplicate of the original data, which investigators can then access in a read-only state to avoid altering the data in even the smallest way.14See Scott Carlson, New Challenges for Digital Forensics Experts and the Attorneys Who Work with Them, in Understanding the Legal Issues of Computer Forensics 17, 1920 (2013), 2013 WL 3759817, at *2 (discussing digital forensics procedures). This approach allows the search to proceed with minimal interference in the data owners work or life, since the owner retains the originals. The investigators, for their part, are able to work in their own offices, under their own time constraints. And, because the data was copied exactly and remains unaltered, it is easily authenticated and used as evidence.15See Recent Case, 128 Harv. L. Rev. 743, 74849 (2014) (describing authentication process).

At first blush, it is unclear how mirror-imaging fits into the constitutional landscape. The Fourth Amendment prohibits unreasonable searches and seizures.16U.S. Const. amend. IV. As the Court recently reiterated in Riley, the ultimate touchstone of the Fourth Amendment is reasonableness.17 Riley v. California, 134 S. Ct. 2473, 2482 (2014) (quoting Brigham City v. Stuart, 547 U.S. 398, 403 (2006)). However, the government can avoid even that standard if its actions constitute neither a search nor a seizure a prerequisite to Fourth Amendment scrutiny.18 For example, using a trained canine to sniff the exterior of a bag for drugs is not subject to any reasonableness analysis because the Supreme Court has held that such an action is neither a search nor a seizure. See United States v. Place, 462 U.S. 696, 707 (1983); see also Illinois v. Caballes, 543 U.S. 405, 409 (2005) (finding that a canine sniff of car stopped for a traffic violation was not a search). But see Florida v. Jardines, 133 S. Ct. 1409, 141718 (2013) (finding a canine sniff on the front porch of home was a search). The mirror-image approach thus raises the question of whether duplication and retention constitutes a search or seizure subject to Fourth Amendment reasonableness requirements.

Answering that question requires determining whether duplication either (a) violates the individuals reasonable expectation of privacy, or (b) interferes with the individuals possessory interest in the information.19See United States v. Jacobsen, 466 U.S. 109, 113 (1984). This Note assumes that the individual has an actual (subjective) expectation of privacy without which no search occurs. The caselaw offers no conclusive answers. Indeed, until very recently, it tended to suggest that the Fourth Amendment had no application to duplication because it is neither a search nor a seizure. If the government just copies the data, without looking at it, then there is no invasion of privacy. If the data owner retains the original, then there is no intrusion on possessory interests. These answers, though, seem both unsatisfying and instinctively wrong.

Some courts and commentators have suggested that such duplication should be considered a seizure because it interferes with the individuals right to delete data20See Paul Ohm, The Fourth Amendment Right to Delete, 119 Harv. L. Rev. F. 10 (2005). or right to exclude others from data.21See United States v. Ganias, 755 F.3d 125, 137 (2d Cir. 2014), rehg en banc granted, 791 F.3d 290 (2d Cir. 2015); Mark Taticchi, Note, Redefining Possessory Interests: Perfect Copies of Information as Fourth Amendment Seizures, 78 Geo. Wash. L. Rev. 476 (2010). Others have argued that it is a seizure if it freezes evidence for later review rather than as a memory aid.22See Orin S. Kerr, Fourth Amendment Seizures of Computer Data, 119 Yale L.J. 700, 71415 (2010). While such conceptions subject duplication of electronic data to Fourth Amendment scrutiny, they do so by shoehorning the process into existing precedent on seizures. But the problem with government duplication is not easily conceived of as interference with possessory interests, since the data owner not only retains unfettered rights to the original, but also may not have exclusive rights over much of the data in the first instance. Accordingly, it makes little sense to label such conduct as a seizure.

Instead, this Note proposes, courts should focus on the privacy interests at stake in duplication of that information, and whether government duplication and retention of an individuals private data violates that expectation, and is therefore a search. Privacy, often defined as control over personal information,23See infra section III.A, pp. 105963. is clearly infringed when the government duplicates that information, thus depriving the data owner of control. Viewing duplication as a search would avoid some of the complications that arise from characterizing it as a seizure, such as whether the data owner does in fact have a right to exclusive possession of the particular data.

Part I explores the doctrine surrounding searches and seizures in general terms and examines some background cases analogous to the digital duplication context. Part II considers the arguments advanced by some courts and commentators that digital duplication is properly conceived as a seizure. In Part III, the Note shows why the doctrine supports viewing duplication as a search. Part IV examines some of the consequences that arise from the proposed recharacterization.

Fourth Amendment jurisprudence has been adapted to new technology many times throughout its history.24 See generally Orin S. Kerr, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L. Rev. 801 (2004) (discussing the shifts in the jurisprudence in response to new technologies). As the government has acquired new methods for collecting evidence, courts have adjusted the test for what constitutes a violation.25 Professor Orin Kerr calls this the equilibrium approach to the Fourth Amendment, wherein the Court tries to maintain the status quo between cops and robbers. See Orin S. Kerr, An Equilibrium-Adjustment Theory of the Fourth Amendment, 125 Harv. L. Rev. 476, 486 (2011). Most significantly, in Katz, the Court moved beyond its prior trespass inquiry to bring a listening device on a public phone booth within the Fourth Amendments ambit.26 Katz v. United States, 389 U.S. 347, 353 (1967). In several recent cases, the Court, led by Justice Scalia, has revived the trespass inquiry as an additional test for Fourth Amendment violations. See, e.g., United States v. Jones, 132 S. Ct. 945, 953 (2012). Kerr has suggested that, contra Jones, there was no trespass test before Katz. See Orin S. Kerr, The Curious History of Fourth Amendment Searches, 2012 Sup. Ct. Rev. 67, 68. In Kyllo v. United States,27 533 U.S. 27 (2001). the Court ruled that the government searched a home when, from a car on a public way, it used thermal imaging to measure the heat given off from the roof of a home.28Id. at 30, 40. In Riley, the Court imposed strict limitations on the circumstances under which a police officer could search a cell phone incident to arrest.29 Riley v. California, 134 S. Ct. 2473, 2495 (2014). But there is little Supreme Court guidance on applying the Fourth Amendment to duplications, and lower courts have had to analogize from old caselaw of questionable relevance in the modern context. Consequently, earlier cases tended to find that duplication constituted neither a search nor a seizure. More recently, however, that trend has reversed itself, and courts have begun to apply Fourth Amendment scrutiny to duplications of digital data.

A. Search or Seizure

The Fourth Amendment regulates both searches and seizures. These are two discrete government actions, each of which is independently subjected to the Constitutions reasonableness requirement. In United States v. Jacobsen,30 466 U.S. 109 (1984). the Court defined a seizure as some meaningful interference with an individuals possessory interests in the property.31Id. at 113. A seizure threatens the individuals interest in retaining possession of property32 Texas v. Brown, 460 U.S. 730, 747 (1983) (Stevens, J., concurring in the judgment); see also United States v. Place, 462 U.S. 696, 716 (1983) (Brennan, J., concurring in the result). and contemplates a forcible dispossession of the owner.33 Hale v. Henkel, 201 U.S. 43, 76 (1906), overruled in part by Murphy v. Waterfront Commn, 378 U.S. 52 (1964).

Jacobsen also defined a search: a search occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.34 466 U.S. at 113. This definition builds on Justice Harlans concurrence in Katz.35See 389 U.S. 347, 361 (1967) (Harlan, J., concurring). Katz unquestionably elevated the importance of privacy to the Fourth Amendment inquiry, and indeed, until United States v. Jones,36 132 S. Ct. 945 (2012). privacy seemed to have attained status as not only the primary but perhaps the exclusive focus of Fourth Amendment search analysis.37Jones renewed the focus on property rights, but as that case illustrates, the property-driven analysis had never been entirely displaced. See, e.g., Soldal v. Cook County, 506 U.S. 56, 62 (1992) ([O]ur cases unmistakably hold that the [Fourth] Amendment protects property as well as privacy.). Although this primacy has been criticized by commentators, there are strong reasons for maintaining a focus on privacy.38 See generally Christopher Slobogin, A Defense of Privacy as the Central Value Protected by the Fourth Amendments Prohibition on Unreasonable Searches, 48 Tex. Tech L. Rev. (forthcoming 2016) (rebutting criticisms of the significance of privacy in Fourth Amendment analysis). In any event, even after Jones, privacy is plainly a part of the search inquiry. If the government has infringed a reasonable expectation of privacy, then it has conducted a search.

But privacy defies easy definition.39 See, e.g., Daniel J. Solove, Understanding Privacy 1011 (2008) (proposing sixteen categories of privacy); see also David Alan Sklansky, Too Much Information: How Not to Think About Privacy and the Fourth Amendment, 102 Calif. L. Rev. 1069, 1113 (2014) (defining privacy as a type of refuge from the government). In general, though, courts and commentators have come to view privacy as determining for oneself when, how and to whom personal information will be disclosed.40 Natl Cable & Telecomms. Assn v. FCC, 555 F.3d 996, 1001 (D.C. Cir. 2009). Privacy is an individuals control of information concerning his or her person.41 U.S. Dept of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 763 (1989). This definition dates back at least to Professor Alan Westins seminal work, published the same year Katz was decided.42See Alan F. Westin, Privacy and Freedom 7 (1967) (defining privacy as the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others). Westins definition has gained traction in Fourth Amendment scholarship.43See Sklansky, supra note 39, at 108384 (describing the dominance of Westins definition in modern academic discourse); see also Harold J. Krent, Of Diaries and Data Banks: Use Restrictions Under the Fourth Amendment, 74 Tex. L. Rev. 49, 51 (1995). Left to debate, of course, is what information is personal and thus private. But so defined, it seems natural to say that an individual has an expectation that she will retain control over the information contained in her data storage device. Whether the expectation is reasonable is illuminated by reference to real and personal property law and societal understandings.44See Rakas v. Illinois, 439 U.S. 128, 144 n.12 (1978).

A few examples serve to illustrate the dichotomy between searches and seizures. As noted, a seizure occurs when the government meaningfully interferes with an individuals possessory interests.45See United States v. Jacobsen, 466 U.S. 109, 113 (1984). If a police officer takes your phone away from you, then that officer has seized your phone. A court reviewing that action would then ask whether that seizure was reasonable within the meaning of the Fourth Amendment.46 See, e.g., United States v. Place, 462 U.S. 696, 70910 (1983). A search, on the other hand, occurs when the government violates an individuals actual and reasonable expectation of privacy.47See Jacobsen, 466 U.S. at 113; Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring); see also Smith v. Maryland, 442 U.S. 735, 740 (1979) (adopting Justice Harlans approach from Katz). Thus, if a police officer looks at your phones contents, such as your contacts list or stored videos, that officer has searched your phone because he has interfered with your control over the personal information contained within. The reviewing court would ask whether that search was reasonable which, as Riley emphasized, generally means pursuant to a warrant.48 Riley v. California, 134 S. Ct. 2473, 2495 (2014). If an officer takes your phone from you and then looks at the photos on it, that officer has seized and then searched your phone. By contrast, when the police officer watches you talking on your phone as you walk down Main Street, he has conducted neither a search nor a seizure.49See United States v. Knotts, 460 U.S. 276, 28182 (1983). No reasonable expectation of privacy has been invaded by the officers observations of you in public, and the officers action in no way interferes with your possession of your phone. That action, then, is never subjected to Fourth Amendment reasonableness analysis.50 See, e.g., Illinois v. Caballes, 543 U.S. 405, 40810 (2005) (declining to consider the reasonableness of a dog sniff after concluding that the dog sniff was not itself a search).

B. Early Duplication Cases

Arizona v. Hicks51 480 U.S. 321 (1987). concerned duplication but is far removed from the digital context: While searching an apartment for the source of an errant gunshot, a police officer noticed some high-end stereo equipment that he suspected might be stolen and recorded the serial number to check against a police database of stolen equipment.52Id. at 323. The Court quickly discarded the argument that recording the serial number constituted a seizure. The recording did not meaningfully interfere with the defendants possessory interest in the information; because the officer did not confiscate the stereo, he had not interfered with the defendants possession of either the stereo or the serial number.53Id. at 324. The Court nonetheless affirmed the exclusion of the evidence, holding that moving the stereo to reveal the serial number constituted a search, which was unreasonable given the lack of probable cause. Id. at 328.

Some lower courts have also considered duplication in other nondigital contexts, such as photocopies and photographs. Several cases, for example, suggest that photocopying is not a seizure.54See, e.g., United States v. Thomas, 613 F.2d 787, 793 (10th Cir. 1980) (The agents act of photocopying ...was not a seizure. A seizure is a taking of property.). But in 2001, in United States v. Gorshkov,55 No. CR00-550C, 2001 WL 1024026 (W.D. Wash. May 23, 2001). the U.S. District Court for the Western District of Washington addressed head-on the issue of copying digital information. The FBI had obtained the defendants password through a sting operation, and then used the password to remotely access the defendants server.56Id. at *1. Because they feared that the defendants accomplices might delete the information on the server, the FBI remotely copied the information without reviewing it before applying for or obtaining a warrant.57Id. The court ruled that this did not constitute a seizure, noting that the remote copying had absolutely no impact on possessory interests because it did not prevent others from accessing the data.58Id. at *3. The Gorshkov court further noted that the Fourth Amendment did not apply because the defendant was a foreign national whose server was located overseas, id., and that, even if the copying did constitute a search or seizure, it was a reasonable one, id. at *4. In the context of copying the contents of a cell phone temporarily seized incident to arrest, or of imaging a hard drive pursuant to a warrant authorizing seizure of the original, the question may be even clearer59 The Gorshkov court held an evidentiary hearing to determine whether the copying had prevented access by other users. See id. at *3 n.1; see also In re United States, 665 F. Supp. 2d 1210, 1222 (D. Or. 2009) ([T]here was no ...meaningful interference due to the nature of electronic information, which can be accessed from multiple locations, by multiple people, simultaneously.). because the original has already been legitimately seized and the owners possession is already precluded.

Gorshkov was not without its detractors, as commentators recognized the potential scope of the Hicks rule if applied to digital duplications. If the government can make duplicates without implicating the Fourth Amendment, it could copy all of our files, which might contain a cache of sensitive personal information,60 Riley v. California, 134 S. Ct. 2473, 2490 (2014). and then efficiently mine them for information years into the future.61United States v. Jones, 132 S. Ct. 945, 956 (2012) (Sotomayor, J., concurring).

To fit digital duplications into the Fourth Amendment, some have suggested characterizing duplication and retention as a seizure, relying on property notions of exclusive ownership. Several courts that considered the matter subsequently were similarly unpersuaded by Gorshkovs reasoning, and have considered duplication to be a seizure.

A. The Possessory Rights Argument

Given that there are seemingly greater privacy implications than possessory implications to duplication, it seems strange that the prevailing view is to consider duplications as seizures. But several academic commentators have convincingly focused the arguments on possessory interests by emphasizing application of traditional property concepts to information. Some have looked at how the act of copying interferes with use of the information, and others at how the government might use the information.

Professor Orin Kerr who initially argued that the faithful application of the Hicks rule precluded classifying data duplication generally as a seizure62See Kerr, supra note 11, at 56061. has distinguished between copying-as-freezing (a seizure) and copying-as-an-aid-to-memory (not a seizure).63See Kerr, supra note 22, at 71418. Kerr focuses on the purpose of a seizure to secure evidence for later use to distinguish between copies made for different purposes.64Id. at 710. If data had already been exposed to an agent, then a duplicate of it was just made to aid that agents memory, and was therefore not a seizure.65See id. at 71415. This understanding preserves the rule of Hicks because the officer there had already seen the serial number when he wrote it down.66Id. at 716.

Professors Susan Brenner and Barbara Frederiksen have made two arguments in favor of characterizing duplication as a seizure.67See Susan W. Brenner & Barbara A. Frederiksen, Computer Searches and Seizures: Some Unresolved Issues, 8 Mich. Telecomm. & Tech. L. Rev. 39, 11113 (2002). First, as Kerr later argued, they note that copying data on a computer, unlike duplications of other mediums, interferes with the access and functioning of the computer, however briefly, during that process.68Id. at 112. Second, they argue that the majority opinion in Katz recognized that information can be seized when it characterized the recording of the conversation as a seizure.69Id. at 111 (citing Katz v. United States, 389 U.S. 347 (1967)). Note, however, that the majority opinion is not so clear: although the Court referred to the recording as a search and seizure, it was using the conjunctive term, explicitly quoting the Fourth Amendment itself, to express generally that it fell within the ambit of the Fourth Amendment. See Katz, 389 U.S. at 353. Copying data, even though it leaves the original intact, deprives the owner of something of value and interferes with exclusive use and possession, just as the theft of data does.70 Brenner & Frederiksen, supra note 67, at 112 n.236.

Brenner and Frederiksens first point hasnt gained much traction,71 Ohm has criticized such a limited understanding because, as technology advances, this interference will become less and less. See Ohm, supra note 20, at 17. but several commentators have elaborated on the second. Professor Paul Ohm offers a narrower possessory interest that is infringed by duplication: the right to delete.72See id. As Ohm later elaborated, this right to delete derives from the traditional property right to destroy. See Paul Ohm, The Olmsteadian Seizure Clause: The Fourth Amendment and the Seizure of Intangible Property, 2008 Stan. Tech. L. Rev. 2, 6263, https://journals.law.stanford.edu/sites/default/files/stanford-technology-law-review/online/ohm-olmsteadian-seizure-clause.pdf [http://perma.cc/Q3VN-ZWM6]. Ohm argues that this right attaches to digital data, but that it did not apply in Hicks because that right evaporated once the serial number was in plain view.73 Ohm, supra note 20, at 16. Mark Taticchi argues that the concept of exclusive possession renders exact duplicates a seizure.74See Taticchi, supra note 21, at 496. Taticchi notes that the right to exclude others from data should be limited to exact duplicates, and not extend to summaries or memories, because the degree of interference with exclusive possession is smaller, and a rule applying to notes and memories would be too socially costly and difficult to administer.75Id. at 497.

Although several courts have concluded that duplication is a seizure, few have relied on any explicit possessory-interest analysis. In United States v. Jefferson,76 571 F. Supp. 2d 696 (E.D. Va. 2008). the court found that taking high-resolution photographs of the defendants documents outside the scope of the initial warrant constituted a seizure of the information in those documents.77Id. at 704. The court emphasized that the defendants interests extended to the data contained within the documents, not just the physical documents themselves, and that the photographs interfered with sole possession of that information.78Id. at 70203. In United States v. Metter,79 860 F. Supp. 2d 205 (E.D.N.Y. 2012). the court noted that government possession of an imaged hard drive presents the same privacy concerns as would the governments retention of the original communications,80Id. at 212. and found that the fifteen-month retention of the duplicate was an unreasonable seizure.81Id. In United States v. Comprehensive Drug Testing, Inc.,82 621 F.3d 1162 (9th Cir. 2010) (en banc). the Ninth Circuit affirmed three lower-court orders requiring the United States to return duplicates of information that were made during the execution of a search warrant but that were outside the scope of the original warrant.83See id. at 116667, 1178 (per curiam). The court referred to the information as seized data84E.g., id. at 1168. and seized materials.85E.g., id. at 1169. Although it did not offer any real analysis for why the duplication amounted to a seizure, the court plainly thought it did.86 Federal Rule of Criminal Procedure 41, the provision at issue, treats seizing and copying as separate concepts. See Fed. R. Crim. P. 41(e)(2)(B) (A warrant ...may authorize ...seizure or copying of electronically stored information. (emphasis added)).

Recently, in United States v. Ganias,87 755 F.3d 125 (2d Cir. 2014), rehg en banc granted, 791 F.3d 290 (2d Cir. 2015). In its brief for the en banc hearing, the government conceded, [f]or purposes of this appeal, that the mirror-imaging constituted a seizure. Brief on Rehearing En Banc for the United States at 17 n.7, Ganias, No. 12-240 (2d Cir. Aug. 28, 2015), 2015 WL 5112418, at *17 n.7. a panel of the Second Circuit adopted the right to exclusive possession argument. In executing a warrant to search an accountants computer for evidence of his clients potential fraud, investigators imaged three hard drives, which also contained the accountants private files.88Ganias, 755 F.3d at 128. Two-and-a-half years later, the investigators obtained a second warrant to search those same files for evidence of the accountants own wrongdoing in a wholly separate crime.89Id. at 130. The accountant, now a defendant, argued that the lengthy retention of his files that were not responsive to the initial warrant constituted an unreasonable seizure even though he retained (and had since destroyed) the originals.90Id. at 13031. The Second Circuit agreed, finding that the defendants possessory interests included the exclusive control over [his] files and that the governments retention of the duplicate meaningfully interfered with that interest and was thus a seizure.91Id. at 137. Because the government retained that data for so long without adequate justification, the seizure was unreasonable.92Id. at 13738. The court did not specify at what point it became unreasonable and noted (with skepticism) that the government might have had legitimate interests in retaining the data, such as for authentication of the hard drive.93Id. at 139. And although the court seemed to emphasize the prolonged period for which the government retained the data, its holding narrowed the importance of that factor by focusing on the use of the retained data for evidence in a future criminal investigation.94Id. at 138. One might expect the legitimate governmental interest in accessing evidence to prosecute a crime to be categorically greater than the interest in authenticating a hard drive in another case. See infra section IV.A, pp. 106466.

B. Why This Might Be Wrong

While this possessory-interest analysis does subject duplication and retention to Fourth Amendment scrutiny, it is a curious way to do it. After all, a seizure does not occur based on every interference with possessory interests, but only upon a meaningful interference.95 United States v. Jacobsen, 466 U.S. 109, 113 (1984). If the individual retains the original copy, unaltered, and is free to use (or destroy) that copy as he sees fit, is the impingement on possessory interests (assuming there is one) meaningful? Given the multitude of cases where courts have found either no seizure or else a de minimis seizure when interference with possessory interests was marginal,96 See, e.g., id. at 125 (holding that permanent destruction of small portion of property for drug testing a de minimis intrusion on possessory interest and thus a reasonable seizure); cf. United States v. Mendenhall, 446 U.S. 544, 554 (1980) (suggesting that some limited physical contact might not constitute a seizure); Pennsylvania v. Mimms, 434 U.S. 106, 111 (1977) (per curiam) (concluding that intrusion on liberty in asking lawfully stopped driver to get out of car is de minimis). it seems tenuous to argue that this infringement which has no impact on the users own experience with his data is a sufficient interference either to implicate the Fourth Amendment in the first place or ever to be found unreasonable.

Perhaps one reason duplication nonetheless seems to be a seizure is that, after duplication, the government itself now possesses something that it did not possess before. That is, if the government exerts dominion and control97Jacobsen, 466 U.S. at 120. over something, it must have seized it. But this focus on the government is divorced from the doctrine as laid out in Jacobsen, which teaches to assess the infringement on the individuals possession, not the governments gain. Therefore, in order to classify duplication as a seizure, the focus must be on the individuals right to exclusive possession of that which has been duplicated.

With tangible property, duplication would rarely amount to a seizure. If the government makes a duplicate of a coffee mug, one would be hard pressed to say that it infringed on anyones possession of the coffee mug. After all, youre still able to look at it, drink from it, or even destroy it as you see fit.98 Paul Ohm believes otherwise. He suggests that if the government used a Star Trek replicator on steroids to duplicate an entire house and all of its contents, but locked the resulting duplicate in a warehouse without examining it, a court would hold that it was a seizure but not a search. Ohm, supra note 20, at 17; see also id. at 1718. Perhaps this characteristic would be different in the context of intangible property. But except for certain trade secrets or other intangible commercial property, digital data is a nonrivalrous good.99See Adam D. Moore, A Lockean Theory of Intellectual Property Revisited, 49 San Diego L. Rev. 1069, 1091 (2012). A nonrivalrous good is one whose use by others does not reduce the value of the good. See, e.g., Brett M. Frischmann, An Economic Theory of Infrastructure and Commons Management, 89 Minn. L. Rev. 917, 942 (2005). In most instances, the possession of data by another will not undermine the original owners use or enjoyment. Of still more concern is that a data owner might not even have a right to exclusive possession of all the information on her hard drive, such as digital copies of movies, books, and music. If you have a copy of Ayn Rands Atlas Shrugged on your hard drive, you have no right to exclusive possession of that books contents. If the government buys its own copy, its ownership in no way infringes on your possession. And if instead it just duplicates your copy, your possession is similarly uninfringed.

If there is no right to exclusive possession, then there is no infringement, and accordingly no seizure, at least as to that information. The right to delete or exclude would not extend to this type of data because it doesnt really belong to the individual. The government should not be able to duplicate an individuals home library to see what books she is reading just because she has no right to exclusive possession of the contents of those books. But the seizure analysis that courts are starting to adopt seems to suggest just such a result.

Focusing on the right to exclude also suggests that individuals might retain that right even after sharing their data publicly. The right to destroy and the right to exclude do not evaporate just because an owner grants temporary access to his property.100Recall Ohms argument that Hicks was rightly decided because the defendants right to delete evaporated upon exposure to the officer. See supra p. 105455. Conceptualizing data retention as a seizure, then, might mean that the government could not retain copies of publicly released information, such as blog posts. Thus, because a blogger often retains ownership over his posts, he presumably could choose to delete the post, and could similarly request that the government delete its copies as well. The owner of the data would assert his right to exclusive possession, and the government intrusion on that right would accordingly render the duplication a seizure.101Though, the seizure might be reasonable: a court might consider the possessory interest weakened by the fact that the data had previously been widely shared. Such an understanding might well mean that the government could not collect and retain data posted publicly unless it first obtained a warrant. But such a rule, however sensible, is inconsistent with the understanding that the police can observe and record what takes place in public without implicating the Fourth Amendment.102 United States v. Knotts, 460 U.S. 276, 28182 (1983). This rule would apply similarly to a conversation in a public place: if recording that conversation counts as seizing it because the speaker has a right to exclude others from the information relayed, then the government presumptively needs a warrant to record it, even though the speaker has no reasonable expectation of privacy.

This analysis is not conclusive: a court might say that an individual gives up the right to exclude once he shares the data publicly, just as a court would say that the individual has given up any reasonable expectation of privacy by sharing his information.103See infra section IV.C, p. 1067. But property law questions of these types might arise over and over again,104 One district court found that an individual had no possessory interest in metadata held by a third party, and accordingly found the data was not seized when the government copied it. See Klayman v. Obama, 957 F. Supp. 2d 1, 30 n.41 (D.D.C. 2013), vacated and remanded, 880 F.3d 559 (D.C. Cir. 2015). As another example, the government argued in Kyllo v. United States that the defendant had abandoned the heat emanating from the home. See Transcript of Oral Argument at 47, Kyllo v. United States, 533 U.S. 27 (2001) (No. 99-8508), http://www.supremecourt.gov/oral_arguments/argument_transcripts/99-8508.pdf [http://perma.cc/52MA-NKP5]; Sarilyn E. Hardee, Note, Why the United States Supreme Courts Ruling in Kyllo v. United States Is Not the Final Word on the Constitutionality of Thermal Imaging, 24 Campbell L. Rev. 53, 61 (2001). and a court would have to consider whether, as to the particular information at issue, the individual actually has a right to exclusive possession.

It may well be that duplications of certain data are seizures, but because the greater concern with duplications is the privacy violation, and because the seizure analysis might not cover all data, it makes more sense to identify duplication as a search. But duplication without actual review is not obviously a search after all, if no person reviews the documents then perhaps there has been no invasion.105 See, e.g., Susan Brenner, Copying as a Seizure (Again), CYB3RCRIM3 (July 15, 2009, 6:31 AM), http://cyb3rcrim3.blogspot.com/2009/07/copying-as-seizure-again.html [http://perma.cc/8YJS-PPGD] (arguing that while defensible arguments support conceptualizing duplication as a search, they stretch the word search too far). The Second Circuit, in the metadata context, adopted a similar view without elaboration. See ACLU v. Clapper, 785 F.3d 787, 801 (2d Cir. 2015) (suggesting that metadata collection should be characterized as a seizure of data, rather than a search). As Ohm argues, the government has a reasonable argument that when it seals the collected data [after duplication], it stops short of invading or intruding on the data owners privacy.106 Ohm, supra note 72, 53. True enough, but the government also has a reasonable argument that when it leaves the original intact and in the owners possession, it stops short of interfering with the owners possessory interests. This is not to discard the critique entirely, but merely to emphasize that courts are in uncharted waters here and can draw the lines where they make the most sense.

A. Privacy and Duplications

Courts clearly recognize that it is privacy that is at stake in duplication,107 Even the courts that conclude that duplication is a seizure emphasize the privacy interests at stake. For example, in Ganias, the Second Circuit panel characterized its challenge as adapt[ing] traditional Fourth Amendment concepts to the modern era [b]ecause the degree of privacy secured to citizens by the Fourth Amendment has been impacted by the advance of technology. United States v. Ganias, 755 F.3d 125, 134 (2d Cir. 2014), rehg en banc granted, 791 F.3d 290 (2d Cir. 2015). In Metter, the court emphasized that a data owner has identical privacy concerns with the governments retention of the imaged document. United States v. Metter, 860 F. Supp. 2d 205, 212 (E.D.N.Y. 2012). And in Jefferson, the court noted that the Fourth Amendment privacy interest extends...to the information itself, United States v. Jefferson, 571 F. Supp. 2d 696, 702 (E.D. Va. 2008), and that taking notes or photographs necessarily diminishes the privacy value of information once privately-held, id. at 703. which probably follows most peoples intuition: we dont want the government to have copies of our files because we dont trust it not to read them. It therefore seems more natural to conceptualize duplication as an invasion of privacy and therefore a search than as an invasion of possessory interests. And, despite some lower courts characterization of duplication as a seizure, the Courts doctrine strongly suggests that duplication is indeed a search. Recall that, under Katz (as filtered through the years), a search is an action that violates an individuals reasonable expectation of privacy.108 Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., concurring); see also United States v. Jacobsen, 466 U.S. 109, 113 (1984). Accepting Westins definition of privacy as control over information,109Westin, supra note 42, at 7. it is an easy step to say that duplication interferes with an individuals reasonable expectation of control over personal information.

Given the focus in Jefferson, Metter, and Ganias on privacy, the conclusion in those cases that duplication was a seizure is somewhat surprising. Indeed, the Ganias panel, for example, parroted Westins definition of privacy when it proclaimed that the retention was an interference with the owners control over [his] files.110Ganias, 755 F.3d at 137. These cases nonetheless found an infringement on property rights, and then concluded that a seizure had occurred. But searches are often defined in relation to property law. And as the Court elaborated in Rakas v. Illinois,111 439 U.S. 128 (1978). the fact that an individual can exclude others strongly suggests that the individual has a reasonable expectation of privacy.112See id. at 149; see also id. at 143 n.12. This conception is consistent with Justice Harlans discussion in Katz, which recognized that although the decision departed from the original trespass inquiry, it ultimately concluded by reference to places.113Katz, 389 U.S. at 361 (Harlan, J., concurring); see also Peter Winn, Katz and the Origins of the Reasonable Expectation of Privacy Test, 40 McGeorge L. Rev. 1, 8 (2009). Thus, a court having recognized the privacy interests at stake then might, and indeed should, consider whether tenets of property law suggest that an individual would have a reasonable expectation of privacy in that context.114 See, e.g., Oliver v. United States, 466 U.S. 170, 183 (1984) (The existence of a property right is but one element in determining whether expectations of privacy are legitimate.). The Courts second test for whether or not a search has occurred, advanced in United States v. Jones115 132 S. Ct. 945 (2012). and Florida v. Jardines,116 133 S. Ct. 1409 (2013). asks whether the Government obtain[ed] information by physically intruding on persons, houses, papers, or effects.117Id. at 1414 (quoting Jones, 132 S. Ct. at 950 n.3). In Jones, Justice Scalia applied founding-era trespass principles to the governments placement of a GPS device on a defendants car to classify it as a search.118Jones, 132 S. Ct. at 94950, 953. This reasoning promotes the underlying purpose of the Fourth Amendment search restrictions, to protect the right of the people to be secure, to protect, that is, individual privacy. Property law principles, then, can operate as a shortcut for determining whether an invasion of privacy a search has occurred.

In Ganias, for example, the panel focused on the infringement of the individuals right to exclude others from his property. But this infringement does not necessarily result in the action being a seizure. In Jones, the Court did not find that the government had seized the defendants car by placing a GPS tracker on it even though this interfered with the defendants right to exclude others from his property.119See id. at 949; id. at 958 (Alito, J., concurring in the judgment) (The Court does not contend that there was a seizure.). Instead, the Court viewed violation of the right to exclude as evidence to support its conclusion that a search had occurred.120Id. at 949 (majority opinion). In the digital context, then, the property law analogues are useful in determining whether a search occurred, either under the trespass test121See Jardines, 133 S. Ct. at 1414 (noting that a search occurs when government obtains information by invading a constitutionally protected place (quoting Jones, 132 S. Ct. at 950 n.3)). or because they illuminate the reasonableness of expectation of privacy.122See Rakas v. Illinois, 439 U.S. 128, 149 (1978).

There are two complications to this conception, however. First, in United States v. Karo,123 468 U.S. 705 (1984). the Supreme Court explicitly rejected the notion that potential, as opposed to actual, invasions of privacy constitute searches for purposes of the Fourth Amendment.124Id. at 712. Second, if duplication of data is an invasion of privacy because of the potential that the government will read it, then many actions currently classified as seizures also become searches. If the government seizes a filing cabinet without opening it, for example, then risks to the privacy of the cabinets contents still attach. These hurdles should be cleared, though, by recognition that duplication does not just risk violation, but is in fact itself a violation of privacy, because duplication inherently reduces ones ability to control her information.

In Karo, the police had given to the defendant a can of ether containing a hidden tracking device.125Id. at 708. The Court ruled that this delivery did not constitute a search because the beeper was unmonitored at that time.126Id. at 712. Kerr argues that this holding indicates that a search has not occurred until the data is observed by an actual person.127See Kerr, supra note 11, at 554. But additional language in Karo calls this conclusion into question: It is the exploitation of technological advances that implicates the Fourth Amendment, not their mere existence.128Karo, 468 U.S. at 712. Indeed, what the Court meant by unmonitored was not that no one was actually reviewing the data at that time, but rather that the device was not passing any information to the police.129Id. (noting that the beeper conveyed no information that Karo wished to keep private, for it conveyed no information at all). The Court did not address, for example, the governments recording location data and then viewing it later. In that situation, the government would have been exploiting the technology immediately, even if an actual person did not immediately review it. As soon as the data personal information about movements is recorded, the individual has lost control over that information.

Similarly, in Kyllo, the Court ruled that a police officer who had used a thermal imager to measure heat radiating from a house had performed a search.130 Kyllo v. United States, 533 U.S. 27, 40 (2001). But if the technology had not immediately relayed that information to the officer if the officer had needed to return to the station to analyze the data collected the search would still have occurred upon collection rather than review. Once the data is recorded, the information is beyond the control of the data owner.

These situations are analogous to digital duplication in that the invasion of privacy happens at the time of collection or duplication, not only upon later review. Duplication of private information is an active though often automated process, done at the direction of the government agent. A duplication is itself an exploitation of [a] technological advance[].131Karo, 468 U.S. at 712. Relying on the analogy of the government digitally rooting around illustrates some of the problems with extending nondigital concepts to the digital world. See Brenner, supra note 105. Although the idea is appealing, the results are less so. Cf. Tron (Walt Disney Productions 1982).

By contrast, when the government seizes a filing cabinet,132Cf. United States v. Chadwick, 433 U.S. 1 (1977) (finding that police needed a warrant to open search a lawfully seized footlocker). it has not yet directed anything at the information within. This may mean that seizing a filing cabinet is not also a search of its contents. Only when the government directs its technology at an individuals private information does it invade that individuals reasonable expectation of privacy and accordingly perform a search. On the other hand, perhaps we should consider the seizure of a filing cabinet as also a search of its contents this action plainly should be subject to Fourth Amendment review, and there is no pressing reason to reject a belt and suspenders approach when both privacy and possessory interests are infringed. Thus, neither the Courts seemingly limiting language in Karo that potential invasions do not implicate the Fourth Amendment nor the implication that certain seizures may also be searches undermines the classification of duplications as searches.

B. Retention

One might, then, view the act of duplication as a search, and duplication and subsequent retention as a search and seizure.133Cf. Katz v. United States, 389 U.S. 347, 354 (1967) (characterizing the recording and listening to of private conversations as a search and seizure (emphasis added)); Berger v. New York, 388 U.S. 41, 54 (1967) (same). This approach seems natural because, if the government possesses something, it must have seized it. But, as mentioned above, such logic reverses the Fourth Amendment seizure inquiry, which focuses not on whether the government possesses something, but rather on whether the governments action was a meaningful interference with an individuals possessory interests.134 United States v. Jacobsen, 466 U.S. 109, 113 (1984). Thus, it is at least ambiguous whether retention constitutes a seizure.135See supra section II.B, pp. 105659.

But retention likely is a search. In Klayman v. Obama,136 957 F. Supp. 2d 1 (D.D.C. 2013), vacated and remanded, 800 F.3d 559 (D.C. Cir. 2015). for example, the district court held that bulk metadata collection efforts constituted a search.137Id. at 32. While several factors contributed to the courts conclusion, the retention of data was itself considered a part of the Fourth Amendment search.138 The court found that the plaintiffs had no possessory interest in metadata held by a third party, and accordingly found no seizure. See id. at 30 n.41. This result illustrates the limits of the possessory interest framework discussed above in section II.B. The court ordered the government not to stop its analysis of the data, but rather to destroy any such metadata in its possession.139Id. at 43. The retention is itself an ongoing violation of privacy in fact, copying without retention is not much of a violation of privacy at all.140 Though it may still be a search, duplication without retention is probably de minimis or otherwise reasonable. See infra, section IV.B, pp. 106667.

One feature of Fourth Amendment search jurisprudence is the inability, once a search is completed, to revoke consent.141See, e.g., United States v. Lattimore, 87 F.3d 647, 65152 (4th Cir. 1996). Thus, if an individual consents to duplication of his data, he may not be able to revoke that consent once the copying is complete.142 The same would result if the initial copying were authorized by warrant or a warrant exception: if the search ends when the copying is complete, the government would need no further justification for retaining the data. This anomaly makes viewing data retention as a seizure appealing to civil libertarians because such a conception would allow the data owner to rescind consent and recover sole possession of her data at any time.143See Taticchi, supra note 21, at 48384. But because copying and continued retention of the data each interfere with control over personal information, each is a search. When consent is revoked, therefore, the ongoing retention must end.

On the other hand, if duplication is a seizure because it interferes with the right to delete144See Ohm, supra note 20, at 1112; Ohm, supra note 72, 6167. or exclusive possession,145See United States v. Ganias, 755 F.3d 125, 137 (2d Cir. 2014), rehg en banc granted, 791 F.3d 290 (2d Cir. 2015); see also Taticchi, supra note 21, at 496. then the protection would not extend to information the individual doesnt own. Movies, for example, to which the hard drive owner has no right to exclusive possession, might be excluded from any seizure analysis.146See supra pp. 105758. Yet even if an individual has no claim to exclusive ownership, she does have a privacy interest in her files including keeping private the information that reveals what movies, music, or books she owns. By viewing data retention as a search instead of a seizure, the individual can demand deletion because she retains a reasonable expectation of privacy in that information, whether or not she owns it.

Because privacy refers to an individuals control over information, and retention interferes with that control, retention is an invasion of privacy, and thus a search. The consequence of the government possessing a copy is exactly the same: a loss of control over the data.

Several consequences flow from identifying duplication and retention as a search, rather than a seizure. For example, as discussed above, consent, and more particularly the right to revoke consent, plays a different role in searches than in seizures. In addition, the different nature of government intrusion affects both the reasonableness analysis and the de minimis analysis. Finally, classifying duplication as a search has different implications for data that has been shared publicly. This Part examines these additional consequences in turn.

A. Duplications and Reasonableness

The Fourth Amendment prohibits only unreasonable searches and seizures. Duplicating information might be a search, but that conclusion does not necessarily render the action a violation of the Fourth Amendment. Rather, it merely subjects the action to Fourth Amendment reasonableness analysis. The reasonableness of a search is determined by weighing the degree to which it intrudes upon an individuals privacy against the degree to which it is needed for the promotion of legitimate governmental interests.147 Wyoming v. Houghton, 526 U.S. 295, 300 (1999).

Because the privacy interest violated can vary with the governments use of the data, courts can more easily conduct reasonableness balancing when the government asserts a need for the data for some purpose other than as evidence. Recall that in Ganias the government argued it might need to retain nonresponsive data for authentication purposes.148See Ganias, 755 F.3d at 139. If retention of data is a seizure, then the individuals interest is binary: her right to delete or exclude is fully infringed regardless of the purpose for which the government retains her data. The individual-interest side of the balance varies only with the length of time of the infringement.149See United States v. LaFrance, 879 F.2d 1, 6 (1st Cir. 1989). As that court noted, the nature and extent of the intrusion matter as well. Id. (quoting United States v. Place, 462 U.S. 696, 705 (1983)). But in the duplication-as-seizure context, that nature is already defined as the infringement on the right to exclude or delete, and thus the intrusiveness of the duplication, conceived as a seizure, varies only with the length of time of the infringement. Thus, in Ganias, for example, the individuals side of the balance contained only the right to exclusive possession infringed by ongoing retention, regardless of what the government did with the data: whether the government used the data for authentication, as evidence in the initial contract fraud prosecution, or as evidence in the subsequent tax fraud prosecution, the infringement on Ganiass possessory interests was the same.

If the retention is a search, however, then the individuals interest more naturally varies with the governments use of the data. Thus, a court could recognize the data retention as a search, but find that it is reasonable so long as it is for the limited purpose of authentication. Retention for any other purpose might be unreasonable because of the correspondingly greater infringement on privacy interests, and thus any evidence obtained from an unreasonable use of the duplicated data could be subject to the exclusionary rule.150Cf. Ganias, 755 F.3d at 14041 (applying exclusionary rule to unreasonable seizure of data).

In Riley, the government argued that it might need to search a cell phone immediately out of concern that the data could be remotely deleted.151 Riley v. California, 134 S. Ct. 2473, 2486 (2014). The Court was unconvinced, citing the availability of technology that could stop remote deletion.152Id. at 2487. Another approach to the deletion concern might be digital duplication of the phones contents. Under the analysis laid out in this Note, this duplication would plainly be a search. But the flexibility of the search reasonableness analysis applies with equal force here. Merely copying a phone to preserve it from remote wiping, pursuant to the exigent circumstance of imminent deletion, might be a reasonable search. Because the invasion of privacy is less than when the officer actually examines the phones contents, the governments countervailing interest in preserving the data might render the action reasonable. But the extent of the interference with privacy also varies, like a seizure, with the length of time of the interference. The longer the information is out of the individuals control, the greater the interference. Thus, at a certain point, the warrantless retention of the copy would become unreasonable.

Of course, classifying duplication as a search, rather than as a seizure, may not affect the ultimate outcome of the reasonableness analysis in this context. If duplication is a seizure because it interferes with the right to exclusive possession, it may still be reasonable to make a seizure to prevent remote wiping. The key difference, though, is that the infringement on exclusive possession varies only with the length of the infringement. In a close case, what the government does with the duplicated data that it has reasonably seized does not affect the reasonableness of the seizure. Once the government interests overcome the invasion of the right to exclusive possession, any subsequent action doesnt alter this fundamental balancing.153 Orin Kerr presents a slightly different take, at least in the context of subsequent searches of nonresponsive data, as occurred in both Ganias and CDT. See Orin S. Kerr, Executing Warrants for Digital Evidence: The Case for Use Restrictions on Nonresponsive Data, 48 Tex. Tech L. Rev. 2932 (forthcoming 2016). Kerr argues that the subsequent use of nonresponsive data obtained in the execution of an initial warrant converts that first warrant into a general warrant. Id. at 31. He does not apply the traditional reasonableness balancing test, but instead relies on the Warrant Clause. See U.S. Const. amend. IV ([N]o Warrants shall issue, but ...particularly describing the ...things to be seized.).

B. De Minimis Searches

As Kerr explains, a computer, in the course of its normal function, must make copies for internal use. If this internal duplication is a search, it would presumptively require a warrant.154See Kerr, supra note 11, at 551. But preexisting concepts in search jurisprudence mitigate this concern. The copying that is intrinsic to computer use could be conceived of as a de minimis violation that is either no intrusion at all, or such a minor violation that it is presumptively reasonable.155Cf. Jeffrey Brown, How Much Is Too Much? The Application of the De Minimis Doctrine to the Fourth Amendment, 82 Miss. L.J. 1097, 1109 (2012). Because such internal copying is temporary, never subject to the computer users control, and never even at risk of exposure, it can easily be considered de minimis. If it interferes with the data owners control over his information, this interference is small and temporary. This type of copying, even if it should be considered a search insofar as it is directed at private information, is a reasonable search given the low level of violation and its necessity to the operation of a computer. The same analysis might also apply, of course, in the seizure context: the impingement on the right to exclude is so temporary that it may be a de minimis seizure.

C. Publicized Information

As discussed above in section II.B, classifying duplication and retention as a seizure might mean that the government could not retain copies of publicly released information, such as blog posts. By viewing data duplication and retention as searches, though, the government could retain publicly posted information without a warrant. This is so because, by posting them in a public forum, the blogger loses any reasonable expectation of privacy.156Cf. Katz v. United States, 389 U.S. 347, 351 (1967) (What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.). That is, by sharing the information with the world, the individual gave up control. To obtain this information from the Internet, the government need not commit any violations of property law, such as trespass, which might otherwise suggest that the data owner retained a reasonable expectation of privacy. Thus, collection of such data would not constitute a search at all and would not be subject to the requirements of the Fourth Amendment. While there might be reasons to limit broad electronic trawling of the public Internet, they cannot be located in the Fourth Amendment.

The Fourth Amendment protects people from two things: unreasonable seizures and unreasonable searches. It is important to recognize these as distinct protections lest the value of the protections deteriorate. A seizure is best viewed as a dispossession of property, and a search as an invasion of privacy. There may well be times when these two overlap, and often a seizure will include risks to privacy. Viewing collection of data only as a seizure would dramatically reduce the Fourth Amendments protections over vast amounts of personal, private information in which the individual may have no cognizable property interests. The government could conceivably collect private information that does not have a property component such as the heat signatures in Kyllo or the titles of the books in private libraries with impunity as long as it doesnt review the data. Instead, we should recognize these invasions of privacy, reviewed by a government agent or not, for what they are: Fourth Amendment searches.

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Digital Duplications and the Fourth Amendment

A Guide to the Fourth Amendment

The Fourth Amendment, or Amendment IV of the United States Constitution is the section of the Bill of Rights that protects people from being searched or having their things taken away from them without any good reason. If the government or any law enforcement official wants to do that, he or she must have a very good reason to do that and must get permission to perform the search from a judge. The fourth amendment was introduced into the Constitution of the United States as a part of the Bill of Rights on September 5, 1789 and was ratified or voted four by three fourths of the states on December 15, 1791.

The Text of the Fourth Amendment

The text of the Fourth Amendment which is found in the United States Constitution and the Bill of Rights is the following:

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.

History of the Third Amendment

In Colonial America, laws were written in order to help the English earn money on customs. The justices of the peace would do this by writing general warrants, which allowed general search and seizure to happen. Massachusetts wrote a law in 1756 that banned these warrants, because tax collectors were abusing their powers by searching the colonists homes for illegal goods. These general warrants allowed any messenger or officer to search a suspected place without any evidence. It also allowed them to seize people without even saying what they did wrong or showing evidence of their wrongdoings. Virginia also banned the use of general warrants later due to other fears. These actions later led to the addition of the Fourth Amendment in the Bill of Rights.

The Fourth Amendment Today

Today, the Fourth Amendment means that in order for a police officer to search and arrest someone, he or she will need to get permission or a warrant to do so from a judge. In order to get a warrant, the police officer must have evidence or probable cause that supports it. The police officer, or whoever has the evidence, must swear that it is true to his or her knowledge.

Facts About the Fourth Amendment

The Fourth Amendment applies to the government, but not any searches done by organizations or people who are not doing it for the government.

Some searches can be done without a warrant without breaking the law, like when there is a good reason to think that a crime is happening.

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Fourth Amendment - Kids | Laws.com

Fourth Amendment,amendment (1791) to the Constitution of the United States, part of the Bill of Rights, that forbids unreasonable searches and seizures of individuals and property. For the text of the Fourth Amendment, see below.

Introduced in 1789, what became the Fourth Amendment struck at the heart of a matter central to the early American experience: the principle that, within reason, Every mans house is his castle, and that any citizen may fall into the category of the criminally accused and ought to be provided protections accordingly. In U.S. constitutional law, the Fourth Amendment is the foundation of criminal law jurisprudence, articulating both the rights of persons and the responsibilities of law-enforcement officials. The balance between these two forces has undergone considerable public, political, and judicial debate. Are the amendments two clauses meant to be applied independently or taken as a whole? Is the expectation of privacy diminished depending on where and what is suspected, sought, and seized? What constitutes an unreasonable search and seizure?

The protections contained in the amendment have been determined less on the basis of what the Constitution says than according to what it has been interpreted to mean, and, as such, its constitutional meaning has inherently been fluid. The protections granted by the U.S. Supreme Court have expanded during periods when the court was dominated by liberals (e.g., during the tenure of Chief Justice Earl Warren [195369]), beginning particularly with Mapp v. Ohio (1961), in which the court extended the exclusionary rule to all criminal proceedings; by contrast, during the tenure of the conservative William Rehnquist (19862005) as chief justice, the court contracted the rights afforded to the criminally accused, allowing law-enforcement officials latitude to search in instances when they reasonably believed that the property in question harboured presumably dangerous persons.

The full text of the amendment is:

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.

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Fourth Amendment | United States Constitution | Britannica.com

FOURTH AMENDMENT: AN OVERVIEW

I. INTERESTS PROTECTED

The Fourth Amendment of the U.S. Constitution provides, "[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, 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."

The ultimate goal of this provision is to protect peoples right toprivacy and freedom from arbitrary governmentalintrusions. Private intrusions not acting in the color of governmental authority areexempted from theFourth Amendment.

To havestanding to claim protection under the Fourth Amendment, one mustfirst demonstrate an expectation of privacy, which is not merely a subjective expectation in mindbut an expectationthat society is prepared to recognized as reasonable under the circumstances. For instance, warrantless searches ofprivate premises are mostly prohibited unless there are justifiable exceptions; on the other hand,a warrantless seizure of abandoned property usually does not violate the Fourth Amendment. Moreover, the Fourth Amendment protection does not expand to governmental intrusion and information collection conducted upon open fields. AnExpectation of privacy in an open field is not considered reasonable. However, there are some exceptions where state authorities granted protection to open fields.

A bivens action can be filed against federal law enforcement officials for damages resulting from an unlawful search and seizure. States can always establish higher standards for searches and seizures than theFourth Amendmentrequires, but states cannot allow conduct that violates the Fourth Amendment.

The protection under the Fourth Amendment can be waived if one voluntarily consents to or does not object to evidence collected during a warrantless search or seizure.

II. SEARCHES AND SEIZURES UNDER FOURTH AMENDMENT

The courts must determine what constitutes asearchorseizureunder theFourth Amendment. If the conduct challenged does not fall within theFourth Amendment, the individualwill not enjoy protection under Fourth Amendment.

A. Search

A search under Fourth Amendment occurs when a governmental employee or agent of the government violates an individual's reasonableexpectation of privacy.

Strip searches and visual body cavity searches, including anal or genital inspections, constitute reasonable searches under theFourth Amendment when supported by probable cause and conducted in a reasonable manner.

Adog-sniff inspectionis invalid under theFourth Amendmentif the the inspection violates areasonable expectation of privacy. Electronic surveillance is also considered a search under theFourth Amendment.

B. Seizure of a Person

A seizure of a person, within the meaning of theFourth Amendment, occurs when the police's conduct would communicate to a reasonable person, taking into account the circumstances surrounding the encounter, that the person is notfree to ignore the police presence and leave at hiswill.

Two elements must be present to constitute a seizure of a person. First, there must be a show of authority by the police officer. Presence of handcuffs or weapons,the use of forceful language, andphysical contact are each strong indicators of authority. Second, the person being seized must submit to the authority. An individualwho ignores the officers request and walks away has not been seized for Fourth Amendment purposes.

An arrest warrant is preferred but not required to make alawful arrest under theFourth Amendment. A warrantless arrest may be justified whereprobable cause and urgent need are presentprior to the arrest. Probable cause is present when the police officer has a reasonable beliefin the guilt of the suspect based on the facts and information prior to the arrest. For instance, a warrantless arrest may be legitimate in situations where a police officer has a probable belief that a suspect has either committed a crime or is a threat to the public security. Also, apolice officer might arrest a suspect to prevent the suspects escape or to preserve evidence. A warrantless arrest may be invalidatedif the police officer failsto demonstrate exigent circumstances.

The ability to makewarrantless arrests are commonly limited by statutes subject to the due process guaranty of theU.S. Constitution. A suspect arrested without a warrant is entitled toprompt judicial determination, usually within 48 hours.

There are investigatory stops that fall shortof arrests, but nonetheless, theyfall within Fourth Amendmentprotection.For instance, police officers can perform aterry stop or a traffic stop. Usually, these stops provide officers with less dominion and controlling power and impose less of an infringement of personal liberty for individual stopped. Investigatory stops must be temporary questioning for limited purposes and conducted in a manner necessary to fulfill the purpose.

Anofficers reasonable suspicion is sufficient to justify brief stops and detentions. To determine if the officer has met the standard to justify the seizure, the court takes into account the totality of the circumstances and examines whether the officer has a particularized and reasonable belief for suspecting the wrongdoing. Probable cause gained during stops or detentions might effectuate a subsequent warrantless arrest.

C. Seizure of Property

A seizure of property, within the meaning of theFourth Amendment, occurs when there is some meaningful interference with anindividuals possessory interests in the property.

In some circumstances, warrantless seizures of objects in plain view do notconstitute seizures within the meaning of Fourth Amendment. When executing a search warrant, an officer might be able to seize an item observed in plain view even if it is not specified in the warrant.

III. WARRANT REQUIREMENT

A search or seizure is generally unreasonable and illegal without a warrant, subject to only a few exceptions.

To obtain a search warrant or arrest warrant, the law enforcement officer must demonstrate probable causethata search or seizure is justified. Anauthority, usually a magistrate, will consider the totality of circumstances and determine whether to issue the warrant.

The warrant requirement may be excused in exigent circumstances if an officer has probable cause and obtaining a warrant is impractical. For instance, in State v. Helmbright 990 N.E.2d 154, Ohiocourt held that awarrantless search of probationer's person or place of residence complies with the Fourth Amendment if the officer who conducts the search possesses reasonable grounds to believe that the probationer has failed to comply with the terms of hisprobation.

Other well-established exceptions to the warrant requirement include consensual searches, certain brief investigatory stops, searches incident to a valid arrest, and seizures of items in plain view.

There is no general exception to theFourth Amendment warrant requirement in national security cases. Warrantless searches are generally not permitted in exclusively domestic security cases. In foreign security cases, court opinions might differ on whether to accept the foreign security exception to warrant requirement generallyand, if accepted, whether the exception should include bothphysical searches and electronic surveillance.

IV. REASONABLENESS REQUIREMENT

All searches and seizures under Fourth Amendment must be reasonable. No excessive force shall be used. Reasonableness is the ultimate measure of the constitutionality of a search or seizure.

Searches and seizures with a warrant satisfy the reasonableness requirement. Warrantless searches and seizures are presumed to be unreasonable unless they fall within a few exceptions.

In cases of warrantless searches and seizures, the court will try to balance the degree of intrusion on the individuals right toprivacy and the need to promote government interests and special needs. The court will examine the totality of the circumstances to determine if the search or seizure was justified. When analyzingthe reasonableness standard, the court uses an objective assessment and considers factors including the degree of intrusion by the search or seizure andthe manner in which the search or seizure is conducted.

V. EXCLUSIONARY RULE

Under the exclusionary rule, any evidence obtained inviolation of theFourth Amendmentwill be excluded from criminal proceedings. There are a few exceptions to this rule.

VI. ELECTRONIC SURVEILLANCE

In recent years, the Fourth Amendment's applicability inelectronic searches and seizures has received much attention from the courts. With the advent of the internet and increased popularity of computers, there has been anincreasing amount of crime occurring electronically. Consequently, evidence of such crime can often be found on computers, hard drives, or other electronic devices. TheFourth Amendment applies to the search and seizure ofelectronic devices.

Many electronic search cases involvewhether law enforcement can search a company-owned computer that an employee uses to conduct business. Although the case law is split, the majority holds that employees do not have a legitimate expectationof privacy with regard to information stored on a company-owned computer. In the 2010 case ofCity of Ontario v. Quon (08-1332), the Supreme Court extended this lack of an expectation of privacy to text messages sent and received on an employer-owned pager.

Lately, electronic surveillance and wiretapping has also caused a significant amount of Fourth Amendment litigation.

VII.THE USA PATRIOT ACT

Following the September 11, 2001 attacks on the World Trade Center and the Pentagon, Congress and the President enacted legislation to strengthen the intelligence gathering communitys ability to combat domestic terrorism. Entitled the USA Patriot Act, the legislations provisions aimed to increase the ability of law enforcement to search email and telephonic communications in addition to medical, financial, and library records.

One provision permitslaw enforcement to obtain access to stored voicemails by obtaining a basic search warrant rather than a surveillance warrant. Obtaining a basic search warrantrequires a much lower evidentiary showing. A highlycontroversial provision of the Act includespermission for law enforcement to use sneak-and-peak warrants. A sneak-and-peak warrant is a warrant in which law enforcement can delay notifying the property owner about the warrants issuance. In an Oregon federal district court case that drew national attention, Judge Ann Aiken struck down the use of sneak-and-peak warrants as unconstitutional and inviolation of the Fourth Amendment. See 504 F.Supp.2d 1023 (D. Or. 2007).

The Patriot Act also expanded the practice of using National Security Letters (NSL). An NSL is an administrative subpoena that requires certain persons, groups, organizations, or companies to provide documents about certain persons. These documents typically involve telephone, email, and financial records. NSLs also carry a gag order, meaningthe person or persons responsible for complying cannot mention theexistence of the NSL. Under the Patriot Act provisions, law enforcement can use NSLs when investigating U.S. citizens, even when law enforcement does not think the individual under investigation has committed a crime. The Department of Homeland Security has used NSLs frequently since its inception. By using anNSL, an agency has no responsibility to first obtain a warrant or court order before conducting its search of records.

See constitutional amendment.

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Fourth Amendment | Wex Legal Dictionary / Encyclopedia | LII ...

The Fourth Amendment

Imagine youre driving a car, and a police officer spots you and pulls you over for speeding. He orders you out of the car. Maybe he wants to place you under arrest. Or maybe he wants to search your car for evidence of a crime. Can the officer do that?

The Fourth Amendment is the part of the Constitution that gives the answer. According to the Fourth Amendment, the people have a right to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures. This right limits the power of the police to seize and search people, their property, and their homes.

The Fourth Amendment has been debated frequently during the last several years, as police and intelligence agencies in the United States have engaged in a number of controversial activities. The federal government has conducted bulk collection of Americans telephone and Internet connections as part of the War on Terror. Many municipal police forces have engaged in aggressive use of stop and frisk. There have been a number of highly-publicized police-citizen encounters in which the police ended up shooting a civilian. There is also concern about the use of aerial surveillance, whether by piloted aircraft or drones.

The application of the Fourth Amendment to all these activities would have surprised those who drafted it, and not only because they could not imagine the modern technologies like the Internet and drones. They also were not familiar with organized police forces like we have today. Policing in the eighteenth and early nineteenth centuries was a responsibility of the citizenry, which participated in night watches. Other than that, there was only a loose collection of sheriffs and constables, who lacked the tools to maintain order as the police do today.

The primary concerns of the generation that ratified the Fourth Amendment were general warrants and writs of assistance. Famous incidents on both sides of the Atlantic gave rise to placing the Fourth Amendment in the Constitution. In Britain, the Crown employed general warrants to go after political enemies, leading to the famous decisions in Wilkes v. Wood (1763) and Entick v. Carrington (1765). General warrants allowed the Crowns messengers to search without any cause to believe someone had committed an offense. In those cases the judges decided that such warrants violated English common law. In the colonies the Crown used the writs of assistancelike general warrants, but often unbounded by time restraintsto search for goods on which taxes had not been paid. James Otis challenged the writs in a Boston court; though he lost, some such as John Adams attribute this legal battle as the spark that led to the Revolution. Both controversies led to the famous notion that a persons home is their castle, not easily invaded by the government.

Today the Fourth Amendment is understood as placing restraints on the government any time it detains (seizes) or searches a person or property. The Fourth Amendment also provides that 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. The idea is that to avoid the evils of general warrants, each search or seizure should be cleared in advance by a judge, and that to get a warrant the government must show probable causea certain level of suspicion of criminal activityto justify the search or seizure.

To the extent that a warrant is required in theory before police can search, there are so many exceptions that in practice warrants rarely are obtained. Police can search automobiles without warrants, they can detain people on the street without them, and they can always search or seize in an emergency without going to a judge.

The way that the Fourth Amendment most commonly is put into practice is in criminal proceedings. The Supreme Court decided in the mid-twentieth century that if the police seize evidence as part of an illegal search, the evidence cannot be admitted into court. This is called the exclusionary rule. It is controversial because in most cases evidence is being tossed out even though it shows the person is guilty and, as a result of the police conduct, they might avoid conviction. The criminal is to go free because the constable has blundered, declared Benjamin Cardozo (a famous judge and ultimately Supreme Court justice). But, responded another Supreme Court justice, Louis Brandeis, If the government becomes the lawbreaker, it breeds contempt for the law.

One of the difficult questions today is what constitutes a search? If the police standing in Times Square in New York watched a person planting a bomb in plain daylight, we would not think they needed a warrant or any cause. But what about installing closed circuit TV cameras on poles, or flying drones over backyards, or gathering evidence that you have given to a third party such as an Internet provider or a banker?

Another hard question is when a search is acceptable when the government has no suspicion that a person has done something wrong. Lest the answer seem to be never, think of airport security. Surely it is okay for the government to screen people getting on airplanes, yet the idea is as much to deter people from bringing weapons as it is to catch themthere is no cause, probable or otherwise, to think anyone has done anything wrong. This is the same sort of issue with bulk data collection, and possibly with gathering biometric information.

What should be clear by now is that advancing technology and the many threats that face society add up to a brew in which the Fourth Amendment will continue to play a central role.

In the Supreme Courts decisions interpreting the Fourth Amendment, there are a lot of cross-cutting arguments.

The biggest challenge ahead for the Fourth Amendment is how it should apply to computers and the Internet.

What the Fourth Amendment Fundamentally Requires by Barry Friedman

In the Supreme Courts decisions interpreting the Fourth Amendment, there are a lot of cross-cutting arguments.

For example, sometimes the Justices say that there is a strong preference for government agents to obtain warrants, and that searches without warrants are presumptively invalid. At other times they say warrants are unnecessary, and the only requirement is that searches be reasonable. At times the Justices say probable cause is required to support a search; at others they say probable cause is not an irreducible minimum.

This is your Fourth Amendment. It describes [t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures. It is important for each American to focus on some basics and decideseparate and apart from what the Justices saywhat this vital amendment means.

People say that the Fourth Amendment protects privacy, but that trivializes it. In this world you give up a lot of privacy, whether you wish to or not. Internet cookies, or data stored in web browsers, are just one example. But the Internet companies are not going to come take you away. The government might. What the Fourth Amendment protects is the right of the people to be secure. The Fourth Amendment is the means of keeping the government out of our lives and our property unless it has good justification.

In evaluating how the Fourth Amendment should be interpreted, it is essential to bear in mind the vast changes in policing since the time it was ratified. Whereas policing once was reactive, tasked with identifying and catching criminals, today it has become proactive and is based in deterrence. Before, policing was mostly based on suspicion, it was aimed at people for whom there was cause to believe they had violated or were about to violate the law. Today, policing is aimed at all of usfrom red light cameras to bulk data collection by intelligence agencies to airport security.

There are some basic principles that should govern searches and seizures.

First, no member of the Executive branch should be permitted to intervene in our lives without the say-so of at least one other branch. This is fundamental, and all the more important when that Executive actor engages in surveillance of the citizenry and can use force and coercion against them.

Second, a central purpose of the Fourth Amendment is preventing arbitrary or unjustified intrusions into the lives and property of citizens.

In light of these basic principles, certain interpretations of the Fourth Amendment follow:

No search or seizure is reasonable if it is not based on either legislative authorization or pursuant to rules that have some form of democratic say in their making. The police can write rulesall other agencies of executive government dobut absent a critical need for secrecy those rules should be public and responsive to public wishes.

Second, warrants are to be preferred. Policing agencies are mission-oriented. We want them to bethey have a vital role protecting public safety. But because they are mission-oriented, warrants should be obtained in advance of searching whenever possible so that a neutral judge can assess the need to intrude on peoples lives.

Third, we should distinguish between searches aimed at suspects and those aimed at society in general. When there is a particular suspect, the protections of a warrant and probable cause apply. But those protections make no sense when we are all the target of policing. In the latter instance the most important protection is that policing not discriminate among us. For example, at airport security all must be screened the same unless and until there is suspicioncause to single someone out.

Finally, often todays policing singles out a particular group. Examples include profiling (based on race, religion, or something else) or subjecting only workers in some agencies to drug tests. When policing is group-based, the proper clause of the Constitution to govern is the Equal Protection Clause. When discriminatory searching or seizing occurs, the government should have to prove two things: that the group it is selecting for unfavorable treatment truly is more likely to contain people worthy of the governments attention, and that the incidence of problematic behavior is sufficiently great in that group to justify burdening everyone. Otherwise, the government should go back to either searching individuals based on suspicion, or search us all.

The Future of the Fourth Amendment by Orin Kerr

The biggest challenge ahead for the Fourth Amendment is how it should apply to computers and the Internet.

The Fourth Amendment was written over two hundred years ago. But todays crimes often involve computers and the Internet, requiring the police to collect digital evidence and analyze it to solve crimes.

The major question is, how much power should the police have to collect this data? What is an unreasonable search and seizure on the Internet?

Consider the example of a Facebook account. If you log in to Facebook, your use of the account sends a tremendous amount of information to Facebook. Facebook keeps records of everything. What you post, what messages you send, what pictures you like, even what pages you view. Facebook gets it all, and it keeps records of everything you do. Now imagine that the police come to Facebook and want records of a particular user. The police think the suspect used Facebook to commit the crime or shared evidence of the crime using the site. Maybe the suspect was cyberstalking and harassing a victim on Facebook. Or maybe the suspect is a drug dealer who was exchanging messages with another drug dealer planning a future crime. Or perhaps the suspect committed a burglary, and he posted pictures of the burglary for all of his Facebook friends to see.

Heres the hard question: What limits does the Fourth Amendment impose on the government getting access to the account records? For example, is it a Fourth Amendment search or seizure for the government to get what a person posted on his Facebook wall for all of his friends to see? Is it a search or seizure to get the messages that the suspect sent? How about records of what page the suspect viewed? And if it is a search or seizure, how much can the government seize with a warrant? Can the government get access to all of the account records? Only some of the account records?

The courts have only begun to answer these questions, and it will be up to future courts to figure out what the Fourth Amendment requires. As more people spend much of their lives online, the stakes of answering these questions correctly becomes higher and higher.

In my view, courts should try to answer these questions by translating the traditional protections of the Fourth Amendment from the physical world to the networked world. In the physical world, the Fourth Amendment strikes a balance. The government is free to do many things without constitutional oversight. The police can watch people in the public street or watch a suspect in a public place. They can follow a car as it drives down the street. On the other hand, the police need cause to stop people, and they need a warrant to enter private places like private homes.

The goal for interpreting the Fourth Amendment should be to strike that same balance in the online setting. Just like in the physical world, the police should be able to collect some evidence without restriction to ensure that they can investigate crimes. And just like in the physical world, there should be limits on what the government can do to ensure that the police do not infringe upon important civil liberties.

A second important area is the future of the exclusionary rule, the rule that evidence unconstitutionally obtained cannot be used in court. The history of the exclusionary rule is a history of change. In the 1960s and 1970s, the Supreme Court dramatically expanded the exclusionary rule. Since the 1980s, however, the Supreme Court has cut back on when the exclusionary rule applies.

The major disagreement is over whether and how the exclusionary rule should apply when the police violate the Fourth Amendment, but do so in good faith, such as when the law is unclear or the violation is only technical. In the last decade, a majority of the Justices have expanded the good faith exception to the exclusionary rule. A central question is whether the good faith exception will continue to expand, and if so, how far.

In the Supreme Courts decisions interpreting the Fourth Amendment, there are a lot of cross-cutting arguments.

The biggest challenge ahead for the Fourth Amendment is how it should apply to computers and the Internet.

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Amendment 4 - National Constitution Center

NEWS

By Leonard Pitts Jr and By Leonard Pitts Jr | January 9, 2014

Here is what he said: "...all constitutional rights are regulated, always have been, and need to be. " It would seem to be a self-evident truth. After all, your First Amendment right to freedom of speech is regulated. If you don't believe it, write something libelous about a guy with deep pockets and man-eating lawyers. Your Fourth Amendment right to freedom from unreasonable searches and seizures is regulated and then some. If you don't believe that, pick up your phone and ask the NSA agent tapping your line.

NEWS

By Alexander E. Hooke | August 28, 2013

"Can we say then that the general economy of power in our societies is becoming a domain of security?" Michel Foucault, 1978 In 1791, the Fourth Amendment - sanctifying what we now call the human right to privacy - became part of the Bill of Rights. Barely had the ink of the signatures dried when it was already threatened by government. Congress immediately planned to take a census of the newly established country's population, only to be met by numerous citizens resisting officials poking their heads onto their property and asking about their children, size of home, how many males and females were over the age of 16. More than two centuries later, the right to privacy continues to be threatened and violated.

NEWS

June 13, 2013

Reader David Liddle writes that "since I have nothing to hide and would like to protect myself and my family from terrorists, I have no problem with the government looking at my emails and listening to my phone calls" ("'Don't worry: The NSA isn't interested in you," June 12). I would ask if he sees any value in the Fourth Amendment to the Constitution guaranteeing privacy from government intrusion? Would he prefer to live under a totalitarian government that spies on all its citizens in order to silence dissent?

NEWS

June 10, 2013

I was somewhat disturbed by reports the National Security Agency has been monitoring all phone calls on the Verizon system for years ("Surveillance state," June 7). But like most Americans I accepted it as my government protecting the country against terrorists. Today, however, I made a point of reading the Fourth Amendment to the Constitution rather than just believing I knew what it meant - and realized how wrong I was. I recommend that citizens of this country obtain and review a copy of the Constitution, including the Bill of Rights, before formulating an opinion on major issues such as this.

NEWS

June 7, 2013

The Sun's reasoning regarding the recent ruling on DNA collection is severely flawed ("Court is right on DNA," June 4). DNA is not 21 s t -century fingerprinting, and it does more than identify a person. It's likely there is yet undetermined information stored in the "non-coding" section of DNA. It is irrelevant whether the information gathered is used or not. The very fact that the state has taken the information from an individual violates the Fourth Amendment. It can be likened to taking someone's computer.

NEWS

By Justin Fenton, The Baltimore Sun | June 3, 2013

A divided U.S. Supreme Court ruled Monday that police in Maryland and elsewhere can continue the warrantless collection of DNA from people arrested - but not convicted - of serious crimes. The 5-4 decision upheld a state law that allows investigators to take genetic information from arrestees, a practice followed by the federal government and about half the states. Police generally compare suspects' DNA to records from other cases in hopes of developing leads. The case, which amplified a long-running debate over the limits of government search-and-seizure powers, began with a challenge from a Wicomico County man linked to a rape after his DNA was taken in an unrelated arrest.

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