Constitutional Opinions

Happy Fourth

Reflections on the Fourth Amendment in the age of the drones.

By From the June 2013 issue

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This is a moment to feature the Fourth Amendment. The thought occurred to me recently when the Drudge Report streamed the headline, “Rand Learns to Love the Drone!” and tucked under it another headline, “Ron Paul’s Fans Furious Over Rand’s Drone Stand…” Drudge also put up a video of the junior senator from Kentucky explaining why he was okay with the way thermal imaging technology was used to illuminate one of the Boston Marathon bombers cowering under the tarpaulin of a boat. 

The reasonableness of this is a no-brainer to nearly everyone, but it would be a mistake to sneer at the underlying concern. If the Bill of Rights is the Himalayas in whose foothills we hoe the vines of liberty, the Fourth Amendment is K2 or Annapurna. The freshets coming off its broad slopes have produced a vast cataract of liberty. Yet what is going to happen in the digital age, with cameras on every corner, satellites listening to our phone calls, and drones the size of bumblebees?

What makes this question so tantalizing—and heated—is that our answers defy the easy partisan categorizations of right or left. “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated,” the Fourth Amendment says, “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.” 

This seemed straightforward enough until God created the telephone. Then in 1928 there came what the Chief Justice of United States, President Taft, called a “conspiracy of amazing magnitude.” It centered on a bootlegger named Roy Olmstead, on whose operations federal agents had placed a wiretap. Despite the absence of a warrant, the Court allowed the tap on the grounds that the language of the Amendment “can not be extended and expanded to include telephone wires reaching to the whole world from the defendant’s house or office.” Wrote Taft: “The intervening wires are not part of his house or office any more than are the highways along which they are stretched.” So Olmstead had to do his prison time plus an extra 30 days for a fine he failed to pay—though President Franklin Roosevelt pardoned him and he got back the fine in lieu of which he’d served the extra month.

This crabbed comprehension lasted until the mid-1960s, when the Court had the epiphany that it was the persons rather than the houses that the Fourth Amendment was intended to protect. Congress eventually concluded the same thing, passing legislation to require warrants for wiretaps.

A few years later the Fourth was among the amendments on which Norma Leah McCorvey—whose name was given as Jane Roe—based her lawsuit in respect of abortion. A majority of the nine ruled in McCorvey’s favor, drawing mainly on the 14th Amendment’s due process clause and certain recently discovered privacy rights. Mark, though, that McCorvey staked her claim at least in part on the Fourth Amendment.

Then, in 1983, the justices grappled with that most sophisticated of all investigative technologies, a device so sensitive that even a decade into the 21st century its mechanisms are not fully understood. The technology is sometimes called the nasus canis, or dog’s nose. When a drug-sniffing hound indicated there was cocaine in a suitcase, the traveler to whom the luggage belonged, Raymond J. Place, took the case to the Supreme Court. The sages allowed the dog’s discovery because, as Justice Sandra Day O’Connor wrote, the pooch’s proboscis was, among other things, sui generis.

The Fourth Amendment was, however, able to protect Danny Lee Kyllo when agents of the Interior Department used thermal imaging equipment to discover a suspicious amount of heat coming off his garage. It was enough to make them suspect that he was using lamps to grow marijuana. What a bewildering batch of bedfellows this produced at the high court, where the liberal justice John Paul Stevens joined the right-wing chief justice, William Rehnquist, and Justices Sandra Day O’Connor and Anthony Kennedy on the side of the feds.

Fetching up against them was a majority that included not only the court’s most conservative justices, Antonin Scalia and Clarence Thomas, but also its most liberal, Ruth Bader Ginsburg and Stephen Breyer, as well as David Souter. For the majority, Scalia declared that not only does the Fourth Amendment draw a “firm line at the entrance to the house,” language the Court had used in an earlier case, but that the line “must be not only firm but also bright,” with “clear specification” of the “methods of surveillance that require a warrant.”

The split on the Court came into sharp relief last year when it ruled that the Fourth Amendment does not preclude a policy of strip-searching all persons being admitted to the general population of a prison, even if there is no suspicion of contraband. The closeness with which this issue has divided the Court is one reason why so much attention is being paid to a case now being heard in New York over the policing practice known as stop-and-frisk.

Stopping suspicious individuals and patting them down for guns or contraband is one of the techniques that Police Commissioner Raymond Kelly has used to drive the crime rate so low as to make New York the safest big city in America, if not the world, if not in all of history. Whether this will survive the departure of Commissioner Kelly, which could come as soon as the end of Mayor Bloomberg’s final term, is the biggest question facing the Big Apple. The Court, in any event, is weighing whether the individuals being stopped and frisked are chosen by the police officers on reasonable grounds. The betting in town is that the United States district judge on the case, Shira Scheindlin, is going to conclude no.

WHAT WILL HAPPEN when we have a drone that can detect a pistol in the waistband of every New Yorker? (Your columnist’s view is that New Yorkers have a right to carry pistols in their waistbands, but that is a different amendment.) On the one hand, it’s going to be harder than ever to blame racial profiling. On the other hand, it’ll be easier than ever to get confused about where to find that firm, bright line to which the Supreme Court has referred. Particularly if the question is not simply whether a teenaged hoodlum might stick up someone in the elevator, but whether an agent of al Qaeda is about to drop a radioactive backpack in the subway.

Boston was not the first place an American citizen put a bomb in a crowd. But it is hard to remember a moment when the lines were so blurry between war and peace. My own prediction is that the times we are entering will remind us of a happy fact about the Fourth Amendment. It is worded in such a way that it does not prohibit the violation of the right of the people to be secure from all searches and seizures, but only certain ones, the ones that are “unreasonable.” So the burden on the courts will be to identify what part of “reasonable” extends from the Age of Reason to the age of the drone. 

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About the Author

Seth Lipsky, founding editor of the New York Sun, is the author of The Citizen's Constitution: An Annotated Guide (Basic Books).