The rule 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.
The current debate… how do we apply this rule, this so called Fourth Amendment, to the virtual world? Orin “The Same As We Do Everywhere Else” Kerr and Scott “Have You Seen Everywhere Else Lately” Greenfield get into a bit of a kerfuffle over in the comment section at Simple Justice:
Kerr: It seems to me that you see the choice as being between (a) your personal fantasy of what the Fourth Amendment should be or (b) a virtual version of what the Fourth Amendment is in the physical world. You then lament that if the choice is (b), because you don’t like the Fourth Amendment we have now…
Greenfield: And what’s wrong with my wanting my personal fantasy of the Fourth Amendment? The state of the Fourth is horrific, with a general rule that is observed only as lip service prefacing a million exceptions. My personal fantasy is to return to the rule. My personal fantasy is to not perpetuate an exception for everything…
To be fair, I’ll admit to oversimplifying Kerr’s position, and you can read every detail in his law review article. But it got me thinking about exceptions. How many exceptions can you have, before you no longer have a rule? Here are a few, and that means in relation to how many there are total, just a few…
The Terry frisk(Terry v. Ohio) – no mere hunches allowed, police must have specific and articulable facts, and inferences from those facts, that lead them to believe that “criminal activity may be afoot”. Seems reasonable, and it’s that damned adjective “unreasonable” that causes all the problems. Nothing unreasonable allowed, so as long as 5 out of 9 think it’s not unreasonable, then it’s OK.
Terry was for folks walking the streets, but stopping a car is like stopping someone on the street, so we’ll extend Terry to traffic stops. And since it’s OK to arrest someone for a traffic violation(Atwater v. City of Lago Vista) the police should then be able to search every car incident to arrest. But wait! In less than one percent of cases, they won’t have cause to search incident to arrest, see Gant v. Arizona. But as long as they have reason to tow the car (the other 99.99%) they have to do a full inventory of the vehicle, you know, so you don’t falsely accuse them of taking your stuff.
As long as we’re driving, how about checkpoints? You know, cops pulling everyone over, with no observed wrong doing? Well, DWI is bad, so there’s a bad guy exception for that (Michigan v Sitz), and DWI plus death is really bad, so there’s an extra extra exception for that (Illinois v. Lidster), and since you have to check everyone coming into the country, may as well throw in an immigration checkpoint exception away from the border too(United States v. Martinez-Fuerte).
There are also plain view, and open fields, and exigent circumstance exceptions. Wait. That last one’s too important for a mere fly-by mention. “Exigent circumstances” means if the police think it’s an emergency, then they just might not have time for that old warrant requirement, and we’re not going to make them get one.
Of course, sometimes they actually do get a search warrant, which a judge reviews and signs, but even if they make some mistakes along the way, SCOTUS may just create a good faith exception (U.S. v. Leon), which could then end up being the exception that swallows the rule.
If the evidence is obtained illegally, what next? Well the District Attorney can still use it in front of the Grand Jury(United States v. Calandra) because we don’t want to interfere with the effective discharge of their duties. And if they can show they would (might) have gotten the evidence anyway, then the inevitable discovery doctrine will justify its admission(Segura v. U.S.;Nix v. Williams).
Enough. I haven’t covered the half of it, but by now you get the point. I’ve weighed in before on the Kerr/Greenfield digital divide, and won’t repeat myself here. But let me ask the question one more time…
How many exceptions does it take before you no longer have a default rule?