Blaming President Obama for Loss of Privacy? What about the Supreme Court?

Over the past several decades, the Supreme Court has routinely and incrementally narrowed the scope of the 4th Amendment, which protects against unreasonable search and seizure, practically circumscribing it completely. Until recently, when the news broke about the National Security Agency’s data collection practices, few had really been paying attention to its disappearance. With the plethora of news surrounding the controversy over the NSA’s sweeping collection of metadata (and the subsequent debate about how to strike a balance between liberty and security) it seems as though everyone’s attention is focused on the Obama Administration rather than on Congress and the Supreme Court. However, while pointing the finger solely at the Administration might seem like a good idea, doing so is misplaced for two significant reasons.

First, while the executive branch can in some cases act unilaterally – through the use of executive orders – the Obama Administration did not unilaterally endow the NSA with these sweeping powers. On the contrary, the NSA gained the authority to carry out its data collection program because it was authorized to do so by the Patriot Act – which was enacted bilaterally by both the legislative and executive branches when it was passed by Congress in 2001 and signed by former President Bush, and then renewed by Congress in 2011 and signed by President Obama. Our government operates on a system of checks and balances, so no single branch can consolidate all government power. Notably, Congress recently debated reining in the Patriot Act, but ultimately did not pass any new laws repealing, replacing, or scaling it back. In fact, on July 24, 2013, the House voted 217-205 to reject limiting the law.

More importantly, the government institution that poses the biggest threat to the 4th Amendment, privacy, and liberty, isn’t the President or any executive agency per se. It is the Supreme Court, the only government institution with the power to determine the circumstances under which the 4th Amendment applies, carve out exceptions to the rule, and decide the constitutionality of the Patriot Act. Moreover, the Court has continuously scaled back the rights codified by the 4th Amendment over the past several decades. These exceptions, operating in tandem with the Patriot Act, allow the executive branch to legally take actions which would seem to contravene the rights the 4th Amendment exists to protect.

For starters, the Court has ruled that the 4th Amendment simply isn’t triggered unless law enforcement performs a search or a seizure. [1] Once a search or a seizure transpires, then and only then will a lower court inquire into whether a 4th Amendment violation occurred. For instance, the Supreme Court has explicitly held that a person cannot manifest a reasonable expectation of privacy (and thus the 4th Amendment is inapplicable) when it comes to abandoned property, conversations with others (because there is no expectation that the other person will keep the conversation a secret), bodies of land that are open to public view (aka the “open fields doctrine”) or in anything that a member of the public could easily access, such as ones trash.

Moreover, even in circumstances when the 4th Amendment is applicable, the Supreme Court has consistently and unrelentingly narrowed its scope, through a plethora of exceptions to its requirements. To name a few:

  • No warrant is necessary for an arrest in public so long as law enforcement has probable cause. [2]
  • Law enforcement can stop and question someone without a warrant, based on their reasonable suspicion (articulable facts and inferences which create a reasonable or fair possibility) that criminal activity is going on, and can further frisk someone if they have reasonable suspicion that that person is carrying a weapon. [3]
  • Law enforcement can always order a person out of their car during a traffic stop, [4] and can also order passengers out of the car. [5]
  • Law enforcement can detain a person while they get a warrant. [6]
  • Law enforcement can search a person and the area surrounding that person (including their vehicle if there is a possibility they can get back into it) without a warrant, once they are placed under arrest, even for minor offenses that do not carry jail time. [7]
  • Any contraband items that are in plain view (touch, smell, etc.) can provide a basis for a further warrantless search and can be seized by law enforcement. [8]
  • Law enforcement can search any containers in your vehicle without a warrant if they have probable cause to search the vehicle itself and vice versa. [9]
  • Law enforcement does not need to obtain a warrant before a search or seizure if exigent circumstances exist. [10]
  • Law enforcement can enter a location without a warrant in order to provide emergency aid. [11]

In addition to the aforementioned list of exceptions, which is in no way exhaustive, law enforcement can perform warrantless searches at police checkpoints so long as the primary purpose of the checkpoint is something other than normal law enforcement, [12] at DWI/DUI checkpoints, [13] at the border, [14] and of course, as you know, at the airport. [15] Add to that the recent revelation that Chief Justice John Roberts has the exclusive authority to appoint judges to the secretive FISA court, which reviews the NSA’s warrant applications, the reality that our conversations are not protected by the 4th Amendment, and the fact that the Court previously upheld controversial provisions of the Patriot Act — and you really have a recipe for disaster.

In closing, while attention must be paid to the President and to the actions of his executive agencies, as well as to the legislature, we mustn’t forget to scrutinize the judiciary despite the fact that members of the Supreme Court are appointed rather than elected. When we ignore the actions of the Supreme Court, we do so at our own peril.

[1] US v. Katz, 389 U.S. 347 (1967) (In order to determine whether the 4th Amendment applies in any given situation, a court will assess whether a person asserted a subjective manifestation of privacy and further whether that expectation of privacy was objectively reasonable. If and only if a reasonable expectation of exists will the 4th Amendment be triggered.)

[2] US v. Watson, 423 U.S. 411 (1976)

[3] Terry v. Ohio392 U.S. 1 (1968)

[4] Pennsylvania v. Mimms, 434 U.S. 106 (1977)

[5] Maryland v. Wilson, 519 U.S. 408 (1997)

[6] Michigan v. Summers, 452 U.S. 692 (1981); Muehler v. Mena, 544 U.S. 93 (2005)

[7] Chimel v. California395 U.S. 752 (1969); US v. Robinson, 414 U.S. 218 (1973); Atwater v. City of Lago Vista, 532 U.S. 318 (2001); Arizona v. Gant, 556 U.S. 332 (2009)

[8] Horton v. California, 496 U.S. 128 (1990)

[9] California v. Acevedo, 500 U.S. 565 (1991)

[10] Mincey v. Arizona, 437 U.S. 385 (1978); Kentucky v. King, 563 U.S. ___ (2011)

[11] Brigham City v. Stuart, 547 U.S. 398 (2006); Michigan v. Fisher, 130 S. Ct. 546 (2009)

[12] City of Indianapolis v. Edmond, 531 U.S. 32 (2000)

[13] Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990)

[14] United States v. Martinez-Fuerte, 428 U.S. 543 (1976)

[15] These are considered “consent searches.” Moreover, it is worth mentioning that although you are under no legal obligation to consent,  if you do not, you will surely not be allowed past the TSA checkpoint or onto your flight.

Ilyssa Fuchs

Ilyssa Fuchs is an attorney, freelance writer, and activist from New York City, who holds both a juris doctor and a political science degree. She is the founder of the popular Facebook page Politically Preposterous and a blog of the same name. Follow Ilyssa on Twitter @IlyssaFuchs, and be sure to check out her archives on Forward Progressives as well!


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