Warrantless Searches Part 2: How the 4th Amendment and Our Right to be Secure Got Eviscerated

Early in the 20^th century decisions from the U.S. Supreme Court began to chip away at original intent of the 4^th Amendment, eventually allowing government agents to enter and search the vast majority of private property in the United States without a warrant.

Verbatim:

As we discussed in episode 1, the Fourth Amendment is a broad declaration of our right to be secure in our persons and property.  But like all our rights, it is only good so long as courts interpret and apply the right consistent with the Framers’ understanding. Early on, that’s what happened.

In the first major Fourth Amendment case, the US Supreme Court rejected the government’s claim that it could open letters and packages travelling through the mail, holding that the “constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be.” Ex parte Jackson, 96 U.S. 727, 733, 24 L. Ed. 877 (1877)

In another early case, the Supreme Court rejected the government’s attempt to  subpoena a person’s private papers for use in a forfeiture proceeding and declared that: “[C]onstitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon.” Boyd v. United States, 116 U.S. 616, 6 S. Ct. 524, 29 L. Ed. 746 (1886).

But despite the Court’s admonition in Boyd, its diligence in protecting Americans’ property rights began to wane during Prohibition. To give federal agents broader authority to search for illegal alcohol production, the Court ignored its previous commitment to a “liberal construction” by restricting what types of property the Fourth Amendment protected.

In 1924, the Supreme Court held in Hester v. United States  the Fourth Amendment did not protect private land since the amendment only protects “persons, houses, papers and effects.” A few years later, the Court held that agents could wiretap a phone line without first getting a warrant because the line didn’t belong to the defendant, so it was not his “effect.”  

The Court’s narrow reading of the text—often called “strict constructionism”—was a surprise to many. John Adams had said judges should not read constitutional guarantees narrowly but instead should apply them as the Framers themselves “would have done if [they] had foreseen the things that happened.” Early Supreme Court Justices John Marshall and Joseph Story had each rejected narrow interpretative approaches. The Court’s very narrow reading of the Amendment completely upended the intent of the Founders.  

Several decades after Prohibition, the Supreme Court shifted its approach in Katz v. United States. Instead of sticking to a strict, literal reading of the Fourth Amendment, the Court said “the Fourth Amendment protects people, not places.” In doing so, it moved away from the idea that only the specific items listed in the Amendment were protected. The justices created a new test focused on whether the government violated a person’s actual expectation of privacy and whether that expectation is one society would consider reasonable.

Despite the rich historical record, the Court took a serious wrong turn. It moved away from the Fourth Amendment’s original grounding in property rights and tied it instead to a nebulous idea of privacy.

The final nail in the coffin of protection against warrantless searches came in 1984.  In Oliver v US, SCOTUS ruled government agents did not commit an illegal search, despite  ignoring numerous “No Trespassing” signs because landowners have “no legitimate expectation that open fields will remain free from warrantless intrusion by government officers.”

Government agents nationwide now routinely use the Oliver ruling as tacit approval by the courts to conduct warrantless searches.  This has left more than 96% of the privately owned property with no 4^th Amendment protections nationwide.  (Institute for Justice, Good Fences? Good Luck 2024)