Editor’s Note: Steve is a Planet Waves contributing editor, but his civil rights law practice keeps him about twice as busy as I am. I was in New Paltz today and knew he would be home — so I rounded him up for tacos. He told me he’s now writing for Z Magazine, and recently contributed this article: evidence of a nation in decline. Good thing the concept of nation itself is in decline. –efc
By Stephen Bergstein
If there is one truism about the Bill of Rights, it’s that the 18th century constitutional framers could not have foreseen the many ways that the Fourth Amendment and other protections would apply to a changing technological society two centuries later. Yet the courts continue to apply the straightforward protection against unreasonable searches and seizures to sophisticated and even space-age police techniques that have the potential to open up every facet of our lives to police surveillance.
This puzzle is again playing out around the country, as state and federal courts are applying the Fourth Amendment to GPS tracking devices secretly placed on private motor vehicles by police officers without a warrant, allowing the police to monitor every move of the unwitting motorist. As courts around the country cannot agree on this issue, the Supreme Court may have to resolve the following question: Must the police secure a warrant from a neutral judge before they can attach a GPS to your vehicle? If the answer is “no,” then the police may be allowed to place this device on anyone’s vehicle based on mere suspicion that the motorist is breaking the law.
The Fourth Amendment is straightforward: “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.”
While this amendment is more specific than other constitutional provisions, courts have issued reams of case law in trying to apply the Fourth Amendment to various factual situations. The Constitution does not always direct the courts to the right answer. The answer is necessarily devised by judges who apply their own standards of justice, balancing the rights of individuals against the needs of the government. This is why courts sometimes see the same legal issue differently. However, the touchstone of Fourth Amendment analysis is that the police need a warrant to search those areas in which we have a “reasonable expectation of privacy.” Probable cause is necessary to secure a warrant.