The Bottom End of the Fourth Amendment
Here’s what self-confessed NEWB FISCR Judge Buzz Arnold said on what he claimed was his fourth day on the job (in reality it was several weeks in) during the hearing on the Yahoo challenge in 2008.
You know–that long tradition of “bottom end of the Fourth Amendment” jurisprudence?
Jesus, fuck all. We are doomed.
harvard law school graduate (1971) – naturally.
Some of them know better. But too many of them seem to have been educated to become corporate lawyers, and don’t know enough to be judges in any court.
Nothing in there that says it’s usually required? What!? Did they just put the ingredients of a proper warrant in there just in case an officer felt like getting one. But his gut feel about the reasonableness of a search is all that’s really needed? Why would anyone get a warrant if they weren’t re
How, in the world, do people like this get appointed to these positions?
Sorry – submit button clicked too soon.
Why would anyone get a warrant if they weren’t required to?
It’s as if the folks in charge of interviewing federal judges completely forgot to ask the basic questions that any high schooler knows the answers to:
like –
Do you really need to show a defendant the evidence and accusers against him?
Are warrants really required for a search?
If you inflict a cruel punishment enough times, is it no longer cruel AND unusual?
Have you, in fact, read this constitution thing-a-majig?
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Huh. So Arnold believes he has found the Fourth Amendment’s asshole?
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Instead, now that we have the transcript, Marcy found the real asshole.
Funny, the version I met in school – grade school, of Ghu’s sake! – is all about warrants and how they’re necessary and need to say what they’re looking for.
Arnold apparently slid through grade-school government, and every class since then that would have told him what he should know.
Bear with me but this makes some sense IF Judge Arnold was in fact the attorney for the government and was seeking to make their case. If he were an attorney tasked with finding an argument for the government’s actions then this is a plausible argument to make and IF he were trying to make the rule as open as possible so that they could do anything they want then that is the only argument available.
But he is supposed to be a judge.
You’ve explained FISCR perfectly.
Seems like the previous posters missed the govt classes showing ‘govt through morphing’.
Excuses are the rage, and new solutions! Didn’t any of you guys hear Our Military Leaders complain how they were working with their hands tied behind their backs?
Excuses got their hands ‘untied’!
We need judges on the payroll to tell us that plain English isn’t operative?
Ditch the Buzz.
The idea that we need judges, or lawyers, …I’ll stop there.
“there is nothing in there that really says a warrant is usually required.”
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That’s actually a pretty fair comment. US courts have simply construed the Fourth Amendment in such a way as to presume that one WAS required.
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In a word, it’s called a loophole. A loophole which gone largely unnoticed because of favourable treatment from the courts.
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The problem is, judging from that quote, back in 2008 somebody decided to exploit that loophole by taking issue with it and the associated judicial interpretations; and they were doing so not out in open court, where others might hear them and thereby raise the alarm. They were doing so out of public view and public scrutiny behind the secrecy-cloaked barricades of the FISCR.
“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.”
I don’t see anything in there about warrants being optional. Not even for ‘national security’, and especially if the government claims it’s Sooper-Secret-Burn-Before-Reading. ‘Shall not be violated’ ought to mean something, even to Harvard corp-rat lawyers.
PJ Evans wrote: “I don’t see anything in there about warrants being optional.”
There is nothing in there about them being compulsory either.
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The Fourth Amendment consists of two parts. The first states the general principle to be followed (“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 second is essentially a prohibition against general warrants (“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.”)
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More specifically, that second part limits how warrants are to be issued (“no warrants shall issue, but upon probable cause, supported by oath or affirmation”) and what has to be in them (“particularly describing the place to be searched and the persons or things to be seized”).
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Note that there is nothing in the Fourth Amendment which requires ALL searches and ALL seizures to be by warrant and by warrant only.
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Note also that there is nothing in the Amendment which stipulates that ONLY courts of law can issue warrants. To get that out of the Fourth Amendment you would have to deduce that from the nature of warrants, which given their history I suspect you would not get away with.
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The truth is that the Fourth Amendment is flawed; and those flaws are being exploited by the very nature of the FISA court process as a den of secrecy. If the NSA or the DOJ had to argue in favour of exploiting such flaws out in the public eye there would be howls of outrage.
a typical lawyerly reading, focusing on analyzing piecemeal discrete legal/verbal phrases and, thereby, missing the whole meaning and intent of the ammendment as prescribing proper official conduct toward citizens in a very important category of official actions.
there are more, and more appropriate, ways to read and understand this written guidance named ammendment 4 of the u.s. constitution if one is trying to derive meaningful guidance for a society (as opposed to loopholes for a client to exploit). it may be read and understood as a prescription in “shorthand” language for acceptable official conduct rather than as a detailed, self-contained rule.
judges evaluating constitutional expectations of official conduct toward citizens are expected to be wise and thoughtful – not 65 yr old smart-alec sentence parsers.
We have too damned many smart-alec parsers in DOJ (and elsewhere in government).
orionATL wrote: “a typical lawyerly reading, focusing on analyzing piecemeal discrete legal/verbal phrases and, thereby, missing the whole meaning and intent of the ammendment as prescribing proper official conduct toward citizens in a very important category of official actions.”
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The intention and meaning of a statute or of part of a statute are derived from what that statute or portion SAYS, not from what it you THINK it says. Or think it OUGHT to say. That in turn necessarily entails analyzing what is DOES say. Which in turn entails breaking it down into its component parts. if you don’t understand those you haven’t a hope of understanding how those parts affect the overall meaning of the amendment as a whole
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orionATL wrote: “it may be read and understood as a prescription in “shorthand” language for acceptable official conduct rather than as a detailed, self-contained rule.”
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You do realise that that entire approach is based upon presuppositions and assumptions rather than anything actually in the amendment itself. More specifically, upon presuppositions and assumptions as to the philosophical approach of those who wrote the 4th amendment and what they intended to accomplish by it.
The historical context matters here – the Fourth Amendment is silent on warrantless searches because the founders didn’t envision any scenarios where searches would occur without warrants. See RECOVERING THE ORIGINAL FOURTH AMENDMENT by Thomas Y. Davies
Tom Cross wrote: “the Fourth Amendment is silent on warrantless searches because the founders didn’t envision any scenarios where searches would occur without warrants.”
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Nonsense. What do you think stop-&-frisk is? It’s a warrantless search process.
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Certain kinds of situations have ALWAYS existed where warrantless searches have been allowed. That was so even in the Founding fathers’ day. For example, a policeman catching a robber in the act and searching him for weapons. That would constitute a search, a search which is generally done without first obtaining a warrant.
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Unfortunately, the 4th Amendment does not stipulate when a warrant IS required. That has allowed a lot of creative wriggle room and left much of the decision as to where the line lies up to the courts. All the Amendment itself requires is that a search be not “unreasonable”. Reasonable searches and searches done under warrant are NOT necessarily the same thing.
The Fourth Amendment forbids “unreasonable” searches and seizures, but fails to set forth the criteria for a reasonable search, except in the the section dealing with warrants. Warrants, duly sworn and executed without overreach, render a search reasonable. Courts may, indeed, find other searches reasonable, but, in doing so, must always consider the Fourth Amendment’s purpose, protection of the “right of the people to be secure in their persons, houses, papers, and effects.” The security of the people is the paramount consideration, not the efficiency of the government.
Buzz Arnold is a really interesting guy. He taught at Indiana University while I was there, and I took one of his classes. He specialized in old common law stuff, and as I remember, he translated one of those 14th C. law reports for his dissertation. He was a good teacher, and lots of fun at the occasional party.
I would never have guessed he’d be a Republican. So much for my rule that all republicans are jackasses.
Some of them are jackasses only part of the time. They can be pretty good people the rest of it. (I have relatives….)
Maybe he has been chatted up by James Cole:
“Deputy Attorney General James Cole met with Apple executives last month, reports the Wall Street Journal, to discuss privacy issues, but after making the ridiculous claim that the blood of dead children will be on Apple’s hands if it doesn’t give the NSA access to iMessages, the talks have ended in a standoff.
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“The No. 2 official at the Justice Department delivered a blunt message last month to Apple Inc. executives: New encryption technology that renders locked iPhones impervious to law enforcement would lead to tragedy. A child would die, he said, because police wouldn’t be able to scour a suspect’s phone, according to people who attended the meeting.”
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http://www.cultofmac.com/303674/imessage-encryption-will-kill-kids-doj-warns/#WoUA00UhATfCIycx.99
Wait… I am confused … I thought the USSC folks said the cops had to get warrants to search cell phones. And no gps tracking without warrants.
Why is the NSA involved in kids-in-trouble?
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Apparently the NSA keeping the kids safe from the terrorist(s)-du-jour is the newest thing.
Stephen,
I would suggest reading the law review article that I referenced. There were no “policemen” in the time of the founding. The constables of the era were not professionals and had very limited official authority. Although they could arrest someone in the circumstance in which they personally witnessed that person commit a felony, this narrow circumstance is not what the founders were thinking about when they crafted the Fourth Amendment. At the time, most *investigation* occurred under the authority of warrants, and so they assumed that limiting the power of the legislature to issue general warrants was sufficient to protect people’s right to be secure against overzealous investigators.
The fact that you now have these professional police officers and intelligence agencies with general official authority operating without specific warrants that authorize their investigations was completely unanticipated by the founders. In contending with this reality, the courts have, throughout this country’s history, understood the Fourth Amendment to carry a presumption that a warrant is required in EVERY circumstance where a search is being performed except where it is not practical to obtain one.
The view expressed by Justice Arnold here is a radical departure from that tradition. Its an over simplistic textual analysis that seems completely ignorant of the weight of history and precedent that it stands in opposition to. Its troubling to see someone dismiss that history so readily, while serving in a role where the correct interpretation of the Fourth Amendment is of central importance.