Ind. Code § 11-8-8-8(a)(7) permitting searches of a convicted sex offender’s computer without cause is unconstitutional under the Fourth Amendment. Doe v. Prosecutor, Marion County, Indiana, 566 F. Supp. 2d 862 (S.D. Ind. 2008) (David Hamilton, C.J.):
At the hearing, the defendants suggested that these effects are not substantial because no one in our society can ever have absolute assurances of privacy. Defendants point out, for example, that a court might issue a search warrant for plaintiff Doe’s computer, thus exposing his clients’ and his confidential information to scrutiny by police officers. That much is true, but the logic of the argument runs contrary to nearly 220 years of American constitutional law. The Fourth Amendment protects the privacy of Americans by placing a neutral judicial officer between the police and the privacy of the home and papers (and now computers), by requiring a warrant based on probable cause, and by requiring that the warrant be specific. See United States v. United States District Court for Eastern District of Michigan, 407 U.S. 297, 317 (1972); accord, Coolidge, 403 U.S. at 449 (“When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or Government enforcement agent.”), quoting Johnson v. United States, 333 U.S. 10, 14 (1948). To suggest that the removal of that neutral judicial officer as a barrier does not significantly impair a citizen’s privacy in his home is to imply that the warrant requirement is no big deal, that it imposes no meaningful restraints upon law enforcement. The “most basic constitutional rule in this area is that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment-–subject only to a few specifically established and well delineated exceptions.’ The exceptions are ‘jealously and carefully drawn,’ and there must be ‘a showing by those who
seek exemption … that the exigencies of the situation made that course imperative.’” Coolidge, 403 U.S. at 454-55 (footnotes and citations omitted).E. Pre-Enforcement Challenges Under the Fourth Amendment
The defendants argue that the Fourth Amendment is not implicated until there has been an actual search, so that any pre-enforcement claim based on the Fourth Amendment cannot be ripe. The court is not persuaded that Fourth Amendment rights are so vulnerable to threats that stop short of actual warrantless searches. It is true that many cases addressing pre-enforcement challenges to laws involve First Amendment rights. See, e.g., Steffel, 415 U.S. 452; Epperson, 393 U.S. at 100; Kucharek, 902 F.2d at 515; Wisconsin’s Environmental Decade, 747 F.2d at 409. But other cases allowing pre-enforcement challenges have arisen in many other contexts. Abbott Laboratories v. Gardner allowed a pre-enforcement challenge to regulations governing drug labeling. 387 U.S. at 153. Even in the First Amendment cases, the Supreme Court has carefully addressed the ripeness issue in terms much broader than the First Amendment, framing the question in terms of whether the challenged law affects any constitutionally protected interest. See, e.g., Babbitt, 442 U.S. at 298 (“When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.”); Steffel, 415 U.S. at 459 (“it is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights”).
In addition, the few cases that have considered pre-enforcement challenges based on the Fourth Amendment have not applied a blanket rule but have used the factors discussed above: the magnitude of the threat of enforcement and the nature of the harm that would be caused by enforcement. In Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., the plaintiffs brought a pre-enforcement challenge to a local ordinance that stated that a business must obtain a license before it could sell any items that were designed or marketed for use with illegal cannabis or drugs. 455 U.S. 489 (1982) (holding that ordinance was not void for vagueness or overbreadth). One provision of the ordinance required businesses that sold these items to keep a record of each sale of a regulated item, including the name and address of the purchaser, which would be open to police inspection. The Court of Appeals had expressed concern about potential Fourth Amendment problems resulting from this provision because customers could be subjected to police scrutiny on the basis of the purchase of a legal item. The Supreme Court elected not to address the Fourth Amendment issues that had been raised, stating: “In a pre-enforcement challenge it is difficult to determine whether Fourth Amendment rights are seriously threatened. [Plaintiff] offered no evidence of a concrete threat below.” Id. at 504 n.22.
Though the Hoffman Estates Court did not find that particular claim to be ripe, it did not adopt a blanket rule against any and all pre-enforcement challenges based on the Fourth Amendment. Instead, the Court’s reasoning plainly left open the possibility that a plaintiff could offer evidence of a concrete threat of enforcement and could bring a pre-enforcement challenge to a statute based on the Fourth Amendment. The Court also noted that the case involved economic regulation, where the government may adopt more detailed rules or regulations that could narrow the scope of the law. Id. at 504.
In this case, the state statute requires the plaintiffs to give blanket consent that effectively exempts their homes and computers from the Fourth Amendment, affecting not merely economic activity but core privacy interests in the home. In addition, the legal issue does not depend on further factual development that would better await further experience under the new law. These plaintiffs’ Fourth Amendment challenge is therefore ripe for decision.
V. Merits of the Fourth Amendment Claim
Turning to the merits of the plaintiffs’ Fourth Amendment claim, the court concludes that section 8(b), as applied to the plaintiff class of persons who no longer are under any form of court supervision, will violate the plaintiffs’ Fourth Amendment rights. The parties have not cited, and the court has not found, any American law that attempts to authorize such a broad intrusion on personal privacy and security, without a warrant, probable cause, or even reasonable suspicion, for persons not in prison or subject to parole, probation, or other court supervision.
A. Entry into the Home
Section 8(b) cuts into the heart of the Fourth Amendment – privacy in the home. Section 8(b) requires the members of the plaintiff class to consent to the search of their personal computers or internet-capable devices “at any time.” Even if law enforcement officers chose to wait outside the home to demand the right to search a registrant’s portable devices (the statute is silent on the point), personal computers will most often be inside the home. By granting unlimited access to these devices, the Indiana legislation crosses the most fundamental boundary under the Fourth Amendment, and dispenses with the warrant requirement. The ability of the individual to retreat into his home, and there to be free from unreasonable intrusion by the government, stands “at the very core” of the protections granted by the Fourth Amendment. See Silverman v. United States, 365 U.S. 505, 511 (1961).
B. Required “Consent”
[Forced consent is unconstitutional. They just cannot be expected to not own a computer to avoid searches.]
C. The Scope of Computer and Device Searches
. . .
In the meantime, of course, the plaintiffs are being told, under penalty of criminal prosecution, that they must give unlimited consent to any type of computer searches and internet monitoring that the defendants care to try, and that they must allow law enforcement authorities to enter their homes at any time to carry out the work. The result is the unconstitutional chilling of and intrusion upon plaintiffs’ privacy and security at home, and in their papers and effects.
. . .
VI. The State’s “Special Needs” Argument
. . .
The Supreme Court’s “special needs” cases admittedly seem to invite extension. It is not difficult to characterize any need as special, so as to make law enforcement easier with respect to particular categories of crimes. But if the motive for extending the doctrine is to detect and eradicate crime, then there is no limit to the special needs exception, and the exception will easily expand to replace the Fourth Amendment itself. That is why a special needs exception cannot be based on the ordinary and important law enforcement purpose of reducing crime. See Ferguson, 532 U.S. at 82-83; Edmond, 531 U.S. at 41-44; Richards v. Wisconsin, 520 U.S. 385, 392, 394 (1997) (rejecting Wisconsin’s argument that the knock-and-announce rule permitted exemption for felony drug investigations, and observing that if per se exception based on “special circumstances of today’s drug culture” was “allowed for each category of criminal investigation that included a considerable–-albeit hypothetical-–risk of danger to officers or destruction of evidence, the knock-and-announce element of the Fourth Amendment’s reasonableness requirement would be meaningless”); Torres v. Puerto Rico, 442 U.S. 465, 473-74 (1979) (rejecting suspicionless search of traveler’s baggage based on law authorizing searches of all American cargo and passengers, and refusing to dispense “with the fundamental Fourth Amendment prohibition against unreasonable searches and seizures simply because of a generalized urgency of law enforcement”); Katz v. United States, 389 U.S. 347, 360 (1967) (Douglas, J., concurring) (observing that the Fourth Amendment does not distinguish between types of crimes “because a particular crime seems particularly heinous”). To extend the doctrine that far would effectively nullify the Fourth Amendment.
The heart of defendants’ special needs argument here is that sex crimes are “a serious threat in this Nation,” see Connecticut Department of Public Safety, 538 U.S. at 4 (approving sex offender registry against due process challenge), and thus warrant this unprecedented action. The court agrees with the premise but must disagree with the conclusion. As heinous as sex and violent crimes are, many other crimes are also threats to our Nation. The social contract reflected in our Constitution imposes limits on law enforcement to protect liberty and privacy. Americans invest a significant portion of public resources to promote social peace and safety. But our founders drew a clear line, based on observed and experienced abuses, on the government’s ability to invade fundamentally personal areas. To enter the homes of or to search the personal effects, papers, and bodies of persons in the general population, public officials must have cause to believe that they will find evidence of a crime. It is almost always possible to characterize the Fourth Amendment as an inconvenience to law enforcement officials as they carry out their vital duties. That inconvenience, however, is one of the fundamental protections that separates the United States of America from totalitarian regimes. The right to feel safe and secure in one’s own home, person, and belongings is central to our way of life.
See Indianapolis Star article here.
This opinion shows a remarkable level of scholarship. Don’t just read my blurb.
