SSRN: To Be Secure: The Forgotten Words of the Fourth Amendment by Luke M. Milligan:
The Fourth Amendment of the U.S. Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated...” For over two hundred years the text “to be secure” has been neglected by courts and constitutional historians.
As currently interpreted, the Fourth Amendment is limited to the protection of persons against actual searches and seizures. If such a limitation had been the design of the framers, then the “to be secure” text must be acknowledged as superfluous. The prohibition of actual searches and seizures would have been sufficiently conveyed by a Fourth Amendment that read: “The right of the people, in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The framers’ inclusion of the “to be secure” language therefore suggests an intent to create a different, somewhat broader, right against searches and seizures.
The intended scope of this broader Fourth Amendment right depends upon the meaning of the term “secure” at the time of drafting and ratification. From my review of relevant historical materials, there appear to have been two contending meanings of “to be secure”: (1) “to be free of fear”; and (2) “to be protected.” Either definition expands the reach of the literal Fourth Amendment to new and important forms of government action. Currently the Amendment does not prohibit government (1) threats of unreasonable searches or seizures; (2) acts leaving persons unsure about the use of unconstitutional (or potentially unconstitutional) surveillance techniques; or (3) restrictions on home or personal security measures. These forms of government action, permissible under modern doctrine, would fall within the purview of the Fourth Amendment if the “to be secure” text were taken seriously. Its first plausible meaning (“to be free of fear”) renders all three acts described above (i.e., threats of search/seizure, creation of confusion about the use of unconstitutional surveillance techniques, and restrictions on home/personal security) vulnerable to Fourth Amendment challenges. The alternative plausible meaning (“to be protected”) calls into question the constitutionality of, at the very least, government restrictions on private security measures.
Search of defendants’ recent call list off a cell phone was reasonable as a part of search incident where there was probable cause to connect the phone to the offense of arrest. Commonwealth v. Phifer, 463 Mass. 790, 979 N.E.2d 210 (2012):
This case falls squarely within the scope of Madera [and basic SI law]. The evidence at issue here consists of the contents of the recent call list on the defendant's cellular telephone. The defendant does not appear to dispute that the cellular telephone itself -- the physical object -- was seized properly during a permissible search incident to his lawful arrest. More to the point, like the police in Madera, 402 Mass. at 158, 160-161, the officers here had probable cause to believe the telephone's recent call list would contain evidence relating to the crime for which he was arrested: Officer Fontanez had seen the defendant using the cellular telephone just before the observed drug transaction between the defendant and Claiborne took place; the police recognized Claiborne as a drug user and recovered cocaine from Claiborne; and Detective McCarthy testified that based on his experience, telephones are commonly used in the drug trade. Thus, the search of the call list in this case was a valid search incident to arrest.
We do not suggest that the assessment necessarily would be the same on different facts, or in relation to a different type of intrusion into a more complex cellular telephone or other information storage device. Determination of the reasonableness of a search "requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted." Bell v. Wolfish, 441 U.S. 520, 559 (1979). As other courts have noted, see, e.g., United States v. Flores-Lopez, 670 F.3d 803, 805-806 (7th Cir. 2012); State v. Smith, 124 Ohio St. 3d 163, 167-169 (2009), today's cellular telephones are essentially computers, capable of storing enormous quantities of information, personal, private, and otherwise, in many different forms. They present novel and important questions about the relationship between the modern doctrine of search incident to arrest and individual privacy rights. Although an individual's reasonable expectation of privacy is diminished concerning his or her physical person when subject to a lawful arrest and taken into custody, the same may not necessarily be true with respect to the privacy of the myriad types of information stored in a cellular telephone that he or she is carrying at the time of arrest. See People v. Diaz, 51 Cal. 4th 84, 110 (Werdegar, J., dissenting), cert. denied, 132 S. Ct. 94 (2011). However, we do not need to consider these questions in the present case.
Accord: Commonwealth v. Berry, 463 Mass. 800, 979 N.E.2d 218 (2012).
Defendant’s backpack was lawfully searched incident to his arrest. Arizona v. Gant applies to vehicles, and it does not change the rules of search incident of the person. People v. Marshall, 2012 CO 72, 289 P.3d 27 (2012):
[*P14] In contrast to the search of a vehicle, the arrest of a person necessarily involves greater officer safety concerns because, unlike items in the compartment of a vehicle, the arrested individual might still be able to access those items on his person even after arrest. Similarly, because the items remain in close proximity to an arrested individual, he might still be able to access that evidence. In brief, there is a factual distinction between searches of cars and persons. This Court's Fourth Amendment jurisprudence reflects this distinction and, accordingly, indicates that the trial court's extension of Gant without additional guidance from the United States Supreme Court was error. Compare Gant, 556 U.S. at 337-38, with United States v. Robinson, 414 U.S. 218, 226, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973). As such, we turn to this Court's precedent addressing the search of a person incident to arrest.
The center brake light wasn’t working, and that justified defendant’s stop under state law (at least there was reasonable suspicion for it). The officer recognized defendant as a recent arrestee and shooting victim, and saw furtive movements. The officer went where the movements were and recovered a machine pistol. The search there was reasonable, and the drawing of guns was not excessive. United States v. Jones, 506 Fed. Appx. 128 (3d Cir. 2012).*
Defendant was stopped with reasonable suspicion where the vehicle and driver matched the description of a vehicle involved in a bank robbery. The defendant was cooperative, and, when he smiled, the officer could see a chipped tooth which was described by the robbery victims. The stop and its continuation was all with reasonable suspicion ripening to probable cause. United States v. Farnell, 701 F.3d 256 (8th Cir. 2012).*
The CI’s reliability for this search warrant was shown by officer corroboration of information, not by his past performance. United States v. Johnson, 2012 U.S. Dist. LEXIS 171552 (E.D. Mich. November 28, 2012).*
The affidavit for search warrant provided probable cause on the totality of information. While the reporting victim was young, that did not undermine her statement that her father had sex with her because of some limited corroboration from statements of the father. The search warrant also was not stale. “When the affidavit recites facts indicating activity of a protracted and continuous nature, the passage of time becomes less significant.” The victim’s statements supported a request in the warrant for writings and pictures. Jarnagin v. State, 392 S.W.3d 223 (Tex. App. – Amarillo 2012).*
Defendant’s 2255 claim that defense counsel was ineffective for not challenging the search warrant was denied because there was no search warrant. Defense counsel did challenge a warrantless search. United States v. Anderson, 2012 U.S. Dist. LEXIS 171275 (E.D. Va. December 3, 2012).*
Claimant’s stop was reasonable based on a traffic offense, and it was not so long before consent was given that it was unreasonable. United States v. $89,980.00 United States Currency, 2012 U.S. Dist. LEXIS 171893 (S.D. Tex. November 9, 2012).*
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—Mapp v. Ohio, 367 U.S. 643, 659 (1961).
Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment.
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
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— Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
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—Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
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—United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
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—Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
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—Arizona v. Hicks, 480 U.S. 321, 325 (1987)
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—Katz v. United States, 389 U.S. 347, 351 (1967)
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