Hello and welcome back to the Civic Flame, a podcast dedicated to talking about the US Constitution and how it is and is not working today. I am Amber, a professor of law and policy at Worcester State UniversityÑat least at the moment, and today, weÕll be talking about the 4th Amendment. 00:00:33 Intro to the Bill of Rights and Due Process This Amendment begins our discussion of due process, that is the process that is due or owed to you. The Bill of Rights has 10 Amendments in it, but five of those ten have to do with criminal procedure, so this is always something to think about. The founders knew that due processÑ rules the government had to followÑwas the key thing we had that can save us from a run away government. The point of due process is always to bind the government, so letÕs talk about how the 4th Amendment does that. (transition) Okay, so letÕs get to some criminal procedure! (That sounded cooler in my head.) 00:01:24 What the Fourth Amendment Says The Fourth Amendment says: 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. Now, as you already know, IÕm a Constitutional radical and I believe these liberties (that is, freedoms from the government) are merely the most protected liberties and rights that we have. I do not believe that we have to justify our right to privacy based on the Constitution, I believe that, the government must show when and why they have the right to restrict something. While this is considered more radically anti-government today, it was not at the time of the founding. 00:02:54 Why the Federalists Opposed a Bill of Rights Remember that one of the key arguments the Federalists brough up against the Bill of Rights was that they were afraid people would think these were the only rights we had. While James Madison, one of the Federalist Papers writers disagreed, in Federalist 84 Alexander Hamilton wrote about why he thought a Bill of Rights would actually give powers to the government: ÒI go further and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretense for claiming that power.Ó 00:05:10 Check out UW Madison Center for the Study of the American Constitution There were tons of arguments about who was right here, and the University of Wisconsin- Madison has a great list of these documents on their website. Check out their Center for the Study of the American Constitution (or csac.history.wisc.edu). YouÕll find all the documents you ever need to get completely immersed in these concepts. Why this matters with the Fourth Amendment? Because the Fourth Amendment is your frontline protection from the government: ÒThe right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.Ó Hamilton was right, though. PeopleÑnotable to people who interpret the ConstitutionÉbeing the governmentÑhave decided that there are times they can overrule the Fourth Amendment rights when the government needs to. 00:06:21 The Supreme Court and limits on the Fourth Amendment and the Castle Doctrine This has led to cases asking what it means to be secure in your houses, person, and papers. Does that mean in your car? What if youÕre in a dorm room? What if youÕre homeless. What counts and ÒeffectsÓ? What counts as unreasonable search and seizure in the first place? Well, the Supreme Court has tried to help. Relying intellectually on what has been called the ÒCastle DoctrineÓ meaning Òa manÕs home is his castle,Ó a lot of western and non-western legal and political philosophy has said that you have the most protection at your home. (This has had its own effect on domestic violence laws, but for the Fourth Amendment, weÕre going to stick to privacy in a rights of the criminally accused way.) 00:06:59 Key Fourth Amendment Cases The National Constitution Center lists key five cases as: 00:07:22 Olmstead v US, wire tapping, Nardone v US, and fruit of the poison tree Olmstead v. United States (1928). Olmstead ruled that some amount of warrantless wiretapping was legal or at least permissible. Now this was changed a little bit in the 1939 case Nardone v US which put some limitations there. You know it most as the Òfruit of the poisonous treeÓ case, where the Supreme Court ruled that evidence gathered illegally (e.g. from the poisonous tree) cannot be used as inculpatory (to prove guilt) or exculpatory (to prove innocence). This was overturned in the 1967 case, one of the five that the Constitution Center also mentions, Katz V US. 00:0810 Katz v US and Carpenter: What/Who is Covered in Privacy? Katz established that you have some expectations of privacy that are covered by the Constitution, and phone calls were among these. Now, the NCC also references Carpenter v US, the 2018 case that said, the government not only cannot tap your phone without a warrant, they canÕt use your data to find your location. 00:10:07 What about warrants and public? Thornton v Caldor and land rights Now, these cases are way more complicated, but what you see here are questions about the ÒeffectsÓ a person can expect to be treated with privacy and how far that privacy extends. Katz v US said the Fourth Amendment protects Òpersons, not placesÓ meaning that wherever you go, your rights go with you. But this has actually be contentious, which is where my constitutionally libertarian head flies right off in a fit of rage, with some judges saying, Òno, it only protects your houseÓ when it says right up there in the Amendment Òpersons.Ó Also, there are questions of whether it protects your house or your property. In 1984, in a case called Estate of Thornton v Caldor, the Supreme Court ruled that Òopen fieldsÓ are not covered by the Fourth Amendment, even if they are posted as private. Check out Bound By Oath podcastÕs episode ÒMr ThorntonÕs WoodsÓ for more on that. But letÕs move away from that question of where and what and look at the more baseline searches of a person. 00:11:37 Probably Cause, Warrants, Terry Stops (Terry v Ohio), and Mapp v Ohio Remember, the second part of the Fourth Amendment says, Òand 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.Ó But, as weÕve talked about before, these rights did not always apply to the states only the federal government, and even after the 14th Amendment made some of them applicable to the states, there were a lot of states that did not want to comply. This is most notable in the other two cases on NCCÕs website, Mapp v. Ohio (1961) and Terry v OH (1968). Any class you take in law or procedure is going to turn up Mapp v Ohio. Now, this is an interesting case, and you can see interviews with Dollree Mapp on the Annenberg Classroom website annenbergclassroom.org. Annenberg is a great Constitutional resource. 00:12:54 Details of Mapp v Ohio and Selective Incorporation What you learn from the case is that Mapp was accused of having pornography, which was illegal at the time. The police showed up to her Ohio home and started searching it. She asked if they had a warrant, and they said yes but failed to produce it. Remember, you have to be shown a warrant, it has to be clear about what can be searched, and it has to be signed by a judge. When police came back and waved the ÒwarrantÓ at Mapp, she took it and ran with it. Later, she said it was just a blank piece of paper. When the case went to Court, Mapp said it was a 1st Amendment violation to criminalize pornography. The judges did not buy that. What they did buy was the argument that lack of a warrant was a violation of the 4th Amendment. Ohio said, Òno way, this is the state business.Ó Ultimately, the Supreme Court said that due to the doctrine of selective incorporation under the 14th Amendment, warrants and criminal procedure relating to privacy are fourth amendment rights that are incorporated to the states and states must observe them. 00:14:10 Terry Stops and the early Òstop and friskÓ questions In Terry v OH (what is it with Ohio?), a few years later, the Court did say that local criminal procedure can include stops for probably cause. These came known as Òterry stopsÓ because of this case. The police, if they see something suspicious, can stop and search you. A policy that became really problematic when Òstop and friskÓ became popular because being Black and Brown became probable cause. But there are hosts of cases on racial disparities in procedure, that we might get to another time. 00:14:54 The Patriot Act and erosion of civil liberties The other major issue that happened with the Fourth Amendment, and this includes some cases still trying to be worked out, was the PATRIOT Act. The Patriot Act was what American chose to have instead of freedom after the September 11, 2001, attacks. While we had all of the intelligence needed to stop 9/11 and it was NOT a failure of intelligence gathering, somehow the US government used post-9/11 fears to create a surveillance state stronger than ever, and Americans went along with it for over a decade before enough people really started asking some questions. There are several documentaries that cover this. One I recommend is Turning Point 9/11, episode 3. ItÕs on Netflix and talks about the civil liberties that we lost. It includes the illegal operation stellar winds and the NSA data harvesting. These programs were so out of line that Republican lawyers under a Republican President broke party lines and criticized and fought against them. This also included Òsneak and peekÓ warrants which allowed the government to go into homes without telling you and take things without letting you know. The clear violations of many of our rights under the Patriot Act shows one thing very clearly: decades of eroding US Civics education worked really well during the culture of fear. Just not for the US. Not for Americans, and certainly not for our children who are living in a world far less free than the one I grew up in. So, on that happy note, next week, weÕll get to the Fifth Amendment and see that that one is even more action packed than this one! (transition music) 00:18:43 Conclusion Okay, that was a fun journey, right? As we continue to go through the Amendments, you might find yourself feeling a little angry that your Constitution rights keep being taken away by dudes in suits. I suggest you embrace this anger and direct it (non-violently) at the political system. Remember, the partisan divide in this country is one giant psy-op to keep us from realizing the the common adversary we all have is anyone trying to restrict any of our rights. Join me in my constitutionally radical world! In the mean time, subscribe and share widely. Follow us at Dr Fun Sponge on Blueksy and Instagram. And take keep the civic flame burning bright (even if you have to do it by throwing all the bs into the bonfire!) 00:19:19 Thanks! (outro) The civic flame is a doctor fun sponge collaboration with writer Amber Vayo and sound producer Matt Munyon. Thanks for listening.