Part 1 – Dynamic Incorporation – Fourth Amendment Method of Interpretation

Among the numerous potential sources of legal content for the Fourth Amendment, one in particular has firm roots in the Amendment’s jurisprudence yet has been subject to very little scholarly analysis. That source is state law.(220)

History of State Law in Fourth Amendment Jurisprudence

A very close relationship between the Fourth Amendment and the common law existed for most of the Amendment’s jurisprudential history.(221) Until well into the 20th century, violation of the Amendment was tied to common law trespass.(222) State officials were liable in tort for trespass unless they could satisfy a civil jury that their search was reasonable; a valid warrant provided absolute immunity.(223)

The relationship went far deeper though.(224) Its most striking application was in the decisions concerning the definition of a search.(225) One specific case (Olmstead vs. United States) explicated the doctrine most infamously, holding that only a physical trespass could constitute a search for Fourth Amendment purposes.(226) Wiretapping accordingly did not qualify.(227) The scope of the Fourth Amendment’s protections thus depended on the nuances of property law, a result not inconsistent with the Court’s traditional understanding that the Fourth Amendment was meant to protect property and the information within it.(228)

Numerous courts applied the common law to determine the scope of the Fourth Amendment.(229) Because trespass was a necessary element of a Fourth Amendment violation, technical rules of property were determinative at all stages of analysis.(230) For example, lower courts based their standing rules on possessory interests; only someone who has possessed the seized property was entitled to bring a tort claim, and therefore only such a person had standing to object under the Fourth Amendment.(231) Whether officers of the law had obtained a valid consent also depended on property law: In another case (Chapman v. United States), the court analyzed the contexts in which a landlord had a common law or statutory right to enter leased premises in order to determine whether the landlords consent to search was valid.(232) Of course, if there had been no trespass, then there could be no constitutional violation – and its progeny make that clear.(233) One justice argued, the scope of the constitutional protection automatically expands and contracts with the common law.(234)

State Law as Fourth Amendment Content

The dynamic incorporation model of the Fourth Amendment envisions a relationship between state law and the constitutional restraint that is both tighter and broader than that reflected in previous case law.(235)

From a textual perspective, dynamic incorporation offers clarity and common sense.(236) The first clause of the Amendment provides the general rule: unreasonable searches by state actors are unconstitutional.(237) Reasonableness should not be a fuzzy term with fluctuating meaning and does not call upon the federal judiciary to engage in value judgments or to balance competing interests.(238) Rather, what is reasonable is that which is lawful under state law.(239) The interpretation is sensible, given that “English common-law tradition to which the American revolutionaries appealed often tied legality to ‘reasonableness.’”(240)

The second clause of the amendment, which set out the requirements for the use of warrants, answer the obvious question that would follow from reading the first clause in this manner: “Shouldn’t the sate be treated differently?”(241) In other words, why should the rules of common property and tort be applied to police officers and other state officials, who obviously have special needs given their duty to ensure public safety?(242) The second clause provides the answer, which is the exception to the rule: the state has the power to use warrants.(243) By obtaining a warrant, the state can exercise the special privileges that derive from its police power and thus exempt itself from the requirements of the state tort law.(244) Just as police officers were historically immune from tort claims if they obtained a valid warrant ex ante, the state would be immune from Fourth Amendment claims under the dynamic incorporation model as long as it acted with a valid warrant.(245)

The two clauses of the Fourth Amendment appear integrated when interpreted in this fashion.(246) The state should adhere to the general legal standards that govern ordinary citizens in their daily interactions with one another (hence the first clause), except to the extent that it may utilize particular warrant procedures (the second clause).(247) This interpretation avoids the problematics of determining when reasonableness requires a warrant presumption because it establishes the two clauses as independent tests: searches and seizures conducted pursuant to warrants would be analyzed under the second clause, whereas warrantless searches and seizures would be analyzed for reasonableness under state standards of private law.(248)

How would this model play out in practice?(249) First, courts would ask whether, under state law, the challenged police actions would constitute an actionable offense if a private party had committed them.(250) If the answer is yes – for example, if the search would have been actionable trespass – then the search would violate the Fourth Amendment.(251) If the answer is no – for example, if common law decisions of the state’s judiciary had established an exception or defense to the trespass – then the actions would be constitutional.(252)

Second, searches or seizures conducted pursuant to a warrant would be constitutional provided that the warrant had been validly issued.(253) Ancillary questions concerning the procedures for actions taken under warrant, such as the applicability of the knock-and- announce requirement, obviously cannot be tested under state law because private actions do not obtain warrants, and therefore no analogous body of state law deals with how private actors may interact when one has a warrant.(254) Accordingly, questions surrounding the constitutionality of searches conducted pursuant to warrants cannot be analyzed using the dynamic incorporation approach.(255) This constitutes a gap in the method, and answers would be sought elsewhere.(256)

Now that we have a reasonable understanding of methods used by courts to interpret the Fourth Amendment, thanks in no small part to the Harvard Law Review, lets now analyze the U.S. Government’s exposed national surveillance programs in the context of the constitution and the Foreign Intelligence Surveillance Act (FISA). What we are looking for is the potential for major differences between the tacit data vs. explicit data to illuminate whether a double standard exists. In other words, what is the probability that a duel interpretation of the Fourth Amendment by the secret FISA courts who rule over the NSA surveillance programs exists based on the methods of interpretation available?

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