New technologies have made types of searches possible which could never have been envisioned when the Fourth Amendment was proposed to prohibit unreasonable search and seizure. With remote listening, infrared imaging, and, now, wireless technologies, it is possible to detect movements of people within buildings with no discernible physical impact on the surveilled person’s life.[ii] Are remote searches reasonable? Do they require a warrant?[iii] In my opinion, courts should treat these sorts of remote detection techniques (“surveillance”) as searches subject to the Fourth Amendment’s requirement of reasonableness.
The Fourth Amendment to the U.S. Constitution expressly guaranties that:
“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.”
The Fourth Amendment was incorporated by the Fourteenth Amendment to apply directly to the states, even though many protections against search and seizure at state common law were more extensive than the Fourth Amendment.[iv] The general rule is that the Fourth Amendment’s prohibition of unwarranted searches does not apply where there is no reasonable expectation of privacy.[v] That leads to the question of when a person has reason to believe that he or she is “in private” as opposed to “in public”. This will depend both on the facts of the case and on social reality.[vi] For example, different cultures within the United States have different senses of what is “public” and what is “private”, and those senses are constantly evolving.[vii] However, one bright line stands out: searches of homes without warrants are presumptively unreasonable because “[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” [viii] (more…)