The steady march of science and technology has a way of bringing settled law into new areas, challenging what was once convention. An upcoming court case involves just such a predicament – whether or not the government can search your laptop or cell phone without a warrant at border crossings. While it’s long been accepted that the government can search people entering the country, does that also imply to email or text messages? Another case is the use of ‘full body scanners’ by the TSA, which use a type of sensor to create an image of a person, arguably searching them.

Explore these and other current issues related to the Fourth Amendment in this week’s eLesson, and learn more about constitutional safeguards at the Due Process Central section of our website.

Do you think that changing technology requires new laws? Or does it simply require the application of existing ones?

The Constitutional principle of due process, which holds that government must interact with citizens according to duly‑enacted laws, balances the rights of suspects with public safety. The Fourth Amendment was added to the Constitution to ensure we would be protected from unreasonable searches and seizures. But do all searches require a judge-­approved warrant? How do we know which ones do? Further, surveillance technology has posed challenges to the meaning and application of the Fourth Amendment, and understandings of “reasonable,” “papers and effects,” and “search” have changed over time. Understanding, analyzing, and applying the Fourth Amendment is vital to maintaining the freedom the Founders sought to protect and the principle of due process.

Download the complete lesson and find other resources including the companion interactive game for this lesson at Due Process Central section of our website.

How do you use interactive games in your classroom to help your students understand important concepts?

What could be more frightening than violations of our constitutional rights? But is everything that appears to be a violation actually one? This week we’ll explore some current constitutional issues ripped from the headlines, and delve into some questions about whether rights are being violated. We hope you enjoy our Bill of Frights!

Under what circumstances are police allowed to enter the homes of private citizens? In most cases, a search warrant issued by a judge is needed for any encounter where law enforcement requires access to a private residence. But law enforcement is also bringing to bear another tool–warrantless searches.

Law enforcement argues that when exigent circumstances arise in situations either pertaining to officer and public safety or to the destruction of evidence, police officers must be allowed the flexibility to enter a home without a warrant. But are warrantless searches a necessary part of combating crime – particularly with those offenders who have opportunities to destroy evidence?

In Kentucky v. King (2011), the Supreme Court ruled 8-1 that law enforcement can enter a home without a warrant given the existence of exigent circumstances. The Court concluded that the warrantless search might still be legal even if law enforcement itself brings about the exigent circumstances (i.e. a knock on a door causes a stirring inside a house and that stirring causes the officers to assume a destruction of evidence is taking place). Justice Alito, writing for the majority, reasoned that “a rule that precludes the police from making a warrantless entry to prevent the destruction of evidence whenever their conduct causes the exigency would unreasonably shrink the reach of this well-established exception to the warrant requirement.”

In her dissent of the King ruling, Justice Ginsberg stated that she found no reason to “allow an expedient knock to override the warrant requirement. Instead, I would accord that core requirement of the Fourth Amendment full respect.”

Ginsberg  referred in her dissent to Johnson v. United States (1948), a case similar to King. In that case, the Court stated: “The right of officers to thrust themselves into a home is … a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. 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 a policeman … If the officers in this case were excused from the constitutional duty of presenting their evidence to a magistrate, it is difficult to think of [any] case in which [a warrant] should be required.”

Compounding Justice Ginsberg’s dissent are recent news items on botched or mistaken searches conducted by departments around the country. Mistakes happen and, unfortunately, mistakes around searches often entail deadly consequences for both officers and citizens. One serious example happened in May of last year when a raid on the wrong residence lead to the death of Jose Guerena, an ex-Marine who served two tours in Iraq.

As many argue, there are certainly circumstances that require the most temporary shedding of aspects of due process protections. But some argue that when you couple Fourth Amendment considerations with the real potential for mistakes around the country, the need to examine the scope of warrantless searches must be taken seriously.

What do you think? Does the existence of warrantless searches fundamentally circumvent the Fourth Amendment?

The 1927 case of Olmstead v. United States proved to be an incredibly important and influential decision.  The case revolved around the prosecution of Washington state resident Roy Olmstead for attempting to smuggle and sell alcohol in violation of Prohibition. After suspecting Olmstead for years, the government gathered evidence by wiretapping Olmstead’s office phones without first obtaining a warrant. Olmstead argued that the police had violated his 4^th and 5^th amendment rights. The Supreme Court, in a 5 – 4 decision, ruled that the government could use the evidence obtained from wiretapping. The “Exclusionary Rule,” which holds that illegally-obtained evidence may not be used against defendants at trial, was in force at the time. However Chief Justice William Taft cited previous decisions which characterized the 4^th amendment as only applying to physical search and seizure.

This case is notable not just for the immediate outcome, but also for the important ideas in the dissent. Justice Louis Brandeis wrote an influential dissent that was the foundation for future court decisions. In it, he attacked the proposition that the government had the power to wiretap phones without warrant, arguing that there is no difference between listening to a phone call and reading a sealed letter. Brandeis argued that the Founders had “conferred against the government, the right to be let alone – the most comprehensive of rights and the right most favored by civilized men.” Furthermore Brandeis advanced the idea that the ‘unclean hands’ principle, which is the idea that courts should not aid a plaintiff who has acted unethically with regards to the subject of the case, applies to the federal government. The government should not violate the laws of states to gather evidence (wiretapping was illegal in many states, including Washington) and then use that evidence to prosecute people.

The Brandeis dissent was widely cited and came to prominence in later Supreme Court decisions. The 1967 Katz v. U.S. case overturned the Olmstead ruling, holding that warrants were in fact required to wiretap payphones, with Brandeis’s dissent held as a primary influence. Its description of the reasonable expectation of privacy citizens have has been enshrined in law and constitutional interpretation, and has implications for a range of issues, from abortion rights to the freedom of the press.

What role does the right to privacy play in modern political issues?

Bill of Rights

Olmstead v. United States, 1927

Brandeis Dissent

Katz v. United States, 1967

Check out some of the best posts written by students that received the badge:

One student remarked on the reasonable suspicion standard necessary to search students in schools:

“The question being asked involves having reasonable suspicion that a student is communicating with someone else (whether it be with another student or not) about selling drugs. A school should still not have the right under the Fourth Amendment of the United States Constitution to search that particular student’s phone. This Amendment states, “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.” If a school authority is truly and reasonably suspicious that a student is using their cell phone or other electronic device during school hours to communicate with another person about selling drugs, said school authority should contact a higher authority (i.e., the police) and obtain a proper warrant to seize and search the student’s device. The Fourth Amendment protects such searches and seizures from happening without “probable cause, supported by oath or affirmation”, and that right should not be violated.”

Another student drew a conceptual distinction between searching a backpack, and searching a cell phone:

“Searching a person’s phone and searching a person’s backpack are two totally different things. A backpack is used for school supplies and things you would need during a school day. A phone is a personal connection to other people that doesn’t have anything to do with school. A phone allows us to communicate about and with out of school people and things. What is on phones is personal.”

Another student focused on the Supreme Court’s holding in Safford United School District # 1 v. Redding, which concerned a strip search of a student who had was suspected of having ibuprofen:

“In the Safford Unified School District #1 v. Redding I think they went way over board on a girl having ibuprofen on her in school grounds.  They didn’t need to go that far when ibuprofen is legal to have and the girl was only 13 years old. They did not need to strip search her for an ibuprofen tablet. I don’t necessarily think that random drug test follow the fourth amendment they don’t have probable cause to search people or test them for drugs.  I don’t necessarily think its a bad idea but I can see where people would want to deny the test because of their rights.  They shouldn’t have to get tested unless the person testing has a cause to do so. Student athletes should be tested for drugs in case they are using them in a way that could better their skills while playing that sport.  They should be notified that if they are going to play the sport they are probably going to get tested and that if they don’t want to be tested they shouldn’t try out for the sport.  So I think that the fourth amendment does allow schools to look at your phone under certain circumstances.  There is also a fine line as to what circumstances are just and which ones aren’t.”

A student drew a distinction between searching students who participate in extra-curricular activities (in the form of drug testing) and those who do not engage in such activities:

“If a school wants to drug test students who want to participate in extra curricular activities, they can have students take them. Because the extra curricular activities are extra and not a have to do like attending school.  When a student chooses to be in activities beyond just school, they have to follow a good conduct code. Students represent a school and how the system works. When there are drug tests in the student athletes, that prevents those students from taking drugs because they do not want to lose their spot on the varsity line up. A majority of students are apart of one extra curricular activity or another. The Fourth Amendment protects students from a random search. But if say, a drug dog comes onto campus, and detects drugs, that is probable cause to be searched.”

Congratulations to all of the students who participated.  Look for a new badges next year at FantasySCOTUS.org.

The Court upheld a lower court ruling that gave jails the authority to strip search persons entering a jail’s general population regardless of crime. Justice Kennedy, who wrote the majority decision, said “Courts must defer to the judgment of correctional officials unless the record contains substantial evidence showing their policies are an unnecessary or unjustified response to problems of jail security.”

In his dissent, Justice Breyer noted that, “a search of an individual arrested for a minor offense that does not involve drugs or violence—say a traffic offense, a regulatory offense, an essentially civil matter, or any other such misdemeanor—is an “unreasonable searc[h]” forbidden by the Fourth Amendment, unless prison authorities have reasonable suspicion to believe that the individual possesses drugs or other contraband.”

Use this eLesson to teach your students about the Florence case.

Bill of Rights Institute Resources:

Americapedia — Fourth Amendment

National Constitution Center Resources:

The Story Behind Florence v. Board of Chosen Freeholders — Video

New Resources:

Florence v. Board of Chosen Freeholders — Oyez

Supreme Court OKs routine jailhouse strip searches — AP

Questions to Consider:

1. What constitutional question was the Court asked to consider?
2. How did the Court rule? What was their reasoning?
3. Should the Court have considered questions of jailhouse security when determining the constitutionality of strip searches? Why or why not?
4. Do you agree with the Court’s ruling? Why or why not?

Under what circumstances are police allowed to enter the homes of private citizens? In most cases, a search warrant issued by a judge is needed for any encounter where law enforcement requires access to a private residence. But law enforcement is also bringing to bear another tool–warrantless searches.

Warrantless searches are often a necessary part of combating crime–and particularly those offenders who have opportunities to destroy evidence. When exigent circumstances arise, law enforcement argues, in situations either pertaining to officer and public safety or to the destruction of evidence, police officers must be allowed the flexibility to enter a home without a warrant.

In Kentucky v. King (2011), the Supreme Court ruled 8-1 that law enforcement can enter a home without a warrant given the existence of exigent circumstances. The Court concluded that the warrantless search might still be legal even if law enforcement itself brings about the exigent circumstances (i.e. a knock on a door causes a stirring inside a house and that stirring causes the officers to assume a destruction of evidence is taking place). Justice Alito, writing for the majority,  reasoned that “a rule that precludes the police from making a warrantless entry to prevent the destruction of evidence whenever their conduct causes the exigency would unreasonably shrink the reach of this well-established exception to the warrant requirement.”

In her dissent of the King ruling, Justice Ginsberg stated that she found no reason to “allow an expedient knock to override the warrant requirement. Instead, I would accord that core requirement of the Fourth Amendment full respect.”

Ginsberg  referred in her dissent to Johnson v. United States (1948), a case similar to King. In that case, the Court stated: “The right of officers to thrust themselves into a home is … a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. 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 a policeman … If the officers in this case were excused from the constitutional duty of presenting their evidence to a magistrate, it is difficult to think of [any] case in which [a warrant] should be required.”

Compounding Justice Ginsberg’s dissent are recent news items on botched or mistaken searches conducted by departments around the country. Mistakes happen and, unfortunately, mistakes around searches often entail deadly consequences for both officers and citizens. One serious example happened in May of this year when a raid on the wrong residence lead to the death of Jose Guerena, an ex-Marine who served two tours in Iraq.

As many argue, there are certainly circumstances that require the most temporary shedding of aspects of due process protections. But some argue that when you couple Fourth Amendment considerations with the real potential for mistakes around the country, the need to examine the scope of warrantless searches must be taken seriously. What do you think? Does the existence of warrantless searches fundamentally circumvent the Fourth Amendment?

• 7 artfully concealed prohibited items found at checkpoints
• 13 firearms found at checkpoints

In this light, taking off our shoes and going through metal detectors might be reasonable. But how far is too far? CBS news picked up this story about a pat-down at the Kansas City airport of a 6-month old baby after his stroller alarmed during explosive screening.

Reaction questions:

• In your opinion is this an acceptable part of post-9/11 security?
• In your opinion are full-body scanners and/or pat-downs here to stay?
• Ultimately, do you feel safe when flying?

“Does the bill do enough to protect our privacy?” The St. Louis Today reported on Monday that federal investigators have recently begun obtaining warrants to search Facebook for “photographs, email addresses, cell phone numbers, lists of friends who might double as partners in crime, and see GPS locations that could help disprove alibis”.

These investigations raise “constitutional and evidentiary issues that must be considered, including privacy and the right against unreasonable searches and seizures” according to Chief U.S. District Judge Gerald E. Rosen, of Wayne State University.

Questions Raised:

• Do Facebook searches violate the Fourth Amendment?
• Does Facebook need to disclose when they get requests for user account information?
• Do search warrants give the Federal Government enough authority to search user account information on Facebook?
• Do you think user information on Facebook should be admissible in criminal prosecution?
• Should Congress consider adding protections to their internet bill of rights that relate to social networking sites?

The case arose after the Chicago Tribune requested information from the University of Illinois regarding students’ parents contact information for a story on politics in college admissions. The school refused to release the information, citing FERPA compliance.

The federal judge’s ruling stated that, technically, releasing student information is not prohibited. Federal funding, however, is tied to compliance with FERPA regulations. Therefore schools may choose to violate FERPA if they are willing to forfeit their federal funding.

Judge Joan Gottschall wrote:

“Illinois could choose to reject federal education money, and the conditions of FERPA along with it, so it cannot be said that FERPA prevents Illinois from doing anything.”

The ruling was narrow by definition, but raises questions about personal privacy rights for students attending a public institution, as well as Congress’s power to encourage certain practices by tying funds to their implementation.

What do you think? Should enforcement of a regulation protecting students’ private information be tied to federal subsidies?