By Tutis Libertas
This is the first installment of a sentence-by-sentence explanation of the proposed “Fourth Amendment for the 21st Century” to show the amendment is 100 percent based in sound Fourth Amendment principles and purposes consistent with the Framers’ vision. The first article, “Why It’s Time for a 21st Century Fourth Amendment in Virginia,” provided general background about the amendment.
HJ 578 and SJ 302 introduced in the Virginia General Assembly by Delegate Rich Anderson and Senator Richard Stuart, respectively, proposes an amendment to Virginia’s Constitution to prohibit unreasonable searches and seizures by government.
This article addresses Sentence 1, which reads: “That the government shall not violate the right of the people to be secure against unreasonable searches and seizures of their persons, houses, businesses, lands, papers, and effects, including communications, information and data.”
The proposed amendment and the Fourth Amendment both acknowledge a right to be secure against unreasonable searches and seizures. Both expressly protect “persons, houses, papers and effects” from unreasonable searches and seizures.
The proposed amendment also expressly incorporates protections for (1) businesses, (2) lands, and (3) modifies the expressly protected property to include communications, information and data.”
Businesses. Merchants and business were always presumed to be covered by the Fourth Amendment, so this simply will add clarity and certainty for this Virginia amendment to reduce needless litigation or misapplication.
“The Warrant Clause of the Fourth Amendment protects commercial buildings as well as private homes. To hold otherwise would belie the origin of that Amendment, and the American colonial experience.” Marshall v. Barlow’s, Inc., 436 U.S. 307, 311 (1978). “As we explained in Camara, a search of private houses is presumptively unreasonable if conducted without a warrant. The businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property. The businessman, too, has that right placed in jeopardy if the decision to enter and inspect for violation of regulatory laws can be made and enforced by the inspector in the field without official authority evidenced by a warrant.” See v. Seattle, 387 U.S. 541, 543 (1967).
Lands. Government bureaucracies with enforcement over land matters such as zoning, conservation, environmental protection, etc., plus intrusive methods of technological and air surveillance did not exist when the Fourth Amendment was adopted.
Trespass to land has been dreaded in American law and the English common law. From Boyd v. United States,116 U.S. 616, 627 (1886), citing Lord Camden from the seminal 1765 English search and seizure case Entick v. Carrington, “No man can set his foot upon my ground without my license, but he is liable to an action, though the damage be nothing, which is proved by every declaration in trespass where the defendant is called upon to answer for bruising the grass and even treading upon the soil.”
The Fourth Amendment has been construed to protect curtilage (land immediately surrounding the house). Given expansion of government’s administrative reach and land surveillance since adoption of the Fourth Amendment, it is appropriate to include land in this 21st century amendment to Virginia’s Constitution, as it will provide Fourth Amendment-like protection to all privately owned land, rather than merely that land immediately surrounding one’s home or business.
Papers, and effects, including communications. information and data. This is a logical 21st century extension of the 18th century protection of what was only tangible property that may include people’s most personal, private and intimate thoughts, correspondence, business records, images, family records, address books, etc.
“Communications” equate to “papers” (letters and correspondence). The term “information and data” would obviously not include published personal information and data accessible in the public domain even though such published property may also be stored on computers and devices of the owner, or in the cloud. However, non-published personal information, including data stored on computers, devices or in the cloud are a 21st century equivalent of “papers and effects.” Therefore, the proposed amendment would add this protection under the Virginia Constitution.
A unanimous U.S. Supreme Court recently ruled in Riley v. California, 573 U.S. ___ (2014) that a search of a cell phone incident to an arrest requires a warrant. Chief Justice Roberts wrote, “Prior to the digital age, people did not typically carry a cache of sensitive personal information with them as they went about their day. Now it is the person who is not carrying a cell phone, with all that it contains, who is the exception.”
Virginians’ technological property and privacy need this protection not currently provided under the Fourth Amendment.
“Tutis Libertas” is writing a series of articles analyzing the need for, and content of, HJ 578, an amendment proposed by Del. Rich Anderson and SJ 302, the companion amendment patroned by Sen. Richard Stuart.
