The Constantly Shrinking Fourth Amendment
By: Madhura Banerjee
“Each man’s home is his castle.” This is the notion that the Fourth Amendment seeks to enforce. The Fourth Amendment guarantees protection to Americans against unreasonable searches and seizures in their own homes. Authorities cannot search a person’s home, papers, or effects without a warrant signed by a judge, upon probable cause and particularly describing the place to be searched and the persons or things to be seized. What this effectively means is that government officials cannot walk into one’s home, unwarranted, and do as they please in an attempt to find evidence of a crime. Naturally, then, the Fourth Amendment offers protection that is crucially important and guards the larger right to privacy that is fundamental to every human being. The right to privacy is not expressly mentioned in the Constitution, but is inferred through interpretation. One’s private property is hardly private if the police and other officials can walk in and search the premises without a warrant or one’s permission. Despite the evident significance of the Fourth Amendment right, judicial interpretations of the Fourth Amendment and its exceptions over the past few years have diluted the protection afforded by the Fourth Amendment. Such court holdings have created loopholes that have made it legal for government officials to pry on private property in a manner that, if done by private citizens, would amount to trespassing.
One exception to the Fourth Amendment is the “knock and talk” exception. This exception allows the police to walk to one’s door, knock on it, and ask permission to speak with the resident, in a manner similar to what would be done by any neighbor or regular visitor. It is legal for the police to do this without a warrant; the rationale is that it is generally considered acceptable for homeowners to expect people to come to their door. That being said, this exception does not give anybody (whether private citizens or government officials) the unrestricted right to pry around another’s house. This was true until the Vermont Supreme Court’s recent decision in Bovat v. Vermont, which gave authorities the right to “peep, knock, and talk.” In this case, game wardens in Vermont suspected Clyde Bovat of having killed a deer illegally. When they went to his house to find evidence of the crime, they did not adhere to the guidelines of the “knock and talk” exception. Instead, they snooped around his driveway and peeked into his garage’s windows. Through these actions, the police accumulated enough evidence to convict Bovat. Further, the Vermont Supreme Court admitted the evidence, reasoning that this was allowed under the Fourth Amendment.
In Bovat v. Vermont, the Vermont Supreme Court effectively carved out a new justification for government intrusion on private property by reasoning that one’s driveway and garage exterior are just “semiprivate” areas that the wardens could tread upon and observe without the need for permission or a warrant. Bovat went on to appeal the Vermont Supreme Court’s decision. In his reply brief, he argued that that the Vermont Supreme Court’s decision “turned the implied knock-and-talk license into an express enter-and-investigate license.” The semiprivate justification disregarded property protections and Supreme Court precedent. Unfortunately, the Supreme Court refused to hear the case, and instead issued a statement reprimanding the Vermont Supreme Court. Even then, such a statement does not carry the weight that a decision explicitly rejecting the Vermont Supreme Court’s reasoning would.
Bovat v. Vermont is not the first, and probably not the last, instance of the courts diluting Fourth Amendment protections. Past court judgments, too, have weakened the Fourth Amendment and the exclusionary rule (under which the government is not allowed to use evidence in court that has been obtained in violation of the Fourth Amendment). In the 1968 case Terry v. Ohio, the Supreme Court held that if the police have articulable, reasonable suspicion that a person is about to break the law, they can stop that person without probable cause. More recently, in 2009, the Supreme Court in Herring v. United States found another exception to the exclusionary rule. The Court held that the exclusionary rule does not apply where the officer was merely negligent and did not intend to violate the Fourth Amendment. In this case, police arrested and searched Bennie Dean Herring under a mistaken belief of an outstanding warrant against him, which existed in computer records but had actually been withdrawn five months ago. This record-keeping error was discovered too late—the police had already found contraband in Herring’s truck during their search and he was convicted on drug and gun charges. This was clearly an unconstitutional search, but the Supreme Court still refused to exclude the evidence found, reasoning that the arrest was not based on “sufficiently deliberate” misconduct, but rather careless police record-keeping. Given the Court’s trend in the years before this judgement, the outcome was not absolutely unexpected. The Court had been carving out “good faith” exceptions to the exclusionary rule for a while. However, the good faith exception was formerly limited to improper searches that resulted from nonpolice errors. In Herring, the Court entered into dangerous territory by finding a good faith exception that resulted from police behavior. This expansive interpretation could potentially lead to circumvention of the exclusionary rule based on “negligent police conduct going well beyond sloppy record-keeping.”
The trend of chipping away at Fourth Amendment protection continued after Herring as well. For example, in 2014, the Supreme Court in Navarette v. California held that the police can legally stop a car on the basis of an anonymous, uncorroborated tip of reckless driving, even if the police do not observe any violation of the law. Later that year, in Heien v. North Carolina, the Supreme Court held that if the officer stops a person for an act that is not a crime, but the officer was reasonably mistaken about the law, then the officer faces no liability for a Fourth Amendment violation. As recently as 2018, in Birchfield v. North Dakota, the Supreme Court held that warrantless breath tests incident to arrests for drunk driving were well within the mandate of the Fourth Amendment, even if the officers have had plenty of time to obtain a warrant.
These Fourth Amendment bypasses are not only restricted to our homes. This is where current technological innovations come in and interact with yet another exception to the Fourth Amendment—the “open fields” doctrine. Under this doctrine, a warrantless search of the area outside a property owner’s curtilage (the property outside the immediate area around the home) does not violate the Fourth Amendment. Up until recently, the repercussions of this were not too far-reaching, as authorities would have to be physically present to surveil land. However, with modern technology, the government can routinely record locations for every single hour of the day through remote cameras.
The shrinking of the Fourth Amendment needs to be curtailed before its protections are whittled away to non-existence. Such a situation would be undesirable for every American and would undermine the protections granted by the Constitution towards privacy and the sanctity of the home. The crucially important Fourth Amendment right cannot rest on loopholes found by the courts in broad interpretations of the exceptions to the Fourth Amendment. On the bright side, there is some ambition reflected in the words of Justice Gorsuch in his statement on the Bovat case: “The Constitution’s historic protections for the sanctity of the home and its surroundings demand more respect from us all than was displayed here.” Hopefully this signals a shift to an era where the courts start reconsidering their previous interpretations of Fourth Amendment protections and place a larger emphasis on property and privacy rights.
About the Author: Madhura Banerjee is a 2L at Cornell Law School. She grew up in Kolkata, India and has a law degree from Jindal Global University, India. This summer, she worked at a boutique corporate law firm and is interested in eventually pursuing a career in corporate law.
Suggested Citation: Madhura Banerjee, The Constantly Shrinking Fourth Amendment, Cornell J.L. & Pub. Pol’y: The Issue Spotter (Apr. 19, 2021), http://jlpp.org/blogzine/the-constantly-shrinking-fourth-amendment/.