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Virginia Fourth Amendment adds needed clarity to “reasonable search and seizure”

The Original Federalist

This continues the sentence-by-sentence explanation of HJ 578 and SJ 302, a “Fourth Amendment for the 21st Century” before the Virginia General Assembly. Click this link to read the first installment of the "modern Federalist Papers" supporting Virginia's Fourth Amendment for the 21st Century.

Sentences 2 and 3 of the proposed amendment read,  “A reasonable search or seizure is one based on probable cause that a law has been or will be broken, or under imminent or exigent circumstances, when police have an objective, reasonable suspicion of a violation of law that jeopardizes persons or property. An unreasonable search or seizure includes one that is not based on a valid law.”

To understand the Fourth Amendment, it is necessary to understand concepts of trespass.  As the majority opinion in U.S. v. Jones, 565 U.S. ___ (2013) authored by Justice Antonin Scalia says, “[F]or most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas ("persons, houses, papers, and effects") it enumerates . . . [and the] reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test.”

The principles of trespass passed to America through the common law.  The prohibitions on trespass protect our persons and our property.  Trespass is best known for protecting lands.  When someone holds us against our will and without justification, however, that is a trespass to our person.  When someone removes our property without our consent, that is the trespass of asportation, otherwise known as larceny.

There are exceptions to trespass, and the Fourth Amendment’s “reasonableness” standard must be read consistent with them.  Searches and seizures are legally justifiable exceptions to trespass under limited and defined circumstances and process.  The proposed amendment for Virginia would apply sound exceptions, while simultaneously prohibiting government abuses of those exceptions.

Some well-meaning people in law enforcement have worried that “consent” searches would be eliminated by Sentence 2.  They are wrong, and that is proof of why this amendment, and the education about original Fourth Amendment principles, are needed especially within the prosecutorial and law enforcement communities.  The original Fourth Amendment says nothing about consent searches, but it never needed to.

For example, if I consent to your entering my home, that is clearly not a trespass.  The same applies to consent given to police.  Consent issued under duress or deception, however, is not valid.

Indeed, the original Fourth Amendment’s economy of words has created some confusion in its application.  “Although the reasonableness of the types of search and seizure that existed in 1789 can be determined, it cannot be asserted with equal certainty for each type.  Areas of ambiguity remain even after he surviving evidence has been exhausted.” Cuddihy, William J., THE FOURTH AMENDMENT: ORIGINS AND ORIGINAL MEANING 602 – 1791.  This has lead to too much litigation about the meaning of key terms, and even misapplication of the Fourth Amendment.

Virginia judge and College of William and Mary law professor St. George Tucker wrote in 1803, “In the administration of preventive justice, the following principles have been held sacred; that some probable ground of suspicion be exhibited before some judicial authority; that it be supported by oath or affirmation.” St. George Tucker, Blackstone's Commentaries 1.

Sentence 2 therefore provides greater particularity than the original Fourth Amendment after two and a quarter centuries of experience.  This clarity will aid the more predictable and consistent interpretation and application for searches and seizures.

The “imminent of exigent circumstances” clause will ensure no interference with DUI or other reasonable stops, seizures or searches where a police officer’s safety, or that of other persons or property, is subject to threat.

Police would not need to seek warrants for these and other violations of law that are in “plain view,” especially in the public square.  This is consistent with Terry v. Ohio, 392 U.S. 1 (1968), in which the “stop and frisk” doctrine was announced to protect police officers’ safety under a “reasonableness” standard.

Unlike police, many officials and employees in our vast state and local administrative agencies often have little or no proper training in law or law enforcement, yet have law enforcement authority that results in mistaken or even abusive applications inconsistent with the laws they are charged with enforcing.  They also do not operate in the emergency circumstances of police.  Therefore, the “imminent and exigent circumstances” doctrine applies to police, but not other administrative government officials.

Sentence 3 clarifies that unreasonable searches and seizures include those not based on enforcing a valid law. 

The U.S. Supreme Court recently issued an opinion unsupported by the text of the Fourth Amendment or precedent that a search or seizure based on a “mistake of law” was reasonable.  Heien v. North Carolina, No. 13-604, December 15, 2014.

The majority opinion in Heien misapplies early American case law dealing with the personal liability of government searching agents, and has been widely criticized.  Sentence number 3 will help ensure that searches and seizures are grounded in valid, enforceable laws, and are not arbitrary.

The United States Supreme Court has already ruled that a search or seizure pursuant to a law later declared unconstitutional or a law that is difficult to interpret is still reasonable, and those would still constitute “valid” laws for purposes of this Virginia amendment.  “A doubt as to the true construction of the law is as reasonable a cause for seizure as a doubt respecting the fact." United States v. Riddle, 5 Cranch 311 (1809).

The Supreme Court repeatedly uses the maxim contradicted by John Adams that "reasonableness is the ultimate touchstone" of the Fourth Amendment.  That perverts the rule of law and our republican form of government.  Search and seizure must be based in enforcing the law, and not exercising arbitrary power.  John Adams wrote "Obsta principiis, nip the shoots of arbitrary power in the bud, is the only maxim which can ever preserve the liberties of any people."  The "valid law" provision in the amendment, therefore, may be the most important addition.

Law professor Marjorie Cohn explains this principle well where she writes:

Citing the 1996 case of Ornelas v. United States, [U.S. Supreme Court Justice Sonya] Sotomayor wrote, "[w]hat matters ... are the facts as viewed by an objectively reasonable officer, and the rule of law - not an officer's conception of the rule of law, and not even an officer's reasonable misunderstanding about the law, but the law."

Distinguishing mistake of law from mistake of fact, Sotomayor observed, "The meaning of the law is not probabilistic in the same way that factual determinations are. Rather, 'the notion that the law is definite and knowable' sits at the foundation of our legal system."

Noting that the court has never before "taken into account an officer's understanding of the law, reasonable or otherwise," Sotomayor alluded to the court's erosion of the Fourth Amendment: "Departing from this tradition means further eroding the Fourth Amendment's protection of civil liberties in a context where that protection has already been worn down."

The “valid” law provision would be construed consistent with those cases, but would overturn the incorrect and dangerous judicial activism under Heien.

Sentences 2 and 3 clarify for the people’s law over government what is meant by “probable cause” in the context of what constitutes a reasonable search or seizure, and maintains for police their ability to protect safety under “imminent and exigent circumstances.”  They will provide clarity, aid good law enforcement, and help protect the security of Virginians from arbitrary, capricious and outright incorrect applications of the law.

Click this link to read the article announcing the introduction of HJ 578 and SJ 302 by principled limited government constitutional conservatives Virginia Delegate Richard L. Anderson (R-51)  and Virginia State Senator Richard H. Stuart (R-28).

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