Probable Cause

Orin Kerr, of the Volokh Conspiracy — never trust anyone involved in a conspiracy — has just published an article for the Stanford Law Review about the Internet and the Fourth Amendment. The article has been discussed by Scott Greenfield, Jeff Gamso, and “Publius”; the last name is a pseudonym “for any contributor [to Affirmative Links] who wishes to use the name.” This time, Publius appears to be Jamie Spencer from Austin Criminal Defense Lawyer; he has written on this issue before.

I’m jumping into the fray because I’ve written a time or two about that quaint, ancient relic known as the Fourth Amendment myself.

Kerr’s article doesn’t really change the fact that nobody believes in the Fourth Amendment anymore. He as much as admits that when he says, “Technology neutrality assumes that the degree of privacy the Fourth Amendment extends to the Internet should try to match the degree of privacy protection that the Fourth Amendment provides in the physical world.”

My original intent when I sat down to write this article was to explain my disagreement with Kerr’s approach. As I began to write the set-up, I realized the set-up itself was taking on the dimensions of an article of its own. I don’t want to leave out the set-up, nor do I want to risk that people will avoid what I have to say because the article is too long.

Therefore I intend more than one article addressing Kerr’s proposal, with this one being concerned with foundational issues I think are important to any such discussion.

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Most of my writing lately has had to be devoted to motions.  As California courts increasingly ignore the law, it seems more important — I’m not sure why, perhaps at least for future generations, sort of “a la the Declaration of Independence” — to document things, rather than try to wing it with the more ephemeral oral arguments.

In the course of working on a motion, I ran across this new argument, which can only be titled “You Just Got Pwned!”

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Once upon a time, in the land that would one day become the United States of America, law enforcement officers of the King of England were allowed by the King to stop and search citizens of the land without the need for specific warrants.

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Officially, the basic rule in the United States of America is still that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.”  (Arizona v. Gant, 129 S.Ct. 1710, 1716, 2009 Daily Journal D.A.R. 5611 (2009).)

In 1968, the United States Supreme Court said,

This inestimable right of personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs. For, as this Court has always recognized,

No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.

(Terry v. Ohio, 392 U.S. 1, 8-9, 88 S.Ct. 1868 (1968), quoting Union Pac. R. Co. v. Botsford, 141 U.S. 250, 251, 11 S.Ct. 1000, 1001, 35 L.Ed. 734 (1891).)

But as Bill O’Reilly would say, “That’s what the people who are paid for hating America want you to think.”

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