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Supreme Court Ruling – Police Need Warrants for Driveway Searches

On Behalf of | May 30, 2018 | Criminal Law |

Legal precedent is reasoning by analogy. Step by step the law develops. In the 1950s-70s, the Supreme Court expanded the Fourth Amendment to limit police power and preserve freedom. In the 1980s until about six years ago, the Court ruled often in favor of the police and contracted the Amendment. We are now seeing a shift in the tide towards civil liberties.

This case referenced in the NY Times article, “Police Need Warrants for Driveway Searches, Supreme Court Rules” is about a police officer stepping onto a driveway to look at a motorcycle under a tarp does not have much practical importance for most police nor for most Americans, but it is a significant marker of change in the perspective of the Court and American society on the Fourth Amendment.

The war on drugs on the 1980s was followed by a war on child porn in the 1990s to the war on terrorism after 2001, each of which steadily eroded fourth amendment protections through the end of the twentieth century and first decade of the twenty-first. This fear-driven jurisprudence has been replaced with a healthy concern about the limits of police power.

The concerns about the erosion of our freedoms first raised by the ACLU, criminal defense lawyers, liberal Democrats and libertarian Republicans were ignored by most mainstream politicians. For instance, even to this day, Congress has not enacted a law requiring a warrant to read your emails. And the court reflected the mainstream. For instance, the Supreme Court a few decades ago allowed police helicopters to view your property even if your up put up a fence for privacy.

But the politics of civil liberties started to shift in the past decade. Technology companies, even as they did much to invade our privacy for commercial purposes, brought the lobbying power and legal acumen of the nation’s top law firms to write erudite briefs supporting the right of Google, Apple, and Facebook, not to be mere pawns of federal law enforcement.

The Supreme Court became more tech savvy. Justice Sotomayor’s concurrence in US v Jones (2012) which struck down the police placing of a GPS tracking device without a search warrant on a suspect’s car was a watershed moment. She showed how technology allowed the Government to follow us and know our secrets, and that the Court must interpret the Fourth Amendment to prevent that. Her reasoning was adopted in the Riley case, a few years later, which outlawed the routine search of computerized cell phones from people who were arrested without a search warrant.

Now we live in extraordinary times where the President of the United States, the highest officer in the land charged with enforcing the law, regularly comments about his concerns about the power of the FBI. And so both political parties are now on record expressing concern about the power of the Government, and not just criminal actors.

This particular case is not about technology. It is a remarkably old-fashioned question of the sort that could have arisen anytime in the last hundred years but somehow had not. Can a police officer walk into your driveway and lift up a tarp covering up a vehicle without permission or a warrant? Today, eight Supreme Court justices said no. Precisely because the question seems minor and routine and just a slight change from the formal rule, the reasoning of the dissent would have carried the day for most of my adult life. But not today.

This change in perspective about the role of the Court in keeping all of us free is a good one. The fourth amendment is neither liberal nor conservative. Rather, it is a uniquely American notion that the Government must be constrained in its efforts to keep us safe in order to keep us free.