Chapter 18 - The Fourth Amendment and National Security
4th Amendment Primer
Bans unreasonable searches and requires warrants to issue only with
probable cause, describing the premises to be searched and the persons or
things to be seized.
Passed in reaction to the old British general warrants, which had just been
abolished by Parliament.
What searches does this apply to?
Remember administrative searches?
Until the late 1960s, there was no warrant requirement for administrative
searches.
Even then, the court only require an area warrant.
Is this only because they cannot be used for criminal prosecution, or is it
because they are used for prevention?
Is national security prevention?
Wire taps
What sort of searches did the founders have in mind when they drafted the
4th amendment?
Why did courts initially exclude wiretaps from the 4th amendment?
What are the arguments pro and con for applying the 4th amendment to
wiretaps?
What case found that wiretaps were an unconstitutional search unless the
police met the 4th amendment criminal warrant requirements?
Did the case address national security?
What restrictions did the Omnibus Crime Control Bill of 1968 set on
wiretapping?
What provision of the Act sets out the warrant procedures?
What if the phone company hears a suspicious conversation as part of
routine monitoring?
Did the Act address national security?
US v US District Court (Keith), 407 US 297 (1972)
What is the underlying crime?
Was there foreign involvement?
What was the nature of the evidence gathering?
Was there a warrant?
How were they authorized?
Did the Omnibus Crime Control Bill control?
What language excluded this sort of crime?
What is government arguing that this clause means?
Does the court buy this?
Where do they look for guidance?
What is the real question before the court? Hint - it is not the
reasonableness of the actual search or whether they could have gotten a
warrant.
What are the general exceptions in criminal cases?
What was the government's claim that this surveillance did not need a
specific warrant?
What is wrong with that argument?
What if they are not prosecuting you - how do you have to contest a search?
How do you even know they are watching you?.
Why does the government say it does not think it should have to get a judge
to approve a warrant?
What does the court rule?
Title III
What are the specific requirements of Title III for electronic
communications?
Why are these problematic for national security surveillance?
Does this extend to other forms of electronic communication?
How have wire taps changed?
What does a wiretap mean with VIOP?
What about cell phones?
Cordless phones?
Baby monitors?
Email?
Congress has protected email and cell phones by statute from use without
warrants in criminal investigations
Does this affect surveillance that is not used in prosecutions?
What about the NSA?
Ancillary targets
What if a citizen or domestic organization is caught in a legitimate
foreign investigation?
What does United States v. Brown, 484 F.2d 418 (5th Cir. 1973) tell us?
What is the primary purpose doctrine?
Domestic organizations with foreign objectives - Zweibon v.Mitchell, 516
F.2d 594 (D.C. Cir. 1975), cert. denied, 425 U.S. 944 (1976)
What is the group?
What foreign policy problems where they causing?
Did the DC court require a warrant?
What about for wiretapping American citizens living in Berlin?
Black bag jobs
Halperin v. Kissinger, 80 F2d 180 (DC C 1986)
Warrantless breakins
No records were kept, evidence was not admissible but was useful
Widely used prior to their being banned by the FBI in 1966
US v. Ehrlichman, 376 F Supp 910 (1974), affirmed 546 F2d 910 (1976)
Whose office did they break into?
Why?
Was their any urgency in this break in, i.e., did they have to get a warrant?
What is the reason the defendants gave the court for not getting a warrant?
Defendants cite the wiretapping cases for foreign intelligence as precedent
How is this different?
Does it also matter that he is a psychiatrist?
What other persons' privacy is at stake?
Does the court decide whether the president could have ordered the break-in?
Why?
US v. Truong Dinh Hung, 629 F2d 908 (1982) - 633
What was Truong doing that lead to this case?
How was he caught?
Why didn't the government arrest him at once?
How did they conduct the investigation?
How as this authorized?
Who do they catch as the source?
How is this case distinguished from Keith?
What factors did the court base this finding on?
Why do Defendants say the evidence should not be admitted?
What does the district court rule?
What test do the Defendants want for national security surveillance?
What did the circuit court order?
How do the courts deal with changing technology?
Are airplane flyovers searches?
What about satellites and spy planes?
Thermal imaging?
How about bouncing lasers off windows to eavesdrop by reading the sounds
off the vibrating windows?
What about radiation scanners in residential neighborhoods?