Jonathan Williams Instructor: Gary Cox Class: Criminal Justice Law Date: November 25, 2013 The Fourth

Does It Need Mending?

Abstract:

My goal in this paper is compile the ramblings of a madman to address the Constitutional issues we as Americans need to decide how to control/ regulate the use of the government surveillance. The Fourth Amendment wasnt originally made to be idle protection against our government and its abuses of its citizens rights. This one law was made to guard against unreasonable use of search and seizures.

This amendment has been a safeguard for over a century for Americans. How will the United States Supreme Court make the trade-off with liberty and our security; also they will have to deal with unheard of technologies that our founding fathers could have never thought we would have to deal with now.

Before there were planes, cars, and telecommunications like satellites, phones and computers. There wasnt a need to be concerned with the United States government using tools to gather, analyze identify, acquire and large amount of information about the American people. We as Americans need to decide how to control/ regulate the use of the government surveillance.

The Fourth Does It Need Mending? Its all too easy to forget where our numerous freedoms came from. The Fourth Amendment is one of those freedoms that are all too important to us as American citizens. On 15 December 1791 the Fourth Amendment was add to the United States Constitution as part of the Bill Rights. This Amendment deals with our protections from unlawful searchs of homes as well as private property unless they have proper search warrants. The Fourth Amendment States, The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Our founding fathers of the United States conceived that freedom from any government encroachment into a person home was a normal right as well as a basic liberty. Protection from unreasonable searches and seizures was an idea that went back to England. Sir Edward Coke in 1604 argued that this right, The house of every one is to him as his castle and fortress, as well for his defense against injury and violence as his repose.

In the early part of the American colonies the king England saw the colonies as a source of income. With England seeing the colonies as a source of income it passed many revenue bills made to collect as much cash as they could. The American Colonys begrudged England for the bills that where passed; so the colonists started to smuggle to bypass the custom taxes that where enforced. With the American colonys doing this

King George responded with, writs of assistance. What writs of assistance is a legal way for the British Crown to search anything they wanted, the scope was broad range that covered anything and any place. In the writ of assistance a British agent could search anything they felt might have contraband also they were able to go into someones residents and on property without any notice if they wanted to. The British agents were able to interrogate people and make people to cooperate against their will. With these things that where afforded to the agents and the search and seizures it quickly became appalling to the American colonies. These actions of the King of England helped bring about the American Revolution, which resulted to the formation of the U.S. Constitution; later on it was applied the our states this was through the fourteenth Amendment, (Due Process Clause).

There are many reasons to have an exception to the Fourth Amendment. Example to this is one, a cop may need to pat down and search a person if the cop saw that person doing a suspicious behavior of them have committed a crime or are being committed.

In the News article written by Judge Andrew P. Napolitano, published 07 November 2023 on FoxNews.com called End Runs around the Constitution-The NSA, Obama and the Forth Amendment.

The article was about the National Security Agency (NSA) spying on the German chancellor and on the President of the United States also it talks about how they spied on the pope as well as the on the conclave in last March that elected him.

The other organization that the NSA spied on was the secretary general of the United Nations (UN), and they hacked the computer servers of Yahoo and Google. According to the NSA, they argue that the Forth Amendment only applies to regulating criminal prosecutions, This is rubbish. This has never been or even accepted by the Supreme Court, and it fly in the face of what we know about the NSAs list of its clients. In one of the reports that was recently reported by the New York Times that the NSA whistleblower Mr. Edward SNOWDEN, stated that the NSA was reporting to President Obama what the Secretary-General Ban Ki-Moon of the U.N. was talking about. The NSA learned about Secretary-General Ban Ki-Moon of the U.N. conversation by its surveillance of the general and his tapping his personal cell phone calls, emails as well as his texts messaging. This type of service is afforded to its clients and its chief client among them all is the President of the United States. Some of the other clients are parts of the U.S. government, like the Department of Justice, the IRS, the Department of Homeland Security and the FBI. With the NSA providing this type to these clients it just adds to the danger of losing our personal freedoms. The violations of the constitution and personal privacy and other foreign officials lead to a slippery slope of lose of freedoms. The NSA asserts that it doesnt have to work in the constraints of the Forth Amendment. The NSA and its congressional apologists have argued that because its task is essentially to gather foreign intelligence for national security purposes only, and because the Fourth Amendment, which requires detailed language in search warrants particularly describing the person or place to be searched and the person or thing to be seized, only

restrains the government when it is engaged in criminal prosecutions and not when it is on a fishing expedition for intelligence purposes, the Fourth Amendment does not restrain the NSA. The crazy part of all this is in plain English the Fourth Amendment protects everyone in the U.S.A. from the government encroachment in our lives. Some of the other clients of the NSA consist at lest 15 other Intelligences agencies of the U.S. government. Some of the clients are preeminent federal agencies who decide whom to prosecute. These types of agencies have to examine evidence that has gone through, extra-constitutional means. These clients of the NSA are demolishing the foundations of our liberty they have, sworn to uphold, which includes the use of only lawfully and constitutionally gathered evidence. The behavior of the NSA defies the argument that it makes that as long as its not connected with obtaining criminal evidence for prosecution its ok to use, extraconstitutional means, to get data on people. The reason for the Fourth Amendment is to keep the government from invading our homes without probable cause until they get enough evidence there is a crime going on. This was a result from the British soldiers doing this to the colonists. But NSA is been by passing the constitution by going from on computer to another without any probable cause and once it has found something it turns it into the law enforcement agencies. Even though our government has sworn an oath to the Constitution, they have skirted around it. The nature of the best (the U.S. government) in a freedom based society will always grow and will want to control more of its peoples lives. When our

government works in secrecy where its citizens cant scrutinize what it is doing it can get away with things like, spying on people. The next paper that fallows up that I read about the Fourth Amendment was called The Fourth Amendment and New Technologies written by Paul Larkin. Before technologies were what they are today, there was no reason for law to safeguard the Americans communications but now in this time period with the technologies what they are now society needs to figure out how to control the U.S. governments surveillance of its people. The use of surveillance devices for the law enforcements have some befits but also come at a cost. With what is going on in the news about the criminal trials as well as the government using modern-day surveillance technology to spy on its people and other nations, debates have raisin amongst the public. The legality of the government doing this and turning in evidence have created a demand for the courts to review it to see if it will condone or condemn the government doing this. With the judges making these decisions it will help define the true reality of the Fourth Amendment. We as a nation need to figure out how we can make the Fourth Amendment and technology capable to work as one and not alienate our people. Like what was said earlier the Fourth Amendment provide rights to us to

The Fourth Amendment provides as follows:

The liberties of the people to be protected in their residence, information, and belongings, as well as themselves against unwarranted searches and sequestration, wont be infringe,

and no Warrants shall issue, but upon feasible reason, up held by Oath or declaration, and especially designate the place to be searched, and the personal or items to be confiscate. The Forth keeps the U.S. government from administer unwarranted searches, as well as confiscations. The forth also makes it so the local judges, state, and federal from admissions into the governments, case in chief evidence that was gathered as well as oversteps the Forth. The group that is injured from an unlawful confiscation and seizure may cause an action in opposition to the officers connected with, yet the exclusionary rule given rise to criminal trials predominantly the form for a citizens voicing of contend with versions of the forth and what it should be protecting. But the Forth has essentially been part of the U.S.s jurisprudence almost about 225 years, as well the exclusionary rule a legitimate cure for more then a century, but the real question is if the crutch of sensory technology will revers the search and seizure obdurate is comparatively new. In 1927 the Supreme Court first faced the issue of technology and the forth amendment. The case was United States Verses Lee, What happen was that a shining a deck spotlight on a open deck of a ship was used on people that where running illegal rum. The Court ruled that this did not embody a search. The year after, the Supreme Court in Olmstead verses, United States dealt with the interception of telecommunications is not a physical trespassing in a persons premises; known today as, bugging and its not equivalent to a search and seizure. The courts ruled that eavesdropping was not trespassing.

But overall, we owe the dissidents of the U.S. Constitution, gratitude for if not for their objections, there wouldnt be a Bill of Right now. Mr. Thomas Jefferson once wrote,

There has just been opposition enough to make the adoption of the Bill of Rights, yet there was not enough to extract the U.S. government of it critical, energy. With this President George Washington agreed: They have given the rights of man a full and fair discussion, and explained them in so clear and forcible manner as cannot fail to make a lasting impression. The Fourth isnt made to serve as an unchanging protection to counter the government and its abuses. There shouldnt be any provision of the Bill of Rights especially one that is outlawing unwarranted searches or seizures.

Work Cited Judge Andrew P. Napolitano, End Runs around the Constitutionthe NSA, Obama and the Fourth Amendment, November 07, 2013, FoxNews.com Jason W. Swindle Sr., The History Behind The 4Th Amendment, 2013, Swindle Law Group, P.C. Paul Larkin, The Fourth Amendment and New Technologies, November 2013, The Heritage Foundation.