Interpreting the 4th Amendment Today

Dear Readers, All thinking Americans know that our Constitution is a glorious document. As a country, it has been our blue-print for legal success, as well as a guide for people around the world to experience the joys of freedom.

Where we diverge is in how vibrant and relevant a document it is today. Some assert that all we need to know is written in the very text of the Constitution and/or the mores at the time of its genesis. Others (and I will candidly disclose I definitely fall into this camp) believe that it is a living and breathing document that takes on nuance as it is adjusted and tweaked to a modern context.

This is particularly true of specific Amendments in our Bill of Rights, which was designed to protect us against an over-reaching government. And, our wonderfully useful 4th Amendment is a prime example of this observation.

The 4th Amendment was specifically designed to address some of the more onerous practices of the Crown, that particularly rankled our Founding Fathers. It created zones of security around our "persons, houses, papers, and effects," by prohibiting "unreasonable searches and seizures." Furthermore, if warrants were issued there had to be "probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Back in the days of horse and buggy, these affirmations and prohibitions were easy to see over the horizon. But, "we've come a long way baby." Telephones killed the Telegraph and now we have cell phones, that are basically computers and personal information treasure troves, have almost killed the land-line phone. Notes passed by hand or by private pony service were supplanted by a national mail service and have become an anachronism by email and text messages. Travel which was by foot, horse or boat is now almost exclusively car or plane, but more importantly, we have satellites and cell towers that can track where we get our coffee every morning.

It is axiomatic that modern technology has created an explosion of information. When you are arrested, can the police seize your cell phones without a warrant? If they do, what permission do they need to surf through the much information stored on it? Can the police "tag" your car with a GPS device, again, without a warrant, and download the wealth of data gleaned from it?

These are the type of tangled legal issues percolating through our criminal justice system; the issue of the need for a warrant for law enforcement to use a GPS was even argued before the United States Supreme Court this past fall. A year ago, the California Supreme Court ruled that police can search through text messages on a cell phone, incident to arrest, since it is "associated with the person" just like jackets, purses, briefcases, passenger compartments in cars, ... etc. We will have to see where these situations go in the near future.

In November, the issue presented in Texas was whether or not cell phone companies can be forced to divulge location information to the Government. A Federal statute required their cooperation in doing so – remember, this type of information needs to be considered through the prism of our vigilance guarding against domestic terrorism. The judge, courageously, rule the statute unconstitutional, as permitting such data to be routinely accessible to the Government was only a step from a "1984 police-state."

This is an example of how the definition of "unreasonable" searches and seizures continues to evolve with the challenges of our life today. Judges certainly can't try to view cell phone location information from the perspective of post-Colonial America. While the general rule of the 4th Amendment certainly has resonance today, defining what is reasonable or unreasonable with respect to searches and seizures is a modern problem with modern resolutions. Thankfully, our courts, for the most part, accept this as an empirical truth.

Local attorney Jim Rockefeller owns the Rockefeller Law Center and is a former Houston Co. Chief Assistant District Attorney, and a former Miami Prosecutor.