What Is An Unreasonable Search And Seizure?

Recently, GOP presidential candidate Rand Paul stalled Senate action on the Patriot Act renewal by claiming that the anti-terrorist law was unconstitutional.  He said it violated the Fourth Amendment of the Bill of Rights.

The focus of Senator Paul’s ire was that the government, through the National Security Agency, had been collecting all phone calls (“metadata”) made in the United States.  Apparently, the NSA’s interest has been in the source and reception of calls, not their content – although that has been captured, too.

Some liberals were supportive of the Kentucky Republican’s efforts (the usual MSNBC crowd, primarily).  But also supportive were some conservatives, with prominent voices including Texas Senator Ted Cruz and Fox News legal commentator Judge Andrew Napolitano. 

In the end, a modified version of the Patriot Act was okayed by the House and Senate alike, with most conservatives and liberals backing the measure.

But that result didn’t make Fourth Amendment concerns go away.  Despite the claims of Rand Paul and others, determining whether a law violates that section is rarely an easy task.

The explicit language of the Fourth Amendment is simply not definitive.  “The right of the people to be secure… against unreasonable searches and seizures, shall not be violated…”

What is “unreasonable”?  It depends.  In reality – and in Supreme Court rulings – the answer is found by applying a balancing test, a weighing of means versus ends.

In the case of NSA phone record collections, the plain objective (“end”) is to thwart terrorist activities.  Proponents argue that the collection (“means”) is reasonable because message content is not sought unless there is good reason – probable cause – and the means serve the end.

Opponents have responded that the means are not justified because the NSA records have not been useful in the fight against terrorism.

Whether that is the case is, to be sure, disputed.  Yet those Patriot Act opponents who take that approach are certainly engaged in appropriate analysis.  Not all foes are, however.

Fox’s Judge Napolitano, for instance, proclaimed that Patrick Henry’s famous 1775 oration, “give me liberty or give me death”, settled the matter.  And since the data collection threatens liberty, it violated the Fourth Amendment.

 

That’s silly.

 

As mentioned above, any Fourth Amendment proscription is dependent upon particular circumstances.  What is reasonable is not self-defining.

Consider some scenarios: 

The police, searching for a mass murderer known to be in a particular area, stop and search all vehicles on the one road out of town.

Or, how about the same fact pattern with the subject criminal suspect involved only in the theft of a gallon of milk from a local convenience store.

The means chosen to apprehend the wrong-doer is the same in both cases.  But why do we (most of us, anyway) react differently?  Because capturing a mass murderer as an end, justifies – makes reasonable – a roadblock whereas the limitation on the general public freedom of travel would not be warranted to catch a petty thief.

In other words, whether the end justifies the means, depends on the nature of the end.  In a Constitutional sense, more important ends authorize more restrictive means.