Talk:Fourth Amendment to the United States Constitution/Archive 1

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Archive 1 Archive 2

Conditions of Searches

Removed the following from the Conditions of Searches section:

Under HIPAA, no notification is required at all, and doctors are required by law to not inform their patients if the government has searched their records.

I can't locate any such requirement in HIPAA. Please provide a reference.--Kbk 17:45, 21 December 2005 (UTC)

he cannot force you to answer questions about anything else<<< The police can never force you to answer anything ever. Have no idea how to work wiki... but I thought that line was absurd and misleading.

elgog: I see references to HIPPA and the NSA regarding 4th Amendment rights but no references regarding the exceptions in the Banking Secrecy Act (BSA 12 CFR 353.3(a).) nor the Patriot Act. Many of the 4th Amendment rights are ignored with no real judicial review. Additionally, these acts make it illegal to even notify the subject of this disclosure of what, when or why the disclosure was made. The 4th Amendment has essentially been reduced to a fraction of law enforcement activities. The Federal Government has made itself immune from the 4th Amendment. But no documentation is offered here in this article. This is misleading.216.15.74.185 19:44, 24 June 2007 (UTC)

Sentence needs citation badly

I believe that this sentence is desperately in need of a citation:

"Similarly, there is no search where officers monitor what phone numbers an individual dials (although Congress has placed statutory restrictions on such monitoring)."

...especially in light of recent events in the United States of America. Does anyone else agree? --Takeel 21:51, 16 May 2006 (UTC)

The sentence does need a citation, if it engenders such disbelief. But do not despair that it is the law! Also, this sentence has the appropriate citation.---Axios023 03:46, 8 August 2006 (UTC)

NPOV

This article has a long "alternative view" section at the end, added by Jb2ndr (talk · contribs), that states things "in the opinion of the author". First: What author? Second: Wikipedia articles are not platforms for their authors' opinions. Unless Jb2ndr's edits can be sourced and neutralized, they should be removed. Uncle G 16:46, 19 July 2006 (UTC)

  • Since there has been no comment in four days, and no sources cited, I've gone ahead and zapped the entire thing, restoring the article to how it was. Please cite sources for the view if you wish to re-add it. Uncle G 11:33, 23 July 2006 (UTC)

Alternative Analysis

Uncle G.

My responses to your citation request is contained in Wikipedia:New proposal for alternative analysis. I would greatly appreciate your comments on this proposal. But the movement in WP by self-appointed NPOV and POV editors must have some limit if we are not to become a source of regurgitation for unchallenged expert opinion.

If the addition is not analysis by rules of logic then Please contain your objections to that.

JB2ndr

  • The alternative analysis section is very poorly written and POV. In general, phrases like "in the author's opinion" should be a burning, waving red flag. --Improv 13:21, 4 August 2006 (UTC)
    • That section was completely invalid and inaccurate; it was a good move to delete it entirely. Postdlf 19:04, 4 August 2006 (UTC)

Michael Hayden, former head NSA

Might this be applicable (and timely!) for external links or similar?

Michael Hayden: "probable cause" is not in the 4th Amendment http://www.youtube.com/watch?v=cGhcECnWRGM

("In this disturbing exchange we see former head of the NSA, General Michael Hayden, argue with reporter Jonathan Landay that the words "probable cause" are not found in the Fourth Amendment. I don't want to spoil the surprise for you, but "probable cause" is the measure for issuing a warrant in the Fourth Amendment. Of course, I would find this exceptionally humorous had not Bush recently appointed this man to be the new head of the CIA.") —Preceding unsigned comment added by 68.149.190.31 (talk • contribs) 15:55, 9 October 2006 (UTC)

recent changes

I recently made several changes to the Fourth Amendment article because it was (and still is) poorly organized and often simply inaccurate. I've restructured it so that the common law regarding constitutionally offensive "searches" can be discussed separately from "seizures." I suggest that following the "Reasonable Expectation of Privacy" section, someone should create a consolidated section discussing how the Court has defined "seizure."

Additionally, there is no doubt that subsequent sections need to be titled "Exceptions to the Warrant Requirement for Searches," and "Exceptions to the Warrant Requirement for Seizures," with the myriad exceptions for each action discussed under the appropriate heading. —Preceding unsigned comment added by Mr. schmitty (talk • contribs)

I am working on a major edit for this page. I am relatively new to Wikipedia (or at least new to actively involving myself), so I apologize in advance for the breaches of etiquette I am sure to make. Mr. schmitty 21:16, 18 November 2006 (UTC)

major edit

I recently did a comprehensive edit of this entire entry. I believe I made a lot of logical improvements in the structure of the article and added a lot of valuable content. However, there is no doubt that there is a great deal more that can be done to improve this entry, especially by adding to the exceptions to the warrant requirement sections. Also, an explanation re: the fact that warrants are generally not required for arrests is badly needed in the "Warrant Requirement" section.Mr. schmitty 21:29, 19 November 2006 (UTC)

Table of contents

I see no reason to delete the Table of contents, why would someone make it harder to find information in this text. —The preceding unsigned comment was added by 207.224.199.69 (talk • contribs) 11:45, 29 May 2007 (UTC).

I agree completely. It would be one thing if the TOC was extremely long in this article, but it is not. The default TOC should be used. --- RockMFR 22:43, 29 May 2007 (UTC)
That's a completely different story than removing it unilaterally, IP user. I happen to disagree. I think it's quite long and we could keep it closed until needed -- Y not? 23:32, 29 May 2007 (UTC)
I really don't see a reason to change the TOC interface, especially considering that users expect to see a table of contents on a Wikipedia article this long. Aesthetics should never come in the way of usability. --- RockMFR 23:41, 29 May 2007 (UTC)

vehicle exception.....

with the U.S. Supreme Court decision voiced by Hon. Justice(is that right?)David Souder, Brendlin v. California, is the vehicle exception going to have to change?? Just a thought.NotguiltyNcali 10:02, 21 September 2007 (UTC)

Vandalism

I was just curious... the first sentence of the summary says "The fourth amendment is retarted and it can be broken into two distinct parts." Is retarted a word? I can't find it in any of my dictionaries.

This vandalism has been removed.Bryantheis (talk) 22:25, 20 November 2007 (UTC)

One of the major tests, particularly with detentions covered by the fourth amendment, is "reasonable suspicion." The "reasonableness" in the article might be covering this and more, I'm not sure. But if it's not, we could change it to the technical term.

Is this an Encyclopedia or a Law Review article?

I find this article very difficult to follow (and I have some background in this area). It seems poorly organized for an encyclopedia entry, which ought to focus on matters that would be informative to a member of the general population. For example, it leads off not with what the Amendment is understood to mean or how it was ratified, but practices under English common law (???) in colonial and even pre-colonial times. It also doesn't read like most of the material that appears on Wikipedia. Frankly, to me this reads like a piece from a law review article or law treatise at best, and in particular an older one, and my first reaction when perusing it is that it was "cribbed" from someplace else (although not the CRS analysis, which was my first guess). I am curious to know whether anybody else shares this impression. MrArticleOne (talk) 20:48, 28 January 2008 (UTC)

Exceptions? What exceptions?

Warrantless searches and seizures are not automatically considered to be unreasonable, unless one of the specifically established and well-delineated exceptions to the warrant requirement is applicable.

The above sentence in the article has a normal wiki link to a disambiguation page for the definition of the word "exception". Why? Would anybody be reading this article who doesn't know what the word "exception" meant? This wiki link is absolutely useless. I though it was going to take me to a list of these so-called "well-delineated exceptions".

Thank you. 129.139.1.68 (talk) 19:53, 7 March 2008 (UTC)

Article revisions

I have consolidated the cite tags from the Colonial America subsection, moved the subsections of the Text section are now subsections of a new Background section, changed the names of two sections (Amendment --> Case law / another Case law section --> Applicability). Converted citations in the section about the Internet and computers into footnotes. I also made other miscellaneous edits.

These edits have made the article clearer and more like other articles about the United States Bill of Rights. The substance of the article was not affected by any of these edits. SMP0328. (talk) 03:14, 25 March 2008 (UTC)

I have merged the Case law section into the Applicability section. The Case law section was closely related to what is in the Applicability section, so there seemed to be no reason why the two sections needed to be kept separated. SMP0328. (talk) 23:18, 30 May 2008 (UTC)

William Cuddihy Cites?

William Cuddihy's Ph.d. dissertation is quoted several times without citation. Scholarship such as this is precisely why Wikipedia has no credibility.

— Preceding unsigned comment added by 68.48.230.34 (talk) 06:19, 31 March 2008 (UTC)

New fourth amendment exception

The new paragraph and link to EFF article are mine; I'm fairly new to the realm of legal articles on Wikipedia, so please let me know if I've been *too bold there. Mateo LeFou (talk) 17:08, 3 April 2008 (UTC)

Introduction & citations

Is it proper for the Introduction to have cite tags? Is it necessary for an Introduction to have citations if it's referring to cited material in the body of the article? Here's what Wikipedia says on the matter:

SMP0328. (talk) 18:53, 11 April 2008 (UTC)

Removed material

I have removed the following paragraph from the Case law section:

The first couple of sentences repeat what's already stated in the Introduction. The third sentence simply asks a question. The fourth sentence answers that question incorrectly (throughout the article is the standard of review mentioned). The last sentence is completely unsupported. The removed material was unsourced, included a redundancy and a factual inaccuracy. Therefore, it has been removed from the article. SMP0328. (talk) 19:45, 14 April 2008 (UTC)

As I see it, all the statements except the last are acceptable. "This question has not been definitely answered" is merely an acknowledgment that grey areas still exist. The last statement, about the intent of the framers, seems to be POV, unless you can cite it; even then, maybe it might still be POV. Ultimately, however, I have no objection to the removal of redundancy. 69.140.152.55 (talk) 01:23, 29 May 2008 (UTC)

Copy editing

I have been asked why I put the {{copyedit}} tag on here. My answers have been copied and refractored from my talk page:

I approached the article with the goal of promoting it to WP:GAN but changed my mind because basically I felt that the section on British history was not well-written. There were what I thought were some mistakes, which I fixed, but then I stopped because I am not even slightly familiar with this aspect of the subject.

British and colonial law

Here are some examples of things that I would want fixed before we send this to WP:GAN. The sentence "This was a milestone in history, as it brought into light that the Magna Carta was not just something to be specific in naming persons sought and/or the places to be searched" may be grammatically correct, but is unclear in its meaning (unless one refers to the Magna Carta itself). Also, the section says that "Hale was an early visionary regarding the concept of 'probable cause'" but usually one uses a last name by itself only when one has fully introduced the individual earlier in the article.

The statement "The concept of facing a civil suit for false arrest is a far cry to many current provisions that offer officers protection such as the 'In good faith' ideal" is also not particularly well-written. In the following section, "Until the 1760's, Cuddihy remarked that a 'man's house was even less of a legal castle in America than in England' because when adopting British models the exceptions they had were ignored" can be improved in that we ought to specify who  ignored the exceptions when adopting British models, and also why ignoring the exceptions is the cause of one's house being less of a castle than in England. (If the rule is that one's "house is a castle," then ignoring the exceptions to the rule should make the house "more" of a "castle.")

Modern law

Further down in the article, there are two subsections on Terry stops – one under Searches and one under Seizures. Please merge them. (I can do it, but I might not get around to doing so for a while.)

All in all, I think that the text makes a good effort to be balanced but is not quite up to good article standards of writing yet. 69.140.152.55 (talk) 29 May 2008 (UTC)

The merger is complete. SMP0328. (talk) 01:20, 29 May 2008 (UTC)
Wow, that was quick!! 69.140.152.55 (talk) 01:25, 29 May 2008 (UTC)

Expand definitions of search and seizure?

The definitions of Search and Seizure in this entry need to be expanded beyond the obvious. The example I'm thinking of is when property used as work tools (e.g. computers and cameras) is seized for "Investigatory" reasons. As both computers can have data copied off them, and cameras can have films/data cards removed, it is entirely possible that the police can get the evidence they need without taking the work tools from the suspect. To not do this, and thus directly impact an individual's right to freely work and make money, seems unreasonable. Has there been cases along this lines that we can quote? —Preceding unsigned comment added by Flyingmonkeyairlines (talk • contribs) 01:55, 1 June 2008 (UTC)

If you have sourced material regarding what you say, then do so. SMP0328. (talk) 02:02, 1 June 2008 (UTC)


Invasion of Privacy

What is considered a House? a Tent? a Cave? a Motor Home? —Preceding unsigned comment added by 214.13.163.133 (talk) 15:52, 3 May 2009 (UTC)

Generally, for Fourth Amendment purposes, they are different types of dwellings. SMP0328. (talk) 17:55, 3 May 2009 (UTC)

Katz v. United States

At Rev 02:25, 14 June 2009, this case is mentioned twice:

Under Applicability, Reasonable expectation of privacy: In Katz v. United States, 389 U.S. 347 (1967), Justice Harlan issued a concurring opinion articulating the two-part test later adopted by the Court as the definition of a search for Fourth Amendment purposes. Under the test, search occurs when (1) governmental action must contravene an individual's actual, subjective expectation of privacy, (2) and expectation of privacy must be reasonable, in the sense that society in general would recognize it as such.

Under Exceptions to the warrant requirement, Open fields: The landmark case Katz v. United States 389 U.S. 347 (1967) nonetheless established a two-part test for what constitutes a search within the meaning of the Fourth Amendment. The relevant criteria are "first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as reasonable." Under this “new” analysis of the Fourth Amendment, privacy expectations deemed unreasonable by society cannot be validated by any steps taken by the defendant to shield the area from view.

Both paragraphs are incorrect. The only legally binding part of a Supreme Court is "the opinion of the Court". Neither separate concurring opinions nor separate dissenting opinions have any legal weight (though they may influence future arguments). Both paragraphs rely entirely on a separate concurring opinion.

Furthermore, even if it were the opinion of the Court, those statements omit the context of the propounded principle, namely that they affect the extent of a "person" for Fourth Amendment purposes, not the extent of a "house" for Fourth Amendment purposes.

I am going to delete those two paragraphs. —Preceding unsigned comment added by DavidForthoffer (talk • contribs) 02:38, 14 June 2009 (UTC)

I've restored the Reasonable expectation of privacy subsection, but now it refers to the majority opinion (rather than the Justice Harlan's concurring opinion) in Katz v. United States. SMP0328. (talk) 03:04, 14 June 2009 (UTC)

Seizure

The section on Seizure had, "The Fourth Amendment proscribes unreasonable seizure of private property and persons without a warrant."

This is incorrect. Private property includes privately-owned real property, and the only real property that is protected is a home and its curtilage. Furthermore, a protected home may be owned by someone other than the tenant, or even on public property (as a tent).

Changing it to "The Fourth Amendment proscribes unreasonable seizure of persons, homes (and their curtilage), and personal property without a warrant."

I did not link "persons" to the Wikipedia article on "person" because that includes discussions far beyond the Fourth Amendment.

Since "effects" generally means "personal property" and not "real property", that seems a good substitute for "papers and effects". See the U.S. Supreme Court case Oliver v. United States 466 US 170 (1984) for some discussion of "effects". DavidForthoffer (talk) 00:54, 29 June 2009 (UTC)

I've changed that sentence, so that now it's in the singular tense. It now reads:

The Fourth Amendment proscribes unreasonable seizure of any person, person's home (including its curtilage) or personal property without a warrant. SMP0328. (talk) 01:05, 29 June 2009 (UTC)

Since the Fourth Amendment gives the plural tense, and since the plural tense is more familiar, shorter, and more easily understood than the singular tense, why did you change it to the singular tense? —Preceding unsigned comment added by DavidForthoffer (talk • contribs) 09:21, 29 June 2009 (UTC)
Because the Bill of Rights, including the Fourth Amendment, deals with individual rights. The Fourth Amendment protects each person, not simply the people as a whole. SMP0328. (talk) 23:51, 29 June 2009 (UTC)

Page 442 U. S. 471

We (U.S. Supreme Court) conclude that the constitutional requirements of the Fourth Amendment apply to the Commonwealth. [Footnote 3] As in Examining Board v. Flores de Otero, supra at 435 U. S. 601, we have no occasion to determine whether the Fourth Amendment applies to Puerto Rico directly or by operation of the Fourteenth Amendment. —Preceding unsigned comment added by 206.248.103.230 (talk) 03:24, 26 July 2009 (UTC)

Why did you put that quote here? SMP0328. (talk) 03:33, 26 July 2009 (UTC)

The U.S. Supreme court could not determine is the fourth amendment apply to the U.S. jurisdiction directly or if apply to the natural born U.S. Citizens residing in Puerto Rico by operations of the Fourteenth Amendment. —Preceding unsigned comment added by 24.139.117.77 (talk) 04:33, 4 August 2009 (UTC)

The Fourth Amendment directly applies to Puerto Rico, because P.R. is one of the territories of the United States (even though it has "Commonwealth Status") and so is under the jurisdiction of the Congress. SMP0328. (talk) 23:11, 4 August 2009 (UTC)

Keep your Coolidge

This page calls Coolidge a "landmark case" for 4h Amendment. So why isn't it even mentioned...? TREKphiler hit me ♠ 16:29, 28 October 2009 (UTC)

Coolidge is limited to the search of vehicles on driveways.

If officers have probable cause to search a vehicle, they normally can search the vehicle without a search warrant.

However, if a vehicle is parked on the suspect's driveway, the vehicle takes on the expectations of privacy of the house -- and therefore a search warrant is required.

Who says so? The United States Supreme Court in Coolidge. —Preceding unsigned comment added by 76.214.203.250 (talk) 19:55, 4 March 2010 (UTC)

SONY PlayStation 3

This may be taken to court some day according to this amendment. 24.241.229.253 (talk) 21:26, 18 November 2009 (UTC)

If there's a case regarding what's discussed in that article, maybe it will warrant mention in the article. In the meantime, thanks for providing a link to that story. SMP0328. (talk) 21:49, 18 November 2009 (UTC)

Removed

I have removed the following sentence from the article:

Furthermore, arresting citizens are not protected by qualified immunity, so if they are mistaken, they may face a civil lawsuit or charges of battery or false imprisonment.[citation needed]

This sentence, which was located in the subsubsection entitled Arrest by a citizen, has been cite tagged since June and yet no sourcing has been provided. If reliable sourcing can be provided, that sentence can be restored. Until then, it doesn't belong in the article. SMP0328. (talk) 03:08, 9 January 2010 (UTC)

Consent

The article is missing a critical exception to the need for a search warrant: consent to search. Consent, authority to consent, and scope of consent are critical 4th Amendment concepts. The list of exceptions is critically incomplete without consent. Schnekloth v Bustamonter, Florida v Jimeno, Georgia v Randolph are all important cases. 72.160.135.20 (talk) 19:27, 26 April 2010 (UTC)

Good point. Be brave and do it yourself. If you have trouble with formatting, I will fix it. Just make sure to provide reliable sourcing. SMP0328. (talk) 19:45, 26 April 2010 (UTC)
I added it, but it could use some sourcing and expansion. There is a primary article that I linked in too. Shadowjams (talk) 08:35, 27 April 2010 (UTC)
I added a source from Consent searches and moved added the new material the first subsection in the Exceptions to the warrant requirement section. Consent is the obvious exception, so I felt it should come first. SMP0328. (talk) 19:27, 27 April 2010 (UTC)

TSA

Current Issues: Wondering if anyone has information or Constitutional insight into the current furor over TSA's full-body scanners and enhanced pat down techniques. I understand that Consent may be given, although not explicitly described in advance, but once travelers realize the techniques, declining results in civil penalties. I'm wondering how Constitutional scholars are seeing this development. 199.207.253.101 (talk) 17:17, 23 November 2010 (UTC)Chris T (Chris T is user Ultitoast)

Since this isn't a forum I doubt you'll find anyone responding to your question. To date I don't think any "civil" penalties have been conducted. Im aware of the TSA threatening to sue people which in itself is racketeering. Our government is not able to sue citizens so im not sure how they even get away with saying that much.Woods01 (talk) 05:55, 11 December 2010 (UTC)

The Supreme Court has not ruled on anything regarding the post 9/11 security procedures, but the most relevant case is probably United States of America v. Daniel Kuualoha Aukai from the U.S. Court of Appeals for the Ninth Circuit which ruled that "We have held that airport screening searches, like the one at issue here, are constitutionally reasonable administrative searches because they are “conducted as part of a general regulatory scheme in furtherance of an administrative purpose, namely, to prevent the carrying of weapons or explosives aboard aircraft, and thereby to prevent hijackings.” This doesn't specifically touch on full-body scanners and enhanced pat down techniques, but it should probably be worked into the article at some point (yeah, that might be me).theprez98 (talk) 06:25, 23 December 2010 (UTC)

Email

Recently, the U.S. Court of Appeals for the Sixth Circuit ruled in United States of America v. Warshak that email is protected by the Fourth Amendment. While this is not a Supreme Court ruling, it is certainly an important step in extending the Fourth Amendment protection to email. This should be added to the article as well (I guess I just added another task to myself). It is also important to distinguish this from the last note in the "Computers and Privacy" section regarding the ruling in Rehberg v. Paulk. theprez98 (talk) 06:29, 23 December 2010 (UTC)

First paragraph

The first sentence of the first paragraph now says, "The Fourth Amendment (Amendment IV) to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures."

Someone reading that may well conclude that the Fourth Amendment guards against ALL unreasonable searches and seizures. That is simply not true.

The Fourth Amendment specifically protects "persons, houses, papers, and effects" against unreasonable searches without a warrant.

So I am going to add that to the first sentence. DavidForthoffer (talk) 01:09, 25 December 2010 (UTC)

An editor made the requested edit; I've modified that edit. The current standard for determining if an unwarranted search by law enforcement violates the Fourth Amendment is the "reasonable expectation of privacy" standard (read Katz v. United States). SMP0328. (talk) 03:09, 26 December 2010 (UTC)
See below. I wrote the "NPOV" section before I noticed this one. Sorry about that. Jive Dadson (talk) 05:52, 18 February 2011 (UTC)
I have edited the Introduction so that it describes the amendment and then provides the Supreme Court's interpretation of it. Both are essential to understanding the Fourth Amendment and what is in this article. SMP0328. (talk) 16:15, 18 February 2011 (UTC)

NPOV

The head of this article says the Fourth Amendment 'guards against unreasonable searches and seizures when the searched party has a "reasonable expectation of privacy".' In fact, the amendment says absolutely nothing about expectation of privacy. Those words come from a Supreme Court opinion. That ruling belongs in a sub-section, with a link to the ruling. I removed the misleading text and replaced it with what the amendment actually says, verbatim.

SOMEONE REVERTED IT, with the note "The amendment officially means whatever the Supreme Court interprets it to mean." That is wrong. The Supreme Court decides cases brought by persons with standing. Its rulings are binding on the courts inferior to it. Nowhere in the Constitution, nor in the US Code for that matter, is it written that the Supreme Court determines what the constitution means. Thomas Jefferson, who probably knew a thing or two about the intent of the Founders, argued that the states may determine whether US laws are constitutional or not.

The text as it stands is simply not correct. This is a POV issue, and a hot one. There is a great debate getting under way in the US as to whether the Supreme Court ought to be the sole arbiter of constitutionality. Wikipedia should not take sides. Neither should it imply that the 4th says something that it does not. Jive Dadson (talk) 05:48, 18 February 2011 (UTC)

I undid the undo. I will not get into a reversion-war. Perhaps the editor who made the previous change could find the text as it was before the "expectation" part was added, and revert to that. Jive Dadson (talk) 06:17, 18 February 2011 (UTC)
There's no need for the amendment's text to be in the Introduction; it's already fully provided in the Text section, which is just below the Introduction. I will place in the Introduction the current standard used, together with the name of the Supreme Court decision which established that standard (Katz v. United States). The Introduction won't, and shouldn't, claim what is the correct interpretation. However, it should provide the official interpretation. SMP0328. (talk) 15:43, 18 February 2011 (UTC)
Thanks. Jive Dadson (talk) 16:43, 18 February 2011 (UTC)
Your welcome. SMP0328. (talk) 00:17, 19 February 2011 (UTC)

The arrest

On the definition of an "arrest". Might one interpret an arrest as any instance that a law official hinders your ability to go about your own business? Even if only for five minutes? If I'm on a tight schedule or simply do not want to cooperate with the police, and have done nothing wrong and am not being accused of having done anything wrong, why can I not simply walk the other direction? From my perspective, any encounter with a law official where any reasonable person might interpret any hindrance of liberty to self-dictate is an arrest. — Preceding unsigned comment added by 98.247.162.70 (talk) 10:10, 16 August 2011 (UTC)

Then you're fairly clueless. - Denimadept (talk) 17:49, 16 August 2011 (UTC)
Regarding the Fourth Amendment, arrest has a specific meaning. SMP0328. (talk) 18:06, 16 August 2011 (UTC)

Nevertheless, it is just vague enough to apply to numerous circumstances. "Specific meaning" is not terribly specific. Gingermint (talk) 02:24, 20 August 2011 (UTC)

United States v. Jones

No mention of this case? Are you people high? — Preceding unsigned comment added by 98.14.228.170 (talk) 00:36, 9 November 2011 (UTC)

When the Supreme Court rules on the case, then it will be added to the article. SMP0328. (talk) 01:09, 9 November 2011 (UTC)
A little strange considering that's not the way other Wikipedia treatments of Supreme Court rulings on big issues have gone. — Preceding unsigned comment added by 98.14.228.170 (talk) 01:17, 9 November 2011 (UTC)
Exactly, Supreme Court rulings. The Supreme Court has not ruled in this case yet. It only heard oral argument today. SMP0328. (talk) 01:45, 9 November 2011 (UTC)
I was of course referring to treatment of Supreme Court rulings PRE-RULING, i.e. discussions of lower court decisions, SCOTUS oral argument (which occurred today), and expert opinions on the matter. Obviously we're all not just waiting on a vote.98.14.228.170 (talk) 02:14, 9 November 2011 (UTC)signed (this whole signing thing is ridiculous)
It's not just a vote. The vote is part of the ruling (the Supreme Court voted 5-4 to...). Once there is a ruling, that ruling we be put in the article. SMP0328. (talk) 02:32, 9 November 2011 (UTC)

A decision has been handed down in this case and the article has been updated to reflect that decision. SMP0328. (talk) 19:30, 23 January 2012 (UTC)

USA PATRIOT Act

Why doesn't this page mention how the PATRIOT Act has affected the Fourth Amendment? — Preceding unsigned comment added by 167.164.3.140 (talk) 19:26, 9 March 2012 (UTC)

The USA PATRIOT Act did not affect the Fourth Amendment at all, except perhaps by increasing unconstitutional behavior by some government agents. It would be interesting to point out a number of appellate court cases where the Fourth Amendment affected the USA PATRIOT Act. DavidForthoffer (talk) 10:56, 28 April 2012 (UTC)

Mapp and Wolf

If the header Mapp is cited as the dispositive binding of the 4th amendment to the states while in the text body, Wolf v Colorado is. This seems conflicting. — Preceding unsigned comment added by Patbahn (talk • contribs) 21:07, 17 March 2012 (UTC)

Reread the reference to Wolf and Mapp. Mapp overruled Wolf, that is why Wolf is referenced. The article clearly states that Mapp applied the Fourth Amendment and the Exclusionary Rule to the States. SMP0328. (talk) 21:46, 17 March 2012 (UTC)

Florence v. Board of Chosen Freeholders

Mention of this case as well? The Court seemingly decided on April 2 that US prisons are such dangerous places that those being admitted could be justifiably strip searched even if they were only arrested for minor offenses (traffic stops, etc.). Certiorari: http://www.supremecourt.gov/opinions/11pdf/10-945.pdf and should be added in a nicely unbiased way...something someone like me is incapable of doing. — Preceding unsigned comment added by 24.123.215.179 (talk) 14:52, 8 April 2012 (UTC)

Not exactly. The Court ruled in Florence that U.S. prisons' strong interest in preventing contraband from being smuggled into prisons combined with the much lower expectation of privacy for inmates meant that such strip searches were "reasonable" and hence did not violate the Fourth Amendment. I'll work on adding it. DavidForthoffer (talk) 10:52, 28 April 2012 (UTC)

Edit request on 24 May 2012

Please add the text of the 4th amendment to article. 67.172.150.124 (talk) 01:05, 24 May 2012 (UTC)

It's already there. SMP0328. (talk) 01:28, 24 May 2012 (UTC)

Introduction

Right now, this page starts off saying, "The Fourth Amendment (Amendment IV) to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause. It was adopted as a response to the abuse of the writ of assistance, which is a type of general search warrant, in the American Revolution. Search and arrest should be limited in scope according to specific information supplied to the issuing court, usually by a law enforcement officer, who has sworn by it."

The problem with "summarizing" the Fourth Amendment is that every word is important, and one cannot "summarize" it without significantly changing the meaning. For example, one might read it and erroneously conclude that the Fourth Amendment prohibits all unreasonable searches and seizures.

I think it is far more accurate to start off with the text of the Fourth Amendment, and elaborate later. So that's what I'll do. DavidForthoffer (talk) 01:32, 24 May 2012 (UTC)

Completely rewriting the Introduction needs consensus. Also, articles about constitutional amendments always have a separate Text section. SMP0328. (talk) 02:07, 24 May 2012 (UTC)
You also said, "your opinion of Katz and Jones is irrelevant".
That's like saying "No single person can change an article." I, obviously, disagree.
The Katz paragraph in the Introduction says, "In Katz v. United States, 389 U.S. 347 (1967), the Supreme Court ruled that a party is considered to have been searched, for Fourth Amendment purposes, if that party had a "reasonable expectation of privacy"." First, the Court's decision never even mentioned "reasonable expectation of privacy". That phrase was from a concurring opinion, which carries no legal weight, and is certainly not a "ruling". Second, that phrase was qualified by "I join the opinion of the Court, which I read to hold only (a) that an enclosed telephone booth is an area where, like a home, (cites), and unlike a field, (cites), a person has a constitutionally protected reasonable expectation of privacy". So it is wrong on two counts. Indeed, the decision said, "the protection of a person's general right to privacy— his right to be let alone by other people[6]—is, like the protection of his property and of his very life, left largely to the law of the individual States".
It might in the spirit of the article to replace the wrong portions with, "For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, be constitutionally protected." But that is wrong, too, as the critical "may" is omitted. But with "may", the second sentence is singularly unimpressive. The most compelling ruling is, "Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures."
Sure, that is not what Katz is famous for. Katz is famous for "a person has a constitutionally protected reasonable expectation of privacy". That quote-out-of-context influenced many other decisions, but it was not a ruling of the Supreme Court. DavidForthoffer (talk) 03:33, 24 May 2012 (UTC)
The Jones paragraph in the Introduction says, "the Supreme Court ruled that a search for Fourth Amendment purposes also occurs when law enforcement trespasses on a person's property for information gathering purposes, even if that person had no reasonable expectation of privacy." That omits the crucial context: "The Fourth Amendment protects against trespassory searches only with regard to those items (“persons, houses, papers, and effects”) that it enumerates." I'll change that paragraph to be correct, by changing "person's property" to "person's protected property". DavidForthoffer (talk) 03:47, 24 May 2012 (UTC)
The very first paragraph says, "... which guards against unreasonable searches and seizures." But it does not guard against all unreasonable searches and seizures. I'm going to qualify it with "persons, houses, papers, and effects". — Preceding unsigned comment added by DavidForthoffer (talk • contribs) 03:52, 24 May 2012 (UTC)
Every Supreme Court and lower federal court opinion citing Katz has cited it as establishing the reasonable expectation of privacy standard. If you disagree with that being done, take it with the federal courts. Also, Supreme Court Fourth Amendment case law does not limit the amendment's protections to the items listed therein. SMP0328. (talk) 04:03, 24 May 2012 (UTC)
If you think that is the import of Katz then at the very least this Katz article should say that, instead of falsely saying, "the Supreme Court ruled...". Furthermore, you're wrong. The Katz test did not concern whether something was protected by the Fourth Amendment. It concerned whether a search or seizure of something that was protected was reasonable. That is why the Supreme Court said in Jones, "As explained, for most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas (“persons, houses, papers, and effects”) it enumerates. Katz did not repudiate that understanding." DavidForthoffer (talk) 04:15, 24 May 2012 (UTC)
Since SMP0328 reverted all my changes without any discussion at all (except for Katz), I am escalating this to Dispute Resolution. DavidForthoffer (talk) 05:11, 24 May 2012 (UTC)

Uninvolved editor here. SMP0328, would you have any objection to undoing your mass reverts while this is being discussed at the Dispute resolution noticeboard? If you do object, please discuss the basis for your objection. --Guy Macon (talk) 15:10, 24 May 2012 (UTC)

I do object. I have responded at the DR page. David's edits go against consensus and do not improve the article. He wants to the Introduction to basically simply his view of what Katz and Jones said. The current version is based on the widely held view of those cases. Since he is the one wanting to radically change the Introduction, the burden should be on him to prove the propriety of the change. SMP0328. (talk) 15:25, 24 May 2012 (UTC)
Thanks! Just to be clear, I was asking in case rolling back the reverts was something nobody objects to. I am not expressing any opinion one way or the other on the conflict at this time. I want to study the basis for the conflict a bit more, so please be patient if I ask a few stupid questions. --Guy Macon (talk)
I understand. I'm glad there's a third party investigating this matter. SMP0328. (talk) 15:54, 24 May 2012 (UTC)
I dispute SMP0328's claim that I want the Introduction to reflect simply my view of what Katz said. Sure, the current version may be based on the most widely held view of those cases. But that is not how the law works. The law is not determined by a consensus among the general population. It is determined by decisions from courts in a strict hierarchy. My direct quote from Jones above ("As explained, ...") shows the Court did not extend Fourth Amendment protections to all situations where a party has a "reasonable expectation of privacy". As Jones explains, the Katz test is used only for areas enumerated by the Fourth Amendment, to help decide whether a search was "reasonable" and hence allowed by the Fourth Amendment. I challenge SMP0328 to find any U.S. Supreme Court decision that supports the current version of the Katz paragraph.
Jones was published four months ago, and has not been around long enough to have the "widely held view" that SMP0328 claims. Since Jones explicitly said it only concerned areas enumerated in the Fourth Amendment (and therefore not all of a person's property), I think my change from "person's property" to "person's protected property" was appropriate.
Although I had originally made radical changes to the Introduction, SMP0328 reverted those, pointing out consensus was needed. I did not object to that, then or now. My response was to make well-explained, narrow, focused changes in the interest of accuracy. I suggest those changes are not radical.
I'd also like to summarize the other disagreements we have.
Before the first comma, I think "of persons, houses, papers, and effects" should be added.
In "Search and arrest", I think "Search" should be replaced by "Unreasonable search".
In "Search and arrest", I think "arrest" should be replaced by "seizure (including arrest)".
DavidForthoffer (talk) 16:32, 24 May 2012 (UTC)
Jones did not overrule Katz. Jones simply provides that, in addition to the Katz standard (as interpreted by a multitude of Supreme Court decisions as being what was said in Justice Harlan's concurrence), a search occurs when law enforcement trespasses on a person's property for the purpose of gathering information and without a search warrant or exigent circumstances. Referring to the 4A list is unnecessary, because all property fits one of the listed items. In Jones, the car was an effect of Jones, because he had lawful possession of it (his wife owned it, he was a bailee).
As for changing "Search" to "Unreasonable search", that leads to clunky wording. The sentence refers to what is being limited. The 4A limits the governments' ability to search and seize, with anything search or seizure beyond those limits being "unreasonable". Your change flips that around so that it appears the 4A is presuming governmental searches and seizures to be unreasonable. The presumption has always been in favor of reasonableness (unreasonableness must be proven). That's why there are suppression hearings, rather than admission hearings.
I have no objection to changing "arrest" to "seizure (including arrest)", because there are ways for law enforcement to seize a person without conducting a formal arrest. SMP0328. (talk) 02:40, 25 May 2012 (UTC)
Thanks for agreeing to the "seizure (including arrest)" change. I'll make that now. DavidForthoffer (talk) 03:17, 25 May 2012 (UTC)

Although I agree with most of your interpretation of Jones, I disagree with your claim that "because all property fits one of the listed items" in the 4A list that we should not enumerate "persons, houses, papers, and effects" in the first Introduction paragraph. In particular, private real property that is "open fields" is not protected by the Fourth Amendment. "[T]he special protection accorded by the Fourth Amendment to the people in their "persons, houses, papers, and effects," is not extended to the open fields." Hester v. United States 265 U.S. 57 (1924). The more-or-less fuzzy distinction between "open fields" and curtilage is defined in United States v. Dunn (S.Ct.1987). (I put quotes around "open fields" for the same reason the Dunn Court did—an area may be neither "open" nor a "field" and still be an "open field" for Fourth Amendment purposes.) Since too many people (including you) think the Fourth Amendment all property, when it does not, I think it is important to point that out right up front. DavidForthoffer (talk) 03:51, 25 May 2012 (UTC)

I know about the open fields doctrine. It's an exception to the general rule I stated above. With that one exception, what I said holds true. SMP0328. (talk) 04:45, 25 May 2012 (UTC)
OK. How about mentioning that exception somehow, so that people who read "The Fourth Amendment (Amendment IV) to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures..." do not think it guards against all unreasonable searches and seizures? DavidForthoffer (talk) 04:54, 25 May 2012 (UTC)
The open fields doctrine is an exception to what is considered a search under the 4A, not an exception to unreasonableness. Under the open fields doctrine, such a search is not a "search" for 4A purposes (I know it's Supreme Court doublespeak). The Supreme Court did not say an open field search was unreasonable, but nonetheless permitted. It effectively said that an open field search is not covered by the 4A. SMP0328. (talk) 05:05, 25 May 2012 (UTC)
I'm entering the fray late, and I don't want to derail the current "open fields doctrine" discussion, but if I could pull up for a moment... you are both making valid points, but may I make a few observations as a layperson?
  • David (if I may abbreviate?), I agree with you there is no way to "summarize" the subtleties and nuances of the 4A. Heck, you can't even expect a single article to cover all the bases, let alone an introduction.
  • On the other hand, if one were to attempt to summarize, I don't think it's possible or appropriate to insert all kinds of qualifiers in an attempt to capture the exceptions just because "one might read it and erroneously conclude that the Fourth Amendment prohibits all unreasonable searches and seizures". If someone is going to use Wikipedia as their lawyer and jump to that conclusion just because they got that from the intro, well, then, they deserve whatever's coming to them.
  • If you had to give a 30-second "elevator pitch" to someone to explain the basics of the Fourth Amendment, how would you do it? I don't know the stats, but 30 seconds is probably the most a casual reader is going to invest when they view a page to get the basics. Adding the technical detail to the lead, while it is more accurate, will only serve to alienate what is arguably the largest segment of the audience. A more interested reader will make the investment to dive deeper.
  • Having said all of that, however, I could not agree more that the text of the Amendment is without question the single most important element that should be at the top of the page, even before the lead section's elevator pitch. It should not be "buried" below the table of contents, and it should not be plain-faced. The same is true for all of the Amendments, of course.
  • True story: my friends and I were talking after the super bowl, and somehow a disagreement about the Fourth Amendment came up (yes, I need more interesting friends). At one point, I say, "look it up". He turns to the laptop in front of him and types "fourth amendment" on the Google page. Of course Wikipedia is the first entry, so he clicks it... cool... he starts reading the lead, doesn't find the text.... "what the hell", he mutters, as he begins panning down the page.... "whoa, you passed it", I say, as I grab the mouse and scroll back up to it and point. He looks at it and says, "no that's not it! F***ing Wikipedia!", as he returns to the Google page and selects the next entry in the list....
  • I've seen that scenario repeated many times. FYI, here's are the pages of the second Google search result, the third result, the fourth result, fifth, sixth, you get the idea. The one thing they all have in common? Yup, the first thing on the page is the text of the Amendment.
  • Now, I'll let somebody else make the argument that doing what I propose is inconsistent with WP:MOS. To that, I simply say that I am a firm believer in standards, but I also believe we should pay attention to the template at the top of the MOS, which states: This guideline is part of the English Wikipedia's Manual of Style. Use common sense in applying it; it will have occasional exceptions. Groll†ech (talk) 09:42, 27 May 2012 (UTC)
Thanks, Groll†ech, for your comments. I agree with them. I think this article should start off with one paragraph summarizing it, immediately followed by the text. I think the mention of all those case names in the Introduction just confuses the Introduction. But I'm in the middle of an intense project right now, and won't be able to make well-considered proposals right now. Maybe in a couple of weeks. DavidForthoffer (talk) 12:57, 27 May 2012 (UTC)
I condensed the Introduction, along with some small wording fixes, in my latest edit. Let me know what you think of what I did. SMP0328. (talk) 23:53, 27 May 2012 (UTC)
  • I think your change improves the readability of the article.
  • At first I was going to ask you to distinguish the Delaware v. Prouse conclusion from Michigan v. Sitz, but now I see that the very next paragraph does just that.
  • In that next paragraph, I'm going to change "checkpoints toward that end may briefly detain motorists" to "certain discretionless checkpoints toward that end may briefly detain motorists", as being a better lead in to the succeeding sentences, and to more accurately convey the gist of that paragraph to people who blindly pull out just that first sentence as a quote. What do you think? DavidForthoffer (talk) 10:28, 28 May 2012 (UTC)
I'm fine with your adding "certain discretionless", as it reflects Supreme Court precedent. I'm glad we were able to work this out. SMP0328. (talk) 15:25, 28 May 2012 (UTC)

John Wilkes picture

Perhaps the picture used to illustrate John Wilkes should not be a satirical caricature? There are other, serious pictures of him in his article. 108.7.58.206 (talk) 03:29, 8 September 2012 (UTC)

I've replaced the picture with a portrait of him shown in his article. SMP0328. (talk) 17:57, 8 September 2012 (UTC)

Complete False Information (possibly due to bias)

I'm not a regular commenter and realize that my suggestion may not be in the "proper format." However, I will leave my criticism of the article and leave it to those more up-to-speed on the wiki formalities to decide the proper course of action.

I only decided to comment because I am currently writing an appellate brief (dealing with the fourth amendment) for my law school moot court team and have spent a considerable time researching this subject in the past two weeks.

The following expert is not only completely false, but it also appears to be an attempt to single out and attack Justice Scalia (not saying he doesn't deserve it):

                • "The Fourth Amendment has been held to mean that generally a warrant must be judicially sanctioned for a search or an arrest. In order for such a warrant to be considered reasonable, it must be supported by probable cause and be limited in scope according to specific information supplied by a person (usually a law enforcement officer) who has sworn by it and is therefore accountable to the issuing court. However, a dissenting school of thought often found in the opinions of Justice Antonin Scalia is that searches must simply be "reasonable," and the warrant requirement has been overly emphasized."*********************

This is NOT the "dissenting school of thought" (ever since the Warren Court) and Scalia is NOT the most prominent advocate of this view on the 4th Amendment. In fact, he is the Justice who may have begun to gradual reversal of the "reasonable" school of thought on the 4th Amendment, which has dominated since the Warren Court.)

The following law review article is a better picture of reality (Note: I cite a law review article, which is peer-reviewed and published. I will also note that the author of law review article I cite provided--as the numbers after each sentence show--281 cites in his article to support his conclusions. Additionally, I have discussed this article with my criminal procedure professor, and he not only agreed with the law review article, but also complemented its thoroughness.)The last few paragraphs I quote are the most important (starts with the first bolded paragraph):

"In the 1960s, the Warren Court revolutionized the foundations of Fourth Amendment doctrine--shifting constitutional analysis away from a traditional concern with the security of persons, houses, papers, and effects towards an innovative analysis centered on the prohibition of unreasonable searches and seizures. The Warren Court's aim was to expand the protections of the Fourth Amendment well beyond its traditional contours, but the Court's doctrinal innovations have failed to fulfill that original promise and have actually contributed to a narrowing of the scope of the Fourth Amendment in important respects. This Article will advance a partial account of this failure emphasizing the framing and anchoring effects of the Warren Court's new doctrines. This account is offered as “one view of the cathedral” in full awareness that there are other plausible perspectives on the Warren Court's revolution and its impact on the law today.FN1"

Jack Wade Nowlin, The Warren Court's House Built on Sand: From Security in Persons, Houses, Papers, and Effects to Mere Reasonableness in Fourth Amendment Doctrine, 81 Miss. L.J. 1017, 1018-19 (2012)

"Consider a set of facts based upon those of the Court's landmark decision in Katz v. United States, a case which addressed these doctrinal questions and which represents a profound shift in the Court's analysis.50 Police place a tap on the telephone wires on the outside of a telephone booth and listen in on the telephone conservation which occurs within the booth.51 Does this investigative act trigger the protections of the Fourth Amendment which would presumptively require police to obtain a warrant to conduct the surveillance? What doctrinal approach should one take here?One can contrast here two rival ways to frame the doctrinal view--both embraced more-or-less by the Court at different points in time. The older view can be called the “protected interest” view.52 This traditional approach emphasized the interests *1032 specifically enumerated as protected in the text of the Fourth Amendment, “persons, houses, papers, and effects,” and the common-law principles rooted in property law that formed the important broader legal context of the text.53 The newer view, which the Court adopted in the 1960s, can be called the “reasonable expectation of privacy” view.54 This newer approach emphasizes the textual reference to “searches” in the Fourth Amendment, and it defines a “search” doctrinally as a governmental invasion of a “reasonable expectation of privacy.”55 The two rival frames thus emphasize (i) different parts of the Fourth Amendment text (“persons, houses, papers, and effects” versus “searches and seizures”) and (ii) different forms of legal analysis (common-law legal traditions versus an open-ended “reasonableness” test)."

Jack Wade Nowlin, The Warren Court's House Built on Sand: From Security in Persons, Houses, Papers, and Effects to Mere Reasonableness in Fourth Amendment Doctrine, 81 Miss. L.J. 1017, 1031-32 (2012)

"In Katz, the parties expected the Court to follow the traditional “protected interest” view and, not surprisingly, the *1036 petitioner formulated the dispute in light of the Court's traditional approach in cases such as Silverman. This formulation centered on the textual statement of protected interests and the principles of the common law: (i) “[w]hether a public telephone booth is a constitutionally protected area” under the Fourth Amendment and (ii) “[w]hether physical penetration of a constitutionally protected area” is required to trigger the protections of the Fourth Amendment.74 The Court, however, did not adhere to the traditional approach. Instead, the Court called the traditional formulation of the issues “misleading.”75The Court in Katz rejected the traditional approach and framed a new approach to the threshold question of whether the protections of the Fourth Amendment apply. This new approach emphasized the Fourth Amendment's textual reference to “searches” and centered on an open-ended “reasonableness” test used by the Court to define when a “search” occurs under the Fourth Amendment.76 On this new view, police engage in a Fourth Amendment “search” triggering the protections of the amendment when they invade a “reasonable expectation of privacy.”77 As a result, the Court asserted in Katz that the operative question was whether Katz had a “reasonable expectation” with respect to the privacy of his conversation within the telephone booth.78 If Katz had a “reasonable expectation of privacy” within the telephone booth, then an invasion of that expectation with a listening device was a “search” triggering the protections of the Fourth Amendment--even without an actual physical invasion of the interior of the booth or a determination that a phone booth was a protected area.79 On the other hand, if Katz did not have a “reasonable expectation of privacy” within the telephone booth, *1037 then no search occurred and no Fourth Amendment protections applied."

Jack Wade Nowlin, The Warren Court's House Built on Sand: From Security in Persons, Houses, Papers, and Effects to Mere Reasonableness in Fourth Amendment Doctrine, 81 Miss. L.J. 1017, 1035-37 (2012)

"For purposes of this Article, what is important about Katz is the profound doctrinal reframing it embraced--from a focus on “persons, houses, papers, and effects” informed by long-standing common-law traditions to a focus on the word “search” defined by a flexible analysis of “reasonable expectations of privacy.”88 The obvious reason behind the reframing in Katz was to expand the reach of the Fourth Amendment beyond its enumerated interests: persons, houses, papers, and effects.89 However, the Katzian “reasonable expectation of privacy” approach has not delivered on that promise and it in fact has threatened to undermine the Fourth Amendment's traditional protections.The Court, more than four decades after Katz, has not used the “reasonable expectation of privacy” doctrine to expand the reach of the Fourth Amendment beyond a point where the “protected interest” doctrine could also have gone.90 Consider Oliver,91 the Katzian follow up to Hester,92 the original case which held that an “open field” is not protected by the Fourth Amendment because it is not a person, house, paper, or effect.93 In Oliver, the Court held that the search of an “open field” is not a “search” within the meaning of the Fourth Amendment in part *1039 because there is no “reasonable expectation of privacy” in an open field, given the typical uses of “open fields” for agricultural or other utilitarian purposes rather than for privacy-intensive purposes.94Consider also California v. Ciraolo,95 a case involving police use of an aircraft to observe the curtilage of a home.96 Under the “protected interest” view, the common law establishes that curtilage is an extension of the home entitled to Fourth Amendment protection,97 and the pivotal issue would be whether an actual physical intrusion is necessary to consider the security of the curtilage compromised. This question could easily go either way depending on whether one held strictly to a physical invasion approach to security or “liberally” adjusted the standard to include functional equivalents of physical invasions enabled by technological advances.98 Under the “reasonable expectation of privacy” view, the Court in Ciraolo held that there is no “reasonable expectation of privacy” in curtilage from aerial observation given that the curtilage is “knowingly exposed” to airplanes flying within a “lawful vantage point.”99The Katz Court's reframing of the Fourth Amendment in favor of a flexible test that would allow the judiciary to expand the reach of the amendment has also threatened to narrow it, especially with respect to the traditional protections for houses and papers. This is so for several related reasons. First, the Katz doctrine's flexible “reasonableness” test encourages policy-oriented decision making, which can just as easily restrict the reach of the Fourth Amendment as expand it--depending upon the inclination of the judges who must interpret it.100 Thus, the original Katzian promise of a more expansive Fourth Amendment carries with it *1040 the concomitant hazard of a narrower amendment interpreted by judges who favor a crime-control view of the Fourth Amendment.101Second, the Katz doctrine takes the emphasis off the specific language of “persons, houses, papers, and effects” and thereby reduces the significance of this concrete enumeration of interests worthy of special protection under the amendment. The shift in emphasis away from this text has an inevitable tendency to undermine the significance of the protections afforded by the textual specification of protected interests. Third, the Katzian approach also reduces the importance of the common-law background principles which inform the understanding of the security of protected interests--such as homes and papers. This shift also undermines a source which can provide a crucial “floor” of traditional legal protection in many cases.102Fourth, the new doctrinal frame also pushes the protection of houses to the margins of doctrinal analysis. As Katz makes clear, whether a structure such as a telephone booth is protected by the Fourth Amendment has no direct analytical connection to whether the structure is analogous to a house. The older doctrine would have reaffirmed the centrality of privacy in homes by building its doctrinal analysis of structures such as telephone booths on the ways in which they are (or are not) like houses. Whether or not a court applying this analysis decided that the structure was a kind of “house” for Fourth Amendment purposes, the substance of its analysis would have reaffirmed the importance of houses as concrete protected interests and elaborated on the ultimate policy foundation of the special protections for houses in a way that could deepen judicial appreciation of their importance. This same basic point will likely hold true for physical papers and digital documents.103Finally, the Court in Katz stated baldly that the Fourth Amendment protects “people, not places.”104 This proposition is either meaningless (since, of course, no one claims that places *1041 have Fourth Amendment rights) or it inevitably undercuts the protection the Fourth Amendment specifically enumerates for “houses” as a constitutionally protected “place” in which “people” have a right to be “secure.” Denigrating the Fourth Amendment's clear application to places as places will inevitably tend to erode respect for the constitutional protections afforded to those places."

Jack Wade Nowlin, The Warren Court's House Built on Sand: From Security in Persons, Houses, Papers, and Effects to Mere Reasonableness in Fourth Amendment Doctrine, 81 Miss. L.J. 1017, 1038-41 (2012)

The most thoroughly Katzian opinion in Kyllo is the dissent. Written by Justice Stevens and joined by three other Justices--Rehnquist, O'Connor, and Kennedy--the dissent applied the Katz “reasonable expectation of privacy” test in a straightforward manner consistent with the flexibility of its “reasonableness” standard. Justice Stevens summarily dismissed the claim that Kyllo had a reasonable expectation of privacy in the heat levels in his home by characterizing the privacy claim as one concerning external heat emissions.109 “[T]he notion,” Justice Stevens *1042 pronounced, “that heat emissions from the outside of a dwelling are a private matter implicating the protections of the Fourth Amendment ... is not only unprecedented but also quite difficult to take seriously.”110 Why? Because “[h]eat waves,” Justice Stevens argued, “like aromas that are generated in a kitchen ... enter the public domain if and when they leave a building” and thus any “expectation” they will “remain private” is “implausible” and unreasonable.111

Significantly, Justice Stevens also invoked the “strong public interest” in clearly recognizing governmental authority to monitor “emission from homes” in cases involving “smoke, suspicious odors, odorless gases, airborne particulates, or radioactive emissions, any of which could identify hazards to the community.”112 This last point suggests that concern for facilitating effective law enforcement is relevant to the Fourth Amendment's “reasonable expectation” inquiry. Justice Stevens thus concluded that the use of the thermal imager is not a search within the meaning of the Fourth Amendment and police were not required to obtain a warrant to use an imager to monitor heat levels in Kyllo's home.113

Justice Scalia's opinion for the Court concluded that Kyllo's home was protected from police use of a thermal imager without a warrant.114 The majority opinion was decidedly less Katzian in substance than the dissent, and its quiet but dramatic retreat from Katz also illustrates the problems with the Katz approach. Justice Scalia first criticized the Katz “reasonable expectation of privacy” approach and then purported to apply it while actually embracing the core of the substance of the traditional “protected interest” approach discarded by the Court decades earlier.115 *1043 Justice Scalia began by noting that the Katz approach “has often been criticized as circular” and hence as “subjective and unpredictable,”116 a criticism that Justice Scalia himself had endorsed in earlier cases.117 Justice Scalia thus recognized that the purported virtue of the Katzian inquiry, its flexibility, is also its central vice.

Justice Scalia acknowledged that Katz may be difficult to refine in some contexts but, importantly, not in that of the home--the context at issue in Kyllo--precisely because of the home's common-law historical context of established protections.118 Justice Scalia here concludes that Katz may be applied to the issues raised in Kyllo without the approach's characteristic difficulties only because the privacy-in-the-home context of the case allows the Court to return to the common law for guidance. The Court thus rested its application of Katz on an analysis of the historical materials which are the foundation of the “protected interest” view rejected by Katz. In light of this historical context, Justice Scalia advanced an analysis centering on two basic substantive questions: (i) the nature of the home as a constitutionally protected area under the historically-established principles of the common law and (ii) whether an actual physical intrusion is required to compromise the security of the home triggering the protections of the Fourth Amendment.119 These questions, which the Court asked in substance, are the same as those presented by the traditional “protected interest” view and expressly condemned by the Court in Katz.120

On this first point, Justice Scalia recognized that the home is a constitutionally protected area of the highest order. The Fourth Amendment, Justice Scalia acknowledged, recognizes the *1044 traditional “sanctity of the home”121 and “draws ‘a firm line at the entrance to the house,”’122 so that the “entire [home] area is held safe from prying government eyes” because “all details” in the home are “intimate details” worthy of protection.123 On the second point, Justice Scalia reasoned that to “assure [ ] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted,” a warrant is presumptively required when police “obtain[ ] by sense-enhancing technology any information ... that could not otherwise have been obtained without physical ‘intrusion into a constitutionally protected area.”’124 The Court thus concluded that police must have a warrant to use a thermal imager.Of special interest here is Justice Scalia's quotation of language from the Court's decision in Silverman--a “physical intrusion into a constitutionally protected area.”125 This is the principal case and almost the very language on which the petitioner in Katz relied in crafting the questions presented to the Court, questions which the Court in turn rejected as a “misleading” formulation of the legal issues.126 Justice Scalia's substantive analysis is also in line with dissenting Justices in the pre-Katz Olmstead decision, who applied a “protected interest” analysis grounded in the common law in a “liberal” fashion to protect against actual trespasses and other “evils” that are “like and equivalent” to trespasses.127 In sum, the Court's opinion in Kyllo turns on a substantive analysis of the same questions--and in virtually the same language drawn from the pre-Katz Silverman decision--rejected by the Court as “misleading” inquiries in Katz. *1045

What the opinions in Kyllo demonstrate are the problematic framing effects of the Katzian “reasonable expectation of privacy” test. The Katz approach frames the question of the applicability of the Fourth Amendment in terms of a governmental invasion of something as open-ended as a “reasonable expectation of privacy” unmoored from any clear legal foundation in the text of the Fourth Amendment or the traditional principles of the common law. Indeed, the lack of mooring is precisely the point of the Katzian approach, and it thus presents the Justices with an inkblot analysis into which they can read their preferences for privacy--or for crime-control polices and deference to government. This approach makes its very easy to characterize Kyllo as a case about governmental observation of “external heat emissions” implicating an “at best trivial” privacy concern128 rather than a case about police use of a technological substitute for an actual physical invasion of the security of Kyllo's home to determine whether Kyllo was committing a crime within its walls.129 One should not be surprised when four Justices conclude that Kyllo's expectation of privacy is not only “unreasonable” but even “difficult to take seriously.”130

Compare this with the traditional “protected interest” approach which the majority in Kyllo uses in substance while purporting to apply a Katzian analysis. The “protected interest” frame places its emphasis on the textual recitation of protected interests in the Fourth Amendment--persons, houses, papers, and effects--and that emphasizes the centrality and paramount importance of the protection of homes to the meaning of the Fourth Amendment. The Fourth Amendment was in fact designed to protect only four basic interests expressed in its text--and houses are one of those interests. The common-law background principles reinforce that view substantially because those principles affirm the special importance of homes among the four interests.The “protected interest” doctrinal formulation therefore positions one to read the Fourth Amendment broadly to protect *1046 the home. The remaining question, then, is whether to protect the traditional security in the home against both actual physical invasions and the use of cutting-edge technology as a police substitute for such invasions. A court recognizing the importance of security in the home when it answers the first question should be better primed to answer the second question in a home-protective fashion than it otherwise would be.131

The “protected interest” view, in short, frames the constitutional issues in a way that promotes protection of the home. One should not be surprised when a Court doctrinally committed to Katz must struggle to the substance of the “protective interest” view to arrive at and defend a properly home-protective conclusion.

Jack Wade Nowlin, The Warren Court's House Built on Sand: From Security in Persons, Houses, Papers, and Effects to Mere Reasonableness in Fourth Amendment Doctrine, 81 Miss. L.J. 1017, 1041-46 (2012)

Hope someone will correct the information in the article to reflect reality.

Cheers!

67.205.202.69 (talk) 07:20, 16 October 2012 (UTC) (a law student)

While still a law student, you count as more of an expert than many, including me (IANAL). I don't know how many lawyers are watching this article. Maybe there will be more commentary about this once the sun rises. Note WP:BEBOLD, though it may be a Good Idea to wait and see what the response is to your ... wow, can't call it "brief"! to your essay. - Denimadept (talk) 08:29, 16 October 2012 (UTC)
He's 100% correct in his assessment. I think the best course of action would be to have Mr. 67.205 (or Ms 67.205) add the information, and then one of us can go through and Wikify it, and then together we can assess it to make sure that 1. It's accurate per the Reliable Sources brought up and 2. In proper Wikipedia formatting. Achowat (talk) 12:02, 16 October 2012 (UTC)

Final sentence of the introductory paragraph suggests

The Fourth Amendment applies to the states by way of the Due Process Clause of the Fourteenth Amendment.

The Fourth Amendment applies to the states by way of Selective Incorporation with the Due Process Clause of the Fourteenth Amendment as inference. — Preceding unsigned comment added by Dartagnandarnell (talk • contribs) 22:32, 13 November 2012 (UTC)

The Supreme Court cites the Due Process Clause of the Fourteenth Amendment as authority for Incorporation. The wording you suggest would not make that clear. Nonetheless, welcome to Wikipedia and we hope you stay for a long time. SMP0328. (talk) 23:40, 13 November 2012 (UTC)

Updating the "Computers and privacy" section with NSA information

I don't know enough to make this change, but the "Computers and privacy" section should be updated to include information that has arisen from the NSA's PRISM operation.

Computers and privacy section

This section needs a bit of cleaning up and be written in a more general sense, rather than each paragraph starting with "in the year 20xx...". KyuuA4 (Talk:キュウ) 18:27, 26 July 2013 (UTC)

I agree. I'll work my way down to it soon, hopefully. -- Khazar2 (talk) 18:38, 27 July 2013 (UTC)
Reviewing this section, I'd like to greatly reduce its weight in the article. I'm not convinced that this topic requires a level 2 header, especially considering that only one case it discusses even has a Wikipedia article. It also seems a bit recentist to focus lengthily on a topic that's only existed for 10 or 15 years of a 220-year-old amendment. Lastly, the section has no secondary sources at all (though I'm sure some exist out there that could be added). Would anyone object to my trimming this significantly and integrating relevant information throughout the article, rather than as its own section? -- Khazar2 (talk) 23:56, 27 July 2013 (UTC)
I've removed this section for now, since it seemed to me to overemphasize to a handful of federal district court, state supreme court, etc. rulings. Compared to something like the plain-view doctrine or open fields doctrine or stop-and-frisk, which have well-established histories, this seemed like somewhat undue weight. If other editors are interested in restoring some or all of this, maybe we can try to fit in into existing sections rather than setting it off by itself? Let me know what you think. -- Khazar2 (talk) 18:56, 31 July 2013 (UTC)

Reference Structure

What does everyone think about structuring references as done in Augmentative and alternative communication? The idea is to have each individual reference under the "Reference" section and then have all citiations of that reference under the "Notes" section, with additional details on how to find that citation in the referenced work. This is really helpful when dealing with references like Court decisions, which often contain many individual documents inside them and are hard to navigate. -- Sailing to Byzantium (msg), 19:57, 28 July 2013 (UTC)

The article definitely needs some work to standardize its citations. We have several conflicting styles on the page, a problem which I'm sorry to say I've contributed to. I'm fine with whatever format others prefer, including the citation style in your example. -- Khazar2 (talk) 22:31, 28 July 2013 (UTC)

Probable cause

I need someone more legally minded to help me out--are the sentences below properly sourced by directing the reader to Knowles v. Iowa? The decision doesn't include this statement about police needing to witness misdemeanors, so far as I can see. I'm also confused as to why this directs the reader to English common law rather than the common law general article. Finally, why is the first sentence in past tense--is this no longer the case?

"At common law, a police officer could arrest an individual if that individual committed a misdemeanor in the officer's presence or if the officer had probable cause to believe that the individual committed a felony. For misdemeanors, probable cause to believe that a wrongdoer committed a misdemeanor is not sufficient for an arrest—the police officer has to actually witness the misdemeanor.[49]"

-- Khazar2 (talk) 00:53, 29 July 2013 (UTC)

All right, I'll remove this for now until a clear citation can be found. -- Khazar2 (talk) 12:12, 30 July 2013 (UTC)

Going for Good Article status

I'm hoping to work over the next week or two to bring this article to GA status. I wanted to start by asking if any regular editors of this article had any input--is there anything you think I should tackle before nominating?

Some obvious areas I'd like to improve:

  • Adding a more comprehensive lead
  • Adding some general Bill of R history (James Madison's name isn't even in this article yet, which is a startling omission)
  • Reducing reliance on primary sources (e.g. court decisions) and adding more secondary sources (e.g. writings interpreting and summarizing the court decisions)
  • Reducing the very large number of subheaders and short sections per WP:LAYOUT

Additional suggestions welcome! -- Khazar2 (talk) 23:13, 21 July 2013 (UTC)

The descriptions of court decisions appear to be correct, so the only issue is finding secondary sources. That should not be difficult the vast majority of the time, if not every time. What would you like to add to the Introduction? SMP0328. (talk) 00:16, 22 July 2013 (UTC)
Great. I'll use Encyclopedia of the American Constitution again to doublecheck and source most of this, which should allow me to plug in citations quickly and perhaps flesh out a little here or there. As for the lead, probably just a little more detail on the amendment's background (particularly history of authorship and ratification), and a bit more overview of major court decisions/interpretation, touching on topics like the exclusionary rule. One paragraph is a bit short for a 6000 wd. article per the guidelines at WP:LEADLENGTH, so I'll probably bring it up to 3-4 paragraphs. Ideally I'd like to have at least a sentence or so for each of the major sections.
All of this might not happen for a bit, though. As before, I'll try to post diffs and explanations to this page when making major changes so that they can be easily reverted/discussed as necessary. -- Khazar2 (talk) 00:38, 22 July 2013 (UTC)
Some progress today:
  • I've added a section about the amendment's proposal and ratification with this edit--not mentioning the amendment's creation and ratification seemed like a staggering oversight. For attribution purposes, this is text drawn from US Bill of Rights and Third Amendment to the United States Constitution; see those article's histories for attribution. (It's mostly me, but I think there's other editors in there, too.) Right now, this is mostly generic Bill of Rights history, but I'll try to add some 4A specific text in it after I do a bit more research. -- Khazar2 (talk) 17:56, 27 July 2013 (UTC)
  • I've removed some misc. journal articles and one general constitution book from the "Further Reading" section--I don't think the article should attempt to provide a bibliography of writings on the Fourth Amendment. [1] -- Khazar2 (talk) 18:36, 27 July 2013 (UTC)
  • I removed "Case Law 4 Cops" from the external links [2]; not sure of the value of this as a scholarly resource to direct our readers to. -- Khazar2 (talk) 18:36, 27 July 2013 (UTC)
If anyone disagrees with any of the above, feel free to revert and we can discuss. Cheers to all, -- Khazar2 (talk) 18:36, 27 July 2013 (UTC)
  • I've removed some repeated links and links to basic terms per WP:OVERLINK.
  • I removed these sentences, as they appear to me to have an interpretative/speculative tone and lack secondary sourcing: " Theoretically, many structures might extend the curtilage protection to the areas immediately surrounding them. The courts have gone so far as to treat a tent as a home for Fourth Amendment purposes in the past.[1][2][3] It is possible that the area immediately surrounding a tent (or any structure used as a home) might be considered curtilage. Despite this broad interpretation, the courts seem willing to find areas to be outside of the curtilage if they are in any way separate from the home (by a fence, great distance, other structures, even certain plants).[4]" [3]
  • I've added the amendment's proposal and ratification to the lead.[4] -- Khazar2 (talk) 00:04, 28 July 2013 (UTC)
  • Okay, I've now completed a top-to-bottom pass of the article. In a few places, I've removed what seems to me extraneous or recentist detail; in others, I've expanded some basic concepts like case law on consent searches. I also seriously reduced a section that appears to me to be close paraphrasing per a thread below. I still want to give it a second pass for copyediting and detail work, including standardizing ref fmts a bit more per the suggestion in the thread below. Hope these changes make sense to everyone; I'm happy to rework, revert, or revise if they don't. Cheers, -- Khazar2 (talk) 12:56, 2 August 2013 (UTC)
  • Oh, I also swapped the section order, putting exceptions to the warrant requirement ahead of the exclusionary rule; this way the article goes straight from the warrant requirement to its exceptions. Going to work on expanding the lead now. -- Khazar2 (talk) 13:00, 2 August 2013 (UTC)
  • Okay, I haven't heard from anybody here for a while, so I'm going to take that as tacit approval of the changes so far and nominate for GA. If anyone has any objections, of course, still happy to discuss them. Thanks again to everybody else who's worked on this one. -- Khazar2 (talk) 15:16, 5 August 2013 (UTC)

Foreign intelligence surveillance exception

This section seems to be quite close paraphrasing of http://www.lawfareblog.com/2012/05/more-on-clapper/ (see WP:PARAPHRASE), so I've heavily condensed this section. I think the current form is more in keeping with the level of detail from other sections here anyway, but let me know if anyone has any objections/suggestions. Thanks, -- Khazar2 (talk) 12:13, 2 August 2013 (UTC)

I added foreign intelligence surveillance exception section due to the recent revalations by Edward Snowden regarding the 2013 mass surveillance disclosures. The disclosures raised for me the question whether the NSA programms like PRISM are compatible with 4th Amendment i.e. whether there is foreign intelligence surveillance exception section to the amendments warrants clause. After finding the sources in my recent edit I added my material because for this exception is worthy of a separate section. I agree with however your assessment at my talk page that my recent edit is too long compared to other exceptions which you wrote "have decades of famous case law and reams written about them". I propose therefore this wording which balances your interest in section length and my interest in covering all necessary aspects:

The U.S. Supreme Court decision in United States v. U.S. District Court (1972),[5] left open the possibility for a foreign intelligence surveillance exception to the Fourth Amendment’s Warrant Clause.[6] Following the Supreme Court's ruling, three United States Courts of Appeals recognized a foreign intelligence surveillance exception to the Warrant Clause, but tied them to certain requirements.[6] A foreign intelligence surveillance exception to the Fourth Amendment was formally recognized by the United States Foreign Intelligence Surveillance Court of Review in its 2008 In re Directives[7] decision.[8] The court hold that “a foreign intelligence exception to the Fourth Amendment’s warrant requirement exists when surveillance is conducted to obtain foreign intelligence for national security purposes and is directed against foreign powers or agents of foreign powers reasonably believed to be located outside the United States.”[8] To protect the telecommunication carriers cooperating with the US government from legal action, the Congress passed a bill updating the Foreign Intelligence Surveillance Act of 1978 to permit this type of surveillance.[9]

I hope we can work this exception out. --P3Y229 (talk • contribs) 22:52, 13 August 2013 (UTC)

Yes, that looks good to me. Thanks for meeting me halfway on this! -- Khazar2 (talk) 23:06, 13 August 2013 (UTC)
I reverted. The opinion of a lower court is not especially relevant on Constitutional questions and gives WP:UNDUE weight to the opinion of the equivalent of a trial court. Constitutional questions are determined by SCOTUS - at a minimum it should be a Circuit Court. The question should probably be presented, if it appears in enough reliable sources, but to list FISA court opinions at the same level as SCOTUS opinions is not appropriate. GregJackP Boomer! 19:26, 16 September 2013 (UTC)
Normally, I'd fully agree with GregJackP. District Court opinions are not binding any court and so should not put along side Supreme Court opinions. However, the FISA court is special. It is the only court that rules on FISA warrants and does so in secret. This means that to a certain extent the FISA court operates as a de facto Supreme Court regarding FISA. So P3Y229's edits should be restored, as long as the FISA court's jurisdiction is made clear. SMP0328. (talk) 02:52, 17 September 2013 (UTC)
I don't have a problem with discussing the FISA court in general terms, but it was incorporated into a portion of the lede discussing fundamental, landmark decisions of SCOTUS. That gives undue weight to the FISA court. In the Foreign Intelligence section would be appropriate, as far as outlining the FISA court's jurisdiction, or if we have an article on the court, a "see also" template and link would work. I don't agree that we should include the FISA decision in this article, other than in very general terms. I will, of course, abide with whatever consensus develops. GregJackP Boomer! 03:26, 17 September 2013 (UTC)
Plus I think that Khazar2 has done an outstanding job on this article and I would like to see it make GA - I just think that there is a better way to incorporate the FISA information. GregJackP Boomer! 03:30, 17 September 2013 (UTC)
I didn't know where to place my content addition. So I placed it in the section discussing fundamental, landmark decisions of SCOTUS. Thank you for pointing out the Foreign intelligence surveillance exception section where the content is better situated. Readded original content with this edit in the Foreign intelligence surveillance exception section where it is definitively better situated. I slightly reworded the content in order to comply with your general terms language proposal. Hope that solves the problem. --P3Y229 (talk • contribs) 07:43, 17 September 2013 (UTC)
I agree that the material was a bit out of place before, but placing it in the FISA section seems like a good solution. And thanks for the kind words, Greg--cheers, -- Khazar2 (talk) 11:23, 17 September 2013 (UTC)
I changed the would "court" to "lower court" to clarify that is wasn't SCOTUS and otherwise left it alone. It looks OK now. GregJackP Boomer! 14:23, 17 September 2013 (UTC)

GA Review

GA toolbox
Reviewing
This review is transcluded from Talk:Fourth Amendment to the United States Constitution/GA1. The edit link for this section can be used to add comments to the review.

Reviewer: Quadell (talk · contribs) 18:44, 13 September 2013 (UTC)
Nominator: Khazar2

I will study this article over the weekend, and I hope to have the review complete within a week. – Quadell (talk) 18:44, 13 September 2013 (UTC)

Thanks--I'll look forward to your comments. I'm doing a bad job of wikibreak so far, to be honest, but do feel free to take your time. My availability will be intermittent for the next two weeks as the move progresses, so I may need to ask you for a longer than usual hold. We'll see. -- Khazar2 (talk) 19:27, 13 September 2013 (UTC)
Excellent. Regarding my reviewing style: issues I identify below will be prepended by the number of the relevant GA criterion. Comments that are not actionable requirements are not prepended. – Quadell (talk) 19:38, 13 September 2013 (UTC)
  • 6b Captions should end with periods when they are complete sentences, but should not when they are fragments. So the "Bill of Rights" caption should not have a period, but the "Potter Steward" caption should.
  •  Done -- Khazar2 (talk) 20:02, 13 September 2013 (UTC)
  • 6b The images of Madison, Stewart, and Wilkes give a brief description of who the person is and why he is relevant to the article. The Otis image could use such a caption.
  •  Done -- Khazar2 (talk) 20:02, 13 September 2013 (UTC)
  • The lead is very good, and leads are difficult to get right. All of the material in the infobox and in the "See also", "Notes", "Bibliography", and "External links" sections seems appropriate and well-formatted.
  • Thanks! -- Khazar2 (talk) 20:02, 13 September 2013 (UTC)
  • 1a I think "it inevitably would have been discovered" is better than "it would have inevitably been discovered".
  •  Done -- Khazar2 (talk) 20:02, 13 September 2013 (UTC)
  • All images are legitimately free, and are relevant to the topic.
  • I am not qualified to determine the appropriateness of the list of "Important cases". It seems to me like a rather lengthy list, and "important" sounds like an arbitrary designation, but I understand you know more about the subject than I do. Would that list be better as a separate list article?
  •  Done I inherited this from a previous draft, and it's actually something I planned to ask you about. I completely agree; it's an unsourced judgement, free of context, and the fact that it contains so many redlinks suggests to me that it's not a very selective list. The blue links are mostly redundant with the article text, and with Category:United States Fourth Amendment case law. If other users feel strongly that it should be here, I'm glad to discuss it further, though. -- Khazar2 (talk) 20:02, 13 September 2013 (UTC)
I talked to a public defender friend of mine, and she agreed that there is no impartial way to list the most important 4th Amendment cases. Having them in the category is a much better way to find related cases. – Quadell (talk) 18:27, 14 September 2013 (UTC)
  • The prose in the "text" section is a run-on sentence with too many commas. It should probably be rewritten for clarity.
  • 1b "King's Messenger" is not a term I'm familiar with. Is it the same as Queen's Messenger? If so, a link would be helpful.
  • I believe so, though my sources don't clarify. Linked. -- Khazar2 (talk) 01:07, 15 September 2013 (UTC)
  • "George Montagu-Dunk, 2nd Earl of Halifax" is such a great name! I think I may have to give my daughter some sort of stuffed animal with that as its name.
  • Agreed! -- Khazar2 (talk) 01:07, 15 September 2013 (UTC)
  • 6b In my opinion, this image of Charles Pratt would be more fitting in the section than one of John Wilkes, since Pratt made the ruling and Wilkes was less directly related. Would you agree?
  • Yep--images swapped. -- Khazar2 (talk) 01:07, 15 September 2013 (UTC)
    1a Good caption. But should there be a comma after "Camden"? – Quadell (talk) 16:42, 15 September 2013 (UTC)
  • I believe the name "Charles Pratt, 1st Earl Camden" works as a single unit, rather than "1st Earl Camden" being an appositive phrase that needs a second comma after it--this is how it is in the article's text as well. But I'm not 100% sure on grammatical forms for British royalty. -- Khazar2 (talk) 23:23, 18 September 2013 (UTC)
    • Well, I'll assume a comma isn't needed, and if someone determines that one is needed after all, it won't be hard to add. – Quadell (talk) 12:55, 19 September 2013 (UTC)
  • 1a I made some minor grammatical changes (here) to the prose of "Colonial United States". (It seemed easier than explaining each minor quibble.) Do these all seem warranted to you? If not, feel free to revert any part and discuss.
  • I reverted one that seemed to introduce an ambiguous pronoun.[5] Technically "he" is supposed to refer to the last male named in the text, which here would be Otis rather than Adams. -- Khazar2 (talk) 01:07, 15 September 2013 (UTC)
    Yeah, that's fine. – Quadell (talk) 16:42, 15 September 2013 (UTC)
  • 2b Why are there two references for the Virginia Declaration of Rights quote? They seem to be successive pages in the same book.
  • I'm not sure how that got there; removed the extraneous citation. This quote is on 161. -- Khazar2 (talk) 01:07, 15 September 2013 (UTC)
  • 3b This is borderline, but it seems to me that the last three paragraphs of "Proposal and ratification" go into unnecessary detail on the ins and outs of ratification, especially concerning the amendments that were not ratified. These paragraphs don't mention 4A directly, and although much of the info is relevant, it does seem to off on a bit of a tangent. I see that all of the information is in the United States Bill of Rights article already, so I would think a bit of the material from these paragraphs could be trimmed.
  • Okay, I removed mention of the two amendments that failed to pass, and more explicitly highlighted the Fourth. But I do think it's worth detailing what states ratified the amendment, and the battle over that ratification. -- Khazar2 (talk) 23:30, 18 September 2013 (UTC)
    • I'm gonna say that's good enough. – Quadell (talk) 12:55, 19 September 2013 (UTC)
  • 1a The first sentence of "Applicability" feels clunky. The word "generally" in "to mean that generally a warrant must" feels out of place, and the ending of "for a search or an arrest" (rather than, say, "for a search or an arrest to be valid") makes it difficult to understand precisely what is meant. I'm not sure how to fix it though. I know that, in law, precise meaning is extremely important, and I wouldn't want to rewrite the sentence in a way that is more flowing if it became less accurate as a result. Would it be correct to say it this way? "The Fourth Amendment has been held to mean that a warrant must be judicially sanctioned in order for a search or an arrest to be valid, with only limited exceptions." (Also, I think it would be helpful to link warrant, which would be fine since the it is not linked outside the lead.)
  • I agree that it's a bit awkward and rewrote it to be more direct. But I think the "generally" is slightly more accurate here than "limited exceptions." I read in one source from the '80s that something like 2/3s of law enforcement searches in the studied state fell under exceptions to the amendment; it was a bit too dated and state specific to include in the article, but my impression is that more searches fall outside the warrant requirement than within it. Let me know if you think this is okay. Oh, and I did link warrant. -- Khazar2 (talk) 23:36, 18 September 2013 (UTC)
  • Oh, yeah, your wording is much better than mine. – Quadell (talk) 12:55, 19 September 2013 (UTC)
  • 1a The last sentence before the "Search" section is troubling. After all, only two of the three "questions" are actually questions... but if the last one is written "how should violations of Fourth Amendment rights be addressed", would it need a question mark? I'm honestly not sure how to word a list of questions in a single sentence and make it grammatically correct. Perhaps it should be made into a list, as is done with the Smith v. Maryland two-pronged test in the next section?
  • Changed to "issues". -- Khazar2 (talk) 23:37, 18 September 2013 (UTC)
    • I feel like there has to be a correct way to do this for questions. But your change neatly sidesteps the issue; it is both correct and clear. – Quadell (talk) 12:55, 19 September 2013 (UTC)
  • I wish threshold question were an article. Several legal articles mention it, and it's not immediately obvious what it means. The concept isn't even mentioned at the Threshold dab. Ah well. That's not a criticism of this article, just a note. – Quadell (talk) 13:30, 16 September 2013 (UTC)
  • 1a The phrase "on the heels of general warrants" isn't as clear as it could be.
  • True. I've simply struck the phrase. -- Khazar2 (talk) 23:39, 18 September 2013 (UTC)
  • There are no links to dab pages. The only duplicated links are curtilage and probable cause, but I think both are appropriate. So, no problems there.
  • 1a Consider making the e.g. at the end of "Search" into a footnote instead. It seems to me this would be an improvement, though I'm not insistent. Certain other offhand comments throughout might be better as footnotes as well, though that's a question of style I suppose.
  • I think it's worth leaving the example in-text. -- Khazar2 (talk) 00:04, 19 September 2013 (UTC)
  • 1a In the "When a person is arrested and taken into police custody" sentence, I think i.e. would be more appropriate than e.g.
  • I could go either way on that, but fair enough. -- Khazar2 (talk) 00:04, 19 September 2013 (UTC)
  • 1a I would prefer "so long as the arresting officer has probable cause" instead of "if the arresting officer has probable cause" for subtle reasons. ("If" does not require a comma before it, while "so long as" does. The sentence is complex enough that a comma is useful. Also, I feel that "so long as" describes the ruling better.)
  •  Done -- Khazar2 (talk) 00:04, 19 September 2013 (UTC)
  • 1a I think the second sentence of "Exceptions" could be reworded for clarity. It has gerund phrases, passive voice, and several subordinate clauses before the subject. Lord knows I love gerund phrases, but perhaps something like this would be clearer: "...the Court ruled an officer has made an illegal seizure when he stops an automobile and detains the driver in order to check his driver's license and the registration of the automobile, unless the officer has articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law." (But it could probably be worded even better than that.)
  •  Done -- Khazar2 (talk) 00:04, 19 September 2013 (UTC)
  • 1a The second paragraph of "Exceptions" is also clunky. There are essentially three "when" clauses, but there is only a comma before the third. Technically it would be correct to add a comma, as in "Where society's need is great, no other effective means of meeting the need is available, and intrusion on people's privacy is minimal," but this also feels clunky. Perhaps "Where society's need is great, intrusion on people's privacy is minimal, and no other effective means of meeting the need is available,"? One might prefer "Where society's need is great, where no other effective means of meeting the need is available, and where intrusion on people's privacy is minimal," but that's starting to sound like a product of a state legislature. Perhaps "Where society's need is great and no other effective means of meeting the need is available, certain discretionless checkpoints toward that end may briefly detain motorists, so long as intrusion on people's privacy is minimal." Or perhaps I'm overthinking this one.
  • Added the comma. -- Khazar2 (talk) 00:04, 19 September 2013 (UTC)
    • Rereading it in context, it doesn't sound as confusing as I'd thought it would. – Quadell (talk) 12:55, 19 September 2013 (UTC)
  • 1b Sometimes you use spaces en dashes, and sometimes you use em dashes. WP:MOSDASH instructs us to "Use one or the other consistently in an article."
  • I have no objection to your cleaning that up if you're interested, but since it's not a GA criterion, I'm going to pass on it. -- Khazar2 (talk) 00:04, 19 September 2013 (UTC)
    •  Done – Quadell (talk) 13:43, 19 September 2013 (UTC)
  • With the few 1a issues I have brought up, the prose really is excellent throughout much of the article. It's livelier and more engaging than most legal articles. (The paragraph on Terry stops, e.g., is far better than the prose at Terry stop.) So, well done. As for the "Exceptions..." supersection, it can be very difficult to summarize precise decisions in a way non-lawyers can understand, while not losing accuracy. I'm rather nit-picky in the points below, but this really has the opportunity to explain this information clearly to a casual reader, so please don't be discouraged.
  • Okay, thanks. -- Khazar2 (talk) 00:04, 19 September 2013 (UTC)
  • 1b The half sentence that makes up "Exceptions to the warrant requirement" is less than ideal. I suppose you could leave it out, since it really only reiterates the section title. Or it may be better to treat it as a mini-lead-section, having perhaps two complete sentences that sums up the need for exceptions in general and the categories of exception given below.
  •  Done -- Khazar2 (talk) 00:04, 19 September 2013 (UTC)
  • 1a The sentence "However, they may not extend the search to the vehicle's passengers without probable cause to search those passengers or consent from the passenger(s) to search their persons or effects" could be improved. Would this work? "However, they may not search any passenger of the vehicle unless they have probable cause to search that specific passenger or consent from that passenger."
  • Tweaked this, though I think I prefer something closer to the original. -- Khazar2 (talk) 00:04, 19 September 2013 (UTC)
    • That doesn't quite do it. Let me explain: my only three concerns are that I want it to be accurate, comprehensible, and grammatically correct. Any wording that achieves these is fine. In this case, the sentence still refers to "passengers" (assuming plural) twice, but uses "passenger(s)" (allowing the possibility of a single passenger) once. I'd like to see the (s)-construct used only when absolutely necessary, so that's why I suggested a version that uses the "any" singular throughout. You can use whatever sentence structure seems best to you, just so long as you don't alternate whether we could be discussing a single passenger or not. See what I mean? – Quadell (talk) 13:43, 19 September 2013 (UTC)
  • Good point. (s) construct removed. -- Khazar2 (talk) 14:12, 19 September 2013 (UTC)
  • 1a The final paragraph/sentence of "Motor vehicle" is unclear to me. It's a long and winding sentence, with many provisos, and I'd like it to be as clear as possible. Can it be broken up without losing meaning? The second point is relatively straightforward (and probably the primary one used), but the first point conjures up several questions: Is an unsecured arrest a thing? What's "the passenger compartment of the vehicle"? (Does the driver's seat count?) Could an officer decline to secure and arrestee in order to search a vehicle? And does this requirement contradict the previous assertion that "[w]ith probable cause, police officers may search any area in the vehicle"? Maybe I'm just dense...
  • I don't think this is a sentence that would be clear if it were broken up, but maybe you could propose an alternative? "Passenger compartment" is the court's phrase here per the source, and I'm reluctant to rewrite it. -- Khazar2 (talk) 00:04, 19 September 2013 (UTC)
    • Hmm. Well, court decisions are often difficult for a layman to understand, and that's not the article's fault. I suppose it would be too much of a sideline to define all the terms and conditions of this one case. But I'm still unclear (both as a reader and as a citizen): can a police officer search any part of a vehicle with only probable cause of criminal activity? The previous paragraph says yes, but this one seems to say an officer would need a warrant (after an arrest) except in special circumstances. It seems like an important contradiction to me. Am I missing something? – Quadell (talk) 13:43, 19 September 2013 (UTC)
  • My assumption is that the passenger compartment is the vehicle's whole interior, excluding the trunk and engine compartment. This is how our article Trunk (automobile) uses it, for example. But automotive terms are definitely not my strong point!
As for when an officer can search, she can search a vehicle if a) she believes evidence of a crime is likely to be present or b) the suspect is not yet secured. My understanding is that this second exception gives officers latitude to look for weapons or other objects that might create an officer safety issue before the suspect is secure. Anyway, I've tweaked the language in the first paragraph to more obviously parallel the second, let me know if it helps. -- Khazar2 (talk) 14:33, 19 September 2013 (UTC)
Ah, I see! Excellent, thanks. – Quadell (talk) 16:25, 19 September 2013 (UTC)
  • 1a The words between em dashes in the first sentence of "Searches incident to a lawful arrest" are not clear. Perhaps the entire sentence and the next could be reworded this way? "A common law rule from Great Britain permits searches incident to an arrest without a warrant. This rule has been applied in American law, and has a lengthy common law history." What do you think?
  •  Done -- Khazar2 (talk) 00:04, 19 September 2013 (UTC)
  • 1a When you say that the court in Rabinowitz "reversed its previous ruling", it sounds as if you're referring to Trupiano. It's also unclear whether the previous ruling held "that the officers' opportunity to obtain a warrant was not germane to the reasonableness of a search incident to an arrest", or whether the reversal held that. I don't think it's important that a previous ruling was reversed, and only adds confusion to mention it, so it may be better to say simply that the court "held" that... whatever the court held. Or, if the previous (overruled) ruling in fact held that the opportunity was not germane, then a rewording could make that clearer.
  • Added a word to clarify this. -- Khazar2 (talk) 00:04, 19 September 2013 (UTC)
    • It still feels to me like the text is saying that Rabinowitz reversed Trupiano. But another editor I asked didn't get that impression, so I guess it's not an important-enough problem to insist on. – Quadell (talk) 13:43, 19 September 2013 (UTC)
  • No, your reading was correct. I've added language to clarify further; sorry for the confusion. -- Khazar2 (talk) 14:00, 19 September 2013 (UTC)
  • 1a It seems to me that it would be better to say "The decision suggests" such-and-such and "does not define" so-and-so, rather than using the past tense, since the decision still exists.
  • It appeared to me that the sources I consulted tended to use the past tense in describing decisions; I'd prefer to stay with that. -- Khazar2 (talk) 00:04, 19 September 2013 (UTC)
    • Yeah, I guess I was going with WP:MOSFICTION, which court rulings certainly are not. Now that I look into it, legal texts do seem to say thing like "this decision held" or "overturned" or "struck down". – Quadell (talk) 13:43, 19 September 2013 (UTC)
  • 2b I have no doubt that the final sentence of "Other exceptions" is true, but it needs a cite.
  • I'll delete it if you want, but why do you say it needs a citation? It doesn't seem like "direct quotations, statistics, published opinion, counter-intuitive or controversial statements" to me. -- Khazar2 (talk) 00:04, 19 September 2013 (UTC)
    • Since it has been challenged in court several times, I think that makes it "controversial" enough to need a citation in a GA. How about this? – Quadell (talk) 13:43, 19 September 2013 (UTC)
  • Fair enough. Sourced that half, deleted the other half of the sentence (about parole). -- Khazar2 (talk) 14:08, 19 September 2013 (UTC)
  • 2b The last paragraph of "Exclusionary rule" discusses the controversy, and it is well written. There are two sources given at the end (before discussion of the "Victim's Bill of Rights"), and the first, Levy, does fairly describe the controversy. The second, Greenhouse, is an opinion piece on the Miranda rule that only mentions the exclusionary rule in that secondary context. It does call the exclusionary rule "highly controversial", but doesn't offer any arguments. I don't think the citation is needed to supports anything in the paragraph. On the other hand, it might be useful to provide separate cites for each of the three opinions given ("that the rule hampers...", "that the rule has not been successful...", and what "proponents argue"). I think that would be ideal, but barring that, the Levy is the best source for all three arguments.
  • I usually like to have more than one source before tagging something as controversial, but I don't mind deleting this (and have done so). -- Khazar2 (talk) 00:50, 19 September 2013 (UTC)
  • 2b The last sentence of the first paragraph of "Limitations" is not cited. It also uses the word "should", and seems almost as if it is the writer's opinion. Perhaps "should" should be changed to "can then", but a cite is still needed.
  • Again, I'm not sure you're reading criterion 2b in the same way I am, but I'll delete. -- Khazar2 (talk) 00:50, 19 September 2013 (UTC)
  • 1b I don't think a list format is warranted at the end of "Limitations". I don't think the information should be omitted, and I know it would be tedious to list each case and the outcome individually, but I think a happy medium could be found. It would work better to put the information in a paragraph with three or four sentences restating the information in the list, with the names of the cases only in the footnotes.
  • What other information do you think needs to be added here? It seems way clearer to me to just list these. WP:EMBED does allow lists that would simply be a long sequence of items in a single sentence, and that's what would happen here. -- Khazar2 (talk) 00:50, 19 September 2013 (UTC)
    • I'm not 100% sure, so I'll ask a reviewer I know for an outside opinion. – Quadell (talk) 13:43, 19 September 2013 (UTC)
      • Upon reflection, it's debatable whether a list or paragraph would be preferable. But it's clear that either version could pass the GA criteria. – Quadell (talk) 16:25, 19 September 2013 (UTC)
  • 2a Notes b, c, and d instruct the reader to see specific case law for further information. Certain references (24, 31, 36, 39, etc., and perhaps 4 as well) seem to serve the same purpose. Why are some of these notes and others references?
  •  Done Standardized. -- Khazar2 (talk) 14:36, 19 September 2013 (UTC)
  • 2a Related to the above, some references refer to court cases like "414 U.S. 338 (1974)" (citation 119), while others spell out the name like "see Virginia v. Moore, 553 U.S. 164 (2008)" (citation 53), and still others refer to previous references like "Carroll at 162" (citation 71). All case citations should be formatted in the same way. Since multiple citations sometimes reference different pages of the same case, you might consider listing cases in something like a "bibliography" section (or subsection of the "bibliography" section), with the citations mentioning them by name and page. Or you could repeat the full citation at every reference; anything is fine so long as it's consistent.
  • I understand why this would be more desirable, but this is explicitly not a GA criterion per WP:GACN. In practical terms, it would be a fair amount of work to clean up while making no practical difference to the reader's comprehension. I've got no objection to your straightening this out if it bothers you, but I'm going to pass on doing it myself if that's okay. -- Khazar2 (talk) 00:50, 19 September 2013 (UTC)
    • I actually had not read WP:GACN, and I'm rather surprised by some of the information there. It's going to change a few things about the way I handle GA noms. Practically speaking, a GAN is a great opportunity to identify and recommend improvements, even when they are not strictly necessary for GA status... but you're right, this is explicitly not necessary. – Quadell (talk) 16:25, 19 September 2013 (UTC)
  • 2a Further, some "Encyclopedia of the American Constitution" references specify "via HighBeam Research (subscription required)", while others do not.
  • Per above. -- Khazar2 (talk) 00:50, 19 September 2013 (UTC) Eh, this only took a second. Done. -- Khazar2 (talk) 06:06, 19 September 2013 (UTC)
  • 2a You don't seem to have any IBSNs for the books referenced.
  • 2a You have a couple of journal citations in the bibliography (Davies and perhaps Crisera), while other journal citations are directly in the references (Roots, in cite 14, or Freiwald, in cite 37). Books are mostly in the bibliography, but others (Schroeder's The Lure and perhaps the Intellectual Freedom Manual) are directly in the citations. These should all be consistent.
  • 1a Another user has added information to the "Search" section, and then readded the same content (with only one word changed) in the "Seizure" section. I'm not sure that the summary he gives is accurate. Could you check it? Regardless, the information should probably not be restated the way it is.
    • 5? That particular content has been reverted, but there seems to be a lot of editing which may or may not amount to an edit war. I hope it can be stabilized at a neutral and well-supported version.
      • Issue resolved. – Quadell (talk) 12:39, 18 September 2013 (UTC)

This article is very good, and once these issues are resolved I look forward to elevating it. – Quadell (talk) 18:10, 16 September 2013 (UTC)

  • Thanks again for reviewing! I believe I've addressed most of your points, but I'm a little confused reading through the list of bullet points above what you see as falling under the GA criteria and what you don't. Let me know what you think still needs done and I'll try to address it in the coming weeks. Cheers, Khazar2 (talk) 00:50, 19 September 2013 (UTC)
    • For the last several points, those regarding lists and references, I'll look around (and ask around) and get back with you later today. Besides those, there is one source issue and one extremely minor prose issue remaining, as well as one case where either the text is unclear or I am unclear. – Quadell (talk) 13:43, 19 September 2013 (UTC)
      • All are now resolved. – Quadell (talk) 16:25, 19 September 2013 (UTC)

GA review – see WP:WIAGA for criteria

  1. Is it reasonably well written?
    A. Prose is clear and concise, without copyvios, or spelling and grammar errors:
    All issues resolved.
    B. MoS compliance for lead, layout, words to watch, fiction, and lists:
    All issues resolved.
  2. Is it factually accurate and verifiable?
    A. Has an appropriate reference section:
    All issues resolved.
    B. Citation to reliable sources where necessary:
    All issues resolved.
    C. No original research:
    Not a problem.
  3. Is it broad in its coverage?
    A. Major aspects:
    Very thorough.
    B. Focused:
    All issues resolved.
  4. Is it neutral?
    Fair representation without bias:
    No POV problems.
  5. Is it stable?
    No edit wars, etc:
    It seems stable.
  6. Does it contain images to illustrate the topic?
    A. Images are tagged with their copyright status, and valid fair use rationales are provided for non-free content:
    Images are great.
    B. Images are provided if possible and are relevant to the topic, and have suitable captions:
    All issues fixed.
  7. Overall:
    Pass or Fail:
    This article passes all GA criteria, and goes beyond the criteria in most cases. It is engaging, consistent, and highly informative. Reference standardization is a clear opportunity for future improvement, and will be necessary if this article is nominated for featured status, which I would be delighted to see. It's been rewarding and very informative reviewing this; thanks, and congratulations. – Quadell (talk) 16:25, 19 September 2013 (UTC)
  1. ^ United States v. Gooch, 6 F.3d 673 (9th Cir. 1993)
  2. ^ LaDuke v. Nelson, 762 F.2d 1318 (9th Cir. 1985)
  3. ^ LaDuke v. Castillo, 455 F.Supp. (E.D. Wash. 1978)
  4. ^ United States v. Hatch, 931 F.2d 1478 (11th Cir.), cert. denied, 502 U.S. 883 (1991)
  5. ^ 407 U.S. 297 (1972)
  6. ^ a b Vladeck, Steve (23 May 2013). "More on Clapper and the Foreign Intelligence Surveillance Exception". Lawfare Blog - Hard National Security Choices. Retrieved 17 July 2013.
  7. ^ Selya, Bruce M. (August 22, 2008). "United States Foreign Intelligence Surveillance Court of Review Case No. 08-01 In Re Directives [redacted text] Pursuant to Section 105B of the Foreign Intelligence Surveillance Act" (PDF). U.S. Foreign Intelligence Surveillance Court of Review (via the Federation of American Scientists). Retrieved July 15, 2013.
  8. ^ a b Vladeck, Steve (22 May 2013). "Why Clapper Matters: The Future of Programmatic Surveillance". Lawfare Blog - Hard National Security Choices. Retrieved 17 July 2013.
  9. ^ "U.S. Spy Bill Protecting Telecoms Heads To President Bush". Retrieved July 14, 2008.
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