Jan 042012
 January 4, 2012  Court, Surveillance, U.S.

One of my favorite deep thinkers, Yogi Berra, once said, “If you don’t know where you’re going, you may wind up someplace else.”

With that in mind, I recommend reading Orin Kerr’s commentary on the history of civil damages for violations of search and seizure protections. If, like me, you are not a lawyer nor constitutional scholar, you may be surprised to learn that back in the day, if evidence was obtained illegally, the remedy was not to exclude it but to admit it and apply civil remedies on the violators. Orin introduces the question:

Originalists are often opposed to the exclusionary rule, the rule that evidence obtained in violation of the Fourth Amendment cannot be used in court. The exclusionary rule was made up by 19th and 20th century judges, the argument runs. At common law, the remedies for violations of search and seizure law were civil damages against the officers, not exclusion of evidence. Because the Fourth Amendment is widely recognized to have adopted and endorsed those cases, such as Entick v. Carrington (1765), the exclusionary rule must be abolished. It simply is not part of the original Fourth Amendment remedies observed in cases like Entick.

I’m not entirely sure that’s correct, but let’s assume it is. Here’s my question: If you’re an originalist, does that mean that you think the Constitution guarantees the civil remedies that existed at common law for search and seizure violations? Put another way, can modern judges change the civil remedies that were available at common law for constitutional violations? Or is there a civil remedies scheme that must be available under an originalist understanding of the Fourth Amendment?

Read more on The Volokh Conspiracy.

Of course, there are those of us who might want both the exclusionary rule and civil penalties for egregious breaches of our rights to be free from unreasonable search and seizure. Many of us –  ignorant of the full history of court decisions on the issue –  interpret the language of the Fourth Amendment to mean that any search or seizure conducted without a warrant is inherently unreasonable and that the courts have meandered off the reservation by permitting what we consider erosions of what we would maintain are Fourth Amendment protections.  We have urged Congress to update ECPA to recognize that government requests for our information should require a probable cause standard or judicial oversight.  But as Orin points out, if you’re an originalist, then do you have to argue that government “transgressions” should not result in exclusion of any evidence improperly obtained and that a civil remedy scheme must be available?  His commentary is certainly thought-provoking.

We’ve traveled a long road since the Fourth Amendment became one of our core protections. As the Supreme Court grapples with Jones and the use of warrantless GPS surveillance and considers whether to take on the question of whether a drug-sniffing dog on your porch is a search under the Fourth Amendment, we might all be wise to ask, “Do we know where we’re going?”

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