In direct contradiction to a January 2012 Supreme Court ruling in United States v. Jones (2011), where warrantless electronic surveillance in the form of global positioning system (GPS) technology was correctly deemed a direct violation of the 4th Amendment’s Warrants Clause, a United States District Judge in Wisconsin ruled last week that Drug Enforcement Administration agents could legally enter private property without a warrant, ignore posted “No Trespassing” signs and a locked gate, and install digital cameras in the “hopes of uncovering evidence that… marijuana plants were being grown.” Apparently, modern interpretations allow that constitutional protections of the individual can be ignored in deference to the government’s “hopes.”
Judge Griesbach directed his reasoning to a ruling reached in Oliver v. United States (1984), in which the high court asserted that “the government’s intrusion upon open fields is not one of those ‘unreasonable searches’ proscribed by the [4th] Amendment” (emphasis added). Never mind that this is clearly another example of State-centric semantic reasoning to support obvious violations of constitutional intent (does anyone really think that government has a legitimate right to whimsically search people’s property for any evidence of wrongdoing simply because the land is not confined within their living room?), gated and locked access to posted land can hardly be reasonably characterized as an “open field.” It would certainly be nice to see the judiciary, for just once, give greater weight to considerations of constitutional right and wrong than blindly granting deference to previous erroneous rulings for jurisprudence’s sake.
The 4th Amendment states:
The right of the people to BE SECURE IN THEIR PERSONS, HOUSES, PAPERS, AND EFFECTS, against UNREASONABLE SEARCHES AND SEIZURES, shall not be violated, and no Warrants shall issue, but upon PROBABLE CAUSE, supported by Oath or affirmation, and PARTICULARLY DESCRIBING THE PLACE TO BE SEARCHED, AND THE PERSONS OR THINGS TO BE SEIZED (emphasis added).
Clearly, the amendment does not explicitly identify large plots of property as being protected from government intrusion. But neither does it identify e-mail, for example, which any reasonable person should logically conclude is protected pursuant to the Papers Clause. Nor does it identify an automobile, though such a possession surely falls within the Effects Clause via both legal precedent and plain old common sense (if such a thing actually exists). A plot of land – particularly if it is posted and gated – similarly fits within the purpose of this amendment’s intent and only someone with a vested interest in diminishing individual rights and freedom from government intrusion would deliberately rationalize otherwise. Additionally, how exactly can the warrantless emplacement of cameras in an “open field” satisfy the explicit requirement to “particularly describe[e] the place to be searched, and the persons or things to be seized?” Obviously it cannot, which in my mind poses the greatest challenge to the wide-sweeping and indiscriminate nature of modern electronic surveillance technologies.
As I have stated ad nauseam elsewhere, the entire purpose behind the 4th Amendment’s guarantees are to prevent government from surveilling and/or searching its citizens without first establishing a well-reasoned and defendable reason (via the warrant application process). To focus on linguistic technicalities, as the judge in this case did by effectively suggesting that one’s household effects are somehow different in spirit from their exterior ones, is to completely (perhaps purposefully) miss the point of the amendment’s very reason for being. If individual freedom is to mean anything more than a meaningless slogan or punch line, the executive government simply cannot investigate its citizenry without demonstrating probable and just cause to a disinterested judiciary prior to gathering specific and relevant evidence of the suspected wrongdoing in question. There is no room for semantic distinctions in this reasoning lest we are all willing to tolerate periodic sweeps through our personal effects and property of a nonspecific nature, just to make sure we are behaving like good little subjects (see writs of assistance for further historical context).
There can be little doubt that this case will eventually make its way to the halls of the United States Supreme Court. Given that the high court has already invalidated warrantless GPS and thermal imaging surveillance (Kyllo v. United States ) pursuant to the 4th Amendment in previous rulings, the court has little choice – and rightly so – to overturn this absurd abuse of government authority and blatant disregard for constitutional purpose. But then again, where courts fail to ignore judicial precedent in favor of constitutional appropriateness they sometimes do so where individual rights stand to be eroded in favor of Big Government statism.