visual representation of 4th amendment

Why the Fourth Amendment Should Apply to Visual Body-Cavity Searches

In 2011, two hundred female inmates in an Illinois prison were marched to a beauty salon and a bathroom off of a gym. In full view of male and female cadets, correctional officers, and civilians, as guards screamed insults and derogatory statements, they were ordered to strip naked and bend over, spread their buttocks and vaginas, and cough. This is known as a “visual body-cavity search,” since the guards did not touch the prisoners. According to prison officials, the search was a cadet training exercise. After a prisoner claimed Fourth Amendment and Eighth Amendment violations, the case, Henry v. Hulett , eventually came before the Seventh Circuit Court of Appeals. In 2019, the Seventh Circuit’s holding rejected the argument that Fourth Amendment protections against unreasonable searches applied, holding that when a prisoner conducts such a search themselves, untouched by a guard, the Fourth Amendment is not implicated.

When an individual is incarcerated, they lose certain constitutional rights, especially when the exercise of those rights impedes a punitive objective. Prisoners only retain rights that are not fundamentally inconsistent with imprisonment itself or incompatible with the objectives of incarceration. In Hudson v. Palmer , the Supreme Court described how the Fourth Amendment pertains to incarcerated prisoners. It only applies to prisoners when the prisoners have a legitimate expectation of privacy in an area. In examining whether prison officials can randomly search through inmates’ cells, the Court held that the inmates’ right to privacy within their cells could not be reconciled with the needs and objectives of penal institutions, and thus they had no legitimate expectation of privacy within their prison cells. Determining whether an expectation of privacy is legitimate requires balancing the interest of society in the security of its penal institutions and the interest of the prisoner in privacy in the area in question.

In Henry v. Hulett , the Seventh Circuit stated its rule that prisoners only retain a legitimate expectation of privacy as to the insides of their bodies, not the outsides. When a physical intrusion into a prisoner’s body, such as a body-cavity search or involuntary catheterization, is conducted by a guard, the search must be reasonable under the Fourth Amendment. However, if the guard does not touch the prisoner during a body-cavity search, with the prisoner performing the search on their own bodies, then the Fourth Amendment is not applicable. The Seventh Circuit did not consider the fact that the prisoners were ordered to conduct the search to be relevant.

Why the Seventh Circuit’s Rule is Flawed

Scrutinizing the Seventh Circuit’s holding under the analysis of the Supreme Court in Hudson exposes the faulty reasoning behind the rule set forth in Henry . The Supreme Court denied the existence of a prisoner’s expectation of privacy inside their cells because it would be impossible for prisons to fulfill legitimate penal objectives if that privacy right was recognized. Prisons need to restrict the flow of weapons, drugs, and other contraband to maintain safety, and prisons could not do so without being able to randomly search inmates’ cells. As applied to the Seventh Circuit’s rule, this means that, when balancing the prisoner’s privacy interests in their bodies against the penal institution’s security interests, the circuit court believes that recognizing a prisoner’s right to bodily privacy would not impede the prisons from achieving their important objectives. However, those penal objectives are only unimpeded when a guard performs the intrusive search on a prisoner’s body. When a prisoner is ordered to conduct the same search on themselves, then the prisoner’s privacy interests are suddenly impeding the prison from fulfilling its objectives. Therefore, according to the Seventh Circuit, some prison objective, compelling enough to deprive a prisoner of their constitutional rights, is impermissibly impeded only when a prisoner conducts an intrusive search on their body, but not when a guard carries out the exact same search. The Seventh Circuit has offered no explanation as to what that objective is, or why the distinction holds so much weight. This discrepancy is meaningless, and visual body-cavity searches of this sort should meet the reasonableness requirements of the Fourth Amendment.

Visual Enhancement and the Fourth Amendment

What if an object only comes into plain view after an officer shines a flashlight or spotlight into an area, or looks through binoculars? Does this use of sense-enhancing devices make a difference in the Fourth Amendment calculation of reasonableness?

One of the best-known exceptions to the Fourth Amendment's warrant requirement is the "plain view" doctrine. When law enforcement officers are in a place where they have a right to be and they see something in plain view that is immediately apparent as contraband or the fruits, instrumentalities, or evidence of a crime, they may seize the item (assuming no illegal entry is required to get access to it). (Harris v. U.S.)

But what if the object only comes into plain view after an officer shines a flashlight or spotlight into an area, or looks through binoculars or a telescope for a close-up view? Does this use of sense-enhancing devices make a difference in the Fourth Amendment calculation of reasonableness? The U.S. Supreme Court has addressed this issue at least four times.

U.S. V. Lee

Back in the days of prohibition (a phrase that has historically referred to the prohibition of alcohol , but which may someday refer to narcotics , given current legalization trends), Coast Guard officers on harbor patrol followed suspected smugglers who were in a motorboat outside the port of Boston. Before boarding the vessel, officers shined a searchlight on the decks, where they could then see in plain view 71 cases of grain alcohol. James Lee, the registered owner of the boat and one of three men on board at the time, was charged with federal violations, and he moved to suppress the evidence on grounds of unlawful search and seizure.

The Supreme Court ruled the evidence admissible as having been lawfully seized. As to the defense argument that the use of a searchlight negated application of the plain view doctrine, the court said this: "The testimony of the boatswain [officer] shows that he used a searchlight [to illuminate the area where the illegal cargo was stacked]. Such use of a searchlight is comparable to the use of a marine glass [telescope] or a field glass [binoculars]. It is not prohibited by the Constitution."

On Lee V. U.S.

On Lee sold opium from his laundry in Hoboken. Drug agents used a variety of surveillance and sense-enhancing devices to get evidence of his drug dealing. In rejecting On Lee's arguments that his Fourth Amendment rights were violated by this enhancement, the Supreme Court said the following:

"The use of field glasses or the telescope to magnify the object of a witness's vision is not a forbidden search or seizure, even if they focus without his knowledge or consent upon what one supposes to be private indiscretions. We find no violation of the Fourth Amendment here."

This language means that officers may use binoculars or telescopes to look into windows from a distant observation point in order to see whatever the criminal has carelessly exposed to plain view in the mistaken belief that his activities cannot be seen by anyone. As the court said in another case, "The mere fact that an individual has taken measures to restrict some views of his activities does not preclude an officer's observations from a public vantage point where he has a right to be and which renders the activities clearly visible. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." (California v. Ciraolo)

Texas V. Brown

Ft. Worth Police were running a driver's license checkpoint one night when a car driven by Clifford Brown was stopped. While the officer was waiting for Brown to find his license, he shined his flashlight into the car and saw a balloon of heroin and other drug-related items. Charged with possession of heroin, Brown sought suppression of the contraband that came into the officer's view through use of the flashlight. The Supreme Court, citing to 15 decisions from various state and federal courts rejecting the argument that illumination invalidates plain view, said this:

"It is beyond dispute that the officer's action in shining his flashlight to illuminate the interior of Brown's car trenched upon no right secured to the latter by the Fourth Amendment. Numerous other courts have agreed that the use of artificial means to illuminate a darkened area simply does not constitute a search, and thus triggers no Fourth Amendment protection."

U.S. v. Dunn

Inside a barn on a 200-acre Texas ranch, Ronald Dale Dunn manufactured large quantities of phenalacetone and methamphetamine. DEA agents tracking his purchases of precursor chemicals and cooking equipment went onto the property one night to try to get a look inside the barn, in anticipation of getting a search warrant. One agent shined a flashlight into an opening in the barn door and saw what appeared to be a drug factory. This observation was included in an affidavit for a search warrant, under which agents returned to the barn and seized the evidence and instrumentalities of illegal drug manufacturing, as well as several bags of amphetamines.

Dunn was prosecuted in federal court on several charges. The trial court denied Dunn's motion to suppress the evidence seized under the warrant, but the U.S. Court of Appeals reversed. The appeals court held that the barn was within the protected "curtilage" of the ranch house and had been unlawfully entered by the agents, and also ruled that by peering into the barn the agents had violated Dunn's expectation of privacy. The government appealed, and the Supreme Court reversed.

The "curtilage" of a residence is the area surrounding the home where household and family activities take place. It typically includes the yard and patio, the garage and nearby out-buildings. The curtilage is entitled to the same degree of Fourth Amendment protection as the home itself, so the same rules on entry and search apply. Although it isn't always easy to determine how far the curtilage extends, the Supreme Court listed four factors that are to be considered.

1. Proximity to the house

2. Area enclosed by a residential fence or wall

3. Nature of the use made of the structure or area in question

4. Steps taken by residents to protect privacy

As for Dunn's barn, the Supreme Court found that it was not a part of the curtilage. It was 60 yards from the house; it was not within the fence surrounding the house; the barn was used for commercial purposes; and Dunn had taken no steps to prevent passersby from looking inside.

Next, the Supreme Court cited to its earlier rulings in Ciraolo, Lee , and Brown to hold that the agent's use of his flashlight to look through the opening in the barn door and to see what was then in plain view inside was not an unlawful search. Said the court, "The officer's use of the beam of a flashlight, directed through the essentially open front door of the barn, did not transform their observations into an unreasonable search within the meaning of the Fourth Amendment."

Check Local Rules

A few states base greater search and seizure restrictions on state constitutions. Check with local advisors to see that your jurisdiction applies the rulings of the U.S. Supreme Court to the effect that lights and other visual aids are allowable to facilitate plain view observations.

Devallis Rutledge is a former police officer and veteran prosecutor who currently serves as special counsel to the Los Angeles County district attorney. He is the author of 12 books, including "Investigative Constitutional Law."

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Body Cameras and the Mosaic Theory of the Fourth Amendment

Many law enforcement officers, including those in five of North Carolina’s six largest cities, are or soon will be wearing body cameras. The prevailing view is that the use of such cameras doesn’t constitute a Fourth Amendment search because the cameras record only what an officer is already able to see. This post considers whether the increasing adoption of body cameras and other data-collection technologies could eventually result in body camera recordings being considered searches under the so-called mosaic theory of the Fourth Amendment.

The prevailing view. There aren’t many cases about body cameras specifically, but law enforcement officers have been using cameras to record still images and videos for decades. Courts generally have ruled that when an officer uses a camera to record something that is already visible to the officer, the recording does not interfere with a privacy or a possessory interest, and so does not implicate the Fourth Amendment.

Long list of cases adopting the prevailing view. The following cases illustrate that the prevailing view has been adopted by state and federal courts across the country and over a long period of time. United States v. Mancari , 463 F.3d 590 (7 th Cir. 2006) (“‘[T]he recording of visual images of a scene by means of photography does not amount to a seizure because it does not ‘meaningfully interfere’ with any possessory interest.’ . . . The government was therefore entitled to make a photographic record of the discovery of the [evidence] in a place that the police were lawfully entitled to observe.”); Bills v. Aseltine , 958 F.2d 697 (6 th Cir. 1992) (“[T]he recording of visual images of a scene by means of photography does not amount to a seizure because it does not ‘meaningfully interfere’ with any possessory interest. Thus, under the Supreme Court’s reasoning, photographs taken by the police officers in this case would not constitute a seizure. Because the police officers in this case were properly on the Bills’ premises, they could record by photography scenes presented to their plain view.”); United States v. Taketa , 923 F.2d 665 (9 th Cir. 1991) (“Video surveillance does not in itself violate a reasonable expectation of privacy. Videotaping of suspects in public places, such as banks, does not violate the [F]ourth [A]mendment; the police may record what they normally may view with the naked eye.”); United States v. Espinoza , 641 F.2d 153 (4 th Cir. 1981) (“The search warrant having been a valid one, it follows that Agent Dauwalder had the right to be in the positions which afforded him a plain view of the scenes photographed at J-E’s warehouse. He articulated in his testimony, as required by Warden v. Hayden . . . the nexus between those scenes photographed as mere evidence and the criminal activity under investigation. Agent Dauwalder did not exceed the scope of the warrant by making the photographs of what he saw in plain view and to that extent ‘seizing’ those views themselves as evidence.”); Lord v. State , 676 S.E.2d 404 (Ga. Ct. App. 2009) (“[Officers] photographed only those items that were visible [in plain view] during the scope of the initial welfare search. Consequently, the photographs were legally seized and, thus, admissible.”); State v. Spears , 560 So.2d 1145 (Ala. Ct. Crim. App. 1989) (generally adopting the view that officers may photograph anything in plain view, and collecting cases); State v. Eacret , 595 P.2d 490 (Or. Ct. App. 1979) (cited in State v. Jolley , 312 N.C. 296 (1984)) (“Being lawfully on the premises, the officers were entitled to photograph and seize evidence in plain view.”).

The mosaic theory. The mosaic theory of the Fourth Amendment is the idea that an accumulation of actions by law enforcement, none of which individually intrude upon a reasonable expectation of privacy, may together constitute a Fourth Amendment search. This theory was eloquently articulated in United States v. Maynard , 615 F.3d 544 (D.C. Cir. 2010), aff’d sub nom. United States v. Jones , 565 U.S. __, 132 S.Ct. 945 (2012), a case involving the warrantless installation of a GPS tracking device on a drug dealer’s vehicle. Officers monitored the device for 28 days and obtained incriminating evidence from it. The defendant in the case argued that the installation and monitoring amounted to a search under the Fourth Amendment. The government contended that it did not, because the device only monitored the defendant’s movement on the public roads where there is no reasonable expectation of privacy. A panel of the D.C. Circuit ruled unanimously for the defendant. The court acknowledged that short-term surveillance of a suspect’s travels on public roads is not a search, but concluded that protracted 24-hour-per-day tracking implicates privacy expectations in a way that short-term surveillance does not:

[T]he whole of one’s movements over the course of a month . . . reveals more — sometimes a great deal more — than does the sum of its parts. . . . The difference is not one of degree but of kind, for no single journey reveals the habits and patterns that mark the distinction between a day in the life and a way of life . . . . Prolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble. These types of information can each reveal more about a person than does any individual trip viewed in isolation. Repeated visits to a church, a gym, a bar, or a bookie tell a story not told by any single visit, as does one‘s not visiting any of these places over the course of a month. The sequence of a person‘s movements can reveal still more; a single trip to a gynecologist‘s office tells little about a woman, but that trip followed a few weeks later by a visit to a baby supply store tells a different story. A person who knows all of another‘s travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups — and not just one such fact about a person, but all such facts.

The case subsequently reached the Supreme Court. That Court resolved the case by finding that the mere installation of the device was a search, because it involved a trespass on private property – the vehicle – to obtain information. The majority therefore did not rule on whether the monitoring of the device compromised a reasonable expectation of privacy, and so did not expressly adopt or reject the mosaic theory. However, five Justices in various opinions seemed to signal an endorsement of the mosaic theory.

The mosaic theory and cameras. Under certain circumstances, officers’ use of cameras may implicate the mosaic theory. The easiest example is a drone-mounted camera that follows a suspect for a protracted period of time, recording the suspect’s activity. The use of such a device would have a greater impact on the suspect’s privacy than did the GPS tracking in Maynard/Jones and so would likely be viewed as a search under the mosaic theory.

Some courts have ruled that the mosaic theory may apply to stationary cameras, such as when a camera is directed at a suspect’s residence for a long period of time. For example, in a federal case that arose in the state of Washington, officers installed a camera on a utility pole 100 yards from the defendant’s rural home. They left it there, recording the defendant’s front yard, for six weeks. The footage showed the defendant firing guns which, as an illegal alien, federal law barred him from possessing. He was charged with a federal gun offense. He moved to suppress the footage, arguing that the camera invaded his reasonable expectation of privacy and so required a warrant. The Government contended that his front yard was visible to any passer-by and so was not subject to a reasonable expectation of privacy. The trial judge ruled for the defendant, stating that “[t]he American people have a reasonable expectation of privacy in the activities occurring in and around the front yard of their homes particularly where the home is located in a very rural, isolated setting. This reasonable expectation of privacy prohibits the warrantless, continuous, and covert recording of [the defendant’s] front yard for six weeks,” and declaring that the officers’ use of the camera was suggestive of the “Orwellian state.” Order Granting Defendant’s Motion to Suppress, United States v. Vargas , Case No. CR-13-6025-EFS (E.D. Wash., Dec. 15, 2014) (available online here and discussed by Professor Orin Kerr here ).

Long list of cases regarding stationary cameras. Vargas isn’t alone but there are plenty of recent cases going the other way and allowing the warrantless use of stationary surveillance cameras. Readers who wish to dig more deeply into this issue may be interested in the following cases: United States v. Houston , 965 F. Supp. 2d 855 (E.D. Tenn. 2013) (use of a pole camera to observe an unobscured curtilage for ten weeks violated the defendant’s reasonable expectation of privacy based on the duration of the surveillance, though the evidence was not excluded as a result of the federal good faith exception to the exclusionary rule); United States v. Brooks , 911 F. Supp. 2d 836 (D. Ariz. 2012) (noting potential Supreme Court support for the mosaic theory, but finding that use of a legally installed pole camera to monitor areas of an apartment complex that were exposed to public view did not infringe on an expectation of privacy that society would recognize as reasonable); United States v. Anderson-Bagshaw , 509 F. App’x 396 (6th Cir. 2012) (unpublished) (in a case concerning the use of a pole camera to observe a defendant’s backyard for an extended period of time, the court expresses “misgivings about a rule that would allow the government to conduct long-term video surveillance of a person’s backyard without a warrant,” but funds any Fourth Amendment violation harmless); United States v. Garcia-Gonzalez , 2015 WL 5145537 (D. Mass. Sept. 1, 2015) (discussing the Fourth Amendment implications of pole cameras but concluding that pre- Jones precedent dictated that warrantless use of pole cameras over several months to record and monitor areas around defendant’s home that were visible to the public did not violate the Fourth Amendment); United States v. Wymer , 40 F. Supp. 3d 933 (N.D. Ohio 2014) (ruling that the warrantless installation and use of a pole camera to monitor defendant’s commercial property did not violate the Fourth Amendment; the defendant did not have a reasonable expectation of privacy in the property because it was exposed to public view; however, the court expressed reservations about the intrusiveness of continuous and prolonged video surveillance and explained that while not necessary under prevailing law, “the far better practice is to apply for a warrant”); United States v. Moore , 2014 WL 4639419 (S.D. Fla. Sept. 16, 2014) (the warrantless use of a pole camera to monitor areas of commercial property that were in plain sight and freely accessible to the public did not violate the defendant’s Fourth Amendment rights because the defendant did not have a reasonable expectation of privacy in the areas monitored); United States v. Root , 2014 WL 4715874 (E.D. Wash. Sept. 22, 2014) (the warrantless installation and use of a pole camera to monitor a public alleyway behind defendant’s house did not violate the Fourth Amendment because defendant did not “have a legitimate expectation of privacy in activities which occurred in that public alleyway, readily observable by any passerby”); United States v. Gilliam , 2015 WL 5178197 (W.D. Pa. Sept. 4, 2015) (“In this case, [Defendant] cannot establish an objectively reasonable expectation of privacy when the images captured by the pole camera were visible to any person who was located in the public street looking at his home.”); United States v. Nowka , 2012 WL 6610879 (N.D. Ala. Dec. 17, 2012) (unpublished) (the warrantless installation and use of a pole camera to monitor the defendant’s residence did not violate the Fourth Amendment; installation of the camera onto a utility pole in the right-of-way of the defendant’s home did not constitute a trespass because the pole was in a publicly-dedicated space; the defendant did not have a reasonable expectation of privacy in the area monitored by the camera because a person on the public street could view the area monitored by the camera).

The mosaic theory and body cameras. Body cameras do not implicate the mosaic theory as clearly as the types of cameras discussed above. No single officer’s camera provides a long-term record of a particular place or person. The protracted monitoring conducted through GPS tracking in Maynard and through the pole camera in Vargas is absent.

Although footage from a single body camera would be unlikely to form a Fourth Amendment mosaic, one can imagine body camera footage being part of a broader mosaic. When every officer is wearing a camera, and many vehicles are camera-equipped, and many light and utility poles host cameras, and drones provide aerial surveillance, and license plate readers track vehicle locations, perhaps the cumulative effect could invade a suspect’s reasonable expectation of privacy. The argument would be that, while the mosaic in Jones was comprised solely of GPS data, and the mosaic in Vargas was created exclusively by pole camera footage, a mosaic also may be formed from data points of different types, if all the data points are available to law enforcement and may be aggregated and exploited. See Marc Jonathan Blitz, Police Body-Worn Cameras: Evidentiary Benefit and Privacy Threats , American Constitution Society May 2015 (noting that the mosaic theory may be implicated “if police do not merely capture footage, but also aggregate the footage they obtain from body-worn cameras, and perhaps combine it with footage  captured from dashcams, CCTV cameras, or other evidence of a person’s transactions. While an individual officer’s camera is unlikely to capture anything close to a days-long record of a person’s activity, it can gather evidence that might contribute to such a record.”).

I doubt that such an argument is likely to get much consideration today. But as technology evolves and law enforcement becomes more adept at collecting, combining, and using “big data,” the mosaic theory may form the basis for defendants’ efforts to limit the reach of law enforcement.

6 thoughts on “Body Cameras and the Mosaic Theory of the Fourth Amendment”

It would be interesting to see what legal effect a sign prohibiting photography on the premises would have on the usability of body camera footage.

I wager that the same people who are calling loudest for body cams on all police officers now are the same people who will soon be complaining about Fourth Amendment violations.

Terrific article. I am working on a federal case in New York and I find your article to be an excellent summary of the law in this area. Thank you for your time and effort.

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i was arrested now the police gave me the video and it has been compromised is that a crime

Are there any laws in the US prohibiting citizens to wear body cameras, or hidden cameras recording all the time?

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• Analysis & Opinion

Could Better Technology Lead to Stronger 4th Amendment Privacy Protections?

Scholar Orin Kerr explores how the reshuffled Supreme Court might rule on surveillance and policing.

Amendment IV 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.

Judges, defense lawyers, police and prosecutors have been fighting over the Fourth Amendment for 230 years, and it’s not hard to figure out why. So many of the words in the text are vague. “Houses, papers, and effects,” for example, means more today than they did when James Madison drafted the Bill of Rights. So, too, does the clause “things to be seized.” What things? Seized how and by whom? Only “unreasonable” searches and seizures were barred, remember, leaving it up to future courts to argue over what is and what is not a “reasonable” exercise of police power.

Madison and company knew that some of the ambiguities contained in the Bill of Rights were necessary to achieve the political compromise necessary to ensure ratification of a document that changed the way the U.S. government interacts with citizens. The drafters also knew that by these ambiguities, they were passing on tough definitional questions to future judges and legislators to figure out. The same thing happens today, by the way, when Congress enacts ambiguous legislation and then complains that federal judges aren’t interpreting it properly. The late Supreme Court justice Antonin Scalia  used to complain about that  all the time.

The justices over the centuries have developed a series of standards they’ve used to determine when a search is a search under the Fourth Amendment and then whether such a search is “reasonable.” And because technology has ceaselessly evolved over the generations — police once searched for written letters and diaries, now they also search for emails and text messages — Fourth Amendment standards have evolved as well. The law is always catching up to technology, and the speed with which it catches up usually is determined by the Supreme Court or Congress.

For some answers about these standards, I turned to  Orin Kerr , author and professor at UC Berkeley School of Law.  Kerr  is known for his scholarship on criminal procedure in general and the Fourth Amendment and computer crimes in particular, and he’s  frequently at the center  of legal and political debates at the intersection of technology and privacy rights.

COHEN:  There is often great frustration over the willy-nilly way judges seem to interpret and enforce Fourth Amendment protections. You wrote a really interesting  Harvard Law Review  article  in 2011 in which you described an “equilibrium adjustment” theory of the Fourth Amendment. “The Supreme Court adjusts the scope of Fourth Amendment protection in response to new facts in order to restore the status quo level of protection,” you wrote. “When changing technology or social practice expands government power, the Supreme Court tightens Fourth Amendment protection; when it threatens government power, the Supreme Court loosens constitutional protection.”

A decade later, how has your theory held up? Have the Supreme Court and lower courts done more to harmonize what some see as cognitive dissonance at the heart of Fourth Amendment jurisprudence, or has the law grown muddier? 

KERR:  I think my theory has held up well. Two of the biggest Fourth Amendment cases in the last decade are  Riley v. California  and  Carpenter v. United States ,  and that’s exactly what the Supreme Court did in those two cases. In  Riley , the Supreme Court held that the search-incident-to-arrest exception doesn’t apply to cell phones. The government can always search physical property on a person at the time of arrest, the Court has long held, but under  Riley  the government needs a warrant to search a cell phone then. That new rule was needed, the Court said, because applying the old rule to new technology no longer made sense: Applying “that reasoning to digital data has to rest on its own bottom.”

Similarly, in  Carpenter,  the Court held that the Fourth Amendment protects historical cell-site location records. This was needed despite the older cases pointing to the opposite result, the Court reasoned, to “assure preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted." New technology of cell phones gave the government access to a new surveillance method, and the Court had to change the old legal rule to ensure that the government didn’t have too much power.

Of course, some would still find the law muddled. Some might say that  Riley  and  Carpenter  made the law more muddled than before. But I would say the law is just really fact specific. How the Fourth Amendment applies depends on the facts, and you have to read a lot of cases to understand what the rules are.

COHEN:  Riley v. California  was decided in 2014 when Justices Antonin Scalia, Anthony Kennedy, Ruth Bader Ginsburg, and Stephen Breyer were on the Court. They are all gone or about to be gone now.  Carpenter v. United States  was decided in 2018 and the majority opinion in that case included two justices (Ginsburg and Breyer) who are gone or who will soon be gone from the court. What’s your sense of how the three Trump-nominated justices will push or pull Fourth Amendment law in one direction or another? For that matter, what’s your sense of what a Justice Ketanji Brown Jackson would bring to the debate over the Fourth Amendment? Have you had a chance to compare her views with those of Justice Breyer, the man she would replace?

KERR:  The overall effect of these newer justices is mixed, and it probably depends on the specific doctrine. But I can try to offer an overall take just by running through the new justices. First, Justice Brett Kavanaugh tended to be on the government’s side in Fourth Amendment cases back when he was on the DC Circuit, but then he was the fifth vote (together with Chief John Roberts, Breyer, Elena Kagan, and Sonia Sotomayor) for the plaintiff in last term’s significant Fourth Amendment case,  Torres v. Madrid . Second, Justice Neil Gorsuch has a significant libertarian streak, which you can see in his separate opinion in  Carpenter , but he can also end up on the government’s side in divided cases (as he did in  Torres ).

It’s too early to tell how Justice Amy Coney Barrett will be in the Fourth Amendment area. Finally, I expect Ketanji Brown Jackson will favor considerably more expansive Fourth Amendment rights than did Breyer, who was a swing vote in Fourth Amendment cases. Jackson is likely to be pretty different. She’s a former public defender, and I would guess she will join Sotomayor (and perhaps go beyond her) in being most likely to disagree with the government in Fourth Amendment cases. 

In terms of what these new justices will mean for Fourth Amendment litigation generally, I expect many more Fourth Amendment cases will be briefed to the justices using originalist arguments. Briefs tend to be written to the “swing vote,” the justice who is needed to secure a majority and therefore a victory. We don’t quite know who the center votes will be in Fourth Amendment cases, but Justices Barrett, Gorsuch, Kavanaugh, and Roberts are all possibilities. I suspect we’ll see a lot of originalist arguments being made in Fourth Amendment cases to try to persuade those justices. 

COHEN:  You wrote a detailed analysis about a first-of-its-kind ruling on geofence warrants and their application to Fourth Amendment law. Geofencing involves the use of GPS technology to create a geographic boundary that allows police, relying on Google for example, to track a cell phone user’s location. The case is out of Virginia,  U.S. v. Chatrie , in which a federal judge suppressed the results of a police search warrant because the warrant gathered geofencing data from a wide swath of people who could not possibly have any relationship to a nearby robbery officers were investigating. The complicated decision raises questions not just about what privacy expectations people have in the age of location-tracking on cell phones but whether new technology justifies a new way to approach Fourth Amendment jurisprudence more broadly.

You were skeptical of the judge’s analysis, and you suggest that such searches may not even be subject to Fourth Amendment protections in the first place, but I was struck by what you wrote toward the end of your piece: “One wonders if the possibility that technology can enable the execution of warrants in a more privacy protective way than traditional warrants is leading [U.S. District Judge M. Hannah] Lauck to in effect seek a new Fourth Amendment standard that requires warrants to be executed in the most privacy protective way the new technology allows.”

Can technology at last push Fourth Amendment law to a tipping point where federal judges start looking for new standards to guide their decisions? I suspect you’ll say that no matter what, these cases will necessarily be fact-specific, but is there a point where the government’s use of new surveillance technology forces changes in the legal standards to which those facts will be applied? And if so, do you have a sense of which justices on the court would be most willing to entertain such a change?

KERR:  I think there are two different questions. First, can technology so expand government power that the Supreme Court will adjust Fourth Amendment rules to limit government power? My answer to that is yes, and that is the basic idea of equilibrium-adjustment that we have been discussing. In the blog post, though, I was addressing a different question: If technology permits the government to access information but also creates the prospect of newer and better privacy protections than have existed before, should the Fourth Amendment require those new greater privacy protections?

That’s part of what’s interesting about geofencing warrants, I think. Google can try to get the government to execute those warrants in a more privacy protective way than warrants have been executed previously. Traditionally, search warrants are executed in a brutal fashion: The government breaks in, rifles through everything, and sees everything. It’s a severe privacy violation. In contrast, Google can (and wants) to carefully screen information from the government, limiting what the government can see and limiting the identifying information about whose account it is seeing. The question is, if technology creates new ways to protect privacy, should the law impose that requirement?

As to what the Supreme Court might say to that, the signals are mixed. On one hand, in a case like  Missouri v. McNeely , the Court suggested that the ready availability of telephone warrants these days might make the warrant requirement broader. As warrants become easier to get, the thinking runs, it becomes less burdensome to impose a warrant requirement. That’s not exactly the same. But it’s a little bit similar, I think. On the other hand, the Court has repeatedly rejected any kind of “least intrusive means” search requirement under the Fourth Amendment. And that cuts the other way.

COHEN : I want to go back to the  Torres  case for a second because it addresses, or tries to address, the Fourth Amendment’s approach to police use-of-force cases, a topic near and dear to my heart.  Torres   had to do with  whether a suspect was “seized” within the meaning of the Fourth Amendment when an officer tries but fails to subdue that suspect. And the Supreme Court ruled that the attempt alone to seize a suspect — in that case officers firing at a woman fleeing in her car — triggered a Fourth Amendment analysis. We’re living in an era where there are more lawsuits alleging excessive force by police officers, and certainly more taxpayer-funded legal settlements paid by police officials, and I’m wondering whether you are seeing the effects of these cases in Fourth Amendment law. In other words, how is police reform shaping Fourth Amendment law?

KERR:  It’s hard to tell, as we can’t answer the counterfactual of what the law would look like otherwise. But I’m skeptical that police reforms are shaping Fourth Amendment law. George Floyd was killed in May 2020. Since then, the Supreme Court has agreed to hear  zero  new Fourth Amendment cases. That’s remarkable. In a typical term, the Supreme Court hears three or four Fourth Amendment cases. This term, for the first time I can recall, it isn’t deciding any Fourth Amendment cases at all. The Court has also turned away a series of petitions asking it to overturn  qualified immunity , the judge-made legal doctrine used to shield police officers, corrections officials, and others from liability for their misconduct. Justice Thomas has written dissents from denials of certiorari on this, as he wants the Court to reconsider qualified immunity. But the rest of the Court has been silent. It’s hard to know, but renewed interest in police reforms might be making the justices less likely to step in themselves. They may be waiting for the elected branches to act. But this is all just speculation. Unfortunately, we don’t know.

COHEN:  Let’s end by looking ahead. We know that there will be technological advances in the next decade that will affect Fourth Amendment law. There always are. Does anything in particular stand out to you as something to watch in the years ahead? Do you see the law and technology careening toward some flashpoint?

KERR:  I don’t think there will be flashpoints, but I’m expecting continued evolution. The lower courts are disagreeing on a lot of Fourth Amendment issues involving technology, and that will likely prompt Supreme Court review in the next few years on those issues. The Supreme Court will probably decide how the Fourth Amendment applies to long-term pole camera surveillance, if it allows warrantless border searches of computers, how the  private search reconstruction doctrine  (which allows the police to view the results of warrantless online searches by private parties) applies to internet providers; what the limits of computer warrants are, and, in the Fifth Amendment area, when the government can force people to unlock their phones. As always, stay tuned!

This interview has been edited for length and clarity.

This discussion is one of several in a Brennan Center series on the Bill of Rights. The interview with David Carroll about the Sixth Amendment is  here , and the interview with Carol Steiker on the Eighth Amendment is  here .

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Unregulated police face recognition in america.

B. Fourth Amendment

The two district courthouses serving Cheltenham Township, Pennsylvania, adjudicate landlord-tenant disputes and municipal ordinance violations and also hold preliminary hearings and arraignments on more serious criminal charges. 102  Several years ago, the Cheltenham Township Police Department stationed officers outside a courthouse parking lot to “perform counter-surveillance”—taking photos of people attending the court hearing of an alleged gang member. These photos were then run through Pennsylvania's face recognition system, which searches state mug shots and, beginning in 2012, all 34 million Pennsylvania driver’s license photos. 103  We do not know if the photos were taken of suspected criminals—or if they were just people who happened to be in the courthouse parking lot.

This may seem unremarkable: Surreptitious police photography is an established policing technique. While the Fourth Amendment protects us against “unreasonable searches and seizures,” it is unclear whether face recognition constitutes a “search.” (See Sidebar 3 .)

Protections from “unreasonable searches and seizures” can originate in any of the three branches of government: the judiciary, the legislature, or the executive, which includes law enforcement. Instead of allowing those protections to grow old and out of date, however, legislatures across the country are passing dozens of laws restricting the use of 21 st century tracking technology to monitor public conduct. When legislators have hesitated, state and federal courts have stepped in and interpreted the Fourth Amendment to require warrants and other protections.

Unfortunately, courts and legislatures by and large have not applied these protections to face recognition technology. In the absence of guidance from legislatures and courts, police departments have created systems that often fall short of the protections offered against other tracking technology.

• 102. Magisterial District Courts of Pennsylvania are courts of limited jurisdiction that handle landlord-tenant disputes, small claims of up to $12,000, summary offenses, municipal code violations, and preliminary hearings and arraignments in misdemeanor and felony offenses that will be tried in higher courts. Magisterial District Courts , County of Montgomery Magisterial District Courts, Montgomery County, http://www.montcopa.org/300/Magisterial-District-Courts (last visited Aug. 18, 2016). Cheltenham Township is served by Magisterial District Court 38-1-02 and 38-1-03. Magisterial District Courts , County of Montgomery Magisterial District Courts, Montgomery County, (Sept. 19, 2016), http://www.montcopa.org/DocumentCenter/View/10059 (last visited Aug. 18, 2016).
• 103. See Pennsylvania JNET, Pennsylvania Justice Network 2012–2013 Annual Report , Document p. 016738; Welcome to the JNET Facial Recognition System Slides (May 5, 2014), Document p. 010750.

SIDEBAR 3: Face recognition and the Fourth Amendment.

Before 1967, the Supreme Court generally adhered to a property-based view of the Fourth Amendment. Judges’ rulings on whether or not a Fourth Amendment “search” occurred largely turned on the existence of trespass. 104  In 1967, however, the Court declared in Katz v. U.S. that “the Fourth Amendment protects people, not places.” 105  In a concurrence, Justice Harlan set forward a test, additional to trespass, to determine whether or not a Fourth Amendment “search” had occurred: Has the government infringed on an expectation of privacy that “society is prepared to recognize as ‘reasonable’”? 106  This became known as the “reasonable expectation of privacy” test.

The Supreme Court has never formally recognized a reasonable expectation of privacy in public conduct. In the 1983 case of U.S. v. Knotts , the Supreme Court found that the use of technology to track a person’s public movements—movements otherwise visible to the naked eye—did not infringe a reasonable expectation of privacy. 107  In U.S. v. Jones (2012), the Court reiterated that it had not “deviated from the understanding that mere visual observation does not constitute a search.” 108

Nevertheless, in Jones , a “shadow majority” of five justices expressed a willingness to reevaluate the contours of the reasonable expectation of privacy test to encompass some forms of geolocation tracking of public movements. 109  In later cases, the Supreme Court highlighted the transformational nature of 21 st century surveillance technology—and rejected simplistic comparisons of modern technology to older policing practices. In Riley v. California (2014), for example, the Court ridiculed the government’s contention that a search of an arrestee’s smartphone was “materially indistinguishable” from a search of a person’s pockets upon arrest. “That is like saying a ride on horseback is materially indistinguishable from a flight to the moon,” Justice Roberts wrote. 110

At publication, no cases in any state or federal court—let alone the Supreme Court—have addressed whether any form of law enforcement face recognition constitutes a Fourth Amendment search. It is unclear whether the Court would treat face recognition as being tantamount to “mere visual observation”—or if the Court would analogize it to space travel.

• 104. See Olmstead v. United States, 277 U.S. 438, 473–75 (1928).
• 105. See Katz v. United States, 389 U.S. 347, 351 (1967).
• 106. See Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).
• 107. See United States v. Knotts, 460 U.S. 276, 282 (1983) (finding that a criminal defendant lacked a reasonable expectation of privacy in his movements on public roads where those movements were visually observable to the public, and that police use of a beeper to track those movements “does not alter the situation”).
• 108. 132 S. Ct. 945 at 953 (2012).
• 109. See United States v. Jones ,132 S. Ct. 945 at 954 (Sotomayor, J., concurring); 132 S. Ct. 945 at 957–58  (Alito, J., concurring) (2012).
• 110. See Riley v. California, 134 S.Ct. 2473, 2488 (2014).

1. Courts have limited geolocation tracking—but not face recognition.

Except for forensic analysis of latent fingerprints and DNA, law enforcement collection of biometric information has typically required a physical search or handling of a suspect—e.g., reaching into their mouth for a buccal swab, or rolling their fingers on an inkpad. The physical nature of these searches or seizures may seem like a small detail, but it has major consequences for the Fourth Amendment: Namely, it means that judges have felt comfortable regulating that conduct under the Fourth Amendment. 111

Face recognition changes the equation by allowing tracking and identification outside of a traditional Fourth Amendment search or seizure. The Pinellas County Sheriff’s Office’s use policy for mobile biometric identification ( Figure 8 below 112 ) illustrates this powerfully.

• 111. See Maryland v. King, 133 S.Ct. 1958, 1968–1969 (2013) (“It can be agreed that using a buccal swab on the inner tissues of a person’s cheek in order to obtain DNA samples is a search.”); Florida v. Hayes, 470 U.S. 811, 816 (1985) (finding that a Fourth Amendment seizure has clearly occurred where the police “forcibly remove a person from his home or other place in which he is entitled to be and transport him to the police station”).
• 112. Pinellas County Sheriff’s Office, Standard Operating Procedure POB 52: Mobile Biometric Usage (Jan. 12, 2016), Document p. 014375.

PCSO bars officers from physically detaining individuals, and stresses that the absence of consent should not preclude officers from taking a photograph in a public place. Rather, if someone is in public, officers are encouraged to photograph that person and use biometric identification “whenever practical.” 113

In this respect, face recognition is not alone—geolocation tracking via cell-site location information, automated license plate readers (ALPRs), and drones also allow tracking through non-invasive observation. Thus, as Sidebar 3 suggests, all of these tracking technologies would seem to fall into a constitutional grey area. 114

And yet a growing number of state supreme courts and lower federal courts are interpreting the Fourth Amendment to limit public surveillance. This is clearest with geolocation tracking. Federal district courts in California and New York have found that individuals do have a reasonable expectation of privacy in the extended records of their movements revealed by cell-site location information—and that the Fourth Amendment requires police to get a warrant to obtain this information. 115  The highest courts of Massachusetts and New Jersey have done the same, although each state reached this conclusion by interpreting their state constitutions, rather than the Fourth Amendment. 116  In these cases, the courts recognized that dragnet-style surveillance raises serious and novel privacy concerns—and that those concerns are not extinguished by the fact that the behavior tracked occurs in public. 117

To date, however, not a single state or federal court has considered the question of whether a face recognition search constitutes a search for the purposes of the Fourth Amendment, or an analogous provision in a state constitution. As a result, the Fourth Amendment implications of face recognition technology remain an open question.

• 113. Pinellas County Sheriff’s Office, Mobile Biometric Usage Policy (Apr. 26, 2016), Document p. 014375.
• 114. Cell-site location tracking—tracking a suspect’s smartphone by getting location information from his wireless carrier—hits another Fourth Amendment hurdle: The idea that we have no reasonable expectation of privacy in information we volunteer to a third party—in the present case, our phone company. See , e.g ., Smith v. Maryland, 442 U.S. 735, 746–47 (1979); United States v. Graham, 824 F.3d 421, 437-38 (4th Cir. 2016) (en banc).
• 115. See In re Application for Tel. Info. Needed for a Criminal Investigation, 119 F. Supp. 3d 1011, 1023 (N.D. Cal. 2015), appeal dismissed (Feb. 5, 2016) (finding that “individuals have an expectation of privacy in the historical CSLI associated with their cell phones, and that such an expectation is one that society is willing to recognize as reasonable”); id at 1039 (requiring a warrant for historical cell-site location information); In re U.S. for an Order Authorizing the Release of Historical Cell-Site Info., 809 F. Supp. 2d 113, 119–20 (E.D.N.Y. 2011) (finding that “cell-phone users maintain a reasonable expectation of privacy in long-term cell-site-location records”); id at 127 (requiring a search warrant for historical cell-site location information).
• 116. See Commonwealth v. Augustine , 4 N.E.3d 846, 865-66 (Mass., 2014), State v. Earls , 7 0 A.3d 630, 644 (N.J., 2013). Separately, see Tracey v. State, 152 So. 3d 504, 526 (Fla. 2014), reh'g denied (Dec. 8, 2014) (imposing a probable cause requirement for obtaining real-time cell-site location data in Florida);
• 117. See, e.g. , In re Application for Tel. Info. Needed for a Criminal Investigation , 119 F. Supp. 3d 1011, 1020–21 (discussing the Knotts court’s indication that dragnet-style surveillance would raise issues distinct from those presented in the instant case); Tracey v. State, 152 So. 3d at 513 (discussing the Knotts court’s indication that dragnet-style surveillance would raise issues distinct from those presented in the instant case).

2. Legislatures have not placed meaningful limits on law enforcement face recognition.

The Fourth Amendment acts as a floor, not a ceiling, for the protections the government can extend to its citizens against a particular police practice. This means that legislatures are free to create more privacy protections and safeguards than the minimum that courts believe the Fourth Amendment requires.

Legislators across the country have eagerly passed laws expanding the privacy rights of citizens against a range of 21 st century public tracking technology. A total of 17 states have passed laws regulating law enforcement geolocation tracking, and 13 states have passed laws regulating law enforcement’s use of drones; these laws generally require that police obtain warrants, supported by probable cause, before engaging in tracking. 118  Another 9 states have passed laws regulating police use of automated license plate readers (ALPRs). 119  Although most of these laws do not generally require warrants, they do generally limit when ALPRs can be deployed, how the data they collect can be used and shared, and how long that data can be kept.

• 118. See generally Cal. Penal Code §§ 1546 et seq. ; Colo. Rev. Stat. Ann. § 16-3-303.5; 724 Ill. Comp. Stat. Ann. 168/1 et seq .; Ind. Code Ann. §§ 35-33-5-15; Me. Rev. Stat. tit. 16, §§ 647 et seq. ; Md. Code Ann. Crim. Proc. §1-203.1; Minn. Stat. § 626A.42; Mont. Code Ann. § 46-5-110; N.H. Rev. Stat. Ann. §§ 644-A:1 et seq. ; R.I. Gen Laws Ann. §§ 12-32-1 et seq .; Tenn. Code Ann. § 39-13-610; Utah Code Ann. §§ 77-23c-101 et seq. ; Va. Code Ann. § 19.2-70.3; 13 V.S.A. § 8102; Wash. Rev. Code Ann. §§ 9.73.260 et seq. ; Wis. Stat. Ann. § 968.373;  Alaska Stat. Ann. §§ 18.65.900 et seq .; Ind. Code Ann. 35-33-5-9; Fla. Stat. Ann. § 934.50; Ind. Code Ann. 35-33-5-9; 725 Ill. Comp. Stat. Ann. 167/1 et seq. ; Me. Rev. Stat. tit. 25, § 4501; 2015 Nev. Rev. Stat. Ann. §493.112(2)-(4); N.C. Gen. Stat. Ann. §§ 15A-300.1 et seq. ; N.D. Cent. Code Ann. §§ 29-29.4-01 et seq. ; Or. Rev. Stat. §§ 837.310 et seq. ; Tenn. Code Ann. §§ 39-13-609, 39-13-902; Utah Code Ann. §§ 63G-18-101 et seq. ; Vt. Stat. Ann. Tit. 20, § 4622; Va. Code Ann. § 19.2-60.1.
• 119. Cal. Veh. Code § 2413; Cal. Civ. Code §§ 1798.29, 1798.90.5; Colo. Rev. Stat. Ann. § 24-72-113; Me. Rev. Stat. tit. 29-a, § 2117-A; Md. Code Ann., Pub. Safety § 3-509; Minn. Stat. §§ 13.82, 13.824, 626.847; N.H. Rev. Stat. Ann. §§ 261.75-b, 236.130; N.C. Gen. Stat. Ann. §§ 20-183.30 et seq. ; Utah Code Ann. §§ 41-6a-2001 et seq. ; Vt. Stat. Ann. tit. 23, §§ 1607 et seq.

Number of states that regulate police use of…

Not a single state has passed a law that places comprehensive limits on law enforcement use of face recognition technology. Five states have passed laws that limit some discrete aspect of police face recognition use.

• Police Body Worn Camera Footage. In 2015, Oregon passed a law barring face recognition searches of recordings from police body-worn cameras, but leaving open the possibility that face recognition may be used on live videos rather than recordings. 120  Recently, New Hampshire passed a similar law, which will take effect in 2017. 121  (Below the level of state law, the city of Cincinnati adopted a similar regulation, and six local police departments have adopted use policies roughly to this effect.) 122
• Police Drone Footage. Two states, Maine and Vermont, have passed laws restricting the use of face recognition on footage collected by police drones. The Vermont law states that face recognition shall not be used on any data that a drone collects “on any person, home, or area other than the target of the surveillance.” 123  The Maine law is more ambiguous, requiring state officials to issue rules for drones that will restrict the use of face recognition. 124
• Destruction of Records. Michigan law requires the destruction of biometric data, including the fingerprint and face recognition data from people who are arrested but never charged or who are found innocent. 125  The law provides little else by way of protection, however. Instead, it expressly authorizes the collection of biometric data for almost all crimes, and expressly allows non-criminal biometric information—for example, face recognition data derived from a driver’s license photo—to be used for criminal purposes. 126

Given their limited scope, none of these laws provide the range of protections afforded by most state laws governing geolocation tracking, drones, or automated license plate readers.

Apart from regulating police face recognition systems, seven states directly or indirectly curb law enforcement access to state department of motor vehicle face recognition systems, which are typically designed to detect identity fraud. Maine, Missouri, New Hampshire and Vermont have blanket bans on their DMVs using biometric technology or collecting biometric data. 127  Washington stipulates that the DMV can use biometric technology only to verify the identity of a license or ID card holder. 128

Both Washington and Oregon prohibit disclosure of biometric data to law enforcement, although Washington allows disclosure for identity theft crimes. 129  Hawaii’s regulations do not expressly address face recognition, but nonetheless block law enforcement access to license photos outside of investigations into identity theft. 130

The few, discrete protections that these laws do provide may be easily evaded. Vermont law, for example, expressly prohibits its Department of Motor Vehicles from implementing “any procedures or processes for identifying applicants for licenses, learner permits, or non-driver identification cards that involve the use of biometric identifiers.” 131  Somehow, however, Vermont has interpreted this provision to allow the FBI to request—and obtain—face recognition searches of 1.8 million Vermont driver’s license and ID photos. 132  Given that they do not directly constrain law enforcement, other states’ DMV provisions could be read in a similarly narrow manner.

• 120. See Or. Rev. Stat. § 133.741(1)(b)(D).
• 121. See N.H. Rev. Stat. Ann. § 105-D:2(XII) (effective Jan. 1, 2017).
• 122. The city of Cincinnati and police departments in five other localities bar searches of body-worn camera recordings, but allow analysis of footage from particular incidents. See Cincinnati Police Department, Body Worn Camera System (July 14, 2016), https://www.bwcscorecard.org/static/policies/2016-07-14 Cincinnati - BWC Policy.pdf (“Stored video and audio from a BWC shall not . . .  Be searched using facial recognition software. [ . . . ] This does not prohibit CPD from using recognition software to analyze the recording of a particular incident when reasonable suspicion exists that a specific suspect or person in need of assistance may be a subject of a particular recording.”); Baltimore Police Department, Policy 824: Body Worn Cameras Pilot Program (Oct. 26, 2015), https://www.bwcscorecard.org/static/policies/2015-10-26%20Baltimore%20-%20BWC%20Policy.pdf ( “Stored video and audio data from a BWC shall not … be searched using facial recognition software” but same exception); Baltimore County Police Department, BCoPD Body-Worn Camera Use Policy at “System Recordings”, https://www.bwcscorecard.org/static/policies/2016-07-14%20Baltimore%20County%20-%20BWC%20Policy.pdf (“System records … may not be … searched using facial recognition software” but same exception); Montgomery County Police Department, Body Worn Camera System (Apr. 20, 2016), https://www.bja.gov/bwc/pdfs/MCPD-BWCS-Pilot-Program-Summary-Report.pdf ( “The stored video and audio data from a BWCS recording may not … be searched using facial or voice recognition software” but same exception); Parker Police Department, Parker Police Department Policy and Procedures Manual: Recording Devices and Imaging Equipment (May 6, 2016), https://www.bwcscorecard.org/static/policies/2016-05-06 Parker - BWC Policy.pdf (“The Department shall not utilize any biometric technology, such as facial recognition, to conduct searches of video files. Stored video and audio data from a BWC shall not … be searched using facial recognition software” with same exception). The Boston police adopted a policy that appears to bar real-time face recognition. See Boston Police Department, Body-Worn Camera Pilot Program Policy (July 12, 2016), https://www.bwcscorecard.org/static/policies/2016-07-12 Boston - BWC Policy.pdf (“BWC’s will not include technological enhancements including, but not limited to, facial recognition or night-vision capabilities.”).
• 123. Vt. Stat. Ann tit. 20 § 4622(d)(2) (“Facial recognition or any other biometric matching technology shall not be used on any data that a drone collects on any person, home, or area other than the target of the surveillance.”).
• 124. Me. Rev. Stat. Ann. tit. 25 § 4501(5)(D) (“Restrictions on the use of … facial recognition technology, thermal imaging and other such enhancement technology”).
• 125. See Mich. Comp. Laws Ann. § 28.243(7)-(8).
• 126. Mich. Comp. Laws Ann. § 28.243 at (1), (2), (4), (5); Mich. Comp. Laws Ann. § 28.248.
• 127. See Me. Rev. Stat. Ann. tit. 29-A, § 1401 (“9. Use of biometric technology. The Secretary of State may not use biometric technology, including, but not limited to, retinal scanning, facial recognition or fingerprint technology, to produce a license or nondriver identification card.”); Mo. Ann. Stat. § 302.189 (“The department of revenue shall not use, collect, obtain, share, or retain biometric data nor shall the department use biometric technology, including, but not limited to, retinal scanning, facial recognition or fingerprint technology, to produce a driver's license or nondriver's license or to uniquely identify licensees or license applicants for whatever purpose.”); N.H. Rev. Stat. Ann. § 260:10-b (“The state shall not collect, obtain, or retain any biometric data in connection with motor vehicle registration or operation, or in connection with driver licensing.”) and N.H. Rev. Stat. Ann. § 263:40-b (“The department is prohibited from using any facial recognition technology in connection with taking or retaining any photograph or digital image for purposes of this chapter.”); Vt. Stat. Ann. tit. 23, § 634(c) (“The Department of Motor Vehicles shall not implement any procedures or processes for identifying applicants for licenses, learner permits, or nondriver identification cards that involve the use of biometric identifiers.”)
• 128. See Wash. Rev. Code Ann. § 46.20.037(1) (stipulating that DMV may use its face recognition system “only to verify” applicants identities and prevent identity fraud).
• 129. See Wash. Rev. Code Ann. § 46.20.037(4)(d); Or. Rev. Stat. Ann. § 807.026 (“biometric data may not be made available to anyone other than employees of the [Department of Transportation] acting in an official capacity”).
• 130. Haw. Code R. § 19-122-1(g) (“Except as may be required by law, the examiner of drivers shall not permit a digital image or personal information obtained from a state of record to be accessed or used by a law enforcement agency or personnel of such agency for any other purpose.”).
• 131. See Vt. Stat. Ann. tit. 23, § 634(c).
• 132. See U.S. Gov’t Accountability Office, GAO-16-267, Face Recognition Technology: FBI Should Better Ensure Privacy and Accuracy 47 (May 2016).

3. Most police departments place few constraints on face recognition.

In September 2015, the Department of Justice announced a new policy for federal law enforcement’s use of cell-site simulators. Up until that point, the Department had obtained what it viewed as “appropriate legal authorization” before using the devices. 133  The authorization was less than a warrant; rather, the Department had merely certified to a judge that the information being obtained was “relevant to an ongoing criminal investigation.” 134  Now, however, the Department announced that, not as a matter of law, but “as a matter of policy,” federal law enforcement would seek a warrant before using a cell-site simulator. 135

The Department of Justice’s announcement illustrates an important and often overlooked principle: Law enforcement agencies are free to voluntarily adopt restrictions on tracking technology that go above and beyond their view of what current statutes or case law requires.

While some agencies have exercised that authority, a surprising number of police departments appear to have not taken basic steps to limit use of face recognition. We can evaluate these agencies on three simple metrics:

• Have they adopted a use policy telling officers when it is appropriate to use face recognition, and how they should and should not use it?
• What degree of individual suspicion do they require prior to running a search?
• Do they limit the use of face recognition to certain serious offenses?

a. A surprising number of agencies have not adopted use policies.

Of 52 agencies, at least 24 either did not provide a face recognition use policy in response to our document requests, or were clearly covered by another agency’s use policy. 136  At least five of those agencies—the Daytona Beach Police Department, the Jacksonville Sheriff’s Office, the Nebraska State Patrol, the Kansas City Police Department (former program), and the Iowa Department of Public Safety—expressly acknowledged that they did not have a use policy (or, in the case of Iowa, a “finalized” use policy) for law enforcement face recognition. 137

b. A minority of agencies clearly require individualized suspicion prior to search.

Even though several agencies provided contract documents for real-time face recognition systems, not a single agency provided documents suggesting that they require a warrant—or judicial approval of any kind—prior to any face recognition search.

The agencies did, however, impose different kinds of legal restrictions that do not require judicial approval. Some agencies require officers to have an individualized suspicion that the individual whose photo is being submitted for a search be involved in a crime, but they vary in the degree of suspicion required. The agencies may require that officers have probable cause to believe that the individual search for was involved in a crime, or the agencies may merely require that an officer have reasonable suspicion to that effect.

Other agencies do not require any degree of individualized suspicion and instead only stipulate that face recognition searches must be conducted for criminal justice or law enforcement purposes . In these jurisdictions, anyone’s face can be searched in their face recognition database, so long as this is done in furtherance of a law enforcement mission.

Overall, of the 52 agencies, plus the FBI face recognition unit (FACE Services), we were able to determine the legal standard that applied to face recognition for only 24 of them, plus the FBI. Of those agencies, three required probable cause, and 10 required reasonable suspicion. The remainder either required a criminal justice purpose or provided no documentation to suggest a legal standard of any kind. Putting it differently, only 13 of 52 agencies (25%) clearly required any degree of individualized suspicion (e.g. reasonable suspicion or probable cause) prior to a face recognition search.

• 133. See Office of Public Affairs , Department of Justice, Justice Department Announces Enhanced Policy for Use of Cell-Site Simulators ( Sept. 3, 2015), https://www.justice.gov/opa/pr/justice-department-announces-enhanced-policy-use-cell-site-simulators.
• 134. U.S. Department of Justice, D epartment of Justice Policy Guidance: Use of Cell-Site Simulator Technology ( Sept. 3, 2015) at 4 , https://www.justice.gov/opa/file/767321/download.
• 135. See Department of Justice, Department of Justice Policy Guidance: Use of Cell-Site Simulator Technology ( Sept. 3, 2015) at 3, https://www.justice.gov/opa/file/767321/download (“While the Department has, in the past, appropriately obtained authorization to use a cell-site simulator by seeking an order pursuant to the Pen Register Statute [ sic ], as a matter of policy , law enforcement agencies must now obtain a search warrant supported by probable cause…”) (emphasis added); see also 18 U.S.C. § 3122(b)(2) (pen register statute requiring “a certification… that the information obtained is relevant to an ongoing criminal investigation being conducted by that agency”).
• 136. These agencies are: Baltimore Police Department; Chicago Police Department; Daytona Beach Police Department; Iowa Department of Public Safety; Jacksonville Sheriff’s Office; Los Angeles County Sheriff’s Department; Los Angeles Police Department; Maryland Department of Public Safety and Correctional Services; Maryland State Police; Miami Police Department; Minnesota Department of Public Safety; Montgomery County Police; Nebraska State Patrol; San Francisco Police Department; Tampa Police Department; Texas Department of Public Safety; Virginia State Police; Arizona Department of Public Safety; Auburn Police Department; Illinois State Police; Kansas City Police Department; New Bedford Police Department; Plymouth County Sheriff’s Department; and the San Jose Police Department.
• 137. See Daytona Beach Police Department, Interview with Jimmy Flynt (Jan. 19, 2016) Document p. 000107; Jacksonville Sheriff’s Department, Interview with Crime Analysis Unit Manager Celbrica Tenah (Feb. 17, 2016) Document p. 010709; Nebraska State Patrol, Letter from Agency Legal Counsel Wendy Wussow (Feb. 16, 2016), Document p. 009181; Kansas City Police Department, Interview with Sgt. Jake Becchina (Jan. 28, 2016), Document p. 010191; Iowa Department of Public Safety, Letter from Commissioner Roxann M. Ryan to Clare Garvie (Apr. 1, 2016), Document p. 011911 (“Our Department has not yet adopted a final policy.”). Note that while the Daytona Beach and Jacksonville jurisdictions access the Pinellas County Sheriff’s Department face recognition system, they do not appear to be required to follow the Pinellas County use policy.

Perversely, as Figure 9 shows, the agencies engaging in higher risk deployments appear less likely to require individualized suspicion. 138 Of the 29 agencies that have used face recognition under a Moderate Risk deployment model—either Stop and Identify or Arrest and Identify using a mug shot database—10 of them (34.5%) required some form of individualized suspicion. Meanwhile, of the 24 agencies (including the FBI) that have used a High Risk deployment—Stop and Identify or Arrest and Identify using a driver’s license database—only three (12.5%) require individualized suspicion.

• 138. The Michigan State Police requires probable cause, or that a subject is unable to provide identification due to incapacitation, for the use of face recognition on mobile devices. See Michigan State Police, SNAP Acceptable Use Policy , Document pp. 011436–011439 (Michigan Department of State images encompass driver’s license photographs). It is unclear from the use policy what the standard is for desktop searches, but in correspondence the Department indicated that a “law enforcement reason” is required. Michigan State Police, Letter to Clare Garvie on state one-page feedback , Document p. 016824. Both mobile and desktop systems can run searches against Michigan’s driver’s license photo database. Michigan State Police therefore is listed both in Probable Cause : High Risk Deployment and Unknown : High Risk Deployment.

The absence of an individualized suspicion requirement means that face recognition may be used on effectively anyone—e.g., a pedestrian anywhere near a crime—so long as some criminal justice purpose can be cited for the search. At least three agencies—including the FBI face recognition unit (FACE Services)—expressly allow face recognition searches to identify witnesses to a crime, not just criminal suspects. 139

c. Only one agency limits face recognition use to certain crimes.

When Congress passed the Wiretap Act in 1968, it did not allow wiretaps of oral and phone communications for all criminal investigations. Rather, it restricted federal wiretaps of those communications to investigations of certain serious federal offenses. Congress gave even narrower authority to state law enforcement, allowing wiretaps only for certain felonies. 140

There are echoes of this trend in modern law enforcement biometrics. Jurisdictions may search the FBI face recognition database (NGI-IPS) for investigations of any crime—regardless of the nature or the severity of the offense. 141  But in order to be enrolled in that database’s “unsolved photo file”—a photo file of unidentified individuals that is compared to every new photo enrolled in the database—a photograph must pertain to an investigation of a felony offense for criminal homicide, forcible rape, robbery, or aggravated assault. 142

Likewise, in Maryland v. King , the Supreme Court upheld a Maryland law requiring the collection of DNA from all individuals charged with violent crimes, burglary, or attempted burglary, and the search of their DNA against the federal DNA database, which includes forensic DNA samples from unsolved crimes. 143  In upholding that program and differentiating it from a generalized search, however, the Court cited the “fundamental” distinction that Maryland’s DNA searches were limited to individuals arrested, detained, and charged with a serious criminal offense. 144

None of the 52 responsive agencies clearly restricted face recognition use to more serious crimes. Only one, the Nebraska State Patrol, limited its use to a certain kind of offense—identity theft. 145

• 139. The other agencies are the Michigan State Police and the Pennsylvania Justice Network. Federal Bureau of Investigation, Department of Justice, Privacy Impact Assessment for the FACE Services Unit , at 10–11 (May 1, 2015), https://www.fbi.gov/services/records-management/foia/privacy-impact-assessments/facial-analysis-comparison-and-evaluation-face-services-unit (“Probe photos are potential subjects, victims, or witnesses of/to federal crimes that have been collected pursuant to authorized FBI investigations.”). Michigan State Police, Interview with Peter Langenfeld, Program Manager, Digital Analysis and Identification Section (Mar. 23, 2016), Document pp. 010928 (MSP allows face recognition searches to identify witnesses to a crime, not just criminal suspects) Michigan State Police, Mobile Facial Recognition, Web Application Instructions , Document p. 011345 (The image of “capture” drop-down includes the categories: insufficient ID, warrant, criminal suspect, witness, victim, other as categories under which an officer can add a probe on a mobile device.). Pennsylvania Justice Network, JNET Facial Recognition User Guide , Document p. 010845 (“Facial recognition is used primarily with images of suspects or witnesses from surveillance or CCTV cameras, but can also be used with photos from other sources, such as social media sites or still photos.”)
• 140. See The Omnibus Crime Control and Safe Streets Act of 1968 (Pub.L. 90–351, 82 Stat. 197, enacted June 19, 1968, codified at 42 U.S.C. § 3711); 18 U.S.C. § 2516(1)-(2).
• 141. See Criminal Justice Information Services Division, Federal Bureau of Investigation, U.S. Department of Justice, Interstate Photo System (IPS) Policy and Implementation Guide (Version 1.2) (Sept. 3, 2014) Document p. 009325 (not establishing any crime-based limitation on searches and stating that “[i]t is the responsibility of the user agency to develop appropriate usage policies for the IPS component…”).
• 142. See Criminal Justice Information Services Division, Federal Bureau of Investigation, U.S. Department of Justice, Interstate Photo System (IPS) Policy and Implementation Guide (Version 1.2) (Sept. 3, 2014) at 3, Document p. 009320) (specifying that such photos must be “lawfully obtained pursuant to an authorized criminal investigation and meeting a felony crimes against persons Uniform Crime Report coding definition”).
• 143. Maryland v. King , 133 S.Ct. 1958, 1979-80 (2013); Md. Code Ann., Pub. Safety 2-504(d)(1).
• 144. Maryland v. King , 133 S.Ct. 1958, 1977-78 (2013).
• 145. See Nebraska State Patrol, Memorandum of Understanding between the Nebraska State Patrol and the Nebraska DMV , Document p. 009190 (restricting Nebraska State Patrol’s access to the Nebraska DMV’s photo repository for the purpose of “enhanc[ing] the ID Theft Task Force Working Relationship between the NSP and the DMV”).

Sidebar 4: Scoring Fourth Amendment Protections

Our score for Fourth Amendment protections turns on the level of individualized suspicion required prior to running a face recognition search. Where a jurisdiction relies on a driver’s license rather than a mug shot database, however, the score takes into account proportionality (i.e., Does the jurisdiction restrict the use of dragnet-style driver’s license photo databases to the investigation of serious offenses or identity crimes?). In other words, our score uses a bifurcated standard. If the agency uses face recognition on databases that include only mug shots, the first standard is used. If the agency uses face recognition on databases that include driver’s license photos, the second standard is used.

Targeted database—mug shots only.

• + Reasonable suspicion for the person to be searched, and at least one of the following: (1) searches are limited to suspects and victims of crimes; and (2) Investigate and Identify searches are limited to felonies only.
• 0  Reasonable suspicion for the person to be searched but the standard has exceptions or allows for searches for bystanders or witnesses as well.
• - No legal standard stated, or a statement that face recognition may be used for any “law enforcement” or “criminal justice” purpose.

Dragnet database—license and ID photos.

• + (1) Searches are limited to investigations of serious offenses and require a warrant or court order supported by probable cause; or (2) searches are limited to identity-related crimes.
• 0 Probable cause searches are limited to investigations of serious offenses (for non-identity-related crimes).
• - Anything less than probable cause (for non-identity crimes).

Next Section

• Fourth Amendment

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Interests protected.

The  Fourth Amendment  of the  U.S. Constitution  provides that "[t]he 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 ."

The ultimate goal of this provision is to protect people’s  right to privacy  and freedom from unreasonable intrusions by the government . However, the Fourth Amendment does not guarantee protection from all searches and seizures, but only those done by the government and deemed unreasonable under the law.

To claim a violation of Fourth Amendment rights as the basis for suppressing relevant evidence , courts have long required that the claimant must prove that they were the victim of an invasion of privacy to have a valid  standing . However, the Supreme Court has departed from such requirements, an issue of exclusion is to be determined solely upon a resolution of the substantive question whether the claimant's Fourth Amendment rights have been violated, which in turn requires that the claimant demonstrates a justifiable  expectation of privacy , which was arbitrarily violated by the government.

In general, most warrantless searches of private premises are prohibited under the Fourth Amendment, unless a specific exception applies. For instance, a warrantless search may be lawful, if an officer has asked and is given consent to search; if the search is incident to a lawful arrest; if there is probable cause to search, and there is exigent circumstance calling for the warrantless search.

Exigent circumstances exist in situations where a situation where people are in imminent danger, where  evidence  faces imminent destruction, or prior to a  suspect 's imminent escape.

On the other hand, warrantless search and seizure of properties are not illegal, if the objects being searched are in plain view. Further, warrantless seizure of abandoned property, or of properties on an open field do not violate Fourth Amendment, because it is considered that having expectation of privacy right to an abandoned property or to properties on an open field is not reasonable.

In some states, there are some exceptions to this limitation, where some state authorities have granted protection to open fields. States can always establish higher standards for protection of  searches and seizures than what is required by the Fourth Amendment, but states cannot allow conduct that violate the Fourth Amendment.

Where there was a violation of one’s Fourth Amendment rights by federal officials, A  Bivens action  can be filed against federal law enforcement officials for damages, resulting from an unlawful search and seizure. Under a Bivens action, the claimant needs to prove that there has been a constitutional violation of the Fourth Amendment rights by federal officials acting under the color of law . This differs from a §1983 claim , which is filed against State/local officials for deprivation of rights. See also: Vega v. Tekoh (2022) and qualified immunity

The protection under the Fourth Amendment can be waived if one voluntarily  consents  to, or does not object to evidence collected during a warrantless search or seizure.

Searches and Seizures Under the Fourth Amendment 

Courts must determine what constitutes a search or seizure under the Fourth Amendment. If the conduct challenged does not fall within the Fourth Amendment, then the individual will not enjoy protection under the Fourth Amendment.

A search under Fourth Amendment occurs when a governmental employee or agent of the government violates an individual's reasonable  expectation of privacy .

Strip searches  and visual body cavity searches, including anal or genital inspections, constitute  reasonable  searches under the Fourth Amendment when supported by  probable cause  and conducted in a  reasonable  manner.

A  dog-sniff inspection  is invalid under the Fourth Amendment if the the inspection violates a reasonable  expectation of privacy .  Electronic surveillance  is also considered a  search  under the Fourth Amendment.

Seizure of a Person

A  seizure  of a person, within the context of the Fourth Amendment, occurs when the police's conduct would communicate to a  reasonable person , taking into account the circumstances surrounding the encounter, that the person is not free to ignore the police presence and leave at their will.

Two elements must be present to constitute a seizure of a person:

• The presence of handcuffs or weapons, the use of forceful language, and physical contact are each strong indicators of authority.
• An individual who ignores the officer’s request and walks away has not been seized for Fourth Amendment purposes.

An arrest warrant is preferred but not required to make a lawful  arrest  under the Fourth Amendment. A warrantless arrest may be justified where  probable cause  and urgent need are present prior to the arrest. Probable cause is present when the police officer has a  reasonable belief  in the guilt of the suspect based on the facts and information prior to the  arrest .

• For instance, a warrantless arrest may be legitimate in situations where a police officer has a probable belief that a suspect has either committed a crime or is a threat to the public safety.
• Also, a police officer might arrest a suspect to prevent the suspect’s escape or to preserve evidence.

A warrantless arrest may be invalidated if the police officer fails to demonstrate  exigent circumstances .

The ability to make warrantless arrests are commonly limited by  statutes  subject to the due process clause of the U.S. Constitution. A suspect arrested without a warrant is entitled to  prompt judicial determination , usually within 48 hours.

There are  investigatory stops  that fall short of  arrests , but nonetheless, they fall within Fourth Amendment protection.

• Usually, these stops provide officers with less dominion and controlling power and impose less of an infringement of personal liberty for the individual stopped. 

Investigatory stops  must be temporary questioning for limited purposes and conducted in a manner necessary to fulfill the purpose.

An officer’s  reasonable suspicion  is sufficient to justify brief stops and detentions. To determine if the officer has met the standard to justify the seizure, the court takes into account the totality of the circumstances and examines whether the officer has a particularized and  reasonable belief  for suspecting the wrongdoing.  Probable cause  gained during stops or detentions might effectuate a subsequent warrantless  arrest .

Seizure of Property

A seizure of  property , within the meaning of the Fourth Amendment, occurs when there is some meaningful interference with an individual’s  possessory interests  in the property.

In some circumstances, warrantless seizures of objects in  plain view  do not constitute seizures within the meaning of Fourth Amendment. When executing a  search warrant , an officer might be able to seize an item observed in plain view even if it is not specified in the warrant.

Warrant Requirement

A search or seizure is generally considered to be  unreasonable  without a warrant, subject to only a few exceptions.

To obtain a  search warrant  or  arrest warrant , the law enforcement officer must demonstrate  probable cause  that a search or seizure is justified. A court-authority, usually a  magistrate , will consider the totality of circumstances to determine whether to issue the warrant.

The warrant requirement may be excused in  exigent circumstances  if an officer has probable cause and obtaining a warrant is impractical in the particular situation. For instance, in State v. Helmbright, 990 N.E.2d 154 , the Ohio court held that a warrantless search of probationer's person or place of residence is not violation of the Fourth Amendment, if the officer who conducts the search possesses “reasonable grounds” to believe that the probationer has failed to comply with the terms of their  probation .

Other well-established exceptions to the warrant requirement include consensual searches, certain brief  investigatory stops , searches incident to a valid arrest, and seizures of items in  plain view .

There is no general exception to the Fourth Amendment warrant requirement in national security cases. Warrantless searches are generally not permitted in exclusively domestic security cases. In foreign security cases, court opinions might differ on whether to accept the foreign security exception to the warrant requirement generally and, if accepted, whether the exception should extend to both physical searches and to electronic surveillance.

Reasonableness Requirement

All searches and seizures under the Fourth Amendment must be reasonable and no  excessive force  shall be used. Reasonableness is the ultimate measure of the constitutionality of a search or seizure. Searches and seizures with the warrant must also satisfy the reasonableness requirement.

Warrantless searches and seizures are  presumed  to be  unreasonable , unless they fall within the few exceptions.

In cases of warrantless searches and seizures, the court will try to balance the degree of intrusion on the individual’s right to privacy and the need to promote government interests and special needs in exigent circumstances. The court will examine the totality of the circumstances to determine if the search or seizure was justified. When analyzing the reasonableness standard, the court uses an objective assessment and considers factors including the degree of intrusion by the search or seizure and the manner in which the search or seizure is conducted.

Exclusionary Rule

Under the  exclusionary rule , any evidence obtained in violation of the Fourth Amendment will be excluded from criminal proceedings. There are a few exceptions to this rule.

Electronic Surveillance

In recent years, the Fourth Amendment's applicability in electronic searches and seizures has received much attention from the courts. With the advent of the internet and increased popularity of computers, there has been an increasing amount of crime occurring electronically. Consequently, evidence of such crime can often be found on computers, hard drives, or other electronic devices. The Fourth Amendment applies to the  search  and seizure of electronic devices.

Many electro nic search cases involve whether law enforcement can search a company-owned computer that an employee uses to conduct business. Although the case law is split, the majority holds that employees do not have a legitimate  expectation of privacy  with regard to information stored on a company-owned computer. In the 2010 case of  City of Ontario v. Quon  (08-1332), the  Supreme Court  extended this lack of an  expectation of privacy  to text messages sent and received on an employer-owned pager.

Lately, electronic surveillance and wiretapping has also caused a significant amount of Fourth Amendment litigation.

The USA Patriot Act

Following the September 11, 2001 attacks on the World Trade Centers and the Pentagon, Congress and the President enacted legislation to strengthen the intelligence gathering community’s ability to combat domestic terrorism. Titled the  USA Patriot Act , the legislation’s provisions aimed to increase the ability of law enforcement to  search  email and telephonic communications in addition to medical, financial, and library records.

One provision permits law enforcement to obtain access to stored voicemails by obtaining a basic search w arrant rather than a surveillance warrant. Obtaining a basic search warrant requires a much lower evidentiary showing. A highly controversial provision of the Act includes permission for law enforcement to use sneak-and-peek warrants. A sneak-and-peek warrant is a warrant in which law enforcement can delay notifying the property owner about the warrant’s issuance. In an Oregon federal district court case that drew national attention, Judge Ann Aiken struck down the use of sneak-and-peek warrants as unconstitutional and in violation of the Fourth Amendment. See 504 F.Supp.2d 1023 (D. Or. 2007) .

The Patriot Act also expanded the practice of using  National Security Letters (NSL) . An NSL is an administrative  subpoena  that requires certain persons, groups, organizations, or companies to provide documents about certain persons. These documents typically involve telephone, email, and financial records. NSLs also carry a  gag order , meaning the person or persons responsible for complying cannot mention the existence of the NSL. Under the  Patriot Act  provisions, law enforcement can use NSLs when investigating U.S. citizens, even when law enforcement does not think the individual under investigation has committed a crime. The  Department of Homeland Security  has used NSLs frequently since its inception. By using an  NSL , an agency has no responsibility to first obtain a warrant or  court order  before conducting its search of records.

Another aspect of the Patriot Act, which has been highly confidential was the Telephone Metadata program, which under §215 of the Patriot Act, had allowed the NSA to collect data about Americans’ telephone calls in bulk, was reviewed by the Second Circuit in  ACLU v. Clapper , in which the Court held the telephone metadata program illegal under the Congress’ original intent under §215 .

The Patriot Act expired in mid-2015, and since June 2nd 2015 has been repackaged under the USA Freedom Act. Although it remains to be seen how the Freedom Act will be interpreted, with respect to the Fourth Amendment protections, the new Act selectively re-authorized the Patriot Act, while banning the bulk collection of data of American’s telephone records and internet metadata and limited the government’s data collection to the “greatest extent reasonably practical” meaning the government now cannot collect all data pertaining to a particular service provider or broad geographic region.

Fourth Amendment and Supervised Release/Parole

Probationers (convicted criminal offenders who are released into the community under supervision of a probation officer in lieu of incarceration) or parolees (convicts who have served a portion of their judicially imposed sentence in penal institutions, and are released for the remainder of the sentence under supervision of a parole officer for good behavior) can also assert Fourth Amendment rights, creating a potential confrontation between fundamental constitutional guarantee and the society’s legitimate interest in correctional programs to prevent offenders from lapsing back into a crime (recidivism).

Traditionally, courts have struggled with various theories of parole and probation to justify the complete denial of Fourth Amendment rights to offenders on  supervised release  or probation. The most prevalent of the theories was the “Custody Theory,” under which an offender was said to be entitled to no more liberty than they would have enjoyed had they been incarcerated. Recently, however, this rationale was rejected by  Morrissey v. Brewer , which emphasized that the parolee’s status more closely resembles that of an ordinary citizen than a prisoner. While the Court noted that since parole revocation only changed the type of penalty imposed on an already-convicted criminal, the Court need not afford the parolees “the full panoply of rights” available under the fourteenth amendment to a free man facing criminal prosecution, the Court held that certain procedural protections must be guaranteed to the parolees facing revocation of the parole. In general, the released offenders now have been afforded full Fourth Amendment protection with respect to searches performed by the law enforcement officials, and warrantless searches conducted by correctional officers at the request of the police have also been declared unlawful.

However, in reviewing the searches undertaken by the correctional officers on their own initiative, some courts have modified the traditional Fourth Amendment protections to accommodate the correctional officers’ informational needs, developing a modified “reasonable belief” standard, under which the correctional officer is permitted to make a showing of less than probable cause in order to justify the intrusion of privacy into the released offender.

[Last updated in May of 2023 by the Wex Definitions Team ]

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Body Cameras and the Mosaic Theory of the Fourth Amendment

Many law enforcement officers, including those in five of North Carolina’s six largest cities, are or soon will be wearing body cameras. The prevailing view is that the use of such cameras doesn’t constitute a Fourth Amendment search because the cameras record only what an officer is already able to see. This post considers whether the increasing adoption of body cameras and other data-collection technologies could eventually result in body camera recordings being considered searches under the so-called mosaic theory of the Fourth Amendment.

The prevailing view. There aren’t many cases about body cameras specifically, but law enforcement officers have been using cameras to record still images and videos for decades. Courts generally have ruled that when an officer uses a camera to record something that is already visible to the officer, the recording does not interfere with a privacy or a possessory interest, and so does not implicate the Fourth Amendment.

Long list of cases adopting the prevailing view. The following cases illustrate that the prevailing view has been adopted by state and federal courts across the country and over a long period of time. United States v. Mancari , 463 F.3d 590 (7 th Cir. 2006) (“‘[T]he recording of visual images of a scene by means of photography does not amount to a seizure because it does not ‘meaningfully interfere’ with any possessory interest.’ . . . The government was therefore entitled to make a photographic record of the discovery of the [evidence] in a place that the police were lawfully entitled to observe.”); Bills v. Aseltine , 958 F.2d 697 (6 th Cir. 1992) (“[T]he recording of visual images of a scene by means of photography does not amount to a seizure because it does not ‘meaningfully interfere’ with any possessory interest. Thus, under the Supreme Court’s reasoning, photographs taken by the police officers in this case would not constitute a seizure. Because the police officers in this case were properly on the Bills’ premises, they could record by photography scenes presented to their plain view.”); United States v. Taketa , 923 F.2d 665 (9 th Cir. 1991) (“Video surveillance does not in itself violate a reasonable expectation of privacy. Videotaping of suspects in public places, such as banks, does not violate the [F]ourth [A]mendment; the police may record what they normally may view with the naked eye.”); United States v. Espinoza , 641 F.2d 153 (4 th Cir. 1981) (“The search warrant having been a valid one, it follows that Agent Dauwalder had the right to be in the positions which afforded him a plain view of the scenes photographed at J-E’s warehouse. He articulated in his testimony, as required by Warden v. Hayden . . . the nexus between those scenes photographed as mere evidence and the criminal activity under investigation. Agent Dauwalder did not exceed the scope of the warrant by making the photographs of what he saw in plain view and to that extent ‘seizing’ those views themselves as evidence.”); Lord v. State , 676 S.E.2d 404 (Ga. Ct. App. 2009) (“[Officers] photographed only those items that were visible [in plain view] during the scope of the initial welfare search. Consequently, the photographs were legally seized and, thus, admissible.”); State v. Spears , 560 So.2d 1145 (Ala. Ct. Crim. App. 1989) (generally adopting the view that officers may photograph anything in plain view, and collecting cases); State v. Eacret , 595 P.2d 490 (Or. Ct. App. 1979) (cited in State v. Jolley , 312 N.C. 296 (1984)) (“Being lawfully on the premises, the officers were entitled to photograph and seize evidence in plain view.”).

The mosaic theory. The mosaic theory of the Fourth Amendment is the idea that an accumulation of actions by law enforcement, none of which individually intrude upon a reasonable expectation of privacy, may together constitute a Fourth Amendment search. This theory was eloquently articulated in United States v. Maynard , 615 F.3d 544 (D.C. Cir. 2010), aff’d sub nom. United States v. Jones , 565 U.S. __, 132 S.Ct. 945 (2012), a case involving the warrantless installation of a GPS tracking device on a drug dealer’s vehicle. Officers monitored the device for 28 days and obtained incriminating evidence from it. The defendant in the case argued that the installation and monitoring amounted to a search under the Fourth Amendment. The government contended that it did not, because the device only monitored the defendant’s movement on the public roads where there is no reasonable expectation of privacy. A panel of the D.C. Circuit ruled unanimously for the defendant. The court acknowledged that short-term surveillance of a suspect’s travels on public roads is not a search, but concluded that protracted 24-hour-per-day tracking implicates privacy expectations in a way that short-term surveillance does not:

[T]he whole of one’s movements over the course of a month . . . reveals more — sometimes a great deal more — than does the sum of its parts. . . . The difference is not one of degree but of kind, for no single journey reveals the habits and patterns that mark the distinction between a day in the life and a way of life . . . . Prolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble. These types of information can each reveal more about a person than does any individual trip viewed in isolation. Repeated visits to a church, a gym, a bar, or a bookie tell a story not told by any single visit, as does one‘s not visiting any of these places over the course of a month. The sequence of a person‘s movements can reveal still more; a single trip to a gynecologist‘s office tells little about a woman, but that trip followed a few weeks later by a visit to a baby supply store tells a different story. A person who knows all of another‘s travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups — and not just one such fact about a person, but all such facts.

The case subsequently reached the Supreme Court. That Court resolved the case by finding that the mere installation of the device was a search, because it involved a trespass on private property – the vehicle – to obtain information. The majority therefore did not rule on whether the monitoring of the device compromised a reasonable expectation of privacy, and so did not expressly adopt or reject the mosaic theory. However, five Justices in various opinions seemed to signal an endorsement of the mosaic theory.

The mosaic theory and cameras. Under certain circumstances, officers’ use of cameras may implicate the mosaic theory. The easiest example is a drone-mounted camera that follows a suspect for a protracted period of time, recording the suspect’s activity. The use of such a device would have a greater impact on the suspect’s privacy than did the GPS tracking in Maynard/Jones and so would likely be viewed as a search under the mosaic theory.

Some courts have ruled that the mosaic theory may apply to stationary cameras, such as when a camera is directed at a suspect’s residence for a long period of time. For example, in a federal case that arose in the state of Washington, officers installed a camera on a utility pole 100 yards from the defendant’s rural home. They left it there, recording the defendant’s front yard, for six weeks. The footage showed the defendant firing guns which, as an illegal alien, federal law barred him from possessing. He was charged with a federal gun offense. He moved to suppress the footage, arguing that the camera invaded his reasonable expectation of privacy and so required a warrant. The Government contended that his front yard was visible to any passer-by and so was not subject to a reasonable expectation of privacy. The trial judge ruled for the defendant, stating that “[t]he American people have a reasonable expectation of privacy in the activities occurring in and around the front yard of their homes particularly where the home is located in a very rural, isolated setting. This reasonable expectation of privacy prohibits the warrantless, continuous, and covert recording of [the defendant’s] front yard for six weeks,” and declaring that the officers’ use of the camera was suggestive of the “Orwellian state.” Order Granting Defendant’s Motion to Suppress, United States v. Vargas , Case No. CR-13-6025-EFS (E.D. Wash., Dec. 15, 2014) (available online here and discussed by Professor Orin Kerr here ).

Long list of cases regarding stationary cameras. Vargas isn’t alone but there are plenty of recent cases going the other way and allowing the warrantless use of stationary surveillance cameras. Readers who wish to dig more deeply into this issue may be interested in the following cases: United States v. Houston , 965 F. Supp. 2d 855 (E.D. Tenn. 2013) (use of a pole camera to observe an unobscured curtilage for ten weeks violated the defendant’s reasonable expectation of privacy based on the duration of the surveillance, though the evidence was not excluded as a result of the federal good faith exception to the exclusionary rule); United States v. Brooks , 911 F. Supp. 2d 836 (D. Ariz. 2012) (noting potential Supreme Court support for the mosaic theory, but finding that use of a legally installed pole camera to monitor areas of an apartment complex that were exposed to public view did not infringe on an expectation of privacy that society would recognize as reasonable); United States v. Anderson-Bagshaw , 509 F. App’x 396 (6th Cir. 2012) (unpublished) (in a case concerning the use of a pole camera to observe a defendant’s backyard for an extended period of time, the court expresses “misgivings about a rule that would allow the government to conduct long-term video surveillance of a person’s backyard without a warrant,” but funds any Fourth Amendment violation harmless); United States v. Garcia-Gonzalez , 2015 WL 5145537 (D. Mass. Sept. 1, 2015) (discussing the Fourth Amendment implications of pole cameras but concluding that pre- Jones precedent dictated that warrantless use of pole cameras over several months to record and monitor areas around defendant’s home that were visible to the public did not violate the Fourth Amendment); United States v. Wymer , 40 F. Supp. 3d 933 (N.D. Ohio 2014) (ruling that the warrantless installation and use of a pole camera to monitor defendant’s commercial property did not violate the Fourth Amendment; the defendant did not have a reasonable expectation of privacy in the property because it was exposed to public view; however, the court expressed reservations about the intrusiveness of continuous and prolonged video surveillance and explained that while not necessary under prevailing law, “the far better practice is to apply for a warrant”); United States v. Moore , 2014 WL 4639419 (S.D. Fla. Sept. 16, 2014) (the warrantless use of a pole camera to monitor areas of commercial property that were in plain sight and freely accessible to the public did not violate the defendant’s Fourth Amendment rights because the defendant did not have a reasonable expectation of privacy in the areas monitored); United States v. Root , 2014 WL 4715874 (E.D. Wash. Sept. 22, 2014) (the warrantless installation and use of a pole camera to monitor a public alleyway behind defendant’s house did not violate the Fourth Amendment because defendant did not “have a legitimate expectation of privacy in activities which occurred in that public alleyway, readily observable by any passerby”); United States v. Gilliam , 2015 WL 5178197 (W.D. Pa. Sept. 4, 2015) (“In this case, [Defendant] cannot establish an objectively reasonable expectation of privacy when the images captured by the pole camera were visible to any person who was located in the public street looking at his home.”); United States v. Nowka , 2012 WL 6610879 (N.D. Ala. Dec. 17, 2012) (unpublished) (the warrantless installation and use of a pole camera to monitor the defendant’s residence did not violate the Fourth Amendment; installation of the camera onto a utility pole in the right-of-way of the defendant’s home did not constitute a trespass because the pole was in a publicly-dedicated space; the defendant did not have a reasonable expectation of privacy in the area monitored by the camera because a person on the public street could view the area monitored by the camera).

The mosaic theory and body cameras. Body cameras do not implicate the mosaic theory as clearly as the types of cameras discussed above. No single officer’s camera provides a long-term record of a particular place or person. The protracted monitoring conducted through GPS tracking in Maynard and through the pole camera in Vargas is absent.

Although footage from a single body camera would be unlikely to form a Fourth Amendment mosaic, one can imagine body camera footage being part of a broader mosaic. When every officer is wearing a camera, and many vehicles are camera-equipped, and many light and utility poles host cameras, and drones provide aerial surveillance, and license plate readers track vehicle locations, perhaps the cumulative effect could invade a suspect’s reasonable expectation of privacy. The argument would be that, while the mosaic in Jones was comprised solely of GPS data, and the mosaic in Vargas was created exclusively by pole camera footage, a mosaic also may be formed from data points of different types, if all the data points are available to law enforcement and may be aggregated and exploited. See Marc Jonathan Blitz, Police Body-Worn Cameras: Evidentiary Benefit and Privacy Threats , American Constitution Society May 2015 (noting that the mosaic theory may be implicated “if police do not merely capture footage, but also aggregate the footage they obtain from body-worn cameras, and perhaps combine it with footage  captured from dashcams, CCTV cameras, or other evidence of a person’s transactions. While an individual officer’s camera is unlikely to capture anything close to a days-long record of a person’s activity, it can gather evidence that might contribute to such a record.”).

I doubt that such an argument is likely to get much consideration today. But as technology evolves and law enforcement becomes more adept at collecting, combining, and using “big data,” the mosaic theory may form the basis for defendants’ efforts to limit the reach of law enforcement.

The post Body Cameras and the Mosaic Theory of the Fourth Amendment appeared first on North Carolina Criminal Law .

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A Visual Exploration of the Four Freedoms

Students will be introduced to the Four Freedoms, which President Roosevelt identified in his 1941 address to Congress. Each of these freedoms, including Freedom of Speech, Freedom of Worship, Freedom from Want, and Freedom from Fear will be addressed individually. By creating a visual inventory of Norman Rockwell’s Four Freedoms illustrations, students will identify and analyze details in his paintings.

This lesson is designed for two 60 minute class periods.

• Enduring Understandings/ Essential Questions:
• President Roosevelt made a speech about the four main freedoms he felt that everyone everywhere in the world was entitled to.
• Norman Rockwell wanted to paint pictures of the Four Freedoms for the American people to help them understand what the president’s speech was about, and what these freedoms might look like in their own lives.
• What is the importance of President Roosevelt’s Four Freedoms speech?
• How did Norman Rockwell’s personal experiences and surroundings influence his paintings?
• Objectives:
• Students will share any prior knowledge about the Four Freedoms (President Roosevelt’s speech or Rockwell’s paintings).
• Students will create a visual inventory of each painting.
• Students will use prior knowledge to make associations with the subject matter and historical events.
• Students will identify visual metaphors within the illustrations.
• Background:

World War II began in 1939. The United States was not involved in the beginning of the war, however, President Franklin Roosevelt believed that the United States would eventually need to play a larger role. In January 1941, he made his speech to Congress. In his speech, President Roosevelt named the Four Freedoms, which he stated are the rights of everyone in the world.

After the speech, in an effort to convey the underlying message of the Four Freedoms, the President reached out to the art world for help. Many artists created works to reflect the meaning of these freedoms in the form of paintings, sculptures, prints, musical compositions, and more.

Norman Rockwell thought a lot about these ideals. In February and March of 1943, his completed Four Freedoms illustrations were published in The Saturday Evening Post, each along with a related essay. Exceedingly popular at the time and distributed widely as prints and posters, Norman Rockwell's illustrations raised over 132 million dollars toward the war effort, through the purchase of war bonds. Prints of Rockwell’s Four Freedoms were given as premiums when people purchased war bonds in varying denominations. His illustrations became the face of the Four Freedoms and they continue to represent the meaning of these freedoms today.

Multimedia Resources

Freedom of speech.

Freedom of Worship

Freedom from Want

Freedom from Fear

• Franklin D. Roosevelt's Four Freedoms

Norman Rockwell Museum

• Norman Rockwell's Four Freedoms

• A Conversation with Ruby Bridges Hall

• Womanpower: The Fight for the Four Freedoms

The Atlantic Charter: Hope for a New World

Classroom supplies:.

• Easel, whiteboard or chalk board for writing on
• Norman Rockwell’s Four Freedoms: Images that Inspire a Nation  by Stuart Murray, and James McCabe
• Four Freedoms Group Analysis Worksheet (5-12)
• Reading handout Excerpt from President Roosevelt’s Four Freedoms Speech
• Reading handout Excerpt from Norman Rockwell, My Adventures as an Illustrator  by Norman Rockwell
• The Atlantic Charter: https://digital.library.unt.edu/ark:/67531/metadc581/

Additional Teaching Resources:

A Variety of books on Norman Rockwell and his work including but not limited to:

The Norman Rockwell Museum at Stockbridge   by The Norman Rockwell Museum  

Norman Rockwell: Behind the Camera  by Ron Schick

Norman Rockwell’s America  by Christopher Finch

American Chronicles: The Art of Norman Rockwel l  by Linds Szekely Pero

Norman Rockwell’s Counting Book by Gloria Tabor

Getting to Know the World’s Greatest Artist: Norman Rockwell   by Mike Venezia

Norman Rockwell: Storyteller with a Brush  by Beverly Sherman

My Adventures as an Illustrator  by  Norman Rockwell

A Rockwell Portrait: An Intimate Biography  by Donald Walton

Enduring Ideals: Rockwell, Roosevelt & the Four Freedoms , edited by Stephanie Haboush Plunkett and James J. Kimble, Ph.D.

• Activities:
• Ask students if they have heard a president of the United States speak to the American people, whether on radio, television, or the internet. Tell the children about the famous speech that President Franklin D. Roosevelt made to Congress on January 6, 1941. When you feel the class has a basic historical understanding, read the following excerpt of President Roosevelt’s speech from the book, Norman Rockwell’s Four Freedoms: Images that Inspire a Nation :

“In future days, which we seek to make secure, we look forward to a world founded upon four essential human freedoms.

The first is freedom of speech and expression - everywhere in the world. The second is freedom of every person to worship God in his own way -

Everywhere in the world.

The third is freedom from want - which, translated into world terms, means economic understandings which will secure to every nation a healthy peacetime life for its inhabitants- everywhere in the world.

The fourth is freedom from fear - which, translated into world terms, means a worldwide redaction of armaments to such a point and in such a thorough fashion that no nation will be in a position to commit an act of physical aggression against any neighbor - anywhere in the world.” (Murray & McCabe, 6)

2.  Share the reproductions of Norman Rockwell’s Four Freedoms paintings with students. Ask them: Which painting best represents Freedom of Speech? Why? Allow students time to look closely at the images. After identifying Freedom of Speech , set aside the other artworks.

3. Focusing their attention on Rockwell’s Freedom of Speech , ask if anyone has seen this illustration before. Ask students to look closely at the foreground, middle ground, and background, and to point out what they see, not what they perceive. The class will collectively take a visual inventory. The teacher may offer the first example if students are unclear; for example, says: “I see a man standing up with his mouth slightly open.” Restate student observations as they are made and record each on chart paper, whiteboard or blackboard. By doing this, students will analyze the art and find clues and symbols to help them read the image. When their list appears to be complete, have students infer what story is being told.

4.When you feel the analysis of Freedom of Speech is complete, organize the class into three groups. Each group will be given a copy of one of the remaining illustrations and a Four Freedoms Group Analysis Worksheet (5-12) . Each group will work to complete the analysis worksheet. Circulate around the classroom, making informal checks for understanding and offering help with any questions. Once all of the groups have completed the worksheet, each group will present their analysis. After each group’s presentation, allow some time for other students to ask questions or make comments related to the illustration.

5. When all of the illustrations have been analyzed by students, distribute the handout, Excerpt from My Adventures as an Illustrator by Norman Rockwell, for students to read and discuss.Display the poster of the Atlantic Charter for students to read and discuss as well.

6. After having looked at the four illustrations, reading the Atlantic Charter and reading what Rockwell explained about his inspirations, engage the students in a conversation about how Rockwell’s experiences influenced his work and how different people responded to them.

• Assessment:
• Students will be evaluated on whether they have demonstrated appropriate listening and speaking skills during their participation in the group discussion.
• They will be evaluated on their participation in analyzing the text, and their analysis of the illustration
• Students will be evaluated on their participation in the class discussion and analysis of paintings through informal checks of understanding.
• Students will participate in a group effort to take a visual inventory of each of the paintings.

This curriculum meets the standards listed below. Look for more details on these standards please visit:  ELA and Math Standards ,  Social Studies Standards , Visual Arts Standards .

• Copy of S565FreedomOfSpeech.jpg
• Copy of S566FreedomToWorship.jpg
• Copy of S567FreedomFromWant.jpg
• Copy of S568FreedomFromFear.jpg

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Fourth Amendment is Not For Sale Act Passed the House, Now it Should Pass the Senate

The Fourth Amendment is Not For Sale Act , H.R.4639 , originally introduced in the Senate by Senator Ron Wyden in 2021, has now made the important and historic step of passing the U.S. House of Representatives . In an era when it often seems like Congress cannot pass much-needed privacy protections, this is a victory for vulnerable populations, people who want to make sure their location data is private, and the hard-working activists and organizers who have pushed for the passage of this bill.

Everyday, your personal information is being harvested by your smart phone applications, sold to data brokers, and used by advertisers hoping to sell you things. But what safeguards prevent the government from shopping in that same data marketplace? Mobile data regularly bought and sold, like your geolocation, is information that law enforcement or intelligence agencies would normally have to get a warrant to acquire. But it does not require a warrant for law enforcement agencies to just buy the data. The U.S. government has been using its purchase of this information as a loophole for acquiring personal information on individuals without a warrant.

Now is the time to close that loophole.

At EFF, we’ve been talking about the need to close the databroker loophole for years. We even launched a massive investigation into the data broker industry which revealed Fog Data Science , a company that has claimed in marketing materials that it has “billions” of data points about “over 250 million” devices and that its data can be used to learn about where its subjects work, live, and their associates. We found close to 20 law enforcement agents used or were offered this tool.

It’s time for the Senate to close this incredibly dangerous and invasive loophole. If police want a person — or a whole community’s — location data, they should have to get a warrant to see it. 

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Legal Dictionary

The Law Dictionary for Everyone

4th Amendment

The meaning of the 4th Amendment comes from unlawful searches and seizures. For example, the 4th Amendment protects people from the unlawful search and seizure by police of their persons, their homes, and their belongings. If an officer violates the 4th Amendment, the victim can sue for wrongful arrest, among other things. To explore this concept, consider the following 4th Amendment definition.

Definition of 4th Amendment

• The amendment to the U.S. Constitution that protects Americans from unlawful search and seizure by police.

September 25, 1789

What is the 4th Amendment?

The 4th Amendment is the amendment to the U.S. Constitution that protects American citizens from unlawful searches and seizures. What this means is that the police cannot arrest an individual without a warrant or probable cause , and they cannot take a person’s home or property either without valid reason. Unfortunately, 4th Amendment examples of violations happen every day in the U.S. In many of these cases, the victim will sue the police upon his release from prison , and/or to reclaim his property.

Requirements of the 4th Amendment

There is a lot of debate regarding the proper requirements of the 4th Amendment, and it has to do with the definition of “reasonable,” and “probable cause.” In most cases, there is a strict requirement that law enforcement have a search warrant before searching, though in some specific instances, probable cause to believe a suspect is doing or hiding something illegal is enough.

Probable cause that allows police to search a person’s belongings or person includes such things as the strong smell of marijuana emanating from a car a police officer has just stopped. This would give the officer reasonable belief that there is an illegal drug in the vehicle, and therefore probable cause to search the vehicle – and the driver’s person as well.

Ultimately, the 4th Amendment is in the Constitution to protect Americans’ rights. It is there to protect people from the government’s intrusion upon their lives unless the government has a good reason to intrude.

Unreasonable Search and Seizure

An unreasonable search and seizure is a search and seizure that invades a person’s privacy. For instance, searches of people’s garbage are not 4th Amendment examples of unreasonable search and seizure because the individual put the bags at the curb. Once the garbage bags are on the side of a public road, they are accessible to everyone from animals and children, to scavengers and snoops. So, if the police go through a person’s garbage and find incriminating evidence , this is not an instance of an unreasonable search and seizure.

This is also the reason why a person who consents to a search or voluntarily provides evidence to the police should not have a reasonable expectation of privacy. He is inviting others to explore what he has to offer. Therefore, it is not unreasonable for those people to dig deeper and potentially uncover more information.

Reasonable Search

The 4th Amendment states that one way in which the police can conduct a reasonable search is to obtain a legitimate warrant. The warrant must describe the place the police wish to search, as well as the people they intend to arrest and the property they intend to seize. Another way they can conduct a reasonable search is to require that the search meets the parameters of an exception to the rule requiring warrants.

Essentially, the way to define a reasonable search is to compare the government’s interests with a person’s reasonable expectation of privacy. For instance, examples of 4th Amendment violations are less likely if a person is guilty of a violent crime. If someone commits a serious crime, he should not expect to enjoy his privacy for very long before the authorities catch up with him.

Probable Cause

The term “probable cause” refers to a legitimate belief that a person has committed a crime or will commit a crime in the future. For a police officer to have probable cause, he must possess enough information about the situation to support his belief that the person he suspects is actually committing, or will commit, a crime. It is not enough to simply suspect someone of a crime. For probable cause to exist, the officer must have factual proof.

Courts rely on probable cause to determine whether a defendant committed a crime. To do this, they measure whether an average person with a reasonable level of intelligence would believe that the evidence provided is enough to prove that the defendant is guilty of the charges against him. The ways in which an individual can come to such a conclusion include:

• By observing the situation first-hand
• Through information provided by witnesses and informants
• Through sensory perception (sight, hearing, etc.)
• By using his expert knowledge to evaluate the facts at hand

Fruit of the Poisonous Tree

The phrase “fruit of the poisonous tree” refers, in the legal sense, to evidence the police obtain illegally, and then try to use against a defendant to build their case. For example, 4th Amendment examples of violations may include officers coercing, or forcing, a suspect to confess to a crime he did not commit, simply to stop the officers from grilling him for hours on end. The phrase “fruit of the poisonous tree” can refer to any evidence the police obtain illegally, including through illegal wiretaps or after arresting someone without a warrant.

Inevitable Discovery

There are exceptions to the fruit of the poisonous tree rule, and these exceptions have a name: “inevitable discovery.” Inevitable discovery refers to evidence the police obtained illegally but that the prosecution can still use to strengthen their case.

In these cases, the court determines the police could have found the information legally, given enough time, even if they initially came upon the information illegally. Therefore, this evidence becomes “inevitable” discovery because it is “inevitable” that the police would have found it anyway, even if they had done so legally, which is why courts may permit its use.

4th Amendment Example Involving a Potential Jewelry Store Robbery

An example of a 4th Amendment violation occurred in Terry v. Ohio (1968). Here, a police officer noticed a group of men, one of which was John Terry, loitering in front of a jewelry store. This caused him to suspect they were “casing the joint” with the intent of robbing the store. He approached the men, told them he was a police officer, and frisked them. During the frisk, the officer found illegal, concealed weapons. He arrested the men, and after their trial , the court found them guilty. Terry received a sentence of three years in prison on the charge of illegal carrying a concealed weapon.

The defendant appealed the case all the way up to the U.S. Supreme Court. Unfortunately for him, however, the Court ultimately sided with the lower court. The Court held that an officer may pat down a suspect to look for weapons if he has reasonable grounds for suspecting that individual of possessing a weapon. According to the Court, the officer conducted a reasonable search with probable cause.

Said the Court:

“We conclude that the revolver seized from Terry was properly admitted in evidence against him. At the time he seized petitioner and searched him for weapons, Officer McFadden had reasonable grounds to believe that petitioner was armed and dangerous, and it was necessary for the protection of himself and others to take swift measures to discover the true facts and neutralize the threat of harm if it materialized. The policeman carefully restricted his search to what was appropriate to the discovery of the particular items which he sought.

Each case of this sort will, of course, have to be decided on its own facts. We merely hold today that, where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous, where, in the course of investigating this behavior, he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken.”

Related Legal Terms and Issues

• Defendant – A party against whom a person has filed a lawsuit in civil court, or who stands accused of, or charged with, a crime or offense.
• Trial – A formal presentation of evidence before a judge and jury for the purpose of determining guilt or innocence in a criminal case, or to rule in a civil matter.
• Warrant – A writ issued by a court or other legal official authorizing law enforcement or other agency to make an arrest, search a premises, or take some other action related to the administration of justice.

Memorizing the Bill of Rights Amendments

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Are you required to memorize the Bill of Rights ? It is sometimes difficult to match up amendments with the rights they provide. This exercise employs a memorization tool called the Number-Rhyme System.

You start by thinking up a rhyming word for each amendment number.

• One-sticky bun
• Two-big shoe
• Three-house key
• Five-bee hive
• Six-bricks and cake mix
• Seven-heaven
• Eight-fishing bait
• Nine-blank line
• Ten-wooden pen

Your next step is to visualize a story that goes with the rhyming word. Think about the stories below and create a picture of each rhyming word in your mind as you read the stories.

AMENDMENT ONE - sticky bun

On the way to church , you grab a sticky bun. It’s so sticky it gets all over your hands and the newspaper you’re holding. It looks so good that you take a bite of it anyway, but the bun is so sticky that you can’t speak afterward.

The first amendment addresses the freedom of religion, the freedom of the press, and the freedom of speech.

See how the story gives you clues to the specific amendment?

AMENDMENT TWO - big shoe

Imagine that you’re standing in the snow, and you’re very cold. You look down to see that you have big shoes covering your feet, but you have no sleeves to cover your arms. They are bare!

The second amendment addresses the right to bear arms.

AMENDMENT THREE - house key

Your house had been invaded by British soldiers and they all want to have a key so they can come and go as they please.

The third amendment addresses the quartering of soldiers in homes.

AMENDMENT FOUR - door

Picture yourself sleeping peacefully when you are rudely awakened by a pounding at your door. You see that the police are trying to break down your door and enter forcibly.

The fourth amendment addresses the right to be secure in your home and with your private possessions—and establishes that the police cannot enter or seize property without good reason.

AMENDMENT FIVE - bee hive

Imagine yourself standing outside a courthouse where a bee hive is hanging from the roof. Suddenly you are stung twice by a bee.

The fifth amendment addresses your right to a trial and establishes that citizens can’t be tried twice (stung twice) for the same crime.

AMENDMENT SIX - bricks and cake mix

Amendment six is big enough for two words! Imagine that you’ve been arrested and locked up in a small brick building, and you’ve been confined there for a year! When you are finally able to go to trial, you are so relieved that you bake a cake and share it with the public, your lawyer, and the jury.

Amendment six establishes the right to a speedy trial, the right to compel witnesses to attend your trial, the right to have a lawyer, and the right to have a public trial.

AMENDMENT SEVEN - heaven

Imagine a dollar bill flying up to heaven where a winged jury sits.

The seventh amendment establishes that crimes may be treated differently if there is a small dollar amount involved. In other words, crimes involving a dispute less than $1500 can be tried in small claims court. The seventh amendment also forbids the creation of private courts—or courts other than government courts. The only court you have to worry about outside the government courts may be the one in the hereafter!

AMENDMENT EIGHT - fishing bait

Imagine you’ve done something wrong and now you’re forced to eat worms as punishment!

The eighth amendment protect citizens from cruel and unusual punishment.

AMENDMENT NINE - blank line

Imagine the Bill of Rights followed by a lot of blank lines.

The ninth amendment is a little hard to grasp, but it addresses the fact that citizens do enjoy rights that are not mentioned in the Bill of Rights—but there are too many basic rights to mention. It also means that the amendments that are listed must not infringe upon rights that are not listed.

AMENDMENT TEN - wooden pen

Imagine a big wooden pen surrounding each and every individual state.

The tenth amendment provides individual states with powers not held by the federal government. These powers include laws concerning schools, driver’s licenses, and marriages.

For best results:

• Say each number and its rhyming word out loud and remember how they sound to tap into your auditory learning ability.
• Get a clear mental picture (and the sillier the better) of each story to tap into your visual learning ability.

Now go through the numbers one to ten in your head and remember the rhyming word. If you remember the rhyming word, you’ll be able to remember the story  and  the amendment!

• The Original Bill of Rights Had 12 Amendments
• The Bill of Rights
• The Seventh Amendment: Text, Origins, and Meaning
• The First 10 Amendments to the Constitution
• Why the Bill of Rights Is Important
• How to Remember Dates for a Test - Memorization
• The Sixth Amendment: Text, Origins, and Meaning
• What Is a Bill of Attainder?
• The U.S. Constitution
• The Fourth Amendment: Text, Origins, and Meaning
• What Rights and Liberties Are Guaranteed by the U.S. Constitution?
• How to Amend the Constitution
• What Are Individual Rights? Definition and Examples
• Where Did the Right to Privacy Come From?
• James Madison and the First Amendment
• The Fifth Amendment: Text, Origins, and Meaning

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The first amendment, constitution 101 resources, 15.3 visual info brief: 27 amendments to the constitution.

This activity is part of  Module 15: Article V and the 27 Amendments from the Constitution 101 Curriculum.  

The Founding Era 1791 – 1804

• First Amendment
• Second Amendment
• Third Amendment
• Fourth Amendment
• Fifth Amendment
• Sixth Amendment
• Seventh Amendment
• Eighth Amendment Ninth Amendment
• 10th Amendment
• 11th Amendment
• 12th Amendment

The  Reconstruction Era 1865 – 1870

• 13th Amendment
• 14th Amendment
• 15th Amendment

The Progressive Era   1913 – 1920  

• 16th Amendment
• 17th Amendment
• 18th Amendment
• 19th Amendment

The Modern Era   1933 – 1992

• 20th Amendment
• 21st Amendment
• 22nd Amendment
• 23rd Amendment 
• 24th Amendment
• 25th Amendment
• 26th Amendment
• 27th Amendment

View the attachment to see the amendments to the Constitution listed by time period.  

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