The 4th Amendment

Dear Readers: A staple constitutional right – the 4th Amendment – is in the news, thanks to Mar-a-Lago. The core principle that is, “unreasonable” search and seizures are prohibited, adapted to a world of which our Founding Fathers could not have conceived.

The quantum of proof needed to support a warrant is not clearly defined. Courts have filled in the blanks, requiring “probable cause” – the lowest of our legal standards; think of it as “a scintilla” (just a bit). A sworn application (affidavit) explains to a Magistrate/Judge what probable cause (likelihood) exists to believe a crime has been committed and the location of any contraband to seize.

What happened at Mar-a-Lago was the execution of a warrant and not a “raid”; the search and seizure of documents were authorized by a Magistrate. The marriage of probable cause to believe a crime occurred and the contraband could be found at Mar-a-Lago should be a major point of concern for the former President.

There is nothing in the text of the 4th Amendment explicitly permitting warrantless searches, since it just talks about “reasonableness.” This vagary has led to whole body of case law to permit one, modern life being too chaotic, while also creating 4th Amendment’s limitations on law enforcement. Legal terms like “hot pursuit,” “pat-down” searches, “plain feel,” and “plain view,” have made some bright-line (some murkier than others) rules for law enforcement. Cars, computers, and cell phones also never existed in Colonial America – another problem relying on the explicit text of the 4th Amendment.

A “seizure” can be “stuff” or it can be a “person” or an arrest. “Reasonable” warrantless arrests are permitted, again, courts require that pesky “probable cause.” Obviously, if someone is engaged in the commission of a crime, like actively robbing a bank, you can be arrested, but can also be based on what the police were told. Essentially, anyone can say anything about anyone, except that making a false statement to law enforcement is a felony crime – and, the prevaricator can be civilly liable for a false arrest.

When “stuff” is seized from a search, police will impound it. The person who claims it can contest this in civil court. President Trump has done this with his lawsuit before District Court Judge Aileen Cannon. What her chosen Special Master, Judge Raymond J. Dearie, and the unanimous three-judge panel of the 11th Circuit Court of Appeals have pointed out is that she never found that President Trump cleared his civil burden of proving the documents were actually his. There is no affidavit supporting that concept.

Seized property, whether warrantlessly (like from a traffic stop) or from a warrant, can also be “civilly forfeited” as the product of criminal activity. Civil forfeiture is an overused power (which is another column). The roots are from old rules permitting customs to commandeer a ship’s cargo. It was expanded by our Drug War of the 1970s and 1980s, culminating with the passage of the Comprehensive Crime Control Act of 1984.

Civil forfeiture lets governments use seized property as a mechanism to fund law enforcement. Automobiles, homes, and money, are seized, civilly forfeited, and kept by the seizing police departments supplementing their budgets. This legal pirating places only a civil burden of proof (more likely than not) on the State, instead of the much more restrictive criminal one (beyond a reasonable doubt).

A person can contest the legality of a search or seizure, be it in the criminal case or a civil one. Criminally, this is usually done after a pre-trial process of discovery, which varies from state-to-state or federal court; during this process a defendant receives access (or a copy) of the evidence against him or her. This includes the application of a search (or arrest) warrant. At this point, a defendant is likely to file a motion to suppress (although it can be done before discovery), alleging there was insufficient basis to conduct the search, with or without a warrant.

President Trump is not doing this – he initiated a civil lawsuit. He suggests documents may not have been legally confiscated by the FBI, while not stating so under oath. This is highly unusual. In this context, the 4th Amendment requires he “claim” documents, under oath, and show they are his by a “preponderance of the evidence.”

As a basic right, the 4th Amendment has evolved from the mooring of its text; we do not live in colonial America. President Trump demonstrates how not to use it.

Warner Robins attorney Jim Rockefeller is the former Chief Assistant District Attorney for Houston County, and a former Assistant State Attorney in Miami. Owner of Rockefeller Law Center, Jim has been in private practice since 2000. E-mail your comments or confidential legal questions to jim@rockefellerlawcenter.com.

HHJ News