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Fourth Amendment

8 min read

Part of Crime, police and punishment.

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Every episode (7)

Who argued it

Mike Greenberg · Jonathan Hofer · Liza Goitein · Pat Eddington · Matthew Feeney · Radley Balko · Mike Riggs

Property Rights · Civil Asset Forfeiture · Due Process · Privacy · Federalism · Surveillance

Background

The warrant requirement and individualized probable cause

In a 2023 episode on civil asset forfeiture, attorney Mike Greenberg described the theory of the Fourth Amendment as the founders set it up: a person’s property is their castle, and the government cannot search or invade that property or privacy without a judicially authorized warrant supported by individualized probable cause that the person has done something wrong or that evidence of wrongdoing is on the property. Greenberg emphasized that the warrant must be issued by a judicial officer. Pleading the Fourth: The Institute for Justice’s Fight Against Policing-for-Profit (2023)

Host Bob Zadek framed this as a system of checks and balances: a judge sworn to enforce and defend the Constitution must be convinced that there is reason to single out a particular person before police may kick down a door and seize property. In theory, Zadek said, the police cannot act merely because they dislike someone; they must persuade an independent official that there is reason to target a specific house or property. Pleading the Fourth: The Institute for Justice’s Fight Against Policing-for-Profit (2023)

The militarization of domestic law enforcement

In a 2013 episode, Radley Balko argued that while the United States has generally kept the military out of domestic law enforcement, domestic police officers now look and act like soldiers. Balko said police have been given the weapons, equipment, uniforms, and military tactics of soldiers, including tanks, armored personnel carriers, helicopters, battle dress uniforms, and SWAT raids. He noted that police are regularly told they are fighting wars on drugs, crime, or terrorism. Posse Comitatus – Repealed but Not Gone (2013)

Balko drew a distinction between the soldier’s job—to annihilate a foreign enemy, to kill people and break things—and the police officer’s job, which is to keep the peace and protect rights. He warned that treating cops as soldiers blurs that distinction, leading officers to see themselves as soldiers and the neighborhoods they patrol as battlefields, with the people they serve as potential enemies or threats. Posse Comitatus – Repealed but Not Gone (2013)

Zadek observed that the core relationship between protector and protected has changed, saying that there was a time when he did not view the policeman as someone to be feared. Balko responded that there is a danger of romanticizing a time that may never have existed, though he allowed that there probably was a time when people like Zadek did not fear the police. Posse Comitatus – Repealed but Not Gone (2013)

Purchasing data around the warrant requirement

In a 2021 episode, Liza Goitein argued that the government should not be able to buy geolocation data to circumvent the warrant requirement. She said the Supreme Court has held that location information is so private that the government needs a warrant just to collect it, and that the warrant requirement applies at the door—not merely to how the government uses the data once obtained. New Tests for the Fourth Amendment (2021)

Goitein described geolocation information as a comprehensive record of everywhere a person has been, day in and day out, stretching back months or potentially years—a historical and ongoing record of precise whereabouts that can reveal some of the most sensitive possible information about a person. She said the government should need a warrant to collect it and should not be able to buy its way around that requirement. New Tests for the Fourth Amendment (2021)

Zadek agreed with the principle and raised an analogy: should the government be prohibited from buying binoculars because it might misuse them to spy without a warrant? Goitein said the analogy breaks down because binoculars reveal only what a person has left open to view, which is not considered a Fourth Amendment issue, whereas geolocation data is a comprehensive record requiring a warrant to collect. New Tests for the Fourth Amendment (2021)

Zadek also raised the private sector’s misuse of publicly available data, citing cancel culture and the chilling effect on college students who fear their social media posts will haunt them later. Goitein distinguished data people voluntarily make public on social media from location information they do not deliberately make public. She said digital data brokers and app developers can sell data to marketers and private entities, which she finds problematic and believes needs stronger legal protections, but she distinguished private-sector harms from government harms because the government has coercive powers—the power to jail, to launch a drone strike, and to target people based on ideology—that the private sector lacks. New Tests for the Fourth Amendment (2021)

The Fourth Amendment Is Not For Sale Act

Goitein described pending legislation called the Fourth Amendment Is Not For Sale Act, sponsored by Rand Paul and Ron Wyden. She said it would prohibit law enforcement and intelligence agencies—though not public health or education agencies—from purchasing or exchanging anything of value for geolocation information, communications content, and other data that telephone companies are currently prohibited from selling to the government. New Tests for the Fourth Amendment (2021)

Goitein said the bill is a good start but does not go far enough because it does not prohibit voluntary disclosures without payment. She argued that companies might give information to the government gratis to curry favor, win contracts, or avoid regulation, and that disclosure of personal data under any circumstances should require a court order or legal process. New Tests for the Fourth Amendment (2021)

The U.S. Private Vaults raid and the Ninth Circuit appeal

In the 2023 episode, Greenberg described a raid on U.S. Private Vaults in March 2021. He said the government conducted a criminal search when the warrant specifically said it could not do that, and misled a magistrate. He argued the case stands for the principle that reason to think someone owning an apartment building is conducting a drug sale out of the main office does not give the government license to search and seize the contents of every apartment in that building. Pleading the Fourth: The Institute for Justice’s Fight Against Policing-for-Profit (2023)

Greenberg said his clients got their property back gradually, with the last client receiving things in October, and that some people not represented by him were still trying to get their stuff back. He recounted accompanying two clients to an FBI office in Los Angeles where they signed paperwork and received grocery bags filled with precious metals; two agents facilitating the return asked if the clients wanted to be accompanied to their car because there were homeless people in the area who might rob them. Greenberg said civil forfeiture turns the police into robbers. Pleading the Fourth: The Institute for Justice’s Fight Against Policing-for-Profit (2023)

Greenberg said the government kept records of documents, heirlooms, and debit and credit cards it photographed, and that he wants a court to declare that going into the boxes and lying to the magistrate violates the Fourth Amendment, and to order destruction of the records. He said the court issued an initial ruling finding what the government did was close enough to an inventory search, and that he is appealing to the Ninth Circuit. Pleading the Fourth: The Institute for Justice’s Fight Against Policing-for-Profit (2023)

Across episodes

The episodes show the same question—what the Fourth Amendment requires before the government may intrude on privacy or property—argued in multiple episodes, with different guests emphasizing different threats. Balko in 2013 focused on militarized policing, Goitein in 2021 on government purchase of geolocation data, and Greenberg in 2023 on dragnet searches and civil forfeiture. The episodes show no development or change in the underlying principle across these treatments; each guest describes a distinct mechanism by which the warrant and probable-cause requirements are circumvented.

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