Regulating The Fourth Amendment Out of Existence

The Fourth Amendment, which protects Americans from unreasonable searches and seizures and demands that judicial officers issuing search warrants do so only on a showing of probable cause, is an important guarantee of our civil liberties, designed to protect personal privacy – especially in the home – from random governmental snooping. The Fourth Amendment tends to get a lot of bad press because it is usually enforced only by the Exclusionary Rule, which keeps the government from using illegally obtained evidence; by definition, the Exclusionary Rule protects only the rights of people with incriminating evidence to hide. It’s also subject to various common-sense exceptions to allow law enforcement to operate on public streets when a warrant is impractical or public safety is imminently threatened. But whatever the misuses of the Exclusionary Rule, the protection against unreasonable searches and seizures remains a core Constitutional right.


And like all such rights, it is bound to come under more pressure the larger the regulatory state grows and the further it sinks its tentacles into every avenue of our existence. The growth of the regulatory state is a much greater threat to rights like these than are ordinary law enforcement or even the national security state, both of which are much more narrowly focused in their goals and thus unlikely to expend much effort harassing ordinary citizens.

A clear example of how the growth of the regulatory state threatens the rights protected by the Fourth Amendment was pointed out this morning by Justice Alito, in an opinion joined by Chief Justice Roberts, Justice Scalia and Justice Thomas concurring in the denial of a certiorari petition (scroll to the last two pages of the pdf):

Our cases recognize a limited exception to the Fourth Amendment’s warrant requirement for searches of businesses in “closely regulated industries.” …The thinking is that, otherthings being equal, the “expectation of privacy in commercial premises” is significantly less than the “expectation in an individual’s home.” …And where a business operates in an industry with a “long tradition of close government supervision” – liquor dealers and pawnbrokers are classic examples – the expectation of privacy becomes “particularly attenuated.”…

In this case, a New Jersey appellate court applied this doctrine to uphold a warrantless search by a state environmental official of Robert and Michelle Huber’s backyard…. The Hubers’ residential property contains wetlands protected by a New Jersey environmental statute…According to the court below, the presence of these wetlands brought the Hubers’ yard “directly under the regulatory arm” of the State “just as much” as if the yard had been involved in a “regulated industry.”

This Court has not suggested that a State, by imposing heavy regulations on the use of privately owned residential property, may escape the Fourth Amendment’s warrant requirement.


(Emphasis added; citations omitted).

Justice Alito went on to note that the Court was properly declining to take the case for procedural reasons: the decision came from an intermediate appellate court, not a state Supreme Court, and thus didn’t meet the Court’s usual criteria for resolving disputed issues of federal law. But it is noteworthy nonetheless that the Court’s four conservative Justices felt it important to remind lower courts that the creeping expansion of regulation up to the very doorstep of private homes – the heartland of the Fourth Amendment’s protections – should not be used as an excuse to treat private property’s privacy as yet another thing subject to bureaucratic whim.


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