Private property is the bedrock of the American Dream. It’s why generations have toiled, scrimped, and saved for themselves and their posterity. And it’s why IJ has fought for decades against policies that let government officials take people’s property. The Framers of the U.S. Constitution understood that property isn’t really yours if the government can take it on a whim or to line someone else’s pocket.
The Framers also understood that Americans can never feel secure in their property if officials can enter and search at will. After all, one major cause of the American Revolution was British officials’ use of general warrants to break into colonists’ homes and businesses. The Framers ratified the Fourth Amendment to prevent similar abuses by the new United States.
At first, things went well. But as Prohibition and the War on Drugs arose in the 20th century, judges whittled away search and seizure protections in favor of efficient law enforcement. Worse, they cast off the Fourth Amendment’s property rights focus and elected to scrutinize officials’ conduct only if it violated a person’s “reasonable expectation of privacy.”
Unsurprisingly, courts applying that confusing, ahistorical test dramatically weakened the rights the Fourth Amendment was designed to protect. They opened all land that isn’t your house and the few feet around it to government snooping with the “open fields” doctrine. They determined that any information shared with others loses all constitutional protection with the “third party” doctrine. They sanctioned entry to homes and apartments based on generic “administrative warrants” that don’t identify any problem requiring inspection.
IJ’s own search and seizure cases show the sad state of our Fourth Amendment rights.
Carole Hinders was an honest businesswoman, but after IRS officials accessed her banking records without a warrant, they used civil forfeiture to seize her restaurant’s savings based only on how she deposited her receipts.
Tennessee officials routinely entered Terry Rainwaters’ farmland to search for hunting violations, even installing cameras on his property, without suspicion or a warrant.
Pasco County, Florida, police hounded Robert Jones with “prolific offender checks” after a computer algorithm said a family member might commit crimes in the future.
And the FBI seized Joseph Ruiz’s life savings at U.S. Private Vaults, even though it had no reason to suspect Joseph or any safety deposit box owner of wrongdoing, simply because agents saw his desire for financial privacy as inherently suspicious.
IJ’s new Project on the Fourth Amendment exists precisely because—like Carole, Terry, Robert, and Joseph—every American is now at risk of government searches, seizures, and surveillance.
In the months and years to come, IJ will take aim at doctrines that permit the horror stories IJ clients have experienced. We will persuade courts to replace the confusing, contradictory, and wildly inadequate Fourth Amendment rules that currently exist with an approach to search and seizure law that is simple to understand, consistent with original understanding, and broadly protective of our right to be secure in our persons and property.
This is an ambitious goal. But the need is urgent. Americans should not have to live with the knowledge that anything we do, say, share, or earn is fair game to prying officials on the hunt for wrongdoing. And, as with occupational licensing, educational choice, eminent domain abuse, civil forfeiture, and more, IJ is uniquely positioned to take decisive action and give life to the protections the Fourth Amendment was drafted to secure.
Robert Frommer is an IJ senior attorney.