By Shana-Tara O’Toole | Due Process Institute | President
The authors of the Bill of Rights and the rest of the Founding generation were keenly aware and resentful of the general warrants issued by the English Crown. General warrants allowed government agents to ransack homes searching for evidence of a crime (or to just harass people). In practice, these general warrants were baseless government determinations that some crime might have been committed and the overly broad general searches they authorized were the method to go find evidence to that effect.
The fears and mistrust of the government that were caused by the execution of these general warrants led our new nation’s citizens to specifically mandate a more fair approach in the Fourth Amendment to the U.S. Constitution. It reads:
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.
Our Fourth Amendment sets certain commonsense limits on search warrants. For example, the government needs to demonstrate and swear to a judge that it has a valid enough reason—“probable cause”—to believe a specific crime is occurring (or occurred), which will temporarily grant them the power to violate the Constitutional due process right of individuals to be unmolested from government intrusion into their persons and property. The objective of the government’s search warrant must be “particular” and the search itself must be “reasonable.”
More than two centuries after the ratification of the Bill of Rights, technology has expanded the potential intrusion of a government search beyond the furthest inkling of the Founding generation. Audio, video, and geo-spatial surveillance capabilities can allow the tracking and accumulation of the most intimate details of a person’s daily life from the time she wakes up until she goes to bed, remotely and completely unbeknownst to her, at relatively low effort and cost. But importantly, the use of such advanced technology to surveil a person by law enforcement is limited somewhat by the Fourth Amendment’s particularity requirement and a principle known as “minimization.” That is, a warrant can only grant law enforcement access to specific limited times and conduct relevant to the particular allegations in the search warrant and law enforcement must engage in reasonable efforts to “minimize” surveillance that is too far-reaching or overly inclusive in scope.
The government’s continued respect for, and adherence to, this Constitutional requirement to minimize government intrusion beyond the scope necessary for the proper execution of a court-approved search warrant is increasingly important in a world where the government’s ability to intrude into our homes, our papers, our communications, and our private conduct continues to technologically expand. For this reason, the Due Process Institute recently filed an amicus brief in the Florida Court of Appeals case State of Florida v. Robert Kraft. We support the suppression of evidence taken by police in violation of particularity and minimization safeguards. While “particularity” and “minimization” are concepts that most TV detective shows treat like absurd “technicalities” that might let guilty people escape punishment, it is hard to overstate the immense power the government has to covertly track every aspect of our lives and how continuing to uphold these limiting principles is vital to the fundamental rights of us all. Otherwise, we are allowing ourselves to return to a time when the government looks into the most personal details of our existence whenever it wants, for whatever reason it wants, without even the minimal protections we think we enjoy as Americans.
At its essence, this case is about how much we value whether the government honors Constitutional protections against government intrusion into our private lives. By filing an amicus brief in cases like Florida v. Kraft, the Due Process Institute is able to support individuals who fight to uphold the suppression of illegally collected evidence as part of our larger policy effort to stop the further erosion of essential procedural due process rights that our Founding generation recognized as invaluable.
You can read our entire amicus brief in Florida v. Kraft here. The Due Process Institute thanks Donnie Murrell for his assistance in this case.