It often seems the dominant cultural conversations about the United States Constitution—among scholars and non-scholars alike—center largely on civil, rather than criminal, issues. That is not uniformly true, as the Cato Institute, for example, recently named Clark Neily their Vice President for Criminal Justice. The Charles Koch Institute has similarly invested significant resources into criminal justice reform efforts. We have highlighted before the level of ongoing bipartisan efforts in the area of criminal justice reform, as well as in the areas of asset forfeiture and due process rights.

Such developments nevertheless take a consistent back seat to the much more polarizing civil issues touching on constitutional principles, such as for whom one must bake a cake, whether the President may block a Twitter follower, and whether national security concerns justify geographic travel policies banning entry from particular regions. In my favorite words of Jordan Lorence, “don’t hear what I’m not saying”: I am not saying these issues are not important. They very much are. But aren’t criminal issues? Criminal law, after all, presents the most imminent threat of deprivation of life, liberty, and property.

Our Constitution, which secures myriad rights for criminal defendants throughout, certainly represents a once-deeply entrenched cultural view that delineating strict rules constraining government actors during and leading up to criminal processes is a fundamental requirement of any society that truly values individual liberty and sovereignty. Perhaps it is because we live in an age too far removed from the Founders’ experiences that we have slowly settled for something less—for a paradigm under which, as Ninth Circuit Judge Alex Kozinski has argued, government prosecutors maintain an unfair advantage and the rights of individuals fall secondary to a pervasive “tough on crime” religion.

This new paradigm manifests itself in many ways, some of which Judge Kozinski raised in his Georgetown Law Review article. But it is especially visible in the manner in which the government seizes, shares, and is permitted to rely on a defendant’s property as evidence. And it is a specific practice in this area of Fourth Amendment law I suggest warrants, at the minimum, a critical discussion.

The following hypothetical will help elucidate the specific practice at issue.

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Consider that Defendant is under investigation in the Northern District of Florida for suspected medicare fraud. In due course, agents from the FBI and the Office of Inspector General for Health and Human Services (HHS-OIG) begin to observe Defendant and interview witnesses to collect information sufficient to justify a search warrant. The FBI and HHS-OIG agents prepare their affidavits and present their recommendation to an AUSA at the U.S. Attorney’s Office for the Northern District of Florida. The AUSA, in turn, applies to a Northern District of Florida magistrate judge for a search warrant.

The warrant application requests authority to search the premises of Defendant’s business, located in the Northern District, where the government asserts, based on the agents’ affidavits, it has probable cause to believe it will find evidence of medicare fraud. A warrant is issued that authorizes the government to 1) search the premises of Defendant’s business at the specific address given, 2) seize certain identified property if it tends to evidence the commission of medicare fraud, and 3) execute the search within 10 days.

The warrant is properly executed, and a whole host of materials are seized, which the agents and Northern District AUSA begin to process and review.

Unfortunately for Defendant, a similar situation had arisen five months earlier. In the Southern District of Florida, where Defendant lives, Defendant is under investigation for alleged tax fraud.

After interviewing several witnesses, agents from the FBI, IRS, and DHS had prepared affidavits and recommended to an AUSA in the U.S. Attorney’s Office for the Southern District of Florida that a search warrant be requested. Accordingly, the Southern District AUSA applied to a magistrate for a search warrant, asserting based on the agents’ affidavits that the government had probable cause to believe a search of Defendant’s home would yield particular evidence of tax fraud.

A warrant was issued that authorized the government to 1) search Defendant’s home at the specific address given, 2) seize certain identified property if it tended to evidence the commission of tax fraud, and 3) execute the search within 10 days. That warrant was properly executed, with a large volume of documents being seized, which the agents and Southern District AUSA began to process and review.

After executing their own warrant and spending time reviewing their spoils, the agents back in the Northern District grew frustrated with their inability to identify the kind of evidence they had expected to find. Aware of the earlier search of Defendant’s home conducted in the Southern District, the Northern District agents began to wonder what goodies Defendant may have been hiding at home—after all, the Northern District agents had requested a warrant to search only the premises of Defendant’s business, but certainly Defendant’s home could have housed some helpful leads. Maybe there were business records, financial documents, emails, text messages—something, anything that would bring nefarious conduct to light.

With that in mind, an FBI agent from the Northern District phoned a fellow agent from the Southern District and arranged to send over a hard drive, onto which the Southern District agent loaded the large volume of documents seized from Defendant’s home and which the agent returned to the Northern District for agents there to peruse. Score!

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To federal agents and prosecutors, and lamentably to federal courts as well, the practice identified in the hypothetical is perfectly acceptable. The government’s position appears to be that once an individual’s property has been lawfully seized pursuant to any warrant, that property is firmly in the belly of the government as a whole. In other words, the government is the government is the government; it makes no difference which government actor collects the property, or under what authority, because the government is best viewed as one entity within which an individual’s seized property is bandied about freely like a beach ball at a Phish concert.

 

To be clear: Government Actor X may obtain Defendant’s Property Z and search it for evidence of Crime X or any other crime, even though Defendant’s Property Z was seized by Government Actor Z pursuant to Warrant Z based on probable cause to believe Defendant had committed Crime Z—not Crime X or any other crime—and notwithstanding Government Actor X may not even know the contents of Property Z or its ultimate relevance to any crimes, X or otherwise. In essence, X can say to Z, “Hey! I heard you have some of Defendant’s stuff from his home. Let me poke around for a bit.”

The discussion I wish to start is whether this practice of “intergovernmental evidence-sharing” accords with the original meaning of the Fourth Amendment. In my mind, it does not.

The practice ignores that the Warrant Clause does not empower the government to seize property as evidence, and it is therefore tantamount to a fishing expedition that converts the particularized warrants demanded by the Fourth Amendment into the very “general warrants” the provision was understood to prevent.

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The Fourth Amendment provides:

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.

At the time of its ratification, and for quite some time after, likely no one believed the Warrant Clause of the Fourth Amendment could or would be construed to empower government actors to seize a citizen’s property for evidentiary purposes. To the contrary, searches at the time were conducted to locate and seize the fruits and instrumentalities of criminal activity, with the classic case being searches of imports to seize contraband or goods upon which duties had not been paid.

For example, in holding unconstitutional a set of laws designed to stamp out fraud by compelling the production of financial documents and merchandise, the Supreme Court stated in Boyd v. United States (1886) that the act under consideration

was the first act in this country, and, we might say, either in this country or in England…which authorized the search and seizure of a man’s private papers, or the compulsory production of them, for the purpose of using them in evidence against him in a criminal case or in a proceeding to enforce the forfeiture of his property. Even the act under which the obnoxious writs of assistance were issued did not go as far as this, but only authorized the examination of ships and vessels, and persons found therein, for the purpose of finding goods prohibited to be imported or exported, or on which the duties were not paid, and to enter into and search any suspected vaults, cellars, or warehouses for such goods. The search for and seizure of stolen or forfeited goods, or goods liable to duties and concealed to avoid the payment thereof, are totally different things from a search for and seizure of a man’s private books and papers for the purpose of obtaining information therein contained, or of using them as evidence against him. The two things differ toto coelo.

This passage presents the original understanding of the Fourth Amendment as differentiating between 1) a search justified by evidence of wrongdoing that results in the seizure of illicit property because the property is illicit, and 2) a search justified by evidence of wrongdoing that results in the seizure of private property for the purpose of finding evidence of wrongdoing. The latter, the Boyd Court held, is unconstitutional. It is also precisely what happens in the case of intergovernmental evidence-sharing.

The Boyd Court bolstered its originalist defense of the distinction by explaining that

[t]he seizure of stolen goods is authorized by the common law, and the seizure of goods forfeited for a breach of the revenue laws, or concealed to avoid the duties payable on them, has been authorized by English statutes for at least two centuries past, and the like seizures have been authorized by our own revenue acts from the commencement of the government. The first statute passed by Congress to regulate the collection of duties, the act of July 31, 1789, 1 Stat. 29, 43, contains provisions to this effect. As this act was passed by the same Congress which proposed for adoption the original amendments to the Constitution, it is clear that the members of that body did not regard searches and seizures of this kind as ‘unreasonable,’ and they are not embraced within the prohibition of the amendment.

The Boyd Court thus recognized that the ratifiers of the Fourth Amendment understood searches and seizures properly targeted property that did not legally belong to the possessor, was the fruit of wrongdoing, or had been used to carry out some wrongdoing. But the Court instructed that to go beyond this understanding and

compel[] the production of [a suspect’s] private books and papers, to convict him of crime or to forfeit his property, is contrary to the principles of a free government. It is abhorrent to the instincts of an Englishman; it is abhorrent to the instincts of an American. It may suit the purposes of despotic power, but it cannot abide the pure atmosphere of political liberty and personal freedom.

In other words, the Fourth Amendment was never understood to empower government agents to seize a citizen’s property for the purpose of collecting evidence to build a case. The amendment was decidedly not a sword for the government, unsheathed after a series of obstacles, but was instead a handcrafted shield for the people against the arbitrary and oppressive general warrants visited upon the amendment’s Framers by the Crown. Indeed, Justice Scalia, joined by Justices Ginsburg, Sotomayor, and Kagan, spent the opening paragraphs of his dissent in Maryland v. King (2013) parsing the historical evidence of just how much,

[a]t the time of the Founding, Americans despised the British use of so-called “general warrants”—warrants not grounded upon a sworn oath of a specific infraction by a particular individual, and thus not limited in scope and application.

As Orin Kerr and Barry Friedman have written for the National Constitution Center,

[g]eneral warrants allowed the Crown’s messengers to search without any cause to believe someone had committed an offense…In the colonies the Crown used the writs of assistance—like general warrants, but often unbounded by time restraints—to search for goods on which taxes had not been paid.

The Founders’ deep familiarity with the dangers of and arguments against general warrants is largely viewed as stemming from three Eighteenth Century cases, two of which occurred in England and one of which occurred in the Colonies.

The two cases across the pond, Entick v. Carrington (1765) and Wilkes v. Wood (1763), involved general warrants under which pamphleteers were arrested, and their private papers seized, for being critical of the King’s government. The warrants used in each case failed to name the suspects to be apprehended, the places to be searched, or the items to be seized—the quintessential general warrant. Both Entick and Wilkes sued the executing officers for trespass and won.

In the case occurring back in the Colonies, “writs of assistance” were issued authorizing customs officers to search anywhere smuggled imports might be hidden. These writs, like general warrants, specified no specific subject to be apprehended, no particular place to be searched, and no particular item to be seized—they simply authorized officers to search private property freely in the hopes of identifying some evidence of wrongdoing.

James Otis famously resigned his post as Advocate General of Massachusetts when called upon to defend the writs in 1761 and instead took up the station of defending the merchants against the writs. Though Otis lost the case after five hours of impassioned oral argument, John Adams—who witnessed the argument—later wrote of the ordeal:

Every man of an immense crowded audience appeared to me to go away as I did, ready to take arms against writs of assistance. Then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there, the child Independence was born.

The Founding Era’s total rejection of the notion of general warrants, and the motivating force John Adams described it as having, seems evident in how the Fourth Amendment arrived.

The Virginia Declaration of Rights, largely viewed as a model for the Constitution’s Bill of Rights in which the Fourth Amendment is found, rejected general warrants expressly:

…general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offence is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted.

Patrick Henry warned that if the Federal Constitution were not amended to provide a similar prohibition on general warrants,

[t]he officers of Congress may come upon you, fortified with all the terrors of paramount federal authority. Excisemen may come in multitudes: For the limitation of their numbers no man knows. They may, unless the General Government be restrained by a Bill of Rights, or some similar restriction, go into your cellars and rooms, and search, ransack and measure, everything you eat, drink and wear.

New York conditioned its ratification of the Federal Constitution on the inclusion of an amendment, among others, recognizing that

every freeman has a right to be secure from all unreasonable searches and seizures of his person, his papers, or his property; and therefore, that all warrants to search suspected places, or seize any freeman, his papers, or property, without information, upon oath or affirmation, of sufficient cause, are grievous and oppressive; and that all general warrants (or such in which the place or person suspected are not particularly designated) are dangerous, and ought not to be granted.

James Madison, in an effort to garner support for the Constitution by anti-federalists such as Henry and states like New York, began drafting the Bill of Rights which would include the Fourth Amendment we have today. As he moved away from the language of general warrants and closer to that ultimately ratified, he included in his notes a draft that read,

The rights of the people to be secured in their persons, their houses, their papers, and their other property from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.

It was but a short leap from this draft language to the Fourth Amendment’s final language, which, as the evidence tends to show, was crafted specifically to prohibit general warrants by requiring a showing of probable cause to believe a crime had been committed and a particularized description of the places to be searched and the persons or things to be seized. Moreover, the amendment was drafted and ratified by individuals who understood that even those warrants allowable under the ratified language could not authorize the seizure of private property for the purpose of searching for evidence.

In this way, the Fourth Amendment reversed the practice of general warrants by constitutionalizing the principles that 1) first comes evidence then come searches and seizures, and 2) warrants must be particularized and targeted rather than general.

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The modern view, however, seems to be that once a citizen’s property is lawfully in the government’s possession, it no longer matters how the government justified obtaining it. Under this view, seized property is neither anchored to the particular offense that justified its seizure nor is it protected from the government rummaging at-will for something new and interesting. Instead, a citizen’s seized property may be internally shared, searched, and analyzed by anyone and everyone for any hint of any crime, whether previously imagined as a justification for seizing the property or not.

This new paradigm was perhaps most decisively ushered in by the Supreme Court’s decision in Warden, Md. Penitentiary v. Hayden (1967) to abandon the search warrant paradigm prevalent at the time of the Fourth Amendment’s ratification—the paradigm articulated in Boyd and Gouled v. United States (1921)—in favor of a more government-friendly paradigm, under which property may be seized for the explicit purpose of searching for wrongdoing. In Hayden, the Court had this to say of its then-existing Fourth Amendment jurisprudence:

The Fourth Amendment ruling in Gouled was based upon the dual, related premises that historically the right to search for and seize property depended upon the assertion by the Government of a valid claim of superior interest, and that it was not enough that the purpose of the search and seizure was to obtain evidence to use in apprehending and convicting criminals. The common law of search and seizure after Entick v. Carrington, 19 How.St.Tr. 1029, reflected Lord Camden’s view, derived no doubt from the political thought of his time, that the ‘great end, for which men entered into society, was to secure their property.’ Id. at 1066.

It is difficult to overstate how candid this passage is: the Hayden majority explicitly recognized that the Fourth Amendment’s original meaning forbade searches and seizures intended “to obtain evidence to use in apprehending and convicting criminals” and that this understanding was based on the idea that a free and good government ought to secure the individual’s right to “their property.” That should have been no surprise to a Court reading a Constitution that expressly protects against the deprivation of life, liberty, and property.

On what authority did the Hayden majority decide it was high time to change “the political thought” of the time? Whether the majority felt such a change appropriate or not, it was bound by the text of the Fourth Amendment, which had not changed since Boyd. At any rate, the right to be free in the enjoyment of one’s property was not simply the political thought of an era, it is an inalienable right recognized in the Declaration of Independence and that was seared into the Constitution so that courts much braver than the Hayden majority might one day guard it fervently.

This frustration was captured by a sizzling dissent by Justice Douglas, who penned pages upon pages pouring over the history of the Fourth Amendment, from abuses by the Crown of general warrants to oppress political dissidents, to the trio of famous Eighteenth Century cases, to drafting and ratification debates, to the evolution of the amendment’s final language, to the decisions of Boyd and Gouled—all of which the majority recognized before bidding farewell. Justice Douglas concluded his exegesis with the following:

The full privacy protected by the Fourth Amendment is…reached when we come to books, pamphlets, papers, letters, documents, and other personal effects. Unless they are contraband or instruments of the crime, they may not be reached by any warrant, nor may they be lawfully seized by the police who are in “hot pursuit.” By reason of the Fourth Amendment, the police may not rummage around among these personal effects, no matter how formally perfect their authority may appear to be. They may not seize them. If they do, those articles may not be used in evidence. Any invasion whatsoever of those personal effects is ‘unreasonable’ within the meaning of the Fourth Amendment. That is the teaching of Entick v. Carrington, Boyd v. United States, and Gouled v. United States.

Justice Douglas understood not only the genesis and meaning of the Fourth Amendment, but also that meaning’s importance. Unfortunately, the majority was satisfied to sweep this history under the rug to redesign the citizens’ amendment to its own, more enlightened, liking, concluding simply that justice would be better served by a new paradigm—one that gets the Fourth Amendment’s original meaning exactly backwards by allowing the government to seize its citizens’ property in order to find evidence of wrongdoing.

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In my mind, Hayden ushered in the new paradigm in which intergovernmental evidence-sharing is fairly viewed as acceptable. The problem begins, in other words, with the fact that we have strayed so far from the Fourth Amendment’s original meaning. Under the original meaning of that provision, intergovernmental evidence-sharing is unconstitutional.

When AUSA X comes up empty-handed under her own warrant and phones her buddy AUSA Z to get a peek at what Defendant has been keeping at home, she is engaging in a fishing expedition. It is important to contextualize this by noting that the government often seizes vast amounts of documents and data beyond what it needs, and certainly beyond what is relevant to whatever probable cause was given to justify the warrant. Indeed, this practice alone seems unconstitutional, because when the government, for example, seizes and images every computer in an individual’s home, it cannot possibly identify with particularity the things to be seized. Millions of private documents may have just come into the government’s hands that have nothing to do with the crime under investigation, were never sought by the agents involved, and potentially contain sensitive personal information.

That aside, and assuming for our hypothetical that AUSA Z has come into possession of his materials lawfully, the specific practice I am calling into issue occurs when AUSA X asks for the opportunity to review the personal property seized by AUSA Z, for the sole purpose of uncovering unanticipated evidence.

The two troubling dimensions of this scenario are as follows. First, if the materials seized by AUSA Z were for investigating Crime Z but are now being used in the hunt for Crime X, where does particularity and probable cause truly constrain the government’s possession of its citizen’s property? This is most egregious when imaging that AUSA X came up empty under her own warrant and is now grasping at straws. If a citizen’s property may be tossed about from agent to agent and prosecutor to prosecutor without regard to a specific crime, it begins to look like the very “general warrants” the Fourth Amendment was drafted to prohibit.

Second, if you imagine AUSA X does not know the contents of the materials AUSA Z is sending, or whether those materials will yield anything relevant to AUSA X’s investigation, then this is a fishing expedition on the part of AUSA X, plain and simple. Perhaps the retort is that since Defendant’s property is already being examined by the government, what does it truly matter if one more agent or AUSA has a look? The answer is that our culture and system of government should (and the text of the Fourth Amendment does) value the sanctity and privacy of a citizen’s private property. And besides, the longer an individual’s personal records are in the hands of the government, and as more government actors are invited to the viewing party, the greater the chance of abuse.

Imagine, for example, how one might feel if their computers and cell phones were seized as they were investigated by an administration they feared for organizing a series of resistance marches in protest of that administration. The amount the government can learn about an individual based on their personal communications and information—that may have nothing to do with the investigation at hand but is nonetheless reviewable under the new paradigm—is incredible.

What goes without saying about both of these dimensions is that the property has been seized for the purpose of gathering evidence—a practice that is unconstitutional under the original meaning of the Fourth Amendment, as recognized by the entirety of the jurisprudence overturned by Hayden.

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Just as I have previously written about the collection of telephony metadata under Section 215 of the Patriot Act, intergovernmental evidence-sharing turns the Fourth Amendment’s original meaning on its head because it “is a means of discovering suspicious activity, whereas a reasonable search by the government is historically understood to be the collection and analysis of data in response to the discovery of suspicious activity.”

Intergovernmental evidence-sharing is not caring. It is unconstitutional.