8. Your Right against Unreasonable Search and Seizure **

1.  The Two Promises of the Fourth Amendment.

The Fourth Amendment to the Constitution of the United States contains two distinct promises:

"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."

The first promise, which is underlined, is called the "reasonable search" clause, which requires that all searches or seizures (with or without a warrant) by law enforcement officers to be "reasonable."

The second promise,  which is not underlined, is called the "warrant" clause.  It outlines the specific requirements needed to secure a valid search warrant which has been reviewed and approved by a judge before the search or seizure.  The "warrant" clause will be discussed in the next essay.

2.  Why are there two distinct promises in the Fourth Amendment?

The American Revolution was triggered, in no small part, by Royal abuses involving the "warrant" clause.   Colonial judges would sign blank sheets that were given to the Crown's tax collectors. 

The tax collectors would enter any house or business, or board any ship.  They would ransack the place and seize any item they deemed to be taxable or any writing they deemed to be objectionable, and arrest any person they wanted.  They would then fill in the blank warrant and bring the arrested person to the judge for charging, trial, and punishment.

The judge would then divide the profits from the seizure between the Crown, the colony, the arresting officers, and themselves.

Jealous neighbors could even act on their own behalf by securing blank "writs of assistance" from a friendly colonial judge.  These would allow the neighbors to break into their neighbors' homes or shops, to seize their neighbors' goods, and to arrest or murder their neighbors without probable cause to do so.

Such a "blank warrant" or "carte blanche" had been illegal in England since 1763, but they were actively used in the colonies to collect taxes to pay for the French and Indian War and then to pay for the British troops in the colonies that helped to collect the taxes.

It was James Madison's hatred of the blank warrants that led him to write the "warrant" clause as the first draft of the Fourth Amendment when the first Congress met in 1791.

But other drafters of the Bill of Rights demanded that the "reasonable searches" clause be included in the Fourth Amendment that was sent to the states for ratification.  They believed that any search, seizure, or arrest (with or without a warrant) should be supported by probable cause or reasonable suspicion, and that a judge should be required to find that the seizure of evidence or the arrest was "reasonable."

This "reasonableness" requirement became a uniquely American development in personal liberty.  Unlike most other freedoms guaranteed in the Bill of Rights, it was not derived from any phrase or concept in Britain's Magna Carta from 1215 and was not viewed as a right in England in 1791.

3.  Little Need for "Reasonable Searches" Clause until 1961.

There are several reasons that few cases involving "unreasonable" searches, seizures. or arrests were decided between 1791 and 1920.

First, there were very few "police" officers who conducted any kind of searches at the time when the Bill of Rights was ratified.  Sheriffs in each county led posses to capture people suspected of such crimes as murder, robbery, and rape, and these suspects were either arrested "red handed" with blood on their hands or were arrested after a hot pursuit.  Local constables in each crossroads town rounded up inebriated persons or those who were deemed to be public nuisances or vagrants. 

Second, there were almost no federal police officers except customs agents to prevent smuggling or the importation of slaves after 1809.  U.S. Marshals in each state and territory enforced the general criminal law and a few federal laws such as a ban on interstate lotteries.  Some "revenuers" were hired to enforce Prohibition, and the Federal Bureau of Investigation was launched in 1935.

Third, the Fourth Amendment did not apply to searches, seizures or arrests by state or local police until 1961.  The vast majority of criminal cases involves action by local law enforcement.

Fourth, most "reasonableness" clause cases came after the invention of electronic communications in the past 100 years.  Cases involving wire-taps on telephones, interception of telegraph messages, surveillance by security cameras, monitoring of e-mails, and searches of cell phones were not dreamed of by James Madison.

4.  How Don King Brought the Fourth Amendment to Local Law Enforcement.

Ask your parents if they remember Don King.  He is a burly African-American boxing promoter with a tower of white hair.  He was one of the most famous Americans from 1970 to 2000 for presenting such great boxers as Muhammad Ali, George Foreman, Smokin' Joe Frazier, and Mike Tyson in such fights as "the Rumble in the Jungle" and "the Thrilla in Manila."

They probably do not know that Don King was charged with murder in 1954 for shooting a man in the back, or that he was convicted in 1967 of stomping to death one of his employees.

Your parents almost certainly do not know that Don King is a major reason why the Fourth Amendment protects you from "unreasonable" searches, seizures, and arrests by state and local law enforcement officers.

In 1957, Don King was a gangster who ran a gambling racket in Cleveland who also was gaining influence in professional boxing.  Dollree Mapp was a leader in a rival gambling racket in Cleveland who had been engaged to world champ Archie Moore and married to Jimmy Bivins who had beaten eight future world boxing champions.

That year, someone used dynamite to blow the front off Don King's home.  Cleveland police were tipped that the suspected bomber was hiding in his rival Mapp's home.  Police tried to search Mapp's home without a warrant, but she resisted.  They entered and found the suspected bomber.  They also conducted a thorough search of Ms. Mapp's home and found pornography, which led to her conviction on obscenity charges.

In 1961, the U.S. Supreme Court made two sweeping holdings in reversing Ms. Mapp's conviction.  The Court was shocked that the police had searched for the bombing suspect inside a photo album and in kitchen drawers without a warrant. 

First, they held that the Fourth Amendment prohibited unreasonable searches by federal, state, and local police. 

Second, it announced an "exclusionary rule" which held that evidence found through an unreasonable search must be excluded by trial judges.  All evidence found as a result of an unwarranted and unreasonable search would later be excluded a "fruits of a poisonous tree."

               Mapp v. Ohio, 1961.

After her record of the Cleveland conviction was cleared, Ms. Mapp moved to New York, where she was convicted in 1971 of possession of $250,000 of narcotics and stolen property.  The police had been careful to  secure a valid search warrant that led to her arrest.  She served nine years in prison,  She died in 2014.  Don King is still alive at 87 and is still promoting boxing matches.

5.  Alternatives to the Exclusionary Rule for Unreasonable Searches were Not Effective.

The sweeping nature of excluding all evidence secured by an unreasonable search, seizure, or arrest often prompts some people to ask whether some alternative to the ban on evidentiary use of "the fruits of the poisonous tree" might allow the evidence to be used in a prosecution while still allowing the defendant to recover damages or punish police misconduct.

Prosecute Police:  Prior and subsequent to Mapp v. Ohio, people  have tried to have police prosecuted criminally for violating their Fourth Amendment rights.  But few convictions were ever secured.  Police in such cases often claim successfully that they either had a good-faith basis to believe that their warrant was valid or they were acting to respond to emergency or exigent circumstances which justified a warrantless search.  There also was the claim that such prosecutions were often unsuccessful because juries were reluctant to punish police for their conduct towards convicted criminals.

Sue Police:  Individuals who have been subjected to an unreasonable search have tried to sue police for trespass, invasion of privacy, or other civil claims.  These suits are also usually unsuccessful.

Seek Police Discipline:  People have also tried to have officers disciplined procedurally by their own departments or agencies for violating the Fourth Amendment.  Several states and many local governments have passed statutes or ordinances to require enforcement for abuses of privacy.  Sometimes, this succeeds.  For example, one of the New York officers who successfully searched Dollreee Mapp's property which led to her narcotics conviction was later disciplined and removed from the force when the subject of a separate search proved that the officer had taken thousands of dollars in bribes from a rival drug dealer to search the property of competing heroin suppliers.

Although these alternative remedies are available, it is unlikely that the courts will do away with the exclusionary rule as the only effective way to discourage abuses of the Fourth Amendment.

6.  The High-Water Mark of Proection Under the "Reasonableness" Clause in 1967.

Charles Katz was a bookie in Los Angeles who was part of a national gambling ring.  After an investigation, the FBI placed a listening device outside a public pay phone booth where they recorded Katz' end of conversations where he transmitted betting information to Miami and Boston.  The FBI had not asked a judge to review their evidence and suspicions or secured a warrant for the listening device.  Katz was convicted on federal interstate gambling charges.

The Supreme Court reversed the convictions and made three important holdings.

First, it held that the Fourth Amendment protected a person's privacy, not just a person's property.  Katz did not own or lease the phone booth, but the Court held that he had "a reasonable expectation of privacy" that was protected by the "reasonable search" clause.

Second, it held that the Fourth Amendment protected a person's conversations and communications, not just his personal property, papers, and effects.

Most importantly, the Court held that searches without judicial review and a warrant were automatically unreasonable and any evidence had to be excluded unless the searches fell within four narrow and well-defined exceptions.  It held:

     "Searches conducted outside the judicial process. without prior approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment - - subject only to a few specifically established and well delineated exceptions."

The four exceptions were for:  1) searches of vehicles under a federal statute which authorized warrantless searches for contraband;  2) searches of vehicles based upon an officer's "probable cause" to search such a vehicle; 3) searches of vehicles impounded after an arrest involving contraband; and 4) searches involving "exigent circumstances" such as hot pursuit, imminent danger, or evidence which could be easily destroyed.

As of 1967, the Supreme Court held that, without a warrant, all searches were automatically unreasonable unless they involved vehicles in three limited categories or exigent circumstances involving hot pursuit, imminent danger, or destructible evidence.

               Katz v. United States, 1967.

7.  Eroding the "Reasonable Search" Clause with "B.I.G.  S.A.D.  A.I.R.  S.P.A.C.E.S."

The Supreme Court since 1967 has sharply eroded the privacy protections of the "reasonable search" clause by adopting fifteen new exceptions that allow admissions of evidence from warrantless searches.  The exceptions for "good faith" searches" and denial of "standing" to challenge warrantless searches are massive.

The fifteen new exceptions are symbolized by the appropriate acronym "B.I.G.  S.A.D.  A.I.R.  S.P.A.C.E.S."

8.  "B" is for Border Searches.

The Supreme Court authorized warrantless searches within a distance of borders, including permanent checkpoints and searches, interrogations without individualized suspicion, and diversion to secondary search zones for extended searches when probable cause arises.

               United States v. Martinez-Fuerte, 1976.

The Supreme Court also authorized warrantless searches with roving patrols to search any vehicle within a distance of borders if specific articulable facts create reasonable suspicions.

               United States v. Brignoni-Ponce, 1975.

9.  "I" is for Inevitable Discovery.

The Supreme Court has held that even if there is initial police misconduct during a search without a warrant or with an invalid warrant, evidence seized there or coerced confessions caused by the discovery of that evidence may be admitted if the evidence clearly would have been discovered by a properly authorized search.

               Nix v. Williams, 1984.

The Supreme Court also held that evidence detected during an illegal police search may be admitted if it is subsequently "rediscovered" during a second search pursuant to a warrant that is "wholly independent" of the illegal police search.

               Murray v. United States, 1988.

10.  "G" is for Good Faith Searches.

The Supreme Court has held that evidence may be admitted if police relied on a warrant or statute that is facially valid, even if that reliance is later proven to be misplaced.

               Illinois v. Krull, 1987.

The Supreme Court has also ordered the admission of evidence in a warranted search even if it is later determined that the warrant lacked particularity about the place to be searched or the things to be seized.  Due to a clerical error, the warrant failed to include a separate sheet listing the suspected evidence to be seized.  The Court upheld the admission of the discovery of the blood-stained clothes of a murder victim.

               Massachusetts v. Sheppard, 1984.

Most starkly, the Supreme Court has also approved the admission of evidence despite reliance on a warrant that entirely lacked probable cause.  This decision hearkens back to the Crown's pre-revolution reliance on blank warrants.

               United States v. Leon, 1984.

The Supreme Court relied on Leon's good-faith precedent to uphold the stop, search arrest, and conviction of a driver on the basis of a tip to a patrol officer that the driver was wanted on a report of an outstanding warrant that was entirely false because the officer relied on his good-faith belief in the false report.

               Arizona v.Evans, 1995.

11.  "S" is for Stops and Investigative or Intermediate Interactions.

The Supreme Court has upheld the admission of evidence from incidental contacts between police and eventual arrestees.

The Supreme Court has held that evidence seized is admissible if reasonable suspicion existed if police asked a driver to exit a vehicle and then searched the vehicle compartment while the driver was restrained outside the vehicle.

               Michigan v. Long, 1983.

The Supreme Court also authorized the admission of evidence from a police "pat down" for weapons for a person stopped for identification without probable cause.  The justification of "officer safety" was upheld by the Court.  These pat downs are called "Terry Stops" and are very controversial.

               Terry v. Ohio, 1968.

12.  "A" is for Allegation Search with Corroborating Observation.

The Supreme Court has repeatedly upheld the admission of evidence when police act without warrants after they receive tips or allegations from informants which the police later corroborate with their independent observations.

First, the Supreme Court held that it was reasonable for police to conduct a pat-down search of a driver removed from his car after police had received an "inherently reliable" tip from a questionable informant which the Court deemed was adequate to justify action.

               Adams v. Williams, 1972.

Second, the Supreme Cort held that an anonymous but detailed tip was adequate to justify warrantless searches of the defendant's home and vehicles.

               Illinois v. Gates, 1983.

13.  "D" is for Delays at Random Stops.

The Supreme Court allowed evidence to be admitted if it was seized without a warrant during a random stop when drivers were briefly delayed, questioned and subject to temporary seizures of their vehicles which could be subject to cursory searches. 

This category of reasonable searches have to be based on "articulable and reasonable" suspicion or must be organized and executed according to a set policy, and not based on mere stereotypes for individual stops.

               Delaware v. Prouse, 1979.

14.  "A" is for Administrative Searches.

The Supreme Court has indicated that the government may conduct warrantless searches involving certain public employees or people under government supervision.

The Supreme Court held that the government did not need a warrant, probable cause, or reasonable suspicion to require certain government employees to submit to random urine tests.

               Nat'l Treasury Employees Union v. Von Raab, 1989.

The Supreme Court held that probation officers may search a parolee's home without a warrant, probable cause, or reasonable suspicion if the search is conducted according to strict guidelines.

               Griffin v. Wisconsin, 1987.

The Supreme Court has held that a public employer may search certain employees' offices without a warrant or probable cause.

               O'Connor v. Ortega, 1987.

15.  "I" is for Inventory Searches.

The Supreme Court has held that if the police have taken control of you or your vehicle, the may make a warrantless search of every sealed container on your person or in your vehicle.

The Supreme Court held that police may conduct a warrantless search of a canister inside a pouch inside a backpack inside a locked car, either at the roadside or at an impoundment lot.

               Colorado v. Bertine, 1987.

The Supreme Court has held that police may conduct a warrantless search of an arrestee's bag and the containers therein, rather than merely sealing the bag for storage pending the arrestee's release.

                Illinois v. Lafayette, 1983).

The Supreme Court has held that police may conduct a warrantless search of a vehicle including all containers in the vehicle including the glove compartment, if the search is conducted according to established department policy.

               South Dakota v. Opperman, 1976.


16.  "R" is for Regulated Industry Searches.

The Supreme Court has held that police may conduct warrantless searches of regulated industries such as pawn shops and vehicle repair shops and junkyards if:  1) there is a substantial state interest for the statute;  2) the state established a regulatory scheme;  3) the searches are necessary to implement the regulatory scheme;  4) the statute limits the discretion of such inspectors; and 5) the statute gives notice to owners as a substitute for judicial review and a warrant.

               New York v. Burger, 1987.

17.  "S" is for Searches Incident to a Valid Arrest ("SIVA").

The Supreme Court recognized in Katz in 1967 that "exigent circumstances" (such as hot pursuit, imminent danger and destructible evidence) were the only non-vehicle exception to the warrant requirement.

However, at its next opportunity, the Supreme Court quickly recognized SIVA as another specifically recognized and well defined exception to the warrant requirement that stretched back centuries to the English common law.  Police were allowed to search the person of an arrestee and the immediate area of his arrest without a warrant.

               Chimel v. California, 1969.

The Supreme Court initially limited the area around an arrestee which could be searched without a warrant.  The Court held that a warrantless search could only be made of the "wingspan" of the arrestee in which he could grab a weapon.  An arrestee could not be marched from room to room to act as a substitute for a warrant or as "a walking search warrant."

               Vale v. Louisiana, 1970.

The Supreme Court broadened the "wingspan" exception to the warrant requirement when it held that a SIVA search could be made without a warrant, probable cause, or reasonable suspicion.

               United States v. Robinson, 1974.

The Supreme Court further expanded that authorization to a warrantless search of the arrestee's entire residence before making a valid arrest if police had a valid arrest warrant and a reasonable belief that the arrestee was at home.

               Payton v. New York, 1980.

Amazingly, the Supreme Court authorized the warrantless search of an arrestee's entire residence without probable cause, reasonable suspicion, or any exigent circumstances if the arrestee lives in a mobile home or recreational level.  The Court reached that result by finding that arrestee's have less of an expectation of privacy in a movable residence than a fixed building, and because evidence could be lost quickly if the mobile residence was moved out of the jurisdiction.

               California v/ Carney, 1985.

18.  "P" is for P lain View Searches.

The Supreme Court has allowed police to seize evidence without a warrant if the evidence is in plain view if:  1) the officer is lawfully in a place;  2) the officer has probable cause to believe the item is contraband or evidence of a crime; and 3) the officer has the right to touch the item.

               Horton v. California, 1990.

In recent years, the plain view doctrine has been applied in three main categories of cases:  contraband observed on a car seat during a traffic stop; contraband observed by TSA agents during examination of luggage;  and evidence seen by investigating officers called to a residential crime scene.

19.  "A" is for Automobile Searches.

This exception to the warrant requirement is separate from the three narrower vehicular exceptions cited in Katz which included:  1) a federal statute that authorized warrantless searches suspected of transporting illegal alcohol during Prohibition; 2) warrantless searches of vehicles taken to impoundment lots; and 3) warrantless searches of vehicles where an officer had probable cause to believe the vehicle contained evidence of a crime.

Under this "Automotive" exception to the warrant requirement, a lower standard than "probable cause" is required for a warrantless search.

For example, the Supreme Court has held that only circumstantial evidence that a driver may be involved in drug-trafficking is required to sustain a warrantless search of a truck, because the Court held that the circumstantial evidence gave rise to probable cause to justify the search.

               United States v. Johns, 1985.

The Supreme Court also held that police only need an identifiable suspicion of a driver restrained outside the vehicle to justify a search of every container in the passenger compartment of the car.

               Michigan v. Long, 1983.

20.  "C" is for Consent by a Third Person to a Search.

Even before the "reasonable search" clause received its strongest endorsement in Katz in 1967, the Supreme Court had held that third parties could not consent to a warrantless search aimed at another person because the other person had a greater expectation of privacy in a residence or property.

               Stoner v. California, 1964 (janitor could not open a hotel room for warrantless search).

But since Katz, the Burger, Rehnquist, and Roberts Courts have rolled open the doors to warrantless searches based on third-party consents.

The Supreme Court has held that a hotel employee with only limited authority to enter rooms was allowed to consent to a warrantless search of a hotel room.

               United States v. Baswell, 1986.

The Supreme Court also held that a resident of a suspect property who is not the target of a warrantless search may consent to the search of the residence and a closed bag in the room if they have apparent shared dominion and control of the room or if they have their own reasonable expectation of privacy in the premises.  The third party need not know of the right to refuse the search.  They must merely have the mental capacity to consent.

               Matlock v. United States, 1974.

Even the target of a warrantless search who is not aware of his right to refuse access for a search and who does not make an intelligent decision in granting consent may authorize a warrantless search if the target's permission is not coerced and is "voluntary."

               Schneckloth v. Bustamonte, 1973.

21.  "E" is for Expanded Exigent Circumstances.

In Katz in 1967, the Supreme Court recognized that warrantless searches could be justified by "exigent circumstances" such as hot pursuit, imminent danger, and destructible evidence.

Over the next 50 years, that exception has been broadened and the protection has been weakened.

"Hot Pursuit

An armed man robbed a cab company and fled.  Witnesses followed him to a house, and police quickly arrived.  They seized the fugitive in an upstairs bedroom while another officer searched for him in the flush tank of a first-floor toilet where they found his weapons, in the basement washing machine where they found his disguise, and a second-floor dresser drawer where they found his admission.  The Supreme Court upheld the admission of the fruit of this hot pursuit search of an entire house and the subsequent seizure of evidence.

               Warden v. Hayden, 1967.

An undercover agent gave marked bills to a drug dealer, who took the agent to the home of Mom Santana.  The dealer took the money inside and returned with some heroin.  Waiting without a warrant, police manufactured a hot pursuit of Mom Santana when she left her front door.  As she jumped back inside in surprise, the police "pursued" her, found the marked bills and more heroin, and arrested her.  The Supreme Court upheld the search, the admission of the evidence, and the conviction.

               United States v. Santana, 1976.

"Imminent Danger"

Responding to a noise complaint, police saw through a window that four adults were menacing a teen.  When the teen punched an adult, the police entered without a warrant and charged the adults with contributing to the delinquency of a minor.  The Supreme Court upheld the warrantless entry, arrests, and convictions because of the injury of the adult and the imminent escalation of the violence.

               Brigham City v. Stuart, 2006.

Police responded to a call for a dangerous domestic situation.  They were directed by  two witnesses to a house with a wrecked truck with blood on the front in the driveway, smashed fences and posts. broken windows with glass on the ground, and blood on the door.  Through a window, they saw a man with a bleeding hand throwing things at an unseen object or person.  They asked if he needed assistance.  He rejected the offer and told the police to leave.  When an officer entered the home to offer aid, the man pointed a rifle at the officer who withdrew.  The officers called for back-up.  They later entered the house, arrested the man, and seized the rifle.  The man was charged with assaulting the officer. 

The Supreme Court held that " one such exigency: 'the need to assist persons who are seriously injured or threatened with such injury.' Thus, law enforcement officers "may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury. This 'emergency aid exception' does not depend on the officers' subjective intent or the seriousness of any crime they are investigating when the emergency arises. It requires only "an objectively reasonable basis for believing that a person within [the house] is in need of immediate aid," 

               Michigan v. Fisher, 2009.

"Destructible Evidence"

Police arranged a buy of crack cocaine in front of a dealer's apartment house.  When agents revealed their identity, the dealer sprinted back into the building.  Pursuing officers did not hear their spotter's radio call that the dealer had gone into the apartment on the right.  When they smelled marijuana smoke from the apartment on the left and announced their presence.  When they heard sounds that could have been destruction of evidence, they made a warrantless entry of the left apartment, found contraband, and arrested the resident.  The Supreme Court upheld the conviction on the basis of exigent circumstances.

               Kentucky v. King, 2011.

22.  "S" is for Standing to Challenge a Warrantless Search.

The Supreme Court has also narrowed the path for defendants to challenge warrantless searches by raising the walls to block convicted persons from challenging the admission of evidence arising from such searches.

Unless the challenged search was for property which the defendant owned or leased, the Supreme Court has cut off standing to challenge a search no matter how outrageous the abuse if the defendant lacks a "reasonable expectation of privacy" in the area searched.

The IRS wanted to trap Payner for hiding cash in a Bahamian account.  The IRS agent asked a private investigator for help.  The private investigator hired an escort to date a Bahamian banker when he visited Florida.  The banker left his briefcase at the escort's apartment.  While they went to dinner, the private investigator took the briefcase to the IRS agent who picked the lock, copied the papers, and returned the briefcase undetected.  On the basis of the pilfered papers, the IRS agent persuaded the private investigator to have the escort visit the banker's office and steal his rolodex.  With that rolodex, they persuaded Payner's bank to reveal that Payner had pledged part of his offshore ho;dings as collateral for a loan.  Because Payner had claimed on tax returns for that year that he had no off-shore accounts, he was convicted of tax fraud.

Despite the illegal conduct of the IRS agent, the Supreme Court held that Payner had no expectation of privacy in the contents of the banker's hijacked briefcase or stolen rolodex.

          United States v. Payner, 1980.

That same year, the Supreme Court held that a defendant lacked standing to challenge an illegal search if hos personal rights were not violated by a faulty search.  Here, a defendant was convicted on the basis of possessing stolen checks that were found with a faulty warrant to search his mother's apartment.  Because he did not rent or reside in the apartment, he lacked standing to challenge the search.

               United States v. Salvucci, 1980.

The same position was underlined that same year.  A drug dealer believed he was about to be arrested and searched, so he stashed some drugs in his companion's purse.  The police illegally searched the purse, which led to the defendant's conviction.  Although the companion's Fourth Amendment rights were violated, the Supreme Court held that the defendant had no expectation of privacy in the purse and therefore lacked standing to challenge the illegal search.

               Rawlings v. Kentucky, 1980.

23.  What Current Trends May Further Weaken the "Reasonable Search" Clause?

What new exceptions to the "reasonableness" clause and the warrant requirement may be added to the "B.I.G.  S.A.D.  A.I.R.  S.P.A.C.E.S." in the coming years.

There have been allegations that senior officials in the FBI, the NSA, and the Justice Department have been engaged in political espionage on partisan opponents of the Executive Branch through abuses of protections under the FISA warrant procedure and payments to foreign intelligence agencies and independent agents of the Administration's political allies.  The courts may deny standing to defendants charged on the basis of such conduct.

Vague allegations of threats posed by terrorism or international criminal gangs may be used to ratify expansive new areas of warrantless and previously unreasonable searches.

Law Enforcement is already seeking exceptions for warrantless "murder scene" and "crime scene" searches conducted long after suspects have been arrested and dangers have been extinguished.

Claims of cybercrimes and electronic threats may prompt authorizations requiring warrantless thumbprints to unlock cell phones, corporate cooperation to open electronic devices, and probes of the dark web, the cloud, and other devices of communication or record-keeping that have yet to be invented.

Perceived crises such as opiod trafficking or on-line predation may be offered to uphold further reductions in the protections of the Fourth Amendment.

We have come a long way from the Katz holding in 1987 that "searches conducted outside the judicial process. without prior approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment - - subject only to a few specifically established and well delineated exceptions."