Constitutional protections against unreasonable search and seizure are becoming increasingly irrelevant, warns West Virginia University law Professor Gerald G. Ashdown, who along with a colleague from the University of Pittsburgh will lead a discussion on “The Vanishing Fourth Amendment: Irrelevance and Consent.”
“The people of the United States do not realize how much their Fourth Amendment protection against unreasonable search and seizure has been eroded,” Ashdown says.
Ashdown will tackle “irrelevance” and Pittsburgh Professor John M. Burkoff will discuss “consent” at noon, Thursday, Feb. 17, in the Marlyn E. Lugar Courtroom at the WVU Law Center.
In Ashdown’s view, the Fourth Amendment has become irrelevant to a large body of police work because the United States Supreme Court has said, simply, that it does not apply, i.e., there is no privacy interest to protect, there has been no search, or there has been no seizure.
In cases such as Samson v. California, (2006), the Court ruled that government offices may be searched for evidence of work-related misconduct by government employees on similar grounds. Searches of prison cells are subject to no restraints relating to reasonableness or probable cause or searches undertaken as a condition of parole.
In a memo dated March 14, 2003, an official in the Bush administration stated ”... our Office recently concluded that the Fourth Amendment had no application to domestic military operations.” The administration believed that any search or surveillance conducted by the National Security Agency of U.S. citizens communicating with foreign nationals abroad was immune to a Fourth Amendment challenge. To protect the telecommunication carriers cooperating with the U.S. government from legal action, Congress passed a bill updating the Foreign Intelligence Surveillance Act of 1978 to permit this type of surveillance.
In August 2008, the Foreign Intelligence Surveillance Court of Review ruled that the President and the Congress had the authority to wiretap international phone calls and intercept e-mail messages without a specific court order.
The Supreme Court has not ruled on post-9/11 airport security procedures, but in U.S. v. Daniel Kuualoha Aukai, the 9th U.S. Circuit Court of Appeals ruled that “airport screening searches, like the one at issue here, are constitutionally reasonable administrative searches because they are conducted as part of a general regulatory scheme in furtherance of an administrative purpose, namely, to prevent the carrying of weapons or explosives aboard aircraft, and thereby to prevent hijackings.”
Additionally, consent has become a very fertile ground of evidence gathering since the Supreme Court ruled that a person does not have to be informed of his or her right to refuse a request to search. As a result, and through the use of various police tactics, people consent to what would otherwise be an impermissible search of their property.
If a party gives consent to a search; a warrant is not required, even if the party is unaware of their right to refuse to cooperate. There are exceptions and complications to the rule, including the scope of the consent given, whether the consent is voluntarily given, and whether an individual has the right to consent to a search of another’s property.
Ashdown graduated from the University of Iowa College of Law in 1972. After a brief time in practice with the Los Angeles law firm of Adams, Duque & Hazeltine, he returned to the University of Iowa College of Law to teach for a year before joining the University of Kentucky law faculty. He became a member of the law faculty at the West Virginia University College of Law in 1979. He served as associate dean from 1984-1986, and was appointed the James H. “Buck” and June M. Harless Professor of Law in 2001.
Prof. John M. Burkoff, a graduate of the University of Michigan (A.B., J.D.) and Harvard University (LL.M.), is a prolific author, teacher, public speaker, lawyer and expert witness. Professor of law at the University of Pittsburgh since 1976 and associate dean of academic affairs from 2000 to 2004, he has published 28 books and more than 60 articles in the areas of criminal justice and legal ethics. He is also the long-time editor of a monthly newsletter relating to search and seizure issues published by West Publishing. Burkoff has been awarded both the Chancellor’s Distinguished Public Service Award (2009) and the Chancellor’s Distinguished Teaching Award (1987) by the University of Pittsburgh. He was voted Teacher of the Year by the graduating class of the University of Pittsburgh Law School in 2007.
This event is open to the public and will be web cast live at http://law.wvu.edu/fourth
CONTACT: Brian Caudill, College of Law
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