Fourth Amendment

'Pre-Search' Is Coming to U.S. Policing

Does the Fourth Amendment protect against unreasonable searches before the fact?

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Pre-Search is Watching You
book radio/Flickr

News that the city of Baltimore has been under surreptitious, mass-scale camera surveillance will have ramifications across the criminal justice world. When it comes to constitutional criminal procedure, privacy, and the Fourth Amendment, it's time to get ready for the concept of "pre-search." Like the PreCrime police unit in the 2002 movie Minority Report, which predicted who was going to conduct criminal acts, pre-search uses technology to conduct the better part of a constitutional search before law enforcement knows what it might search for.

Since January, police in Baltimore have been testing an aerial surveillance system developed for military use in Iraq. The system records visible activity across an area as wide as thirty square miles for as much as ten hours at a time. Police can use it to work backward from an event, watching the comings and goings of people and cars to develop leads about who was involved. "Google Earth with TiVo capability," says the founder of the company that provides this system to Baltimore.

But the technology collects images of everyone and everything. From people in their backyards to anyone going from home to work, to the psychologist's or marriage counselor's office, to meetings with lawyers or advocacy groups, and to public protests. It's a powerful tool for law enforcement—and for privacy invasion.

In high-tech Fourth Amendment cases since 2001, the U.S. Supreme Court has stated a goal of preserving the degree of privacy people enjoyed when the Constitution was framed. Toward that end, the Court has struck down convictions based on scanning a house with a thermal imager and attaching a GPS device to a suspect's car without a warrant.

The Fourth Amendment protects against unreasonable searches and seizures. The straightforward way to administer this law is to determine when there has been a search or seizure, then to decide whether it was reasonable. With just a few exceptions the hallmark of a reasonable search or seizure is getting a warrant ahead of time.

Applying the "search" concept to persistent aerial surveillance is hard. But that's where pre-search comes in.

In an ordinary search, you have in mind what you are looking for and you go look for it. If your dog has gone missing in the woods, for example, you take your mental snapshot of the dog and you go into the woods comparing that snapshot to what you see and hear.

Pre-search reverses the process. It takes a snapshot of everything in the woods so that any searcher can quickly and easily find what they later decide to look for.

The pre-search concept is at play in a number of policies beyond aerial surveillance and Baltimore. Departments of Motor Vehicles (DMVs) across the country are digitally scanning the faces of drivers with the encouragement of the Department of Homeland Security under the REAL ID Act. Some DMVs compare the facial scans of applicants to other license-holders on the spot. They are searching the faces of all drivers without any suspicion of fraud. And the facial scan databases are available for further searching and sharing with other governmental entities whenever the law enforcement need is felt acutely enough.

The National Security Agency's telephone meta-data program is an example of pre-seizure. Phone records that telecom companies used to dispose of, having kept them confidential under their privacy policies and federal regulation, are now held so that the government can search them should the need arise.

Exactly how courts will apply the pre-search concept to mass aerial surveillance remains to be seen. The Fourth Amendment doesn't directly protect our movements in public, but it does protect our "persons" and "houses." Mass aerial surveillance captures data about both. The Supreme Court struck down warrant-less GPS tracking in public. The practice rips away the natural concealment that time gives to most people's public activities.

Courts may find that a pre-search of every person's movements is a full search, even before their names and the locations of their travels are known. Or they may require warrants to examine the pre-search data.

Is "pre-search" a strange concept? In 2007, a prominent federal appeals court judge called it "untenable" to say that attaching a GPS device to a car might be a seizure under the Fourth Amendment. But doing so makes use of the car without the permission of the owner, and the Supreme Court struck down warrant-less GPS tracking on that basis in 2012.

Strange, untenable, or not, it might be time to get ready for pre-search. Because pre-search is already here.

Related video: In 2013, Reason TV's Todd Krainin reported on Maryland's decision to start using audio surveillance on its state-wide passenger bus fleet. Watch below and go here for more details.

NEXT: More Detroit Public School Principals Have Been Charged With Crimes in 2016 Than All the Charter School CEOs in John Oliver's Rant

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  1. Why does Zappa look so mad?

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  2. It takes a snapshot of everything in the woods so that any searcher can quickly and easily find what they later decide to look for.

    Sounds like a general warrant, which is illegal under the Constitution. If anyone cares.

    1. If they do it without a warrant then it is legal, right?

      1. You bet, as long as you don’t have a reasonable expectation of privacy.

        Which you don’t have, because they can do it without a warrant.

    2. It is not clear why aerial photographs should be considered essentially different from photographs taken by ground level observers in public places, except that the aerial photos will include things that would not be visible to a ground level observer due to blocking by opaque fences or high elevation, as on a roof top, for instance. If that is so, the concern about this is much overstated, and courts could, arguably, forbid use in criminal prosecutions of aerial surveillance information gained without a warrant unless it was visible at ground level from a public place.

      There is a difference between search and surveillance, and the Constitution does not restrict all search anyhow.

  3. I was thinking the same thing when I first saw John Oliver’s rant: wow badness is found in some charter schools, with an obvious absence of any analysis or evidence that these problems just never happen in public schools.

    clearly, John Oliver’s analysis was I ne-sided just because public schools are perfect. Carry on.

    1. God. I should just give up comments on a mobile phone.

  4. and yet they’re still >200 murders so far this year…so it’s look but don’t touch?

  5. No doubt they’ll defend themselves with some new bizarre twist on the “reasonable expectation of privacy” dodge.

    Of course, if we hoi polloi were to track the movements of our “betters” (cops, judges, politicians, etc.) that would obviously be a violation of privacy. Off to prison!

    1. No doubt they’ll defend themselves with some new bizarre twist on the “reasonable expectation of privacy” dodge.

      A self-licking ice cream cone. They only need a warrant if you have a reasonable expectation of privacy. By declaring that, since aerial surveillance is possible, you have no reasonable expectation of privacy from aerial surveillance, they do away with any restraints on aerial surveillance.

      The Constitution is a dead letter, of interest only to cranks and hobbyists who like to speculate on what things would be like if it were still in effect.

      1. LOL remember the racist slave owners that made that old document with all the “rights” and shit? Can you believe they never put “the right to an above average paying job” and “a right to perfect health” in it? OMG Fuck those guys, amirite?

    2. I recall Feinstein defending NSA spying until she found out that they had been spying on her committee and then she was outraged.

      1. First, two different values of “they” are involved here. Senator Feinstein was not opposed to NSA (“they” #1) done in accord with the Foreign Intelligence Surveillance Act, as amended and as supervised by the Foreign Intelligence Surveillance Court. She was considerably irritated, however, on finding that CIA (“they” #2) administrators had violated an agency/committee agreement and looked at CIA computers used in connection with committee research on CIA use of “enhanced interrogation” methods.

  6. Lament for Scalia; while he was many things, the 4th Amendment was strong with that one.

    1. Hiibel and Scalia’s war on the exclusionary rule make a lie of that.

      1. Strong, not perfect. Add to that his hardliner stance on previous language, and you get, at least, a measured analysis, with a mildly authoritative bent. Name me a stronger advocate for 4A.

        1. “Name me the fastest cripple.”

          1. “Burn it down! Start over! Huzzah!”

            Empathetic, but I feel for some reason, we have abandoned pragmatism.

    2. and here we are today where RBG is actually the real 4th Amendment advocate, now.

      1. Where has Ginsburg been good on the 4A? At the very least, Sotomayor has been better.

  7. Wouldn’t that be considered a “general warrant” and a “fishing expedition” both of which are unconstitutional according to the courts?

    1. Clearly, you have not found the part of the Fourth Amendment that was written in invisible ink and gives an exception to all other provisions where drugs are concerned.

  8. Yes it is. You have no expectation of privacy when out in public. Anyone, including the government, can take photos or video of anything or one.

    1. It’s a good thing, then, that “expectation of privacy” is not in the Constitution, seeing as it is such a flawed concept for protecting the rights of the people.

      1. It is. It’s called the 1st amendment. The thing is it doesn’t protect the subject it protects the photographer.

        1. I have seen many tortured readings of the 1A, but yours takes the cake. There is no “expectation of privacy” anywhere in the Constitution nor in any of its Amendments.

          1. This case deals specifically with recording the police but it applies generally to anyone or thing that can be viewed when in public.

            https://en.m.wikipedia.org/wiki/Glik_v._Cunniffe

            1. I find it bizarre that you are ignoring the fact that I’m talking about abstract principles not concrete law then you point to a concrete ruling but extrapolate an abstract principle from it.

              1. I don’t think it is an abstract principle. If you’re outside anyone can take a photo of you without your permission. That’s a concrete fact.

                1. Except a) that’s not what the case says (dealing only with public officials), and b) now you’re shifting from “in public” to “outside” which is not the same thing.

          2. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

            1. Expectation of privacy is not a right of the people, it’s a power of the government. A power to narrow down your rights based upon what a judge deems to be “private” or not. To quote the Ninth Amendment in defense of the doctrine of “expectation of privacy” is absurd.

    2. Not only that, but you have no expectation of privacy on your own property (except, perhaps, inside your own house).

      You can live on a thousand acres, in a house that cannot be seen from the road, and the police can come onto your property and conduct searches anywhere except the “curtilage” and interior of your house without a warrant, because we have been told you have no expectation of privacy anywhere else.

      Homeowners possess a privacy interest that extends inside their homes and in the curtilage immediately surrounding the outside of their homes, but not in the “open fields” and “wooded areas” extending beyond the curtilage (see Hester v. United States, 265 U.S. 57 [1924]).

      http://criminal.findlaw.com/cr…..plies.html

      The Constitution is a dead letter.

      1. What if a build a fence?

        That’s a semi-serious question. On the one hand, it should be a pretty clear statement of intent. On the other hand, we know it’s all really the government’s property anyway and we’re just renting it.

  9. When the Senate finally gets around to considering the next President’s nominee for the open seat on SCOTUS, a question or two about the candidates understanding of the history and significance of General Warrants is in order.

  10. Who knew Mel Gibson with a ’30’s ‘stache would be causing so much havoc?

  11. “Pre-search reverses the process. It takes a snapshot of everything in the woods so that any searcher can quickly and easily find what they later decide to look for.”

    Given this definition, how is “pre-search” materially different than the NSA mass-collecting cell-phone and email, and then later combing through it to find evidence. Its not. And like what the NSA did(does) the evidence gathered will be used as the probable-cause for the very warrant issued to gather the evidence.

    Different tech, same Orwellian bullshit.

  12. IIRC the case that struck down the thermal imaging scan stated that the government could legally observe things, without a warrant, that happened out in the open. This, and the example of the driver’s license photos, are instances or searching through previously collected data.

  13. RE: ‘Pre-Search’ Is Coming to U.S. Policing
    Does the Fourth Amendment protect against unreasonable searches before the fact?

    Of course not. We’re all guilty of something ugly, vile and evil. That’s why our wonderful oppressors who control every aspect of our lives have taken the time and trouble to violate the out of date US Constitution, specifically in this case, the notorious Fourth Amendment so many times. We should all save The State time, trouble and money by turning ourselves in and confessing to the local secret police our sins and misdeeds. How many times have we ingested the opiate addicting milk? How many times have we lusted after women? How many times have we doubted our obvious betters enslaving us? How many times have we put ketchup on eggs instead of ice cream? The list could go on, but the point is The State is wise in engaging in unreasonable searches before we little people do more damage than we already have. So let us applaud and give kudos to those judicious and enlightened socialist slavers who continually wipe their ass with the US Constitution for their own benefit and for our further oppression. We should all be very grateful we have those who are willing to suppress freedom and privacy in our country.

  14. How in the world is it a “search” to make note of something that is openly visible?

    If you want to argue right to privacy under the 9th amendment, you might be able to do that, but applying the 4th amendment to this situation is ridiculous.

  15. In high-tech Fourth Amendment cases since 2001, the U.S. Supreme Court has stated a goal of preserving the degree of privacy people enjoyed when the Constitution was framed.

    Is that language actually in one of the opinions of the court or are you just making that up?

    Not to mention that when the constitution was framed, there was no exclusionary rule and the 4th amendment didn’t apply to state or local govts anyway. So I don’t think we want that degree of privacy.

    Toward that end, the Court has struck down convictions based on scanning a house with a thermal imager

    Thermal imagers reveal hidden things, thus are searches.

    and attaching a GPS device to a suspect’s car without a warrant.

    That was (correctly) ruled to be a seizure of property, not an unreasonable search.

  16. I’ve always thought it’s helpful in the context of these discussions to differentiate between “privacy” and “anonymity”. It doesn’t solve the problems, but it helps make clear what we’re talking about. Most things a person does in public are, by definition, not private. So you can’t have an expectation of privacy in things done in public, though you may, and probably do, have an expectation of anonymity. What this”presearch” issue is driven by is that technology now makes it possible for us to catalog virtually everything done in public, which was never private, but which used to be anonymous, and therefore functionally private. So the question becomes whether there is, or should be, any constitutionally-protected “expectation of anonymity.”

    1. Thank you CG. I’ve brought up this distinction previously here, but you’ve done a good job of continuing the development of the line of thought.

      It would be interesting to consider if SCOTUS would allow use of the precedent set in Brown vs. Board of Education that the effect alone is sufficient to render a practice unconstitutional. Thus, as you not, there was previously a reasonable expectation of “functional privacy” even in public spaces. Modern surveillance, at least that part done by governmental agencies, has stripped away that privacy, in a way that one could argue, invokes a 4th Amendment protection of the citizen.

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