An 'update' to the Virginia constitution that the General Assembly should pass over

A few weeks ago, Virginia Delegate Rich Anderson (R) and Senator Richard Stuart (R) introduced an amendment in the Virginia General Assembly, HJR 578, which would amend the Virginia constitution by replacing the state equivalent of the Fourth Amendment with an all new version designed to be an 'update' for the 21st century. A reader asked me for my opinion of the proposal. This post provides it.

My overall assessment is that this proposal isn't ready for prime time. First, it's a truly radical set of ideas. It would restrict police power to enforce the law in dramatic ways far beyond anything seen before. Second, it's a grab-bag of different police restrictions, many poorly drafted and murky as to their scope. And ironically, several of the proposed changes actually aren't likely to be changes at all. They're drafted in odd ways that probably miss their intended targets.

Here's some context to understand my reaction. The Virginia state constitution has a search and seizure provision that dates back to 1776 and was part of George Mason's original Virginia Declaration of Rights. Here's the text:

That general warrants, whereby an 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 offense is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted.

For most of Virginia's history, this provision was the primary protection of search and seizure law that regulated Virginia law state and local law enforcement. In 1949 and 1961, however, the U.S. Supreme Court held that the federal Fourth Amendment also applies to state and local governments under the Due Process clause of the Fourteenth Amendment. As a result of those U.S. Supreme Court developments, state constitutional protections play little or no role in most states. Most state Supreme Courts interpret their state constitutions to match or mostly match the federal Fourth Amendment, and the federal Fourth Amendment already provides a floor below which state and local officials can't go.

Virginia is one of those states. The Supreme Court of Virginia has concluded that the requirements of Virginia's 1776 search and seizure provision are "substantially the same as those contained in the Fourth Amendment." Lowe v. Commmonwealth, 230 Va. 346 (1985) (quoting A. Howard, I Commentaries on the Constitution of Virginia 182 (1974)). States are certainly free to do more. Either by judicial construction, or by express textual amendment, states are free to enact greater protections that will regulate state and local governments more than the federal government. But it's an option, not a requirement, and so far Virginia's constitution hasn't gone beyond the federal Fourth Amendment.

The new proposal would change that. The proposal would replace George Mason's 1776 language in its entirety with the following new language:

That the government shall not violate the right of the people to be secure against unreasonable searches and seizures of their persons, houses, businesses, lands, papers, and effects, including communications and stored personal information and data. A reasonable search or seizure is one based on probable cause that a law has been or will be broken. An unreasonable search or seizure is one that is not based on a valid law. Warrants and other demands shall be issued only based upon probable cause, signed by a neutral judge or magistrate, supported by oath or affirmation, and particularly describing the place to be searched, the persons, property, or things to be seized, or the communications, personal information, or data to be accessed or obtained. A person's disclosure of papers, effects, communications, personal information, or data to another person shall not alone constitute a waiver of this right. The people shall have remedies of exclusion and actions for damages and other remedies wherein defendants shall not enjoy greater immunity than other citizens of the Commonwealth.

What is this language supposed to do? Good question. Just reading it, it's somewhat hard to tell what the drafters were thinking. In the Washington Examiner, however, Ken Cuccinelli and Mark Fitzgibbons ("C&F") offer an endorsement of the proposal that gives a relatively detailed explanation of it. It's the most thorough discussion I have found, and it gives us enough context to evaluate the proposed amendment sentence-by-sentence.

Let's start at the beginning with the first sentence:

That the government shall not violate the right of the people to be secure against unreasonable searches and seizures of their persons, houses, businesses, lands, papers, and effects, including communications and stored personal information and data.

This sentence is largely based on the first clause of the federal Fourth Amendment, which declares a right of the people to be secure against unreasonable searches and seizures in their "persons, houses, papers, and effects." The Virginia proposal would extend this protection to "businesses," "lands," and "communications and stored personal information and data" - although, under the Supremacy Clause, it would apply only to state and local officials and not federal officials.

What does this language do? Let's take it step by step.

C&F don't explain why the proposal adds "businesses." The addition is redundant, however, because the federal Fourth Amendment already protects businesses. See See v. City of Seattle, 387 U.S. 541, 543 (1967) ("The businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property.").

C&F offer the following explanation for why the proposal adds "lands":

The original Fourth Amendment protects "houses," and through interpretation, shrubs and other area in the immediate proximity of a house, called the "curtilage." But your whole property is not included in the protection of the Fourth Amendment.

The Framers, however, did not contemplate devices the size of birds that government could use like peeping Toms to spy on our backyards, fields and pastures, so "lands" are included in this 21st Fourth Amendment.

Whoa. There's a big difference between adding protection for a person's whole property -in the argot of the Fourth Amendment, adding protection for "open fields" - and trying to protect against drones. If the constitutional protection eliminates the curtilage/open fields distinction, it would mean that officers can't physically walk on to a person's open fields, not near any home, without a warrant. If a person had marijuana growing in an open field, for example, the government couldn't generally walk on to the field without first obtaining a warrant. On the other hand, it's actually not at all clear that this language would prohibit drones . Imagine a drone is used from public airspace, such as directly above a person's property, or over a public street near that person's property. Is that an invasion of a person's "lands"? I wouldn't think so. Given that, it's not clear that adding "lands" would have the anti-drone effect that C&F say it is supposed to have.

C&F add that the express inclusion of "communications and stored personal information and data" does the following:

The proposed amendment logically extends to digital communications and data the protections of what James Madison's Fourth Amendment called "papers and effects." Our most private thoughts and records are now stored digitally, and government has no business in them.

This section may be redundant, too, because the federal courts have interpreted digital communications as also being protected fully by the Fourth Amendment. See, e.g., Riley v. California, 573 U.S. ___ (2014). It's possible that this language was designed to do more than what the federal courts have done, but it's hardly clear; more on that later.

Let's do sentences two and three together:

A reasonable search or seizure is one based on probable cause that a law has been or will be broken. An unreasonable search or seizure is one that is not based on a valid law.

C&F explain:

Missing from Madison's brilliant handiwork is better guidance regarding the terms "probable cause" and "unreasonable search and seizure." The proposed amendment cures that and a recent widely criticized Supreme Court decision. In Heien v. North Carolina - decided in December - the Court held that a mistake of law in making an automobile stop is "reasonable."

I find these two sentences puzzling. For the first sentence, are they saying that every search or seizure must be based on probable cause? What about stops and frisks? What about consent searches? Searches in prisons? Ending all of these traditional police powers would be a radical development, but the text's broad language suggests it. Is that what the drafters really had in mind?

For the second sentence, I wouldn't have even guessed this was about Heien. Granted, I also disagree with the outcome in Heien. But this second sentence is a very weird way to overturn it; why not just say that mistakes of law cannot be the basis of suspicion? And of all the cases that call for a response, why Heien, which is unusually inconsequential? The drafting and focus here needs substantial work.

On to the fourth sentence, which reads:

Warrants and other demands shall be issued only based upon probable cause, signed by a neutral judge or magistrate, supported by oath or affirmation, and particularly describing the place to be searched, the persons, property, or things to be seized, or the communications, personal information, or data to be accessed or obtained.

C&F explain that the key phrase here is "other demands." The goal of this sentence is to subject subpoenas to search warrant standards:

The amendment also targets lawless bureaucrats. Justice Rutledge wrote in 1946 that an administrative investigation "can be expensive, so much so that it eats up men's substance. It can be time consuming, clogging the processes of business. It can become persecution when carried beyond reason."

The substantial increase in number and power of alphabet soup-named administrative agencies in the 69 years since Justice Rutledge's comment has given us many bureaucrats untrained in law and good law enforcement. These government agents have been given broad search and seizure powers affecting our lives, lands and businesses through zoning, environmental, occupational and other regulation. Just as before the Fourth Amendment was ratified, government still uses investigative demands to intimidate and silence its critics, including in the nonprofit sector.

. . That same objective process and separation of powers [required for warrants] would be required for administrative subpoenas. . . .

Two thoughts. First, the text isn't limited to administrative subpoenas that C&F find objectionable. On its face, it applies inclusively to "other demands," which would seem to include grand jury subpoenas, trial subpoenas, discovery subpoenas, pen register orders, and every other non-warrant order. That would be a pretty strange result.

Second, the subpoena power is a way to get to probable cause. If you require probable cause for a subpoena, the result would render many types of criminal laws unenforceable. Consider the Fourth Circuit's explanation in In re Subpoena Duces Tecum, 228 F.3d 341, 346-49 (4th Cir. 2000):

If [the defendant] were correct in his assertion that investigative subpoenas may be issued only upon probable cause, the result would be the virtual end to any investigatory efforts by governmental agencies, as well as grand juries. This is because the object of many such investigations-to determine whether probable cause exists to prosecute a violation-would become a condition precedent for undertaking the investigation. This unacceptable paradox was noted explicitly in the grand jury context in United States v. R. Enterprises, Inc., 498 U.S. 292, 297 (1991), where the Supreme Court stated: "[T]he Government cannot be required to justify the issuance of a grand jury subpoena by presenting evidence sufficient to establish probable cause because the very purpose of requesting the information is to ascertain whether probable cause exists."

If it's true that state administrative agencies are abusing their statutory powers, then I would think the response should be to cut back on their statutory powers. A general elimination of all court orders with less than full warrant protection isn't the way to go.

Next, sentence five:

A person's disclosure of papers, effects, communications, personal information, or data to another person shall not alone constitute a waiver of this right.

C&F say:

[This language] removes a presumption created through case law about limited and controlled disclosure of our information to third parties. That "third-party doctrine" was criticized by many scholars on both the Left and Right even when we were a paper society. It has also been rejected by at least seven states, with no negative effect on their law enforcement.

In a concurring opinion in the U.S. vs. Jones case in 2012, Supreme Court Justice Sonia Sotomayor stated that the third-party doctrine is especially stale and unreasonable in the digital age. We need clarity that mundane tasks of communicating through private emails or storing data in the cloud are subject to clear constitutional protections against government invasion.

Again, two thoughts. First, I think overturning the third-party doctrine is a bad idea. The third-party doctrine is an essential tool to applying the Fourth Amendment in a digital age; it is critical to maintaining the technological-neutrality of search and seizure protections.

Second, it's not even clear that the proposal would overturn the third-party doctrine. The third-party doctrine doesn't hold that any disclosure to a third party ends protection. Rather, it holds that knowing disclosure to a third-party eliminates protection from the perspective of that third party. Given that limitation, it's not clear that the proposal, which says that disclosure "alone" should not constitute a waiver of protection, is at all inconsistent with the third-party doctrine. Indeed, C&F's discussion of the need for protection of private e-mails and storing data in the cloud suggests that they're not really concerned with the third-party doctrine. The contents of such communications have already been held to be protected even under the third-party doctrine, on the theory that the providers are not the end recipients of the content information they hold.

Finally, here's the sixth and last sentence:

The people shall have remedies of exclusion and actions for damages and other remedies wherein defendants shall not enjoy greater immunity than other citizens of the Commonwealth.

C&F explain:

The amendment also guarantees the right to sue when government abuses its power and position of responsibility. Such causes of action were more meaningfully available to Americans before the massive expansion of the administrative state.

The exclusionary rule, by which evidence is not admissible if the search or seizure violated the Fourth Amendment, has proven an insufficient deterrent to many bureaucrats. The damage of their lawlessness is mostly done in the process of abusing the administrative search and seizure process, and their victims frequently never get to the trial stage.

The text here is puzzling because it seems to relate both to civil remedies and the exclusionary rule, and yet it makes no sense to say in the suppression context that "defendants shall not enjoy greater immunity than other citizens of the Commonwealth." I gather the proposal here is really just about civil remedies, and in particular, qualified immunity: I gather the proposal would end qualified immunity, holding individual officers personally liable for state constitutional violations.

What about that? Given the reality of widespread indemnification of officers, I tend to think that eliminating qualified immunity may be a good idea. The result would internalize the costs of violations better than the current system. (More on this in a forthcoming article, BTW.) With that said, no one should think that such remedies are about "bureaucrats" or "the administrative state." The primary impact of such a proposal would be on day-to-day police officers, holding them liable for violations even when they were not clearly established.

Putting all the pieces together, the proposed amendment strikes me as pretty radical. Based on the text, it would seem to end consent searches; end subpoenas; end stop and frisk; create full privacy rights in prisons; end trespass on to open fields; end the third-party doctrine; and end qualified immunity. Some of our readers will favor such a radical restriction on police powers. Search and seizure issues tend to pitch the ends against the middle; the libertarian right and civil libertarian left often favor strong restrictions on police power, while the middle generally doesn't. And some of the proposals are more troublesome than others. But if we look at the proposal as a whole, giving it a thumbs up or thumbs down, I don't think the proposal is ready for prime time.

UPDATE: Mark Fitzgibbons has posted a long reply to this post, An Ivory Tower Fourth Amendment View to Be Ignored. It begins:

Professor Orin Kerr responds to an article by former Virginia Attorney General Ken Cuccinelli and me over at Washington Examiner about a 21st Century Fourth Amendment introduced in Virginia ("A much-needed facelift for the Fourth Amendment"). Professor Kerr's critique of the amendment is at The Washington Post ("An 'update' to the Virginia constitution that the General Assembly should pass over").

Professor Kerr is a Fourth Amendment specialist. He has reputation evaluating the complexity of the Fourth Amendment that protects our fundamental rights to security against "unreasonable search and seizure."

Complexity about fundamental rights is great for some law professors, but is lousy for Americans.

Professor Kerr begins with an opinion that he contradicts within his own opinion piece, which is that the proposed amendment is a "truly radical set of ideas."

The proposed 21st Century Fourth Amendment incorporates much of James Madison's original language, is entirely consistent with over 225 years of case law, even common law before that, and corrects two mistakes of judicial interpretation.

Professor Kerr ("PK") immediately contradicts himself, writing, "C&F (Cuccinelli and Fitzgibbons) don't explain why the proposal adds 'businesses.' The addition is redundant, however, because the federal Fourth Amendment already protects businesses."

If the federal Fourth Amendment already protects businesses, which it does, then the 21st Century version certainly is not "radical" in this respect. Virginia sometimes incorporates good federal interpretation into its law, and as Attorney General Cuccinelli and I explain, the 21st Century version is designed to add clarity for citizens, law enforcement, lawyers and judges.