The 4th Amendment: Yesterday and Today

A History and Explanation for 2022

Aug 18, 2022

Issue #114 Government August 18, 2022

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The Searches

On Monday, August 8, 2022, the Federal Bureau of Investigation (FBI) executed a search warrant on the Mar-a-Lago, Florida home and resort owned by former President Donald J. Trump. They were looking for additional files that were illegally taken from the White House on January 20, 2021, at the end of Trump’s one term in office, and the FBI was granted access to the property by the Secret Service detail assigned to the property. The search warrant was approved by U.S. Attorney General Merrick Garland, acting on a complaint by the National Archives and Records Administration (NARA) to whom all presidential records must be sent at the end of a president’s term.

On Friday, March 13, 2020, the Louisville Metro Police Department (LMPD) executed a “no knock” search warrant on the apartment of Breonna Taylor as part of an investigation into drug dealing. Taylor’s boyfriend, Kenneth Walker, said he did not hear the police identify themselves and shot one of the seven officers who he thought were intruders with his legally owned gun. The officers shot back, killing Taylor with 6 of their 32 return shots. The officers also fired 10 shots through a covered window and glass door of Taylor’s apartment. The police never searched Taylor’s apartment.

The Crimes

The FBI is investigating Trump for three possible Federal crimes: 1) removal or destruction of government records,2) destroying or concealing records “with intent to impede, obstruct, or influence” federal government activity, and 3) violations of the Espionage Act regarding unauthorized retention of national defense information.

FBI Agents seized 11 sets of documents that were marked as classified: one set at the highest classification level, "top secret/sensitive compartmented information"; four sets at the "top secret" level; three sets at the "secret" level; and three sets at the "confidential" level.

The LMPD broke into Breonna Taylor’s apartment with what is now known to be a falsified search warrant affidavit, as well as federal charges for overzealous and imperious narcotics investigations. The police officers were initially cleared of city and state charges in the murder of Taylor, so the new federal indictments are focusing on the illegal warrant and the attempts to cover up the filing of and acting on the false warrant.

The 4th Amendment of the U.S. Constitution

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 4th Amendment, advocated by James Madison, was ratified on December 15, 1791, as part of the Bill of Rights that included the first ten amendments to the Constitution.

The 4th Amendment forbids searching private properties unless a judge or magistrate has issued a warrant based on “probable cause.” There are a few exceptions, especially where the property owner has given consent or a suspect might be in danger or about to abscond.

There is also an exception where evidence or property is in danger of being destroyed. The authorities do not need to provide a search warrant if a searched property is abandoned or situated in an “open field” or plain view.

To obtain a warrant either for an arrest or to permit a search, it will only be granted if the authorities show that it is necessary and there is reasonable suspicion of criminal activity.

Where “authorities can show probable cause,” a warrant can be issued. A judge or magistrate will look closely at why a request for a warrant is being made and supporting evidence before issuing one.

The warrant should list the property the authorities can seize during a search. The search will be to locate those items and take them away.

Law enforcement officials cannot take items not listed in the warrant away unless they are in plain view and relevant to the investigation.

Warrantless searches can be carried out where there are “reasonable grounds” for the search. Also, there must be no use of unnecessary force.

In Trump’s case, the “probable cause” was that the FBI believed that not all of the documents requested by NARA had been returned during the subpoena issued several months prior.

In Taylor’s case, the “probable cause” was that the LMPD believed drugs were being delivered to her apartment via the USPS. That “probable cause” claim was found to be false.

Conclusions

1) As usual, there is a big difference in how these kinds of situations were handled.

2) Finally, several of the officers and detectives who lied about the Breonna Taylor warrant have been charged—by the Federal Department of Justice.

3) Judge Bruce Reinhart, the Palm Beach, Florida magistrate who heard the request to unseal the affidavit related to the Mar-a-Lago search warrant has decided that he will wait one week until he sees what the government redacts, and then go from there. Judge Reinhart, his wife and children, and his synagogue have received death threats from Trump supporters.

What do you know and think about the role of the history of the 4th Amendment and how it’s being used today? Let us know in the comments!

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