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Monday, July 15, 2013

Covert Searching and the Fourth Amendment

My claim today is that covert searching raises Fourth Amendment issues.  Not that covert searching is always and everywhere unconstitutional, but that the practice must withstand some sort of constitutional scrutiny.  In this post I'll argue from Fourth Amendment first principles; in a later post I'll talk history and doctrine.

For the civil libertarians in the audience, you can quit reading:  I had you at "covert search."

The courts are not convinced.  The Second Circuit, the Fourth Circuit, and a handful of district courts all have held that notice is simply not part of the Fourth Amendment, so a lack of notice raises no Fourth Amendment problems.  The Ninth Circuit disagrees.  

Here’s one recent district court:  “The Court finds it difficult to accept the proposition that a search may be deemed reasonable, and therefore constitutional, during the various stages of application for authorization, execution, and termination, only to be invalidated because of the operation of some condition subsequent, to-wit, a failure to provide notice.”[1] 

This is wrong.  Covert searching invades the privacy of the home—the cornerstone of the Fourth Amendment—in ways distinct from an ordinary search with notice to the occupant. 

All agree that “at the very core” of the Fourth Amendment “stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”[2]  That said, notwithstanding the common law maxim that “a man’s home is his castle,”[3] the Fourth Amendment allows the government to forcibly invade that castle if armed with a warrant showing probable cause.  Sneak and peek searches today are conducted with warrants, issued by neutral magistrates, showing probable cause.

The physical invasion of the home, then, is warranted.  Does the covert method of conducting the search raise any separate Fourth Amendment concerns, distinct from the underlying (warranted) invasion of the physical space? 

It does.  Covert searching imposes a chilling effect on the entire community’s sense of privacy in their homes in a way that traditional searching does not.  Justice Sotomayor recently observed that “[a]wareness that the Government may be watching chills associational and expressive freedoms.”[4]

The main privacy invasion of a traditional search is deep but narrow—deep in the sense that a thorough police search of one’s house is a very profound privacy invasion, but narrow in the sense that the search primarily invades the privacy only of the person whose home was searched.

A covert search entails an additional privacy cost, one that is perhaps shallow but broad:  broad in the sense that everyone in the jurisdiction might feel the privacy loss, and shallow in the sense that this feeling of uncertainty is a less severe privacy loss than that caused by an actual, invasive search.

Stated differently:  have the police searched your home recently?

If delayed notice search warrants did not exist, you could answer confidently (yes or no?  you tell me).  If the police had been there, you would have either heard the knock on your door (do they still do that?) or found a copy of the warrant when you got home.

But in light of section 3103a, your answer now is:  Well, I don’t think so, but I’m not sure.  (Have you noticed anything amiss?  Probably not—the FBI is good.)

The “chill” to “associational and expressive freedoms” comes from this uncertainty—if all of us wonder whether the government has secretly searched our homes, we may be less likely to keep, in our homes, stuff like:  subversive books, paraphernalia of marginal activities, etc.  Covert searches and surveillance are a favorite tactic of totalitarian governments precisely for this reason.  Citizens who fear constant government intrusion into their private spaces—both digital and bricks-and-mortar—will be much less likely to maintain a free and robust private life. 

In this respect, the problem with covert searching is similar to the problem with all forms of secret surveillance—the generalized concern of the government gathering information about citizens without their knowledge.  The recent NSA revelations show the government secretly collects data on (in John Oliver’s words) “that small, select group of us who either make phone calls or use the internet.”  The use of sneak and peek searching means not even that limitation applies—the government may be “looking through your sock drawer” whether you use the internet or not.  Even Luddites have sock drawers.

So:  covert searching invades the privacy of the home; the Fourth Amendment protects the privacy of the home; covert searching must be scrutinized under the Fourth Amendment.

[1] United States v. Christopher, Cr. No. 2008-23, 2009 WL 903764 (D. Virgin Islands, March 31, 2009).

[2] Payton v. New York, 445 U.S. 573, 589-590 (1980).

[3] Semayne’s Case, 5 Co. Rep. 91a, 77 Eng. Rep. 194 (K.B.).

[4] United States v. Jones, 132 S.Ct. 945, 956 (2012) (Sotomayor, J., concurring).


Posted by Jonathan Witmer-Rich on July 15, 2013 at 09:34 AM | Permalink


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The post doesn't address the very good policy reasons for delayed-notice searches. That reason is obvious in the wiretap context--- a wiretap on some mafia guys isn't much use if they know it's on. It can also come up in the home context, and maybe that's what happens in every single sneak and peek warrant granted: the police want to keep an eye on what goes on inside a house, because eventually the drugs, or guns, or bodies will show up there.

Posted by: Eric Rasmusen | Jul 16, 2013 11:04:54 AM


Now it seems to me that the unreasonableness you're pointing to -- the unreasonableness of secrecy -- exists whether it affects those not searched or not. Aren't you really focused on dignitary rights that apply perfectly well to those ACTUALLY searched under a finding of probable cause?

I'm not sure you need the rhetoric about harm to those not searched in order to argue that those searched have had their rights violated by a lack of notice.

Piping down now.

Posted by: Jim von der Heydt | Jul 15, 2013 3:04:54 PM


I hear you claiming that the covert nature of a search does not implicate the Fourth Amendment (assuming, of course, the covert search is done with a warrant, PC, etc.). I disagree. There are a variety of ways to figure out whether something is constitutional; one of them (not the only one I'll pursue, but the one I have in this post) is to argue from first principles.

That argument, simplified, is: (1) the Fourth Amendment is deeply concerned with protecting the privacy of the home; (2) the covert nature of a search (even assuming a warrant, PC, etc.) is a serious privacy invasion, apart from the fact of the search itself. Ergo, the Fourth Amendment is concerned with covert searching (not that it prohibits the practice, but that there is a constitutional dimension to this analysis, not merely a statutory one).

Which point do you disagree with? Both?

I don't think the objective/subjective point is valid. The Fourth Amendment is (rightly) concerned both with objective security of the home and the subjective security (whether citizens feel they have private space protected from arbitrary government intrusion). The early (1700s) objections to general searches are full of complaints about the (subjective) distresses and emotional toll of low-class searchers rifling through one's personal possessions and papers.

Posted by: Jonathan Witmer-Rich | Jul 15, 2013 2:58:01 PM

"You're turning the word 'security' from an objective measure (the government not rifling through things) into a subjective measure and affirmative obligation for the government to make you *feel* secure in your own home."

Not sure if Professor W-R will agree with Mr. PopeHat's characterization, but if it's accurate I see nothing wrong with it as an expression of constitutional principle. We require the government to assure us in certain ways and foster certain feelings all the time; 'transparency' as a value in itself would not exist otherwise. If citizen feelings didn't matter, there would be no need for court proceedings to be public, to foster public confidence in the system. And there would be no need for the doctrine of chill to strike down laws violating freedom of speech even before they are enforced unconstitutionally. These are policy considerations but they can also be constitutional ones.

Mr. PopeHat, you disagree with the maneuver but you don't say why; you just say it doesn't make sense. You say there's no "constitutional requirement" of notice, but you don't say why not. You say "a good reason" is not a constitutional requirement, but in fact "reasonableness" IS the Constitutional requirement (Amar). You offer a correction about what the overbreadth doctrine is, but your correction is not correct.

There's a reason the bar exam punishes conclusoriness, which as kids we termed 'name-calling.' It's not legal argument.

Posted by: Jim von der Heydt | Jul 15, 2013 2:57:57 PM

Your amateurism has nothing to with your identity and everything to do with that lackluster argument. If you didn't want honest, unfiltered feedback you shouldn't have read the comments.

If you're going to bring up the NSA at least realize that you've shifted from making an argument about the first principles of the 4th Amendment to making a policy argument. I say shifted but that's the wrong word because this was really just a policy argument dressed up as a core 4th Amendment principle.

The constitutional check on a secret warrant and/or search isn't an explicit review of the covert nature of the search, it's a review of the search as a whole (with respect to scope, specificity, all the rest). 18 USC 3103a may provide for delayed notification not to exceed X number of days without a "good reason" but that's not a constitutional requirement.

The exploration of the "overbreadth doctrine" to massage this argument into something from the aether is also foolhardy. The overbreadth doctrine is a way of sidestepping the prudential requirements of standing to allow third-parties, or people who may not otherwise satisfy the requirement of a direct harm, to do so. A statute being overbroad in itself is not a substantive claim unless the statute is also unconstitutional.

Arguing that the possibility of a secret search is unconstitutional because you can never be sure if your house in particular has been searched(and a house is "where the heart lives" or some other such cliche) doesn't make sense. You're turning the word "security" from an objective measure (the government not rifling through things) into a subjective measure and affirmative obligation for the government to make you *feel* secure in your own home. In this case that comes in the form of an assurance that the government won't search you without letting you know either at the time or shortly after.

If this post seems unnecessarily harsh it's because 1) I think this post is more of a thinly disguised policy objection to the NSA news (which IMHO is disingenuous), and 2) I don't think I would get more than platitudes had I worded more softly.

Posted by: PopeHat | Jul 15, 2013 2:34:25 PM

Jim, you can't just take a label and a rationale from one area of law and transport it to another area of law with different facts and assume that the label must apply to ensure empirical logical consistency. Arguments work or not based on whether their rationales apply to the facts that are presented, not based on abstract logic. Or so it seems to me.

Posted by: Orin Kerr | Jul 15, 2013 2:23:51 PM


Okay, but there is a connection between the perception of the frequency of sneak and peek searches, and the reality of it. Your two imagined worlds help make that point—both worlds, which feature a total disconnect between perception and reality, are not very plausible versions of the real world.

But there likely is some disconnect between perception and reality. How should we respond to that, when thinking about legal doctrine? I think the right answer is to assume a fairly good connection, because otherwise there are other pernicious effects (which are then concerns in their own right).

My “chilling” argument is weakest in your second world above—in which there are lots of covert searches of homes but nobody believes they occur. Perverse logic would suggest that is the best world—the government gets all of the information about the bad guys, and the public is blissfully unaware and suffers no diminution in privacy. (This suggests, for example, that I should quit publicizing this issue—I am only making the problem worse. But then, as Judge Calabresi has said, the liberating thing about legal scholarship is that you should write what you really think, because nobody is listening to you anyway.)
This perverse logic leads us to other problems, namely governmental transparency and democratic accountability—the people have no idea what their government is up to.

So to the extent perception tracks reality, more sneak and peek searches means more of a chilling effect. To the extent perception lags reality—more covert searching than is understood—then we have a problem of democratic accountability. Either way covert searching is problematic.

Posted by: Jonathan Witmer-Rich | Jul 15, 2013 2:11:43 PM

(Jonathan, what do you make of Justice Sotomayor's clear reliance on FIRST Amendment rights, not privacy rights, in the sentence you quoted?)

Posted by: Jim von der Heydt | Jul 15, 2013 1:34:16 PM

Prof. Kerr, you're thinking of vagueness rather than overbreadth. Different chills involved. Overbreadth is for where the law definitely applies to infringe on constitutional rights, but not in the plaintiff's own case.

Your analysis focuses on the chilled person who might not have been searched. But there is no such litigant. The speaker or householder who is himself merely chilled by the generalized fear that a law might have done something bad to him lacks Article III standing.

In the case of the challenge Jonathan is suggesting, the plaintiff himself would raise the "broad but shallow" argument even though his own rights had not been infringed. Any covert search done on him was based on probable cause; otherwise he would not be challenging the delayed-notice warrant scheme. To argue that others are harmed by that scheme, because despite a lack of probable cause they are chilled in their "free and robust private life," such a plaintiff needs the overbreadth doctrine to be transposed from the First Amendment context.

The challenge I was making to your argument was that its empirical logic would annihilate First Am. overbreadth doctrine. I am not myself subbing anything from one context to the other, only showing that your argument sweeps too broadly if we believe First Am. overbreadth doctrine is okay.

Posted by: Jim von der Heydt | Jul 15, 2013 1:31:45 PM

Response to your response:
Actually I think the overbreadth doctrine is not about Article III standing. It doesn't confer standing. It just gives a party that already HAS standing the right to make arguments drawing on hypotheticals and policy concerns that don't apply to his case. In other words, it's not about WHO litigates, but about HOW they litigate.

Here is an excellent overview, which ultimately contends, contra me, that non-First-Am. overbreadth analysis is not unprecedented. There is a good discussion of Berger at 82ff.

At 57 we have this: "an overbreadth petitioner is relieved of the usual constitutional adjudicatory obligation of attacking unconstitutional applications of a statute case by case." It's that obligation that I think you're trying to circumvent, because you're suggesting the court should consider, in the case of someone covertly searched, the harm done to others not covertly searched but thinking they might have been.

I think -- and maybe I'm wrong -- that the argument you're putting forward is foreclosed in actual litigation by Salerno.

But I take your point: your argument is not about how the litigation works, and who is entitled to make the argument. It's just about what the Fourth Amendment spirit should encompass. I agree. But I'm raising the mundane concern that no one is entitled to make that type of Fourth-Amendment argument to a court, because it's only allowable under the First Amendment overbreadth doctrine.

Now an end-run occurs to me. Maybe someone who was covertly searched could assert that he himself suffered harm also *before* he knew about the search, because he was afraid it had happened. That's super-interesting, although it loses the "broad" in the "broad but shallow" descriptor. Notice and its lack raise pretty unique issues....

Hope this is responsive to your response. Also I hope I'm not way off base on the overbreadth doctrine, since that would be counterproductive. I keep coming back to Salerno.

Posted by: Jim von der Heydt | Jul 15, 2013 1:20:31 PM

Two reopnses: first to Jim, then to Jonathan.

(1) Jim, you misunderstand. Of course, First Amendment doctrine is concerned with chilling effects. But Jonathan is making a Fourth Amendment argument, not a First Amendment argument. You can't "just sub in" a different part of the Constitution and make the same argument.

Further, even if you do think that you can "just sub in" other parts of the Constitution, you need to follow the facts rather than the label. The chilling effect in the First Amendment context is the chill on the speaker because he can't know what is legal ex ante. He looks at the law, and doesn't know if a particular act will cause criminal charges in the future. So he is extra-cautious going forward. The alleged "chilling effect" here is fear that the government has already broken at some point in the past but that you don't know it yet. Whether that "chilling effects" argument works depends on an assessment of the likelihood of a past act.

(2) Jonathan writes: "If sneak and peek searches are extremely rare, this chilling effect is pretty small. The more common they become, the greater the chilling effect becomes." I don't think that's right. I think that the chilling effects depend on the perception of the frequency of sneak and peek searches, not the reality of it. Imagine a world in which zero such searches occurred, but the NYT reported that every home was searched every day. The chilling effect would be extraordinary. On the flip side, imagine a world in which homes were searched every day but everyone believed 100% that there was no such power and no such searches occurred. In that case, there would be no chilling effect.

Posted by: Orin Kerr | Jul 15, 2013 1:13:20 PM

It seems to me that Prof. Kerr's logic would wipe out existing First Amendment overbreadth doctrine as well as the proposed Fourth Amendment overbreadth doctrine.

I am drawing for on example on the First Amendment case of Plummer v. City of Columbus, Ohio, 414 U.S. 2 (1973), which invalidated as overbroad an Ohio law illegalizing "menacing, insulting, slanderous, or profane language," even though the defendant in the case at bar had been deploying "fighting words" and therefore had no valid as-applied chal;enge.

Just sub in First-Amendment issues for the Fourth-Amendment ones, and Prof. Kerr's logic still works:
"most people have no idea what the law or practice is of [punishing profane language]. Without that knowledge, I don't know how the [power to punish profanity] could chill their conduct. Second, if people are so informed about the law that they know there is a [anti-profanity law] -- which itself seems unlikely -- then they presumably would also know that [they can only be convicted if they use fighting words]. I suspect that relatively few people have this level of detailed knowledge of the law and yet wrongly fear that they might [be subject to prosecution for profanity]."

Now, it might be that First-Amendment overbreadth doctrine is a bad idea, and that defendants should only be allowed to raise concerns that apply to their own cases. But I think Prof. Kerr's argument against the original post's suggestion sweeps too broadly.

Posted by: Jim von der Heydt | Jul 15, 2013 12:53:51 PM

Jim von der Heydt:

The First Amendment "overbreadth" doctrine is partly about standing: who gets to litigate the constitutional claim. In that regard it is unusual in constitutional law (usually only those pretty directly impacted have standing), and there is no pedigree in the Fourth Amendment to claim this type of broad standing.

But that's not my argument. I am not claiming that you, Jim, have standing to file suit for the Fourth Amendment "chill" of covert searching. You assuredly do not.

That's a different question from what the substance of the Fourth Amendment should be, i.e., what the doctrine actually prohibits (as opposed to who gets to litigate that). On that point, I think it is commonplace for the court to think about broader effects on privacy. Justice Sotomayor's claim that GPS surveillance might have a chilling effect is one such comment. She's not suggesting that everybody in the country would have standing to file anti-GPS claims, but rather than in deciding what the Fourth Amendment does and does not permit, the Court should think about chilling effects.

I don't know if the Court will buy my particular claim here (not all the commenters have), but the form of the argument I think is perfectly acceptable within Fourth Amendment discourse.

Posted by: Jonathan Witmer-Rich | Jul 15, 2013 12:44:16 PM

Apologies for the typo in my key sentences above, about how I read the original post. The sentence should read,
"Although you invoke the First Amendment speech- and association-chilling concerns to buttress it, you are looking to establish an independent footing for the overbreadth doctrine in the Fourth Amendment privacy concept."

And I should have been clearer about what I see as the central counter-precedent. I think your argument runs afoul of Salerno.

"A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid." 481 U.S. 739, 745 (1987).

In addition, Salerno foreclosed the other idea I just floated, that a procedural-due-process analysis might make use of overbreadth maneuvers: "To sustain [criminal procedures] against a [facial] challenge, we need only find them 'adequate to authorize the pretrial detention of **at least some** [persons] charged with crimes,' Schall, whether or not they might be insufficient in some particular circumstances." That looks the same as the no-set-of-circumstances standard for substantive facial challenges (outside the First Amendment context).

Posted by: Jim von der Heydt | Jul 15, 2013 12:26:07 PM

Orin Kerr:

I agree that "accountability" is another good reason to be concerned about covert searching. But I disagree that the chilling effect is not a concern.

As you note, frequency is certainly a relevant factor here. If sneak and peek searches are extremely rare, this chilling effect is pretty small. The more common they become, the greater the chilling effect becomes.

I don't think a really fine-grained legal knowledge of covert searching is necessary for a chilling effect to occur. A generalized awareness that "sometimes the cops search people's houses in secret" does not entail detailed knowledge about the warrant process or the substance of section 3103a.

Notice at some point is certainly better than never getting notice at all. A really short delay is better than a long one--but currently on average the delays are on the order of months, not days or weeks. More on that in future posts.

Posted by: Jonathan Witmer-Rich | Jul 15, 2013 12:15:30 PM

PopeHat: It is amusing for a pseudonymous commenter to ask about my identity. And I don't quite understand your questions. Of course the Fourth Amendment is not only about homes, but it is a central concern of the Fourth (see the Payton quote above). Notice after the fact does not do much to allay paranoia. I agree. That's why covert searching is a problem, and should be subject to more scrutiny than it is currently receiving.

As to your comment:

"The rational fear isn't that the government is searching covertly (in a general sense), it's that the government could search unlawfully."

Well that depends on what the law provides. Many folks, for example, are worried about NSA surveillance. The concern is not primarily that it is unlawful, but that even if lawful (authorized by FISA), this surveillance goes too far. Similarly here--as I'll argue later, the statute does not appropriately limit the circumstances under which covert searching is permissible. So it is worth worrying not only about whether the government is searching unlawfully, but also whether the law is authorizing excessive and unnecessary searches.

"It doesn't strike me as a great intrusion that the government is searching a potential suspect in secret, it is that the government is doing so wantonly or without good reason--and the check on that is the process."

I'll get to that in later posts. The delayed notice search warrant statute does not require the government to show a "good reason"--that is to say, the justifications articulated in the statute are not good ones. And thus the process is not providing a good check.

Posted by: Jonathan Witmer-Rich | Jul 15, 2013 11:54:18 AM


This is a compelling argument (i.e., I disagree with both commenters above). But I'm interested in how you'd respond to the contention that it is constitutionally novel, and moves the law in a direction it has pretty steadfastly refused to go since 1967.

The argument you suggest for litigants relies on privacy harms done to people in general. It usually runs into the following buzzsaw: "Fury does not have standing, however, to raise the issue of improper 'minimization' during the Schnell [wire]tap. That is because the tap on Schnell's phone and the failure to minimize the conversations intercepted is an invasion of Schnell's privacy, not Fury's." United States v. Fury, 554 F.2d 522, 526 (2d Cir. 1977).

You contend that generalized harm should be on the table in privacy cases. At one point you use the word 'chill,' and properly so. (This is elementary to you, but indulge me while I walk through it.)

There is terminology and a framework to go with the idea that "shallow but broad" harms matter when a government practice is challenged. It's overbreadth doctrine, and it allows aggrieved plaintiffs to assert shallow but broad harms suffered by society. Here is Scalia, J.:
"[The] purpose of the concept [...] is to enable even those who have not been chilled to vindicate the First Amendment interests of those who have. [The concept of 'chill'] permits a person, who has standing to challenge governmental action because of the concrete harm it causes him, to assert a deficiency which may not affect him but only others. It is, in short, the rationale for the First Amendment doctrine of overbreadth.
United Presb. Church v. Reagan, 738 F.2d 1375, 1379 (D.C. Cir. 1984) (citing L. Tribe).

You adopt this framework here for privacy. Although you invoke the First Amendment speech- and association-chilling concerns to buttress it. You are looking to establish an independent footing for this doctrine in the Fourth Amendment privacy concept.

But as you know, this overbreadth doctrine has, with just one major exception I've found, been allowed only in FIRST Amendment cases -- this is why Justice Sotomayor's quotation refers prominently to "associational and and *expressive* freedoms." The doctrine is "strong medicine" used for the First Amendment only:
"the plain import of our cases is, at the very least, that facial overbreadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the [issue] moves [away] from ‘pure speech.' " Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973). First Amendment violations have special power to create the kind of chill that courts will put a stop to, "because [...] any attempt to enforce [chilling] legislation would create an unacceptable risk of the **suppression of ideas**." City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984) (asterisks obviously added).

The Court has been emphatic about this. "The doctrine is predicated on the sensitive nature of protected expression." New York v. Ferber, 458 U.S. 747, 768 (1982). "We have not recognized an “overbreadth” doctrine outside the limited context of the First Amendment." United States v. Salerno, 481 U.S. 739, (1987).

Hence litigants aiming to invoke "broad but shallow harms" in order to challenge a statute have consistently needed to allege a FIRST Amendment issue, as for example the rights of association involved in a Mafia induction ceremony, in United States v. Ferrara, 771 F. Supp. 1266, 1283 (D. Mass. 1991) (an associative act unsurprisingly not protected by the First Amendment). I think I remember that the NSA plaintiffs struggled to establish speech harms, and of course ran into other litigation roadblocks.

Your argument is that privacy of the home should get the same special protection as freedom of expression, and that facial challenges should be readily allowed. You want a new carve-out from Salerno. Have I got that right?

Noodling around on Westlaw has yielded this amateur's history of the question in the Fourth Amendment context. Yours was the view of the Supreme Court once, before overbreadth doctrine was really fleshed out -- in Berger v. N.Y., 388 U.S. 41 (1967). The court moved well beyond the as-applied challenge and struck down a wiretap statute on its face: "We have concluded that the language of New York's statute is too broad in its sweep resulting in a trespassory intrusion into a constitutionally protected area and is, therefore, violative of the Fourth and Fourteenth Amendments."

But the dissents pointed out that this was a novel maneuver to allow a facial challenge. And a year later the Court sharply narrowed this precedent, so that it applied only to evaluations of warrant procedure, not substantive search reasonableness: "The constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided **in the concrete factual context of the individual case**. In this respect it is quite different from the question of the adequacy of the procedural safeguards written into a statute which purports to authorize the issuance of search warrants in certain circumstances." Sibron v. New York, 392 U.S. 40, 59 (1968). And in Broadrick the Court jettisoned the idea of using overbreadth except in the very narrow First Amendment context. Do you think Berger could have survived Broadrick and Salerno?

Berger was handled in the following way in the years soon after it: "The disposition of the standing issue in Berger would appear to be a departure from accepted tradition, and somewhat inconsistent with Broadrick. Nevertheless, since Broadrick did not specifically disapprove of Berger, ... we conclude that it is our duty to respect it as a viable precedent on the question of standing and to entertain appellant's challenge."
United States v. Ramsey, 503 F.2d 524, 529-30 (7th Cir. 1974) (Stevens, J.). The opinion also noted that if the as-applied argument had not been strong in Berger, the Court's holdings on the statutory scheme's overall privacy-chilling effect would have lacked "legitimacy."

The Berger use of overbreadth doctrine for a Fourth Amendment challenge seems, based on my Westlaw noodling, to be moribund. The Sixth Circuit in 2008 scoffed at a citation of Berger and underscored the "case-by-case imperatives of Fourth Amendment decisionmaking." Warshak v. United States, 532 F.3d 521, 529.

Notably, however, I came across a few cases in which administrative search regimes were challenged facially, and courts didn't seem too shy about reaching the question. So maybe Berger is living on in ghostly form as a procedural- rather than substantive-due-process framework.

Perhaps I have overly pigeonholed your argument. Or perhaps I am taking it in the wrong spirit -- clearly, you are making a normative claim, not one based in precedent. But I wonder if you'd disagree that the precedents line up pretty squarely against the jurisprudential framework you call for.

Thanks for the bar-review study break.

Posted by: Jim von der Heydt | Jul 15, 2013 11:40:29 AM

I don't think the "chilling effects" argument fits here. As I understand the argument, you're talking specifically about covert searches in the sense of undetectable physical entry into the home. If no one knows whether a covert search has occurred, then I would think that covert searches chill less rather than more. The person who has been searched does not know he has been searched, so there is no chilling effect instead of a substantial one.

You suggest that the mere existence of a covert searching more chills more because people who are *not* actually searched are constantly suspecting that they are being covertly searched. But that's an empirical claim that strikes me as implausible. First, most people have no idea what the law or practice is of covert searches. Without that knowledge, I don't know how the covert search power could chill their conduct. Second, if people are so informed about the law that they know there is a covert search power -- which itself seems unlikely -- then they presumably would also know that the cover search power is only invoked when the government gets a valid search warrant based on probable cause to search their homes signed by a judge. I suspect that relatively few people have this level of detailed knowledge of the law and yet wrongly fear that they might have been searched. (There may be some engaged in criminal activity to wrongly think they may have been covertly searched, but is that good or bad?) Finally, requirements that notice be given eventually should address these fears, to the extent the fears are genuine ones.

I think the better argument would be about accountability. The purpose of notice is to tell the homeowner who is searching (or has searched) their property. When officials get a search warrant, the home may be ransacked. Items may be missing and property may be (badly) out of order. The homeowner needs to know if this was the result of a criminal breaking in and taking things or the government breaking in and taking things pursuant to a warrant. That notice allows the homeowner to file suit or otherwise seek remedies if the warrant was facially invalid or wrongly executed. In my view, the best argument for constitutionalizing notice is that this function can only be served if prompt notice is given. In short, the need for notice is about keeping the government accountable rather than chilling effects. It's not an easy argument to make based on current caselaw, but I tend to think that's the stronger of the arguments.

Posted by: Orin Kerr | Jul 15, 2013 11:33:58 AM

Who is this amateur? There is a notice requirement because of the Castle Doctrine? Is this person aware that the 4th amendment isn't just about homes? How does notice after the fact (such as notification of a wiretap) allay paranoia about government snooping at any particular point in time?

The rational fear isn't that the government is searching covertly (in a general sense), it's that the government could search unlawfully. It doesn't strike me as a great intrusion that the government is searching a potential suspect in secret, it is that the government is doing so wantonly or without good reason--and the check on that is the process.

Posted by: PopeHat | Jul 15, 2013 11:20:26 AM

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