Warrantless Searches And The Watertown Manhunt
Posted: April 25, 2013 Filed under: General Law | Tags: boston marathon, exigent circumstances, fourth amendment 5 CommentsIn the wake of the Boston Marathon tragedy and the manhunt in Watertown, MA for the two suspects, many people have asked me whether it is constitutional for the police to set of up a perimeter in a town and search–without a warrant–every house in the perimeter for potentially armed and dangerous suspects.
Of course, there is no Fourth Amendment problem with the search if the occupants of the house give their consent, assuming it was not obtained under duress. But what if they do not consent? Must the police obtain a warrant, or does the “exigent circumstances” exception to the warrant requirement apply?
A post by a Yale Law School student on Professor Jack Balkin’s blog, Balkinization, addresses that issue. He writes:
Last week, in a determined quest to capture the lone remaining suspect in the Boston Marathon bombing, law enforcement officers defined a 20-block perimeter in the middle of densely populated Watertown, Massachusetts and conducted a thorough, door-to-door search of all residences within those 20 blocks. There is no question that the suspect was dangerous. And it is probably true that many, if not most, of the residents in those 20 blocks were willing to consent to a search of their property to ensure that the suspect had not broken in and secreted himself in some nook or cranny. But absent consent, did heavily armed SWAT teams have a legal right to conduct warrantless searches of every house located within said 20 blocks?
His answer? No. The main reason is that the police had not pursued the two suspects into a specific house. Had that been the case, the argument for a warrantless search of that house would be strong. But the police only had reason to believe that the suspects were somewhere in a particular neighbor hood, thus the warrant exception does not apply.
This is just one student’s perspective; it is not the gospel. But it is a thoughtful discussion of the subject. I will have more on this interesting topic in the coming days.
Appealingly Brief! 
I haven’t heard about anyone who objected to having the police conduct a search, so that’s a good thing. That said, the idea that the government can essentially declare martial law in a particular town (without actually declaring it) and go house to house without a warrant looking for someone should bother everyone. Contrary to Harry Reid’s pronouncement, the government is not inherently good and it certainly isn’t your friend. Allowing abuses like this to go unchallenged doesn’t satiate Leviathan, it only emboldens it.
That was quite a spectacle. All the tanks, helicopters and soldier outfits that even podunk police departments have at the ready these days is a little worrisome to me. I comfort myself by thinking that it’s just a case of using the idea of ‘Homeland Security’ to enrich corporations through federal grants.
This is the enduring harm done by terrorists such as the perpetrators of the 911 event and these Boston bombers, that the public becomes inured to this type strong arm tactics of the government. I don’t know how meaningful the ‘consent’ given by the Watertown residents are. Who can easily say ‘no’ to government sponsored armed men? I almost want to say that it’d be better to allow a second bombing than to catch the culprit through such means as was used in Watertwon.
What bothered me most about this was the fact that the spineless press did not demand to be imbedded with the officers going through the town. I would have pitched a conniption fit with the police commander for censoring the press from recording the police search of a complete 20 block area.
After web-searching this subject provided something one can piece together, allow me to play Devil’s advocate . . .
As y’all well aware, the Fourth Amendment to the U.S. Constitution doesn’t forbid all searches and seizures, just “unreasonable” ones. The absolute in the 4th amendment is that no warrant shall be issued “without probable cause.” That is the one absolute you cannot break, but it does not say you always have to have a warrant to search, or that you always have to have probable cause.
Reasonableness, as defined by the courts, is that point at which the government’s interest advanced by a particular search or seizure outweighs the loss of individual privacy or freedom of movement that attends the government’s action (Illinois v. Lidster, 540 U.S. 419, 427 (2004) [“in judging reasonableness, we look to the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty”]).
So in one instance among a sets of exceptions SCOTUS has carved out of the 4th Amendment is a hap-hazard body of case-law evolved over the years known as the “administrative search doctrine.” Starting with Camara v. Municipal Court, 387 U.S. 523 (1967), SCOTUS held that a reasonable administrative search may be conducted upon a showing of probable cause which is less stringent than that required for a search incident to a criminal investigation. Under this doctrine, the government must establish a substantial compelling need to search, that the search will serve the need, and that the decision to search a particular person is not left to the discretion of a field officer. Examples, as you’re well aware, are public school students, government employees, probationers, business inspections, airports, checkpoints, border crossings, and—increasingly—wiretaps and other searches used in the gathering of national security intelligence, . . .
. . . And dragnets, like the kind we’ve seen last week, and are regarded by the courts as another form of administrative search because such intrusions are permissible if they involved only minimally intrusive government actions necessary to protect important health or safety interests that an individualized probable cause regime could not sufficiently protect. In other words: “The constitutional question would seem to depend on whether the searches are reasonably limited in scope (such as limited to a specific geographic area), the dangerousness of the suspect (here, very high), and the strength of the government’s case that the suspect may be in the area and cannot be caught another way.” And all you need is a cell-phone call to a judge for him to issue a wide-area warrant.
But what would the founders thought about a house-to-house search for a wanted terrorist like that we saw the other week? I don’t think it would bother them at all on “reasonableness” grounds because it’s something that might happen once in a lifetime. Balancing the individual need for privacy against the scope of government intrusion (akin to a protective sweep and then quickly gone to the next house), it would be reasonable. If they happened on a little dope in their house-to-house sweep would the police even care? No; they certainly don’t have time to seize it and write a report. The homeowner gets a pass.
But you can argue that reasonableness tests currently in use are too-open ended, unnecessarily broad and too deferential to the government resulting with governmental interests defined broadly and privacy and individual interests narrowly. Many regard the reasonableness test, that balances government need versus individual privacy, operates as a form of rational basis review under which the government presumptively wins.