The United States has struggled to fully interpret and define phrases in the Bill of Rights and has done so differently at different times. Justice Louis Brandeis’s quote above–from his dissent in an early FBI wiretapping case-speaks to his concern for citizens’ rights to privacy and protection from government intrusion into the home as basic wiretapping technology enabled the government to create a surveillance state. Brandeis could not have known how right he was in his prediction of the technological possibilities of invading citizens dwellings, personal information, and everyday routines. The new technologies raise a familiar question: What is the proper balance between liberty and order?

Government laws and policies balancing order and liberty are based on the U.S. Constitution and have been interpreted differently over time.

Procedural Due Process

The right to due process dates back to England’s Magna Carta (1215), when nobles limited the king’s ability to ignore their liberties. Due process ensures fair procedures when the government burdens or deprives an individual. Due process also ensures accused persons a fair trial. The due process clause in the Fifth Amendment establishes that no person shall be “deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

There are two types of due process: procedural and substantive. Procedural due process addresses the manner in which the law is carried out. Substantive due process addresses the essence of a law-whether the point of the law violates a basic right to life, liberty, or property. Both types of due process apply to the federal and state governments through the Fifth and Fourteenth Amendments. These measures prevent government from unfairly depriving citizens of their freedoms or possessions without being heard or receiving fair treatment under the authority of law. The concept ensures that government is consistently fair and does not act arbitrarily on unstable whims.

The government can take away life, liberty, and property, but only in a highly specific, prescribed manner. As one Supreme Court justice wrote in an early decision, “The fundamental requisite of due process of law is the opportunity to be heard.” As the Court interpreted and defined due process in various cases, it also selectively required states to follow additional rights from the Bill of Rights, thus expanding the incorporation doctrine.

Procedural due process refers to the way in which a law is carried out. For example, did the local court give the defendant a fair trial? Did the zoning board accurately appraise the value of the citizen’s house before seizing it under its legal powers? Were the suspended students given a chance to explain their side of the story? Such questions arise in cases that have defined the concept of due process nationally. Under the leadership of Chief Justice Earl Warren (1953-1969), the Court extended liberties and limited state authority in areas of search and seizure, the right to legal counsel, and the right against self-incrimination during police interrogations.

The Fourth Amendment prevents law enforcement from conducting unreasonable searches and seizures. In 1914, in Weeks v. United States, the Court established the exclusionary rule, which states that evidence the government finds or takes in violation of the Fourth Amendment can be excluded from trial. This decision protected the citizenry from aggressive federal police by reducing the chances of conviction. The justice system rejects evidence that resembles the “fruit of the poisonous tree,” as Justice Felix Frankfurter called evidence tainted by acquisition through illegal means.

In 1961, the Court incorporated the exclusionary rule to state law enforcement. Seven police officers broke into Dollree Mapp’s Cleveland house in search of a fugitive suspect and gambling paraphernalia. The police found no person or evidence related to either suspect or paraphernalia, but they did find some obscene books and pictures. Mapp was convicted on obscenity charges and sent to prison. When her case arrived in the Supreme Court, the justices ruled the police had violated her rights and should never have discovered the illegal contraband. Mapp v. Ohio (1961) became the selective incorporation case for the Fourth Amendment. Since that ruling state laws must abide by the Fourth Amendment.

Chief Justice Burger’s Court later refined the exclusionary rule to include the “inevitable discovery” and “good faith” exceptions. The inevitable discovery exception applies to evidence police find in an unlawful search but would have eventually found in a later, lawful search. The good faith exception addresses police searches under a court-issued warrant that is later proven unconstitutional or erroneous. In such instances, the police conducted the search under the good faith that they were following the law and thus have not abused or violated the Fourth Amendment. Evidence discovered under these exceptions will likely be admitted at trial.

Searches in Schools

As the Tinker decision already stated, students’ constitutional rights do not stop at the schoolhouse gate, though that decision addressed free speech. However, students in school have fewer protections against searches that may violate the public interest than do average citizens in public or in their home because, within the public school context, at times the public interest argument outweighs concerns for individual liberties.

This issue was decided in New Jersey v. TLO (1985). After a student informed a school administrator that another student, TLO (the Court used only initials to protect this minor’s identity), had been smoking in the restroom, an assistant principal searched TLO’s purse. He found cigarettes, as well as marijuana, rolling papers, plastic bags, a list of students who owed her money, and a large amount of cash. The administrator turned this evidence over to local authorities, who prosecuted the student. She appealed her conviction on exclusionary rule grounds. The Court ruled that although the Fourth Amendment does protect students from searches by school officials, in this case the search was reasonable. School officials are not required to have the same level of probable cause as police. Students are entitled to a “legitimate expectation of privacy,” the Court said, but this must be weighed against the interests of teachers, administrators, and the school’s responsibility and mission. The New Jersey v. TLO ruling gave administrators a greater degree of leeway than police in conducting searches, requiring that they have reasonable cause or suspicion, not full probable cause.

What if a student leaves a backpack behind on the bus? Can school officials search it, knowing or not knowing who the owner is? That was recently answered in Ohio after a bus driver discovered a backpack left behind on his bus. He handed it over to the school security officer, who reached not too deeply into the bag to find a paper with the rightful owner’s name on it. He then recalled a rumor that this student was a gang member. Then, with the principal, he emptied the bag and found bullets. The bus driver and security officer then summoned the student and searched a second bag and found a gun. The state charged the student with possession of the gun. Were these discovered items found lawfully or in violation of the Fourth Amendment?

On appeal, the Ohio Supreme Court found both the initial and secondary searches were reasonable. The school’s public duty to act on unattended bags, and the student’s relinquishing his expectation of privacy by leaving the bag behind, enhanced the school’s ability to search. If the bag were just unattended while the owner went to the bathroom, of course, a high expectation of privacy would have remained. The Ohio court gave the administrators wide latitude on searching that bag, even if the administrators had no belief of imminent threat. Once the bullets were discovered, searching the second bag was within the school officials’ scope.

Erring on the Side of Warrants In other recent Fourth Amendment rulings the U.S. Supreme Court has extended protections regarding cell phones, GPS locators, and narcotics-sniffing dogs at a person’s front door. In one case, the Court ruled that attaching a GPS tracker to monitor a suspected drug dealer’s movements and daily interactions was unconstitutional. When the challenge arrived at the Supreme Court, the government argued that a motorist moving about on the public streets does not have an expectation of privacy and their monitoring his movements did not even amount to a search.

The Court, however, asserted that the government invades a reasonable expectation of privacy when it violates a subjective expectation of privacy. All motorists realize they might be seen, but few assume all their movements are monitored for 24-hour cycles. So this was indeed a search – an unreasonable search that might have been reasonable had the police secured a warrant ahead of time.

A final example from Florida, in which an officer walked a drug-sniffing dog up onto a citizen’s front porch, arrived before the Court. The dog communicated to the officer that marijuana was inside the home. The officer secured a warrant, came into the home, and found 25 pounds of marijuana.

Appealing the conviction, the suspect and his lawyer claimed that the search had taken place on the porch long before a warrant was obtained. Law enforcement cannot search willy-nilly along citizens’ front porches in hopes of having their dogs smell incriminating evidence that the police can then pursue.

The Court was divided on this case, but for now, police cannot take drug dogs onto a resident’s porch without obtaining a warrant.

Contemporary Procedural Due Process Rights

In recent years in the United States, institutions of government have shaped the interpretations of procedural due process rights in light of modern invention and a complicated war.

Searches and the Electronic World

Has the federal government gone too far in its recent endeavors to catch terrorists or to conduct searches in the era of modern communication? The government contends that many of the new techniques, including the third-party mining of metadata – the who, when, and for-how-long details of a communication, but not the actual conversation – are in compliance with the Fourth Amendment.

Metadata, according to David Cole of The Nation, “can reveal whether a person called a rape-crisis center, a suicide or drug-treatment hotline, a bookie, or a particular political organization.” Should the government be privy to such information without probable cause or securing a particular warrant?

As David Gray sums up in his 2017 book The Fourth Amendment in an Age of Surveillance, investigative journalists report that “every major domestic telecommunications company provided telephonic metadata to the NSA” and that the NSA has gathered and stored metadata associated with a substantial proportion of calls made since 2006. The 2015 USA FREEDOM Act has altered the government’s access to phone data. ‘The new law does not completely eliminate the collection and storage of this metadata by cell phone operators, but it does prevent the government easy access to it. The new law requires the Executive Branch to acquire a warrant to examine the metadata.

September 11 and Executive Reaction

The USA PATRIOT Act (see Topic 1.5) was a response to the terrorist attacks on September 11, 2001, and the law raised civil liberties questions when government surveillance efforts intensified. Additional issues related to the “war on terror” also drew attention to civil liberties.

When President Bush declared a “war on terror,” questions arose. For example, does the 1949 Geneva Convention, the international treaty that governs the basic rules of war, apply? Al-Qaeda is not a nation-state and is not a signatory (signer) of the Geneva Convention or any international treaty. In that case, does the United States have to honor Geneva provisions when acting against al-Qaeda? And does the Constitution apply to U.S. action beyond U.S. soil (especially when acting against enemies)? The Bush administration categorized those captured on the terror battlefield – meaning basically anywhere – as “enemy combatants” and treated their legal condition differently from either an arrested criminal or a conventional prisoner of war.

In the Courts

These legal complications and competing views on how to apply international law and the Bill of Rights in a war against an enemy with no flag have caused detainees and their advocates to challenge the government in court. A lower court has declared part of the USA PATRIOT Act unconstitutional. The Supreme Court has addressed habeas corpus rights.

The right of habeas corpus guarantees that the government cannot arbitrarily imprison or detain someone without formal charges. Could detainees at Guantanamo Bay question their detention? The president said no, but the Court said yes. Rasul v. Bush (2004) stated that because the United States exercises complete authority over the base in Cuba, it must follow the Constitution. Fred Korematsu, a Japanese American assigned to a World War II internment camp who lost his own habeas corpus claim in 1944, submitted an amicus curiae brief in support of Rasul. “It is during our most challenging and uncertain moments that our nation’s commitment to due process is most severely tested,” Justice Sandra Day O’Connor wrote, “and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.”

In another case, Hamdi v. Rumsfeld (2004), the Court overruled the executive branch’s unchecked discretion in determining the status of detainees. After this, the United States could not detain a U.S. citizen without a minimal hearing to determine the suspect’s charge. In a separate case, Hamdan v. Rumsfeld (2006), the Court found that Bush’s declaration that these detainees should be tried in military tribunals violated the United States Code of Military Justice. The commissions themselves, wrote Associate Justice John Paul Stevens, violated part of the Geneva Convention that governed non-international armed conflicts before a “regularly constituted court… affording judicial guarantees… by civilized peoples.” As summed up in Hamdi, “We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the nation’s citizens.”

The Rights of the Accused

Procedural due process also guarantees that the accused are treated fairly and according to the law. The Fifth, Sixth, and Eighth Amendments have been mostly incorporated so they apply to the states as well.

Self-Incrimination

“You have the right to remain silent…?” goes the famed Miranda warning.

This statement also reminds arrested suspects that “anything you say can and will be used against you.” The warning resulted from an overturned conviction of a rapist who confessed to his crime under some pressure and without being informed that he did not have to talk. In Miranda v. Arizona (1966), Ernesto Miranda, an indigent man who never completed ninth grade, was arrested for the kidnapping and rape of a girl in Arizona. The police questioned Miranda for two hours until they finally emerged from the interrogation room with a signed confession. The confession was a crucial piece of evidence at Miranda’s trial.

Through the 1950s, the Court handled a heavy appellate caseload addressing the problem of police-coerced confessions. Many losing defendants claimed during appeal that they had confessed only under duress, while police typically insisted the confessions were voluntary. The Fifth Amendment states, “nor shall [anyone] be compelled in any criminal case to be a witness against himself.” Since a number of related cases about police procedures were reaching the Court, the justices took Miranda’s case and created a new standard.

In Miranda, the Court declared the Fifth Amendment right applies once a suspect is in custody of the state. It declared that custodial interrogation carries with it a badge of intimidation. If such pressures from the state are going to occur, the police must inform the suspect of his or her rights. Civil libertarians hailed the Miranda ruling, while conservatives and law enforcement saw it as tying the hands of the police. Miranda received a new trial that did not use his confession. Additional proof, it turned out, was enough to convict this rapist. He went to prison while changing the national and state due process law.

Public Safety Exception

A number of subsequent cases have allowed statements into court that were obtained before a suspect was warned of his or her rights. Courts have said that if the officer was acting in the name of public safety, a delayed reading or failure to read the warning would not necessarily exclude confessions or statements at court. This approach is known as the public safety exception, which puts the protection of people before procedural protections for suspects.

In the first public safety exception case, New York v. Quarles (1984), police chased Benjamin Quarles, who had been identified as assaulting a woman and carrying a gun, into a grocery store. After a search, the police found an empty gun holster. The police asked Quarles where the gun was, and Quarles indicated it was in an empty milk carton. In the original case, the suspect’s attorneys tried to have Quarles’s statement on the location of the gun and the gun itself suppressed from evidence because he had not been warned of his rights against self-incrimination, or “Mirandized.” When the case reached the Supreme Court, however, the Court reasoned that although the suspect was surrounded by police, he was not otherwise coerced to answer the question, and the question was necessary to protect the public from the danger of a loaded gun.

Later cases upheld the public safety exception. If the questioning is for the purpose of neutralizing a dangerous situation, and a suspect responds voluntarily, the statement can be used as evidence even though it was made before the Miranda rights were read.

Right to Counsel

“If you cannot afford an attorney, one will be appointed for you,” the Miranda warning continues. This wasn’t always the case. Though the Sixth Amendment’s right to counsel has been in place since the ratification of the Bill of Rights, it was first merely the right to have a lawyer present at trial, and, as with the rest of the Bill of Rights, it originally applied only to defendants in federal court. In a series of cases starting in the 1930s, the Supreme Court developed its view of right to counsel in state criminal cases. The first established that when the death penalty was possible, the absence of counsel amounted to a denial of fundamental fairness.

In 1942, the Court ruled in Betts v. Brady that refusal to appoint defense counsel in noncapital cases did not violate the amendment, but that the state did have to provide counsel when defendants had special circumstances, like incompetency or illiteracy. These precedents were shaped further with Gideon v. Wainwright (1963).