Joshua Chambers

3/5/09

Political Science 202

Outline for Supreme Court presentation:

• Border Search exception to the 4th amendment

○ While the Fourth Amendment does in fact protect most unreasonable searches and seizures
by the government, material passing over international borders is subject to searching
without any warrants.
○ The Supreme Court case United States v. Montoya De Hernandez concerned a woman who
had been smuggling drugs into the country by a method known as “balloon swallowing.” Her
claims to Fourth amendment protections were overridden by the courts recognition of border
search authorization.
○ United States v. Ramsey was one of the most important Supreme Court cases in defining the
reach of the border search exception. It extended the applications of this exception to all
international postal mail.
 “Border searches without probable cause and without a warrant are nonetheless
"reasonable" within the meaning of the Fourth Amendment.”
 “…no different constitutional standards should apply simply because the envelopes
were mailed, not carried – the critical fact being that the envelopes cross the border
and enter the country, not that they are brought in by one mode of transportation,
rather than another.”
○ Telephone or electronic communications crossing international borders only differ from
actual physical searches in having different modes of transportation. While there has been
no court case explicitly associating NSA wiretaps with the border search exception, the
conditions by which the Supreme Court applied this exception to international mail have
virtually no difference.
• Katz v. United States
○ A case concerning the application of the Fourth Amendment to Charles Katz, an illegal
gambler who had been accused of placing bets in Miami and Boston from a public pay
phone. His side argued that the government could not use the recorded information against
him because the Fourth and Fifth Amendments to the Constitution protected his privacy.
Overruling Olmstead v. United States, The Court ruled in favor of Katz, stating that people,
not places, were protected under the Bill of Rights.
 National security exception: “Whether safeguards other than prior authorization by a
magistrate would satisfy the Fourth Amendment in a situation involving the national
security is a question not presented by this case.
 Expectation of privacy: The Fourth Amendment to the Constitution states that “The
right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated”
In his concurrence with the ruling of Katz v. United States, Justice Harlan formulated a
test that would later be generally adopted in future Fourth Amendment cases.
• “My understanding of the rule that has emerged from prior decisions is that
there is a twofold requirement, first that a person have exhibited an actual
(subjective) expectation of privacy and, second, that the expectation be one
that society is prepared to recognize as "reasonable."”
• Any expectation of privacy a suspect terrorist might hold would be discounted
if suspicions were confirmed, seeing as terrorism is a practice that both the
public and the government officials would judge unworthy of the rights given
by the Fourth Amendment.
• The Foreign Intelligence Surveillance Act
○ Passed in 1978, the Foreign Intelligence Surveillance Act was a compromise between parties
interested in promoting the right to privacy and parties for the promotion of national
security. Through the Attorney General, FISA gives the President the power to authorize
warrantless surveillance for up to one year, provided only foreign to foreign communications
were monitored. FISA was amended by the Protect America Act of 2007, which was originally
ruled as unconstitutional by the Foreign Intelligence Surveillance Court, but successfully
appealed to the higher Foreign Intelligence Surveillance Court of Review in a secret ruling.