November 25, 2011

When the Fourth Circuit quoted from James Otis, Jr. this summer, I fell out of my chair.

Otis was a pre-revolutionary war hero, whose oration against the British Writs of Assistance in 1761 inspired John Adams and others. And the Fourth Circuit has reached 250 years back to Otis to assert that the criminal defense lawyers’ joke – the Fourth Amendment is dead in the Fourth Circuit – may not be so.


It’s true: the Fourth Amendment is making a comeback in the Fourth Circuit. Maybe it’s because the mood of the country has turned against big government. And big government will thrive when police can search whoever they want, whenever they want.

Maybe it’s because six new justices have climbed onto the bench in the last four years.

Maybe it’s because the justices are granting oral argument in more criminal cases at the Court in Richmond. We lawyers can speculate all day long. But the Fourth Circuit opinions seem to state plainly the reasons: the justices are tired of the prosecutors’ painting every set of facts as supporting any search and seizure.

In three cases this year, different Fourth Circuit panels flat out scolded the government for its practice of arguing that everything is suspicious. (Fair warning: what follows is some wonky stuff.)

First came the general scolding in Foster:

  • The Court expressed “our concern about the inclination of the Government toward using whatever facts are present, no matter how innocent, as indicia of suspicious activity.” United States v. Foster, 634 F.3d 243, 248 (March 2, 2011).


  • “[A]n officer and the Government must do more than simply label a behavior as “suspicious” to make it so.” (Same.)


n  “Moreover, we are deeply troubled by the way in which the Government attempts to spin these largely mundane acts into a web of deception.” (Same.)


Next came Massenburg, where the Court took time to remind the government and district courts of the origins of the Fourth Amendment:

n  “Indeed, as our late friend and colleague Judge Michael reminded us in the 2010 Madison Lecture at New York University, “The Fourth Amendment owes its existence to furious opposition in the American colonies to British search and seizure practices . . . . Th[e] controversy [over the use of general warrants] left citizens of the new American states with a deep-dyed fear of discretionary searches permitted by general warrants and writs of assistance.”” United States v. Massenburg, 654 F.3d F.3d 480, 486 (August 15, 2011).

And, my personal favorite:

n  “James Otis famously decried general searches as “instruments of slavery … and villainy,” which “place [ ] the liberty of every man in the hands of every petty officer,” warning against abuses by “[e]very man prompted by revenge, ill humor, or wantonness.” Timothy Lynch, In Defense of the Exclusionary Rule, 23 Harv. J.L. & Pub. P. 711, 722 (2000) (quoting James Otis, Speech on the Writs of Assistance (1761)).” (Massenburg at 488.)


And finally came the opinion in Hill, where

n  The Court reiterated “the ‘centuries-old principle of respect for the privacy of the home.’” Id. at 260 (quoting Wilson v. Layne, 526 U.S. 603, 610, 119 S.Ct. 1692 (1999). In Hill, the Court found that the emergency circumstances exception to the Fourth Amendment did not apply to allow entry into an apartment when the facts showed only damage to the front door of the apartment, “unsupported hunches of the police, and noises from within.” Hillat 267. United States v. Hill, 649 F.3d 258 (August 18, 2011),


Some of my colleagues think the blunt message in these cases is intended as much for the trial judges as it is for the federal prosecutors. The cases certainly have reinvigorated my appreciation for the Fourth Amendment, and boosted my morale. James Otis was a flawed dude (you can look it up),  but it’s way cool that he has made his way from colonial Boston to 21st century Richmond.