21st-century Fourth Amendment faces first legislative test in Virginia

The Fourth Amendment reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Virginia was the home of the Fourth Amendment’s author, James Madison, but Virginia oddly does not have its own Fourth Amendment.  Earlier, weaker language prohibiting “general warrants” for searches and seizures drafted by George Mason is found in Article I, Section 10 of the Virginia Constitution.

Monday, a subcommittee in the Virginia General Assembly will hold the first hearing on HJ 578, introduced by Delegate Rich Anderson.  It is a Fourth Amendment for the 21st century.

The proposed amendment clarifies that unreasonable searches and seizures may not be made of our digital data (i.e., e-mails and data stored on computers or cell phones).  This is a logical extension of “papers and effects” from James Madison’s 18th-century version.

HJ 578 reverses what is known as the “third-party doctrine” so that people’s data stored in the cloud would be secure from unreasonable searches and seizures.

Since devices the size of birds used to spy on our backyards, fields, and pastures did not exist in the 18th century, the 21st-century Fourth Amendment includes “lands” as being protected.

Madison’s version did not clearly define terms such as “probable cause” or “unreasonable searches and seizures.”  That has created lots of litigation and thousands of pages of case law that frequently confuse lawyers and judges.  All this is certainly not of comfort in protecting our fundamental rights of security in our “persons, houses, papers and effects.”

Delegate Anderson’s version gives better clarity to those terms, and also fixes the recent and dreaded U.S. Supreme Court decision in Heien v. California, where a “mistake of law” was deemed reasonable under the Fourth Amendment.  I explained why that was a disastrous decision (“Lazy, Incompetent Bureaucrats Will Celebrate the Heien Decision for Years”).

In Heien, the Supreme Court basically ruled that ignorance of the law is no excuse for people, but it is acceptable for government law enforcement in the search and seizure process.

The Fourth Amendment – not politicians, bureaucrats, or even judges – is what prevents America from becoming a police state.  It is law enforcement on law enforcement itself.  Gallup polls, however, show that Americans fear their government in record numbers.

How HJ 578 is treated will tell us if Virginia legislators will protect fundamental rights, or protect government lawlessness.

The amendment is supported by the Virginia Tea Party Federation, Americans for Prosperity, and ACLU Virginia.  Among those who will be testifying for its passage are former Virginia attorney general Ken Cuccinelli and yours truly.

A companion version was introduced in the other chamber by Virginia Senator Richard Stuart.  The first hearing on HJ 578 is Monday, January 26 before the House Privileges and Elections Constitutional Amendments Sub-Committee.