Wednesday, October 30, 2013

Are we on the verge of a Fourth Amendment revival?

Former Williamson County DA John Bradley has been keeping a low profile since voters ousted him from office last year, at least everywhere but the Texas District and County Attorney Association user forums where he remains a prolific contributor. I may often disagree with him, but Bradley's a smart guy and last week he posed an interesting question that merits Grits readers attention:
When SCOTUS decided the Jones case and said placing a GPS device on a car was a search, the Court did not decide whether a warrant was required. Texas law has not required a warrant. But here is one federal court that has said a warrant is required:


Given the SCOTUS requirement for a warrant in the McNeely blood draw case, is the national trend toward requiring warrants?
He could have added the example of the Texas Legislature becoming the first state to require a warrant for law enforcement to access cloud-based emails. Moreover, legislation with 107 joint and co-authors in the Texas House, which received 126 votes as an amendment on the House floor, would have required warrants both to place GPS devices on vehicles as well as to access people's cell-phone location data if procedural machinations hadn't kept the amendment off the final bill. (Maine and Montana passed similar legislation this year.) Also, Texas' new law regulating drones requires law enforcement to secure warrants to use them for investigative purposes, even tacking on a powerful exclusionary rule if drones are used without them.

I think JB's right that we're witnessing a "national trend toward requiring warrants" and, moreover, Texas has been a leader in that trend as it regards electronic privacy issues. The Fourth Amendment has been so battered in recent decades by judicial-manufactured exceptions that significant factions in both political parties are beginning to endorse its revival through the legislative process. Hell, it's one of the few issues that seems capable of drawing bipartisan support even in Washington, D.C..

Perhaps that's just false hope and/or wishful thinking on my part, but clearly Grits isn't the only one observing these changing trends. IMO there's a window opening over the next few years during which the opportunity to bolster the Fourth Amendment will re-assert itself. The question will be whether judges, politicians and advocates can discover the courage and wherewithal to seize the moment.


Gadfly said...

How much of this is possibly driven by NSA cybersnooping at the federal level? (Not that there's anything we can do about the current bipartisan security state other than third-party voting.)

doran said...

Suggest you go to
and look at the October 30 entry about Google, NSA, and The Cloud.

The weakness of the recently enacted Texas statute mentioned by Grits is that it applies, as far as I know, only to law enforcement actually going after (searching for and seizing) information stored there. But The Cloud can be accessed by many different entities, not just by law enforcement. Which means that a latter-day Snowden could find incriminating evidence there and provide it to law enforcement for use in building a case.

doran said...

There is more about the Google-Yahoo-NSA syndicate at

and at

Gritsforbreakfast said...

FWIW, the Texas bills with new warrant requirements were getting traction months before the NSA scandal broke. It certainly added fuel to the fire, though.