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Key Excerpt: Whitehouse and Sotomayor on Search and Seizure Warrants

Courtesy of CQ Transcriptions.

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SEN. WHITEHOUSE: When the founders set up the warrant requirement originally, when the sheriff or somebody went to seize property to bring it in as evidence for a trial or to condemn it as contraband, that was sort of the end of it. If it was evidence, when it was done, it was returned, and it went back. Particularly, papers were returned, and that was the end of it.

Then came the Xerox machine. And now the government could make copies of what they took. And it was returned, as always, just as the founders had intended, but copies were sprinkled throughout government files, very often ones that ended up in archives, buildings in dusty boxes that would have taken enormous effort to locate, but nevertheless they remained available.

And nowadays, with electronic databases and electronic search functions, matters that once would have been returned to the individual and that envelope of privacy that was opened by the warrant would have been closed again are now potentially eternally available to government, eternally searchable.

And it raises some very interesting privacy questions that we will have to face in this Congress and in this Senate as we begin to take on issues particularly of cybersecurity, cyber-attacks, cyber- terrorism, and take advantage of what technology we can bring to bear in the continued struggle against terrorist extremists.

So I'd be interested in your thoughts on how the Constitution, which is unchanged through all of that, what analysis you would go through to see whether the change from a quickly opening and closing privacy envelope to one that is now essentially open season forever. How would you go about analyzing that as a judge, given that the Constitution is a fixed document?

JUDGE SOTOMAYOR: I think, as I understand your question, Senator, that there are two issues, if not more, but the two that I note as more starkly for me in your question is the one of the search and seizure and the Fourth Amendment as it applies to taking evidence from an individual and use it against him or her in a current proceeding.

WHITEHOUSE: Yes, which is a constant. That stayed the same.

SOTOMAYOR: That (inaudible) the structure.

In -- not so long ago, the Supreme Court dealt with a technologically new situation, which was whether an individual had a right to expect the warrant to be gotten before law enforcement flew over his or -- I think it was a "his" in that case -- his home and took readings of the thermal energy emanating from his home, and then going in to see if the person was growing marijuana.

WHITEHOUSE: The (inaudible) case.

SOTOMAYOR: Exactly. And in that case, the reason for that case is that, apparently -- I'm not an expert in marijuana growing -- but apparently, when you're growing marijuana, there's a -- certain heating lights that you need, at least that's what the case was describing, and it generates this enormous amount of heat that wouldn't generally come from a home unless you were doing something like this.

And what the court did there, in an opinion by Justice Scalia, I believe it was, is it looked at the embedded questions of privacy in the home that underlied the unreasonable search and seizure. And the court there, as I mentioned, determined that acts taken in the privacy of one's home would commonly not be expected to be intruded upon unless the police secured a warrant.

And to the extent that the law had generally recognized that, if you worked actively to keep people out of your home -- you locked your windows, you locked your doors, you didn't let people walk by and peek through, you didn't stand at your front door and show people what you were doing, that you were exhibiting your expectation of privacy. And to the extent that new technology had developed that you wouldn't expect to intrude on that privacy, then you were protected by the warrant clause. And the police had an obligation to go talk to a magistrate and explain to them what their evidence was and let the magistrate -- I use the magistrate in that more global sense. It would be a judge, but in the -- you would let a judge decide whether there was probable cause to issue the warrant, reasonable suspicion, probable cause -- probable cause to issue the warrant.

That's how the courts address the unreasonable -- or have addressed, the Supreme Court has, the unreasonable search and seizure and balance the new technology with the expectations of privacy that are recognized in the Fourth Amendment.

Read the entire exchange between Sen. Whitehouse and Judge Sotomayor here.

By Washington Post editors  |  July 15, 2009; 11:35 AM ET
Categories:  Hearings , Supreme Court , Topics: Search and Seizure Warrants  
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