By Tutis Libertas
In 2015 Virginia commenced an assault of the Fourth Amendment's requirement of the "warrant" issued by a neutral judge after hearing probable cause. This is a violation of the separation of powers and the Bill of Rights.
The 21st Century Fourth Amendment anticipated this, and adds needed clarity to the requirement that searches and seizures require a warrant based on probable cause, and signed by a neutral judicial officer.
Sentence 4 "Warrants and other writs or written demands shall be issued only based upon probable cause, signed by a neutral judge or magistrate, supported by oath or affirmation, and particularly describing the place to be searched, the persons, property, or things to be seized, or the communications, personal information, or data to be accessed or obtained."
This provision applies to warrants, whether called "subpoenas" or however these search or seizure writs or written demands are denoted.
It is well-settled that the Fourth Amendment process requiring probable cause applies to administrative subpoenas issued for searches or seizure by government agencies, and not merely by police or sheriffs. As described by the U.S. Supreme Court in Hale v. Henkel:
We are also of opinion that an order for the production of books and papers may constitute an unreasonable search and seizure within the 4th Amendment. While a search ordinarily implies a quest by an officer of the law, and a seizure contemplates a forcible dispossession of the owner, still, as was held in the Boyd Case, the substance of the offense is the compulsory production of private papers, whether under a search warrant or a subpoena duces tecum, against which the person, be he individual or corporation, is entitled to protection . . . . A general subpoena of this description is equally indefensible as a search warrant would be if couched in similar terms.
Hale v. Henkel also makes clear that subpoenas issued for trial or grand juries under judicial process are not subject to the Fourth Amendment.
Sentence 4 of the 21st Century Fourth Amendment confirms that warrants and other writs such as administrative subpoenas or demands must be signed by a neutral judge or magistrate. As described in Katz v. US (1967):
Searches conducted without warrants have been held unlawful "notwithstanding facts unquestionably showing probable cause," . . . for the Constitution requires "that the deliberate, impartial judgment of a judicial officer . . . be interposed between the citizen and the police. . . . Over and again, this Court has emphasized that the mandate of the [Fourth] Amendment requires adherence to judicial processes . . . and that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well delineated exceptions.
Just as our police and sheriff departments may not unilaterally sign and issue their own warrants to search or seize private property — and police often operate under emergency, "exigent" and heroic circumstances — administrative agencies must present probable cause under oath and affirmation to a neutral judge or magistrate to obtain an administrative search or seizure subpoena. This helps ensure the objectivity that maintains our security and rights from unreasonable searches and seizures, and is part of the "separation of powers" inherent in the Fourth Amendment designed to protect our inalienable rights through sound law enforcement that follows the rule of law.
There is a judicially created exception for regular on-site "inspections." Health inspections, for example, may be used if applied equally to all businesses in an industry that may pose dangers to our safety. Camara v. Municipal Court (1967). If the owner refuses to give consent for the government to conduct the inspection, then the government must obtain a warrant before searching.
Administrative subpoenas targeted at a specific businesses — the term used is "with particularity" — are not part of this exception for regular inspections, and always require a neutral judicial officer to approve them. The Virginia Magistrate Manual, for example, acknowledges that judicial officers must sign administrative subpoenas.
In 2015, the Virginia General Assembly created administrative powers to demand records from computer service companies without authority of a neutral judge. That is "illegal," and strikes at the very foundations of the Fourth Amendment.
The original Fourth Amendment requires that warrants "particularly describ[e] the place to be searched, the persons, property, or things to be seized." That prevents the dreaded "general warrants." General warrants were one reason why we fought the American Revolution. In a famous1761 lawsuit in Boston, Massachusetts, James Otis challenged the general warrants known as "Writs of Assistance." He explained why general warrants violated the common law requirements now found in the Fourth Amendment, and called these warrants "illegal." John Adams watched the trial and later remarked, "Then and there the child Independence was born."
The Virginia General Assembly has now created such "illegal" general warrants that authorize Virginia officials to issue "unilateral" subpoenas to computer service providers, meaning without approval by a neutral judge or magistrate, without probable cause, and failing to describe the place from which documents are to be produced. This legislation is "illegal" even under the existing search and seizure provision in Article I, Section 10 of the Virginia Constitution, which predated and is weaker than the Fourth Amendment.
This subpoena legislation also prohibits recipients from disclosing that they were targeted. Known as "sneak and peek" warrants, they violate the First Amendment as well.
The Virginia Magistrate Manual cites a 1999 opinion of Virginia Attorney General Mark Earley as follows:
A 1979 opinion of the Attorney General notes that §§ 19.2-393 through 19.2-397 of the Code of Virginia "at least to some degree reflect the legislature's general approach as to obtaining administrative search warrants, and that the procedure they set forth may legitimately be regarded as the functional equivalent of a warrant.
Section 19.2-393 defines an "inspection warrant" as "an order in writing, made in the name of the Commonwealth, signed by any judge of the circuit court whose territorial jurisdiction encompasses the property or premises to be inspected or entered."
Sentence 4 of the proposed amendment also brings these protections into the 21st century by expressly including "the communications, personal information, or data to be accessed or obtained" consistent with the first sentence of the proposed amendment.
Virginia has lapsed into pre-Revolutionary War violations of the Fourth Amendment. The rule of law prohibits the legislature from overruling the Constitution, our fundamental and paramount law that governs government itself. The General Assembly has assaulted the Constitution that legislators swore an oath to uphold. They are breaking the law.