Timothy P. O'Neill

Chicago Daily Law Bulletin
Vol.152, Issue 97

May 17, 2006

Severing Fourth and Fifth Amendments

Today let's talk about the synergy between the Fourth Amendment and the Self-Incrimination Clause of the Fifth Amendment.

Synergy.

Let's see … we know Akeelah can spell it, but what exactly does it mean?

Synergy is ''the interaction of two or more agents or forces so that their combined effect is greater than the sum of their individual effects.''

As we shall see in the next two columns, the U.S. Supreme Court first discovered a synergy between these two clauses back in the late 19th century, thus creating a ''zone of privacy'' greater than either provision could provide individually. But the Warren Court in the 1960s rejected this and held that they needed to be interpreted in isolation. Yet recent academic writing is now questioning whether the Warren Court erred in not recognizing that at least some interactions between these two clauses must be recognized and studied.

Our story starts 120 years ago with an importer named Boyd. Boyd v. U.S., 116 U.S. 616 (1886). The government suspected that Boyd had smuggled cases of plate glass without paying import duties. At Boyd's civil forfeiture trial, it became important for the government to show the quantity and value of previously imported cases of glass. The government, pursuant to a federal statute, ordered Boyd to produce the invoices for these cases. Boyd complied, but preserved an objection. The government introduced the evidence and obtained a forfeiture judgment.

The U.S. Supreme Court found that the production order and the statute violated both the Fourth Amendment and the Fifth Amendment Self-Incrimination Clause.

The Fourth Amendment protects against unreasonable searches and seizures. The Boyd court found the government's action to be tantamount to a search and seizure. And the court found it ''unreasonable'' because it involved the seizure of a man's personal papers. Thus the government violated Boyd's Fourth Amendment rights.

But the court also found that the government had violated Boyd's Fifth Amendment right not to be compelled to be a witness against himself at a criminal trial. It found the forfeiture proceeding to be close enough to a criminal proceeding. And it held that the government's order constituted improper compulsion of his personal papers.

Boyd held that the two constitutional provisions ''run almost into each other'' (at page 630).

The two provisions ''overlapped to protect citizens by creating a zone from which the government could not extract evidence, neither by searching and seizing the evidence, nor, as the government had done in Boyd, by ordering its production.'' Michael S. Pardo, Disentangling the Fourth Amendment and the Self-Incrimination Clause, 90 Iowa Law Review 1857, 1874 (2005).

And what is the basis for this ''zone'' created by the synergy of these two constitutional provisions? ''This inviolable zone was tied to the notion of property — citizens have a right to their property and it is unreasonable for the government to either search and seize it or to force citizens to turn it over for use against them in criminal proceedings; seizing or compelling the production of citizens' property is like forcing them to be witnesses against themselves.'' Id.

Boyd itself referred to the ''intimate relation'' between the two provisions and further explained that ''They throw great light on each other. For the 'unreasonable searches and seizures' condemned in the Fourth Amendment are almost always made for the purpose of compelling a man to give evidence against himself, which in criminal cases is condemned in the Fifth Amendment.'' Boyd at 633.

The synergy that created this ''zone of privacy'' had ripple effects far beyond the criminal sphere. You could argue that it influenced the infamous Lochner decision, which held that a state law regulating working hours of bakers was an unconstitutional governmental regulation of private property. Lochner v. New York, 198 U.S. 45 (1905). Indeed, it has been argued that cases such as Boyd and Lochner transformed the concept of personal property from a right to a ''fetish.'' Akhil Reed Amar, Fourth Amendment First Principles, 107 Harvard Law Review 757, 788 (1994).

This property-centered view that a certain area was totally off-limits to government was expressed as late as the 1960s by Justice William O. Douglas, who wrote that Boyd and its progeny created ''a zone of privacy that may not be invaded either by the police through raids, by the legislators through laws, or by magistrates through the issuance of warrants.'' Warden v. Hayden, 387 U.S. 294, 313 (1967) (Douglas, J., dissenting). Douglas's view was consistent with the penumbral theory he advanced in his opinion for the court in Griswold v. Connecticut, 381 U.S. 479 (1965) (finding a zone of privacy created by the ''emanations'' of the First, Third, Fourth, Fifth, and Ninth Amendments).

But this view that the Fourth and Fifth Amendments synergistically created new substantive rights against government was soundly rejected by two Warren Court opinions, each authored by Justice William Brennan.

The first case concerned the warrantless extraction of blood from a person suspected of driving while intoxicated. Schmerber v. California, 384 U.S. 757 (1966). The blood test revealed that Schmerber had been intoxicated. Schmerber objected that the admission of this evidence violated both his Fourth and Fifth Amendment rights.

The invasion of a person's body to obtain evidence seemed like an attractive fact situation to discuss a synergistic ''zone of privacy.'' Yet, unlike Boyd, Schmerber bifurcated the issues.

As to the Fourth Amendment issue, the court found both that the police had probable cause and that the ephemeral nature of the blood alcohol provided exigent circumstances to excuse a warrant. It thus found the blood draw in a hospital setting not to violate the Fourth Amendment.

As to the Fifth Amendment, the court held that this only protected a person from being compelled to provide evidence of a testimonial or communicative nature. Physical evidence such as blood simply was not protected under the Self-Incrimination Clause.

Justices Hugo L. Black and Douglas dissented in Schmerber, contending that the Fourth and Fifth Amendments must be construed together. The majority, however, used a ''divide and conquer'' approach to bifurcate the issues.

This new approach was re-affirmed just one year later in Warden v. Hayden, 387 U.S. 294 (1967). This case involved the ''mere evidence'' rule, a rule that had been explicitly adopted by the U.S. Supreme Court in 1921. Gouled v. U.S. , 255 U.S. 298 (1921). This held that, while the Fourth Amendment clearly had a procedural component (warrant and probable cause), it also had a substantive component. The government could seize only those items in which it had a superior property interest, i.e., fruits of a crime, instrumentalities, and contraband. But the government had no right to seize items that merely had evidentiary value — for example, clothing that might aid in identification. In other words, the government could not seize items that were included in the defendant's property-based zone of privacy.

Warden discarded the ''mere evidence'' rule, holding that the court no longer defined Fourth Amendment rights based solely on property law concepts. Relying on its decision just months before in Katz v. U.S., 389 U.S. 347 (1967), the court held that the principal value protected by the Fourth Amendment was privacy, not property, and that the government had the right to seize anything that could be used as evidence in its case.

Thus, for the last 40 years the court has separately compartmentalized Fourth and Fifth Amendment issues. Yet there is important new scholarship that contends that the court needs to reconsider the connections between these two constitutional provisions. While not advocating a complete return to Boyd, these scholars are advocating a critical re-examination of this 1886 case. I will discuss this new scholarship in next month's column.