Vol 7 No 1 - Roger Williams University School of Law

II. CONSTITUTIONAL ANALYSISA. Constitutional Issues PresentedThe Fourth Amendment to the United States Constitutionprovides that:[T]he right of the people to be secure in their persons,houses, papers, and effects, against unreasonablesearches and seizures, shall not be violated, and nowarrants shall issue, but upon probable cause, supportedby oath or affirmation, and particularly describing theplace to be searched, and the persons or things to beseized.26The traditional judicial interpretation of a FourthAmendment search of persons, houses, papers and effects requiredsome type of physical invasion on the part of the government.27However, the scope and interpretation of Fourth Amendmentapplication was broadened in 1967 when the Supreme Court of theUnited States determined that a search, as defined by theAmendment, could be accomplished via government orchestratedelectronic surveillance.28 Thus, the constitutional implicationscreated by the utilization of the Carnivore surveillance devicemust be analyzed and reviewed in such context. The primaryFourth Amendment concerns raised by Carnivore can be narrowedto two issues.Issue 1 – Warrantless Search of Persons Not Named In CourtOrderBecause the FBI has conceded Carnivore’s inability to isolatea target suspect’s transmissions as they flow through its firstfiltering point,29 is the device able to conduct an unauthorized,warrantless search of communications of persons not subject tothe authorized surveillance?26. U.S. Const. amend. IV (emphasis added).27. See Olmstead v. United States, 277 U.S 438 (1928); see also Clifford S.Fishman, Electronic Tracking Devices and the Fourth Amendment: Knotts, Karo andthe Questions Still Unanswered, 34 Cath. U.L. Rev. 277, 286 (1985).28. See Fishman, supra note 27, at 395.29. See Dempsey, supra note 19, at AO3.