The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Amendment IV: Warrants Must Describe the Place and Persons With Particularity
Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment IV, William C. Duncan 2. The Constitution, 3. The Amendments, 4. The Classics that Inspired the Constitution, 13. Guest Constitutional Scholar Essayists, Bill of Rights, Constitutional Amendment IV, Constitutional Amendment IV, The Constitution of the United States of America, William C. Duncan
Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation
Amendment IV:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularity describing the place to be searched, and the persons or things to be seized.
Amendment IV: Particularity of Warrants
Limitation of the power of the government is not one of many possible approaches to governing under the U.S. Constitution. It is the very structure of the Constitution itself. Our Constitution is primarily a limitation on what the government it charters can do. The first ten amendments constituting the Bill of Rights, in particular, are not affirmative grants of privileges from a beneficent state to its subjects but a restrain on government in the interest of protecting the preexisting rights of citizens,
The structure of the Fourth Amendment, for instance, makes clear that the Framers understood the rights it protected from the government to be existing rights. This is consistent with the Framers’ entire approach to constitutional government, an approach informed by careful study of history and, specifically, their own experience in self-government and its opposites. Much of that experience, of course, was gained as subjects of the British Crown and in the effort to respond to abuses of English power in the colonies, ultimately leading to the decision to seek independence.
The decision to include in the first set of amendments to the U.S. Constitution, a requirement of particularized warrants is a key example.
The primary relevant experience of the Framers on this matter came from the general warrants, called writs of assistance, used by the British to conduct wide-ranging searches for contraband in the colonies. A writ of assistance is court permission for government officials to conduct a generalized search, for instance for goods on which customs fees have not been paid. They contrasted with a more specific search warrant that would specify who, what and where to be searched in some detail. The practical effect of the difference should be obvious. If a government official is allowed by court to go into all the homes on a block looking for anything on which taxes have not been paid, you have a significant intrusion. If the court instead says that these officials can go to 555 Whatever Lane and look for money that has been stolen from the downtown bank, the intrusion is dramatically less.
The use of writs of assistance in the colonies provoked understandable protect. John Dickinson, in his 1767 Letters from a Farmer in Pennsylvania, noted the act of Parliament allowing for these writs empowered customs officers to “to enter into any HOUSE, warehouse, shop, cellar, or other place, in the British colonies or plantations in America, to search for or seize prohibited or unaccustomed goods [meaning goods on which no customs had been paid].” He pointed out that while those kinds of writs had also been issued in England, “the greatest asserters of the rights of Englishmen have always strenuously contended, that such a power was dangerous to freedom, and expressly contrary to the common law, which ever regarded a man’s house as his castle, or a place of perfect security.” Thus, Dickinson argued: “If such power was in the least degree dangerous there, it must be utterly destructive to liberty here.”
The experience of the colonists with these practices bore fruit in the newly independent States. The 1776 Virginia Declaration of Rights, the Maryland Constitution of the same year and John Adams’ 1780 Constitution for Massachusetts all required that warrants for searches and seizures be specific in describing the place to be searched and the subjects of the search or seizure.
These precedents, of course, were adopted in the drafting of the Fourth Amendment, the language of which clearly prohibits the broad-wide-ranging searches so abhorrent to the colonists. It does so by allowing only search warrants “particularly describing the place to be searched, and the persons or things to be seized.” This is the particularity clause.
A Connecticut case from the early Nineteenth Century exemplified the type of warrants the Fourth Amendment was created to prevent: “it is not only a warrant to search for stolen goods supposed to be concealed in a particular place, but it is a warrant to search all suspected places, stores, shops and barns in Wilton. Where those suspected places were in Wilton is not pointed out, or by whom suspected: so that all the dwelling-houses and out-houses within the town of Wilton were by this warrant made liable to search.” (Grumon v. Raymond, 1 Conn. 40, 1814.
Today we would be shocked if a court were to authorize police to search an entire town for stolen goods. Yet, these kinds of warrants were commonly allowed in England prior to American Independence and seem to have been issued even into the 1800s here. What happened to change the legal culture?
Part of the answer is the Framers’ ability to apply what they had learned from experience. Americans had experienced the oppression of broad, intrusive searches and this led them to reject these as a proper instrument of government. They then ensured the lessons learned were reflected in the law through the Fourth Amendment.
The Framers wrought well and we are the inheritors of their wisdom in limiting the power of government. The English may have noted that the home is a case but the Fourth Amendment’s particularity requirement helped to give that concept the binding force it needed to be a reality.
William C. Duncan is director of the Marriage Law Foundation (www.marriagelawfoundation.org). He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor.
March 13, 2012
Essay #17
Amendment IV: Warrants to Have Probable Cause
Analyzing the Amendments in 90 Days 2012 Project, Constitution Amendment IV, Horace Cooper 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, 17. Topics, Bill of Rights, Boston Tea Party, Constitutional Amendment IV, Constitutional Amendment IV, Declaration of Independence, Horace Cooper
Guest Essayist: Horace Cooper, Senior Fellow with the Heartland Institute
“…..no Warrants shall issue, but upon probable cause, supported by Oath or affirmation…”
Americans today take great pride in the accomplishments and brilliance of the drafters of the Constitution and the Bill of Rights. One of the things that this essay will demonstrate is that quite often the protections that we take for granted came about as a result of the prudence and wisdom of the founders and in particular their specific response to the challenges they were exposed to or aware of. Many Americans may not appreciate that this provision isn’t just pivotal, it is in some sense central to America’s claim to independence.
The 2nd clause of the 4th Amendment makes clear, magistrates and others allowed to issue warrants must not issue “general” warrants, but instead when court orders are issued, they must be precise and detailed. Warrants must specify descriptions of items demanded to be seized and judges must be convinced that there is probable cause to believe a crime has been committed.
As is the case with much of America’s legal system, British history is a good starting point to understand this provision.
Let’s start with the “Star Chamber” or camera stellata as it was called in Latin. It was sort of a super-appeals Court that held its meetings in the “Starred Chamber” of the Royal Court (a place initially created for meetings of the King’s Council in England.) Reports of its existence suggest it operated early as the 13th Century and sat at the royal Palace of Westminster until 1641.
Made up of royal advisors and judges, the so called “Star Chamber’s” primary responsibility was to address civil and criminal matters involving elites to ensure that the kingdom’s laws were enforced against the powerful and the prominent. Its sessions were held in secret. It made no pretense of operating under traditional court rules involving criminal or civil procedure. There was also no right of appeal, no juries and even no right to confront accusers or even for witnesses to testify. However perhaps more offensive than these predations was its authority to issue “general warrants.” These warrants were given to the sheriff or other local law enforcement officer and empowered them to retrieve items necessary to support the Star Chambers pre-ordained conclusions.
In other words, instead of saying that based on a signed statement by a witness, J. Smith was believed to hold in his home, item X, an illegal product, “general warrants” allowed the Sheriff to search all of J. Smith’s properties and seize any and all of his personal items without identifying any particular item. The seized items would be subsequently examined by the staff of the Star Chamber to see which if any could be used as evidence against J. Smith. The items typically weren’t returned and even when they were, they were often damaged or destroyed.
Over time the British recognized the inherent abuses associated with the operations of the Star Chamber. Finally, in 1640, the British Parliament adopted the Habeas Corpus Act and abolished the Star Chamber in 1641.
Unfortunately when making the decision to shut down the Star Chamber, the British Parliament hadn’t acted to eliminate the use of general warrants. Abuses involving general warrants would continue over another 100 years before British society generally would recognize the ills of its use in particular.
One of the most prominent cases of abuse of general warrants that the founders would have been familiar with was the fall out from the British government’s attempt to use general warrants against Englishman John Wilkes, publisher and political activist and critic of the Crown, in 1763.
Wilkes, a member of parliament, during Prime Minister George Grenville’s government, published “The North Briton” which mocked and criticized King George III and the Grenville administration. Using general warrants King George had Wilkes and nearly 50 of his associates arrested and charged with seditious libel. Not only were he and his associates arrested, their personal property, papers, and effects were seized. The abuses that occurred were obvious for all to see. As a Member of Parliament, Wilkes had immunity from these charges and while he was able to convince the Chief Justice to dismiss the case his troubles wouldn’t end. Within the next 5 years he’d be charged again and again. Notwithstanding these charges and subsequent expulsion from Parliament he would be re-elected 3 times.
Wilkes fled to France but eventually returned to England. Wilkes would subsequently be elected Mayor of London and get recognition for his efforts to support the rights of English citizens and his efforts contributed to the fall of the Grenville government. Wilkes’ ongoing arguments for Freedom of the Press, broader suffrage rights and religious toleration would ultimately find broad political support in England before his death.
But perhaps the greatest influence for the framers was the use of “general warrants” to enforce the infamous Townshend Acts of 1767. Passed by the British Parliament, the Townshend Acts was adopted purportedly to provide for the salaries of colonial appointees, but many colonialists suspected its primary if not total rationale was to establish the precedent that the British Parliament had the right to tax the colonies.
As part of its efforts to enforce this revenue act, the British Parliament created the American Board of Customs Commissioners and the commission leapt at the opportunity to use “general warrants” to deter smuggling and tax evasion. These warrants issued under the authority of the crown were particularly troublesome. They violated the colonial charters’ rules that warrants were legal only when they provide a reason and a basis for searches. Whereas Colonial warrants were limited in scope and time, the Commissioner’s general warrants had no time limits other than the life of the King and were transferable allowing one person holding the warrant to transfer his rights over to the other. Additionally, the warrant holder could search any person or property at any time. Writ holders essentially were laws unto themselves.
Massachusetts Assembly James Otis whose catchphrase is “Taxation without Representation is Tyranny” called the general warrants “the worst instrument of arbitrary power, the most destructive of English liberty, and the fundamental principles of law, that ever was found in an English law book.”
The new taxes proved to be quite unpopular and colonial appointees using the general warrants even more so. Ultimately those responsible for collections requested military assistance. The British sent the fifty-gun warship HMS Romney to Boston Harbor in May 1768 to enforce the law. Rather than quelling the situation, this dramatic escalation made matters worse. Starting with the Boston Massacre and the Boston Tea Party the gross abuse of general warrants and Townshend Acts would lead directly to the Declaration of Independence and the Revolution.
It is that framework which influenced the writers of the 4th amendment. Although far more jurisprudence is placed on the importance of the first clause of the 4th Amendment, for historians, the notion that government may not issue warrants to law enforcement officers without any justification or any particular limits to seize goods or people was a powerful enough issue that it was a key ingredient in the formation not only of a provision of the Bill of Rights, but the formation of an entire nation.
Horace Cooper is a senior fellow with the Heartland Institute and is a writer and legal commentator
March 12, 2012
Essay #16
Amendment IV: Protection Against Unreasonable Searches
Analyzing the Amendments in 90 Days 2012 Project, Charles K. Rowley, Ph.D., Constitution Amendment IV 2. The Constitution, 3. The Amendments, 13. Guest Constitutional Scholar Essayists, Bill of Rights, Charles K. Rowley PhD, Constitutional Amendment IV, Constitutional Amendment IV
- Guest Essayist: Dr. Charles K. Rowley, General Director of The Locke Institute and Duncan Black Professor Emeritus of Economics at George Mason University
March 9, 2012 – Amendment IV: The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized. – Guest Essayist: Dr. Charles K. Rowley, General Director of The Locke Institute and Duncan Black Professor Emeritus of Economics at George Mason University
Although my assignment is to discuss the first clause of the Fourth Amendment, I cannot do so effectively without referring also to the second clause. Therefore, my Essay embraces both clauses, while focusing primary attention on the first.
Like many other areas of American law, the Fourth Amendment is rooted in English legal doctrine. Sir Edward Coke, in Semayne’s case (1604) stated: ‘The house of every one is to him as his castle and fortress, as well for his defence against injury and violence as for his repose.’ In this judgment, the Court determined that the King was not endowed with unlimited authority to intrude upon his subjects’ dwellings, while recognizing that the King’s agents were permitted to conduct searches and seizures under specified conditions, when their purpose was lawful, and when a warrant had been secured.
The 1760s witnessed a significant growth in the rate of litigation against government agents using general warrants to locate and seize materials relating to John Wilkes. Wilkes’ publications attacked vehemently not only government policies, but the King himself. The most famous of these cases was Entick v. Carrington (1765) in which Charles Pratt, 1st Earl Camden, ruled that the forcible entry by the King’s Messenger into the home of John Entick, and the search for and seizure of pamphlets and other materials under a general warrant was unlawful. This case established the English precedent that the executive is limited by common law in intruding upon private property.
Unlike other provisions in the ‘Bill of Rights’, however, the Fourth Amendment was grounded mainly in American colonial experience, rather than in English history. In order to stem rampant smuggling by tariff-evading colonialists, the British parliament had conferred vast powers of search on British customs officials. The Writ of Assistance was a general search warrant granting such officials virtually unlimited discretion to search, and was valid throughout the lifetime of a sovereign. Casting its net widely, such a writ required neither ‘probable cause’, nor any description of persons or premises, nor even a magistrate’s authorization of a particular search. The arbitrary nature and capricious application of this writ enraged many colonialists and drove post-revolutionary arguments in favor of the Fourth Amendment (Jacob Landynski, ‘Fourth Amendment’, The Oxford Companion To The Supreme Court Of The United States. Edited by Kermit L. Hall, Oxford University Press, 1992).
Despite its apparent comprehensiveness, the Fourth Amendment actually provides very little guidance concerning how to deal with potential search situations. Its historical justification teaches us a preference, wherever feasible, for a search under warrant over a judicially unsupervised police action. Its text requires a standard of ‘probable cause’, and a description of the persons and premises involved. However, the text does not define ‘probable cause’, nor does it even define a ‘search’. In such circumstances, the United States Supreme Court has played a significant role, both in construing the text, and in determining how closely to hew to the history of the amendment.
Early on, the Court construed the text strictly and interpreted history narrowly. In a changing environment, such construction allowed many avenues for government agents to evade the reach of the Amendment. For example, for some time, the Court determined that electronic eavesdropping did not fall within the reach of the Amendment. Similarly, administrative inspections were exempt because they were viewed as invading ‘only’ the privacy interest of the individual rather than his security interest. Only after the Court moved away from strict construction, was it willing to hold that these new forms of search fell within the scope of the Amendment.
The great dilemma of interpretation concerns the relationship between the Amendment’s two clauses. The first clause bans unreasonable searches while the second clause defines the conditions for issuance of a warrant. Three possible interpretations emerge, each of which has been sanctioned by the Court at one time or another.
The most obvious interpretation is to consider the warrant clause as explanatory of the reasonableness clause. This interpretation has been followed in most of the Court’s cases. In the judgment of Justice Potter, ‘searches conducted outside the judicial process are per se unreasonable under the Fourth Amendment – subject only to a few specifically established and well-delineated exceptions.’ (Katz v. United States, 1967)
A second interpretation reinforces the first, by inferring that some searches are sufficiently offensive to civilized standards of behavior as to be unreasonable even under warrant. In this interpretation, the Court in 1886 proscribed the search and seizure of private papers even though such search was authorized by judicial process. In 1921, the Court limited a search to contraband and the fruits of crime, banning the seizure of mere evidence. These restrictions, however, no longer apply.
The third interpretation treats the two clauses as separable, as was implied in the nature of my commission for this Essay. The reasonableness of a search, in this interpretation, is not dependent on the existence of a warrant, but on what Justice Minton called, ‘the facts and circumstances – the total atmosphere of the case’ (United States v. Rabinowitz, 1950). Between 1950 and 1969, this interpretation ruled and the Court sanctioned extensive warrantless searches of premises where arrests were made.
Either of the first two interpretations is faithful to the purpose of the Amendment. The third interpretation, however, is not. Once a standard of reasonableness is segmented from the warrant requirement, it provides no standard whatsoever. A determination of probable cause, even in non-exigency situations is then simply made by the police, and citizen protection is completely denied. Unfortunately, at the present time, the Court is leaning once again in favor of the third interpretation – under a Hobbesian pressure from a terrorist-infested environment – even while it continues to pay lip-service to the first.
The Amendment covers arrest as well as search, albeit with an important difference between the two. An outdoor felon arrest is always viewed as an exigency, not requiring a warrant. An entry into a person’s house, in order to make an arrest, requires a warrant, unless an exigency can be demonstrated.
Perhaps the most controversial feature of the Court’s Fourth Amendment jurisprudence is the rule requiring exclusion of evidence seized in violation of constitutional standards. Suppressing evidence merely because of the wrongful manner in which it was acquired is unique to American law. This exclusionary rule first appeared in Boyd v. United States (1886). It was made explicit for the federal courts in Weeks v. United States (1914). It was extended to state prosecutions in Mapp v. Ohio (1961). The exclusionary rule was rigorously enforced until 1984, when the Court retreated somewhat in United States v. Leon. The justices ruled that ‘good faith’ reliance by police on a defective warrant does not require exclusion.
This back-track coincides with a more general retreat by the Court into the feel-good fuzziness of a living constitution. Eventually, such a retreat may leave the Court sanctioning warrantless searches under non-exigent circumstances. At such time, an unconstitutional Supreme Court, to all intents and purposes, will have arbitrarily repealed the Fourth Amendment to the Constitution of the United States.
Charles K. Rowley, Ph.D. is President and General Director of The Locke Institute in Fairfax, Virginia and Duncan Black Professor Emeritus of Economics at George Mason University. For further details see www.thelockeinstitute.org and www.charlesrowley.com
March 9, 2012
Essay #15
Guest Essayist: Jeffrey Reed, a professional orchestra conductor, holds a degree from the Louis B. Brandeis School of Law, and has taught constitutional law at Western Kentucky University in Bowling Green, Kentucky
Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures. It also requires warrants issued by courts to be supported by probable cause.
Debates surrounding Fourth Amendment law involve balancing an individual’s right to privacy against law enforcement’s need to aggressively investigate crime. As crime rates soar, the legal trend has been to give police more leeway under the amendment. However, it has not been without debate. One only need point to the controversy surrounding the Patriot Act, where police were granted expanded powers to wiretap phone conversations, intercept emails, etc., without a warrant. No doubt, the Fourth Amendment has created a growing body of law, affecting all Americans.
The text says:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The framers of the Constitution adopted the amendment in response to the writs of assistance (a type of blanket search warrant) that were used during the American Revolution.
Before one can answer whether a search is reasonable, it must be established that there was, indeed, a search under the meaning of the Fourth Amendment. In Katz v. United States, the Supreme Court ruled that there is a search if a party has a “reasonable expectation of privacy” in the area searched.
In Katz, the government wiretapped a telephone booth. The court found that it was an unreasonable search because the defendant expected his phone conversation to be private. The court used a “reasonable man” standard. Would society believe that Katz’s expectation of privacy was reasonable? The court held that the government should have obtained permission from a court, via a search warrant, before wiretapping the phone booth.
In order to obtain a warrant, an investigating officer must state, under oath, that he has reason to believe that the search will uncover criminal activity or evidence of a crime. A judge must find that probable cause exists to support the warrant. The Supreme Court has ruled that the term probable cause means that there is a “practical, nontechnical” probability that incriminating evidence is involved.”
The standards of probable cause differ for an arrest and a search. A “seizure” under the Fourth Amendment occurs when a person is arrested and taken into custody. The officer must have probable cause to seize the person. Police have probable cause to make an arrest when the facts they possess, based on “reasonably trustworthy information” would lead a reasonable person to believe that the person arrested had committed a crime.
Not every incident involves an “arrest” requiring probable cause. Under Terry v. Ohio, police may conduct a limited warrantless search (frisk them) on a level of suspicion less than probable cause when they observe “unusual conduct” that leads them to reasonably believe “that criminal activity may be afoot” and that the suspect is presently dangerous to the officer or others.
The Fourth Amendment also prohibits the unreasonable seizure of personal property without a warrant. A seizure of property occurs when there is meaningful interference by the government with an individual’s possessory interests.
Courts enforce the Fourth Amendment via the exclusionary rule. Any evidence obtained in violation of the amendment cannot be used to prosecute the defendant at trial. The defense attorney must move the court to suppress the evidence.
Like any rule, there are exceptions. No warrant is needed if a person agrees to the search. Likewise, if an officer is legally in a place and sees objects in “plain view” that he has probable cause to believe are evidence of a crime, he may seize them without a warrant. “Open fields” such as wooded areas or pastures may be searched without a warrant (there’s no reasonable expectation of privacy in them). And so on and so forth.
The most recent exception was handed down by the Supreme Court on May 16th. In a case originating in my state of Kentucky, the Court created a new exception to the warrant requirement. Now, police may enter a home without a warrant when they have reason to believe that drug evidence is being destroyed. The Kentucky police acted properly when they smelled marijuana at an apartment door, knocked loudly, announced themselves, and kicked in the door.
Jeffrey Reed, a professional orchestra conductor, holds a degree from the Louis B. Brandeis School of Law. Before beginning his music career, he practiced law and taught constitutional law at Western Kentucky University in Bowling Green, Kentucky, where he resides.