- 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 

7 replies
  1. Ron
    Ron says:

    It’s interesting how fine the line is between following the Constitution and not doing so. A small step over the line is hardly noticed by those of us not legally trained, but that small step can be the start of an unraveling of the intent of the founders.

    • CA.org
      CA.org says:

      Great comment, Ron! We would like to Facebook this, this morning! Thank you for your continued participation in our discussion!
      Janine and Cathy

  2. John Wilson
    John Wilson says:

    It has become more evident that our rights under the Constitution have been dminished as time goes by. I highly recommend “The Constitution Made Easy” by Michael Holler. It really puts the Constitution into words that can be understood by laymen.

  3. Marc W. Stauffer
    Marc W. Stauffer says:

    As electronic surveillance and information gathering becomes increasingly sophisticated and invasive, and its use without our knowledge or warrant more common, one has to question where the line will be drawn on the definition of “search and seizure” of private information and who will make that determination.

  4. Fred Lassonde
    Fred Lassonde says:

    I enjoy the comments and this site. Thank you Janine! God bless America and God bless each of you! Thank you!

  5. Ralph T. Howarth, Jr.
    Ralph T. Howarth, Jr. says:

    This issue is related to the purpose of a grand jury: to prevent the king from foisting “automatic prosecution” by throwing anyone he wishes in jail. 2nd is the writ of habeus corpus so someone is not indefinitely jailed before being summoned to give an answer to a judge. 3rdly, the impartial petit jury of peers to prevent the court from convicting anyone of the king’s wishes. If people who serve any of these roles knew the history and purpose behind these civil rights, then questionable automatic prosecution behavior such as warrantless searches and seizure that has the effect of bypassing the grand jury ought not then be allowed by a judge; and if not then, a petit jury.

  6. yguy
    yguy says:

    An entry into a person’s house, in order to make an arrest, requires a warrant, unless an exigency can be demonstrated.

    What I’m missing is how any exception for exigencies is implied in the amendment.

    Not that I have a problem with the idea; but if we wish to make such an exception and the Constitution does not, then we need to amend the Constitution, as the Judiciary is not authorized to fix it.


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