Searches are inherently unreasonable without specific warrants

While the above may sound like a misstatement of supposedly settled Fourth Amendment law in the United States, after reading a law review article by Thomas Y. Davies that Glenn Reynolds linked I am absolutely convinced that it was the orginal intent of the founders.

The article has a very appropriate (and appropriately provocative IMO) title:

CAN YOU HANDLE THE TRUTH?

THE FRAMERS PRESERVED COMMON-LAW CRIMINAL ARREST AND SEARCH RULES IN “DUE PROCESS OF LAW”–“FOURTH AMENDMENT REASONABLENESS” IS ONLY A MODERN, DESTRUCTIVE, JUDICIAL MYTH

I can’t speak for others, but yes, I can handle the truth.

And I don’t like it.

The author (Professor Thomas Y. Davies) documents that the so-called “reasonableness standard” was a late 19th century creative legal contrivance which twisted the phrase out of context and beyond the founders’ recognition — transforming the Fourth Amendment meaning into very nearly the opposite of what it was intended to mean.

The Fourth Amendment:

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.

What the founders meant, simply, was to specify that searches and seizures conducted pursuant to General Warrants (which did not specify what was being searched for) were inherently “unreasonable searches and seizures.” They did not mean to create an exception for warrants for any and all searches the courts might deem “reasonable.” This later twisting was created — IMO out of whole cloth.

The first clause is now often referred to as “the Reasonableness Clause,” while the second clause (not italicized) is now referred to as “the Warrant Clause.”8 Recent Supreme Court opinions sometimes quote only the Reasonableness Clause as though that constitutes the Fourth Amendment.9

Actually, the second clause originally set out the operative content of the provision. Indeed, little attention was given to the phrase “unreasonable searches and seizures” during the century following the framing. During that period, as during the framing era itself, the Fourth Amendment was simply regarded as a ban against “general warrants”–that is, it forbade warrants that were unparticularized as to the place or things to be searched for or that lacked specific factual grounds justifying the search.10 Thus, the standards for valid warrants set out in the Warrant Clause were understood to be the essence of the provision. During the late nineteenth and twentieth centuries, however, Supreme Court opinions began to treat the phrase “unreasonable searches and seizures” as though it carried a broader content than the warrant standards set out in the second Warrant Clause.

Since then the “reasonableness standard” has been endlessly expanded in the interests of law enforcement efficiency (in large part due to the war on drugs), to the point where wholesale disregard of the Fourth Amendment is deemed possible if the courts deem a search “reasonable (or recite that there was no “expectation of privacy”)

…justices with a more statist bent have seized on the same phrase to declare that any government intrusion that is “reasonable” in the circumstances (again by their lights) is constitutional.12 The beauty of “Fourth Amendment reasonableness”–at least from the justices’ points of view–is that it can carry whatever content the justices choose to give it.

What this has come to mean is that police in modern America can, if they desire, plant a GPS device in your car, and according to the legislatures of a majority of states, rifle through prescription records at will.

Years ago when I was doing criminal defense work in San Francisco, a Superior Court judge complained (in chambers, not in open court) about a Motion to Supress I had filed, saying that there was too much paperwork being thrown at him, and made what I considered an astonishing remark:

“We will never be able to win the drug war unless we get rid of the damned Fourth Amendment.”

This was at the height of Reagan’s newly declared “War on Drugs.” Perversely, the judge may have been right. For at the time of the founding, there was no such thing as possession of a thing being a crime in and of itself. Stolen property was considered evidence of theft.  

Framing-era criminal procedure differed from modern procedure in several basic aspects. One was that common-law criminal procedure was accusatory rather than investigatory in character.58 Except for coroners? inquests into possible homicides,59 government officers usually did not initiate criminal prosecutions or collect evidence for prosecutions. Instead, that role fell to private victim-complainants. The government role was largely limited to providing the necessary force to bring accused persons to trial, often and perhaps even usually, by means of judicially-issued arrest warrants.60 Except when executing such warrants, framing-era peace officers–usually constables–generally had no more arrest authority than private persons beyond some order-maintenance duties to detain drunks, vagrants, and “night-walkers.”61

Common-law procedure was also accusatory in the sense that criminal arrest authority usually depended on a victim-complainant?s sworn accusation that a crime had already been committed “in fact.”62 That accusation had to be made under oath by a named and potentially accountable complainant either prior to the issuance of an arrest warrant63 or immediately after a warrantless arrest.64 Because the rule during the framing era was still that “hearsay is no evidence,”65 there was no allowance for second-hand information provided by confidential informants.66 Instead, arrests and arrest warrants had to be based on sworn testimony by persons with direct knowledge of the crime.67

Framing-era criminal procedure also differed from modern procedure insofar as arrest authority was the big topic. In fact, it seems that common-law criminal search authority usually arose only in connection with a lawful arrest (what we now call a search “incident to arrest”).

In other words, they couldn’t and didn’t just search unless they were arresting someone. A man’s house was his castle. The abuses that were on the founders’ minds did not involve warrantless searches, but overbroad searches conducted with “general warrants” (as opposed to specific warrants). They wanted these searches to be illegal, and it never would have occurred to them that creative courts would years later bootstrap and transform descriptive surplus language into a totally new rationale for warrantless searches. 

I think anyone who takes the time to read and mull over Professor Davies’ article would agree that the founders would be horrified.

And get this — even when searches incident to arrest were conducted, the complainant who obtained such a search warrant was strictly liable for trespass if the stolen goods were not found!

The framing-era authorities did recognize a “search warrant for stolen goods,” but this warrant had a more limited use than the name suggests and is actually the clichéd exception that proves the rule that search warrant authority usually was not needed to search if there had been a lawful arrest.82 The key fact (which I previously overlooked)83 is that the forms for such warrants routinely included a statement that goods had been feloniously stolen “by some person or persons unknown” but then recited that the victim-complainant had probable cause as to the current location of the stolen goods.84 So this search warrant was created to allow the victim of a theft to recover his property when he was either unable or unwilling to obtain an arrest warrant for the thief–which suggests that this warrant served the individual owner?s interest in recovering property more than the public interest in enforcing criminal law.85 Perhaps for that reason, the complainant who obtained such a search warrant was strictly liable for trespass if the stolen goods were not found.86 Notably, there is no indication that a search warrant was ever required or issued in addition to an arrest warrant, and that dog-that-does-not-bark-in-the-night silence strongly implies that the authority that an arrest warrant carried regarding entrance to the arrestee?s house also implicitly extended to searching the arrestee and his house if the arrest was made there.87

Contrast that to the routine grants of immunity today to the police and/or their informants — even anonymous informants.

An anoymous “neighbor” could just call the cops with an anonymous false report about something, and even if the police raided the home and found nothing, there would be no liability. 

We’ve come a long way.

As Davies documents, the evolution of the phraseology makes clear what was meant. Here’s the original 1785 Pennsylvania ban against general warrants:

That the people have a right to hold themselves, their houses, papers, and possessions free from search or seizure; and therefore warrants without oaths or affirmations first made, affording a sufficient foundation for them, and whereby any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his or their property, not particularly described, are contrary to that right, and ought not to be granted.20

That this typified the thinking of the founders is also evident in John Adams’ reformulation of the Pennsylvania language. As Davies points out, he used the word “reasonable” not to imply (much less create) a new right to search, but because he thought the Pennsylvania language “seemed to announce an absolute right against searches and seizures that was plainly inconsistent with the implicit approval of warrants that met the standards set out in the remainder of the provision.” So reasonableness was offered by way of explanation (an explanation, of course of the limitation.)    

Art. XIV. Every subject has a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the person or objects of search, arrest, or seizure: And no warrant ought to be issued, but in cases, and with the formalities, prescribed by laws.212

As Adams was aware, general warrants were frequently described by legal commentators as “unreasonable.”

Similar thinking was behind the use of the language in the convention language of the states of Virginia and New York during the federalist debate:

That every freeman has a right to be secure from all unreasonable searches and seizures of his person, his papers and his property; all warrants, therefore, to search suspected places, or seize any freeman, his papers or property, without information upon Oath (or affirmation of a person religiously scrupulous of taking an oath) of legal and sufficient cause, are grievous and oppressive; and all general Warrants to search suspected places, or to apprehend any suspected person, without specially naming or describing the place or person, are dangerous and ought not to be granted.243

I am simplifying the author’s lengthy history to focus on the point and in the interest of reader ease, but after taking into account the overal consensus at the time, James Madison arrived at the following initial language (the “proto-Fourth Amendment”):

The rights of the people to be secured in their persons, their houses, their papers, and their other property from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.251

In a later submission, the reference to “unreasonable searches and seizures” was inadevertently left out by accident, then put back in. And because Elbridge Gerry wanted stronger limiting language, “by warrants issued” became “and no warrant shall issue.”

Who’d have thought that language used to condemn general warrants would ultimately become a standard for warrantless searches?

Professor Davies concludes (at 107),

…there was no standard as flimsy as reasonableness in framing-era search doctrine, and the Framers did not intend to create any such broad standard. Indeed, they did not intend to do anything more in the Fourth Amendment than ban the issuance of general warrants. The law of criminal arrest and search at the time of the framing was a law of rules, and the Framers undertook to preserve those rules in the Fifth Amendment “due process of law” clause. They also articulated the warrant standards in the Fourth Amendment simply to remove any possibility that legislation could authorize general warrants, even for revenue searches.

I have to say, the rhetorical twisting of the original goal of the founders reminds me of the way the Second Amendment “evolved” so that a supportive explanatory reason for the right (“a well regulated militia”) became a limitation on the overarching right (“to keep and bear arms”) that it was never intended to be. 

How have they gotten away with it for so long?

What if anything can be done about it?

I don’t know, but the more time I spent on this, the more outraged I became, so I thought the least I could do was write a blog post.