The Intruders: Unreasonable Searches and Seizures from King John to John Ashcroft

Journal of Criminal Law and Criminology, Summer, 2004 by Bard R. Ferrall

SAMUEL DASH, THE INTRUDERS: UNREASONABLE SEARCHES AND SEIZURES FROM KING JOHN TO JOHN ASHCROFT (Rutgers University Press: New Brunswick, NJ, 2004). 172 PP.

The author narrates the events and legal reasoning responsible for the establishment in American law of protection from the arbitrary exercise of governmental power to search persons and places and to seize an individual's possessions. After briefly detailing ancient concerns over privacy of the home found in Biblical and GrecoRoman eras, the author refutes the events leading up to King John's agreement to the Magna Carta. Although this document did not so much establish new rights as restore ones established in Saxon custom and no restrictions on the king's power to search were contained in the text, subsequent generations transformed it into the founding document of individual rights in English law. Lord Coke, as both scholar and jurist, was especially important in creating this legend and in establishing many legal rights of the individual. In his theoretical writings, Coke argued that arbitrary, unrestricted searches violated the Charter. As judge and member of the House of Commons, he wrote against many actions of the king as violations of legal rights. In Coke's juridical practice, however, he did not interfere with the use of general search warrants by holding any general search illegal. Later codification of rights, which emerged from the struggle between Parliament and King, did not include search and seizure provisions either. English courts first considered the legality of general search warrants, (i.e., ones not naming a particular person to be searched) in 1763 in a challenge against such a warrant issued by the Secretary of State after the insistence of George III that critical publications be seized. The opinion held the search and seizure illegal (although no remedy was provided) and contained strong language about the danger of general warrants. The opinion was acclaimed in England and widely noted in the American colonies. Little noted, however, was that the basis of the ruling was the Secretary's lack of power; the court acknowledged the king's power, under the Magna Carta, to issue general warrants.

When general warrants continued to be issued in the colonies, the American colonists mistakenly believed that they were denied their rights as English citizens. A prohibition of all general warrants became an important item in the demand for a bill of rights after the American revolution and the ratification of the Constitution. The ratified text of the Fourth Amendment, according to one interpretation, seems to contain two separate provisions: prohibition of unreasonable searches, and specifications for the validity of warrants. The Supreme Court has taken the view that a proper warrant is a necessary condition for the reasonableness of a search (except in certain narrowly defined "exigent circumstances"). A few justices, however, have maintained that some warrantless searches, even beyond the exigent circumstances exceptions, could be constitutionally reasonable. Because the Bill of Rights was ruled to apply only to the federal government (until enactment of the Fourteenth Amendment) and because there was very little federal policing action, the Supreme Court did not consider the Fourth Amendment for nearly 100 years. The government's demand for a person's papers and records was held to violate both Fifth Amendment protections against self-incrimination and Fourth Amendment prohibitions against unreasonable searches. Even though government agents had not entered and searched the property, the subpoena demand was held equivalent to a search. The Court ruled that "mere evidence" of a crime could not be seized, although it later changed that rule. In early rulings the courts also held that the remedy for violations of the Fourth Amendment, the text of which specifies no remedy, lay in civil actions against the individual official. In 1911, however, the Supreme Court developed the "exclusionary rule," perhaps the most controversial aspect of Fourth Amendment jurisprudence. Simply stated, the exclusionary rule holds that illegally obtained evidence, even though otherwise reliable and relevant, is excluded from the trial of the defendant. When this rule is applied, very often a probable conviction is lost on grounds other than substantive guilt or innocence. This rule improperly burdens society, critics maintain, when another remedy such as civil action is available. Supporters argue civil suit has not proven to be an adequate remedy in actual practice, and that the rule is necessary to maintain judicial integrity and to prevent implicating the courts in illegal action by executive agencies. This controversy intensified in 1961 when the Court applied the rule to the states. The author argues that the Court at this time correctly viewed the exclusionary rule as an inherent constitutional principal. After the end of the "Warren era," however, the Court viewed the exclusionary rule as a judicially crafted deterrent measure, and has recognized several significant exceptions. The author argues that these exceptions to the exclusionary rule have seriously weakened Fourth Amendment protections. Developing technology also presents important challenges to the Fourth Amendment law. An important question is the physical intrusiveness of devices such as electronic eavesdrops and wiretaps. Wiretapping was held not to violate either the Search clause, since neither the person nor her home were searched, or the Seizure clause, since only "words" were seized. Wiretapping is now controlled by Congressional legislation, although congress significantly weakened wiretap protections after the September 11th attacks. Eavesdropping devices violated the amendment to the extent that a person's property is invaded to plant the device. Recent technological advances such as thermal imaging and aerial surveillance have required the courts to determine which expectations of privacy are reasonable, i.e. that society is willing to protect. The author concludes with a discussion of the tendency in American history to trade liberty for security in times of crisis; this tendency is especially prominent when the expansion of the government's power to survey, search and confine expands.