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Correcting Search-and-Seizure History: Now-Forgotten Common-Law Warrantless Arrest Standards and the Original Meaning of Due Process of Law


Thomas Y. Davies


University of Tennessee College of Law


Mississippi Law Journal, Vol. 77, 2007
University of Tennessee Legal Studies Research Paper No. 23

Abstract:     
The conventional view that search-and-seizure history is simply Fourth Amendment history is incorrect. Sir Edward Coke explicated common-law standards for warrantless arrest in detail in his discussion of the due process of law required by Magna Carta's the law of the land chapter, and the Framers were undoubtedly conversant with that treatment. Moreover, framing-era warrantless arrest standards were virtually unchanged from Coke's time.

The framing-era warrantless arrest standards were more demanding than the modern bare probable cause standard. Warrantless felony arrests required (1) a felony having actually been committed in fact and (2) the arresting person personally having probable grounds to suspect the arrestee. Warrantless nonfelony arrests were limited to on-going breach-of-peace offenses.

Because arrest standards appeared noncontroversial, the initial State Framers were content to preserve arrest standards in provisions that prohibited a person being taken or arrested except according to the law of the land. Alexander Hamilton then altered that terminology to due process of law in the 1787 New York arrest provision. The Federal Framers then included due process of law among the pretrial requisites for initiating criminal prosecutions in the Fifth Amendment (rather than among the trial rights in the Sixth). In contrast, the Fourth Amendment simply banned issuance of too-loose warrants, but did not address warrantless intrusions.

Framing-era arrest standards and the Cokean understanding of due process were lost when nineteenth-century state courts relaxed arrest standards to bare probable cause, thereby drastically expanding governmental investigatory powers. The Supreme Court then reinvented search-and-seizure under the Fourth Amendment, and created the modern reasonableness standard, during the early twentieth century. Thus, the authentic history involves lost understandings and drastic doctrinal discontinuities.

Number of Pages in PDF File: 225

Keywords: search, seizure, arrest, due process, law of the land, Coke, Mason, Madison, Hamilton, John Adams, Fourth Amendment, Fifth Amendment, framers, originalism, original meaning, originialist, common law, magna carta, Lasson, Mott

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Date posted: February 15, 2008 ; Last revised: April 18, 2008

Suggested Citation

Davies, Thomas Y., Correcting Search-and-Seizure History: Now-Forgotten Common-Law Warrantless Arrest Standards and the Original Meaning of Due Process of Law. Mississippi Law Journal, Vol. 77, 2007; University of Tennessee Legal Studies Research Paper No. 23. Available at SSRN: http://ssrn.com/abstract=1092595

Contact Information

Thomas Y. Davies (Contact Author)
University of Tennessee College of Law ( email )
1505 West Cumberland Avenue
Knoxville, TN 37996
United States
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