In the Trenches: Searches and the Misunderstood Common Law History of Suspicion and Probable Cause

64 Pages Posted: 15 Nov 2007 Last revised: 22 Jul 2013

See all articles by Fabio Arcila, Jr.

Fabio Arcila, Jr.

Touro College - Jacob D. Fuchsberg Law Center


This article, the first of a two-part series, argues that during the Framers' era many if not most judges believed they could issue search warrants without independently assessing the adequacy of probable cause, and that this view persisted even after the Fourth Amendment became effective. This argument challenges the leading originalist account of the Fourth Amendment, which Professor Thomas Davies published in the Michigan Law Review in 1999.

The focus in this first article is upon an analysis of the common law and how it reflected the Fourth Amendment's restrictions. Learned treatises in particular, and to a lesser extent a few case decisions, had articulated a judicial duty to monitor probable cause. But it is a mistake to presume that the law was necessarily implemented in accordance with this elite guidance. This is because justices of the peace, the non-elite judges who actually issued search warrants, had reason to believe that judicial sentryship of probable cause was often optional. Evidence supporting this conclusion can be found in treatises, as well as manuals for justices of the peace, legal forms, civil search statutes, and case law, as well as the extended development of probable cause sentryship jurisprudence, which continued well past 1960. American justice of the peace manuals and legal forms play a particularly important role in this story, as it is likely they had a profound influence on search warrant procedure given the laxity in legal education and judicial training, as well as the limitations on legal research, during the Framers' era.

Keywords: common law, search, seizure, search and seizure, search & seizure, fourth amendment, 4th amendment, probable cause, suspicion, suspect, originalism, history, legal history, treatises, justice manuals, justice of the peace, warrant

Suggested Citation

Arcila, Jr., Fabio, In the Trenches: Searches and the Misunderstood Common Law History of Suspicion and Probable Cause. University of Pennsylvania Journal of Constitutional Law, Vol. 10, p. 1, 2007. Available at SSRN:

Fabio Arcila, Jr. (Contact Author)

Touro College - Jacob D. Fuchsberg Law Center ( email )

225 Eastview Drive
Central Islip, NY 11722
United States
(631) 761-7111 (Phone)

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