The Broken Fourth Amendment Oath

Abstract

The Fourth Amendment requires that warrants be supported by “Oath or
affirmation.” Under current doctrine, a police officer may swear the oath to obtain a
warrant merely by repeating the account of an informant. This Article shows, however,
that the Fourth Amendment, as originally understood, required that the real accuser with
personal knowledge swear the oath.

That real-accuser requirement persisted for nearly two centuries. Almost all federal courts
and most state courts from 1850 to 1960 held that the oath, by its very nature, required a
witness with personal knowledge. Only in 1960 did the Supreme Court hold in Jones v.
United States that a warrant could rely upon hearsay. Jones radically altered criminal
investigations. But the decision rested entirely on policy preferences, ignoring text,
original meaning, and rich contrary precedent.

This Article argues that we should return to the original understanding that the oath
requirement bans thirdhand accounts. Remarkably, this is the first comprehensive study
to consider whether the oath requires personal knowledge.

Keywords: Fourth Amendment, Warrants, Oath, Evidence, Originalism, Legal History, Criminal Procedure, Criminal Law, Police Reform