The Original Understanding of Unreasonable Searches and Seizures

47 Pages Posted: 2 Oct 2004 Last revised: 26 Jun 2009

Abstract

Today, the Fourth Amendment to the United States Constitution covers most government evidence gathering activities. For example, the United States Supreme Court has held that the Fourth Amendment regulates random urine tests, auto checkpoints, the use of a beeper to locate an illicit drug lab, and the use of a thermal imaging device to measure heat emanating from a residence.

The Supreme Court's current presumption that the Fourth Amendment typically covers law enforcement investigations is ahistorical. A review of history demonstrates that the Fourth Amendment was intended to proscribe only a single, discrete activity - physical searches of houses pursuant to a general warrant, or no warrant at all. The framers never intended that the Fourth Amendment would apply to other government evidence gathering activities.

William Cuddihy has traced the earliest origins of the Fourth Amendment to seventh century English codes, which prohibited housebreaking by private parties. Gradually, the prohibition on private housebreaking was transformed into a new doctrine, which proscribed unreasonable house searches by the government. In 1644, Sir Edward Coke described unreasonable searches in the following terms: "One or more justice or justices of peace cannot make a warrant upon a bare surmise to break open any man's house to search for a felon, or for stolen goods." Early American commentators concluded that the Fourth Amendment to the United States Constitution embodied this common law restriction on physical entries into houses. In his 1868 treatise on the United States Constitution, Thomas Cooley wrote: "The maxim that 'every man's house is his castle' is made part of our constitutional law in the clause prohibiting unreasonable searches and seizures."

The framing era controversies that resulted in the Fourth Amendment focused almost exclusively on house searches. In his 1761 challenge to writs of assistance, Boston attorney James Otis complained that "customs officials may enter our houses when they please - may break locks, bars and every thing in their way - and whether they break through malice or revenge, no man, no court, can inquire." Similarly, in a 1774 address to the American people, the Continental Congress protested again the power of customs officers to break open and enter houses without the authority of any civil magistrate founded on legal information. In short, the Fourth Amendment was enacted to proscribe unlawful physical entries into residences. In other contexts, the amendment simply did not apply.

The concluding section of the article reviews the Supreme Court's decisions in three recent groups of Fourth Amendment cases that do not involve physical intrusions into residences - random drug tests, sense-enhanced searches, and auto checkpoints. The decisions in these cases often seem arbitrary, unpredictable, and ultimately incoherent.

In the vast majority of cases where the Court today attempts to apply the Fourth Amendment, the amendment simply never was intended to apply. A change in the membership of the Court, or a tweaking of Fourth Amendment doctrine will not repair the Court's search and seizure jurisprudence. The Justices may restore sensibility to Fourth Amendment analysis only by returning to the original understanding of the amendment.

Keywords: Criminal Procedure, Fourth AMendment, Search and SEizure, Legal History, House Searches

Suggested Citation

Steinberg, David E., The Original Understanding of Unreasonable Searches and Seizures. TJSL Public Law Research Paper No. 04-15, Available at SSRN: https://ssrn.com/abstract=598542

David E. Steinberg (Contact Author)

Thomas Jefferson School of Law ( email )

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