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the bill of rights - searches and seizures

the bill of rights - searches and seizures

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Published by Christopher Rhudy

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Published by: Christopher Rhudy on Oct 26, 2009
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02/01/2013

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11350 Random Hills Road, Suite 800, Fairfax, Virginia 22030 Phone (703) 934-6101 Fax (703) 352-3678
fff@fff.org www.fff.org
The Bill of Rights: Searches and Seizures
by Jacob G. Hornberger

The Fourth Amendment to the U.S. Constitution is rooted in the horrific government
abuses arising from \u201cgeneral warrants\u201d in English history and \u201cwrits of assistance\u201d in British
colonial history in America. With the aim of protecting the American people from similar abuses
at the hands of U.S. federal officials, the Fourth Amendment was worded as follows:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.

The case that ultimately set the basis for the Fourth Amendment is Entick v. Carrington,
decided in 1775, which the U.S. Supreme Court later described in the landmark case of Boyd v.
U.S. (1886) as

one of the landmarks of English history. It was welcomed and applauded by the lovers of liberty in the
Colonies as well as in the mother country. It is regarded as one of the permanent monuments of the
British constitution, and is quoted as such by the English authorities on that subject down to the
present time.

As every American statesman, during our revolutionary and formative period as a nation,
was undoubtedly familiar with this monument of English freedom, and considered it as the true
and ultimate expression of constitutional law, it may be confidently asserted that its propositions
were in the minds of those who framed the fourth amendment to the constitution, and were
considered as sufficiently explanatory of what was meant by unreasonable searches and seizures.

General warrants entitled law-enforcement officials to go into a person\u2019s home for the
purpose of making a random search in the hope of finding incriminating evidence. TheEntick

case involved government agents who, using a general warrant, entered the home of an English
citizen and broke into his desks and boxes, searching and examining his papers. Striking down
the use of general warrants and ruling in favor of the citizen in theEntick case, the English judge,
Lord Camden, wrote,

Papers are the owner\u2019s goods and chattels; they are his dearest property; and are so far from enduring
a seizure that they will hardly bear an inspection. . .. Where is the written law that gives any
magistrate such a power? I can safely answer, there is none; and therefore it is too much for us without
such authority to pronounce a practice legal which would be subversive of all the comforts of society.

The principles set forth by Lord Camden inEntick were later expanded upon in theBoyd
case, where the U.S. Supreme Court stated,

The principles laid down [by Lord Camden] affect the very essence of constitutional liberty and
security. They reach further than the concrete form of the case then before the court, with its
adventitious circumstances; they apply to all invasions on the part of the government and its
employees of the sanctity of a man\u2019s home and the privacies of life. It is not the breaking of his doors,
and the rummaging of his drawers, that constitutes the essence of the offense; but it is the invasion of
his indefeasible right of personal security, personal liberty, and private property, where that right has
never been forfeited by his conviction of some public offense; it is the invasion of this sacred right
which underlies and constitutes the essence of Lord Camden\u2019s judgment. Breaking into a house and
opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory
extortion of a man\u2019s own testimony, or of his private papers to be used as evidence to convict him of a
crime, or to forfeit his goods, is within the condemnation of that judgment. In this regard the fourth
and fifth amendments run almost into each other. Can we doubt that when the fourth and fifth
amendments to the constitution of the United States were penned and adopted, the language of Lord
Camden was relied on as expressing the true doctrine on the subject of searches and seizures, and as
furnishing the true criteria of the reasonable and unreasonable character of such seizures?... The
struggles against arbitrary power in which they had been engaged for more than 20 years, would have
been too deeply engraved in their memories to allow them to approve of such insidious disguises of
the old grievance which they had so deeply abhorred.

The writs of assistance

In the English colonies, the \u201cwrits of assistance\u201d on which government officials relied were
general warrants that allowed agents to search for smuggled items \u2014 namely molasses, tea, and
rum \u2014 within any suspected premises. Keep in mind that unlike the situation in America today,

smuggling to avoid taxes was considered by most people an honorable course of action. As they
do today, government officials hated and reviled smuggling for the obvious reason \u2014 it deprived
the government of much-desired tax revenue. Thus, writs of assistance were the primary means
by which government officials would uncover smuggled goods and then punish the smugglers.
One of the most famous and eloquent denunciations of writs of assistance was issued by

colonist James Otis, who wrote in 1761,
It appears to me the worst instrument of arbitrary power, the most destructive of English liberty and
the fundamental principles of law, that ever was found in an English law-book. . ..

It is a power that places the liberty of every man in the hands of every petty officer. . .. Every one with
this writ may be a tyrant; if this commission be legal, a tyrant in a legal manner, also, may control,
imprison, or murder any one within the realm. In the next place, it is perpetual; there is no return. A
man is accountable to no person for his doings. Every man may reign secure in his petty tyranny, and
spread terror and desolation around him, until the trump of the Archangel shall excite different
emotions in his soul. In the third place, a person with this writ, in the daytime, may enter all houses,
shops, etc., at will, and command all to assist him. Fourthly, by this writ not only deputies, etc., but
even their menial servants, are allowed to lord it over us. What is this but to have the curse of Canaan
with a witness on us: to be the servants of servants, the most despicable of God\u2019s creation? Now one of
the most essential branches of English liberty is the freedom of one\u2019s house. A man\u2019s house is his
castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be
declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses
when they please; we are commanded to permit their entry. Their menial servants may enter, may
break locks, bars, and everything in their way; and whether they break through malice or revenge, no
man, no court can inquire. Bare suspicion without oath is sufficient. This wanton exercise of this
power is not a chimerical suggestion of a heated brain. . .. What a scene does this open! Every man
prompted by revenge, ill-humor, or wantonness to inspect the inside of his neighbor\u2019s house, may get
a Writ of Assistance. Others will ask it from self-defence; one arbitrary exertion will provoke another,
until society be involved in tumult and in blood.

It was that type of fury against writs of assistance that helped fuel the Revolution, the
conflict in which British citizens living in the New World took up arms against their own
government. As Alan Barth, who served on the editorial board of the Washington Post for 30
years, put it in his book The Rights of Free Men,

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