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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 “general warrants” in English history and “writs of assistance” 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’s home for the purpose of making a random search in the hope of finding incriminating evidence. The Entick
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 the Entick case, the English judge, Lord Camden, wrote,
Papers are the owner’s 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 in Entick were later expanded upon in the Boyd 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’s 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’s judgment. Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man’s 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 “writs of assistance” on which government officials relied were general warrants that allowed agents to search for smuggled items — namely molasses, tea, and rum — 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 — 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’s creation? Now one of the most essential branches of English liberty is the freedom of one’s house. A man’s 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’s 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,
Arbitrary arrest and arbitrary searches conducted under the infamous writs of assistance and general warrants were among the bitterest grievances against George III recited in the American Declaration of Independence. When they established their independence Americans were determined that no government of their own creation should ever engage in these forms of despotism.
Accordingly, they imposed heavy restraint upon police activity in the Fourth Amendment to the Constitution. One of the greatest constitutional commentators in American history, Thomas M. Cooley (1824–1898), expressed one of today’s best-known principles behind the Fourth Amendment in his famous legal treatise Constitutional Limitations:
The maxim that “every man’s house is his castle” is made a part of our constitutional law in the clauses prohibiting unreasonable searches and seizures, and has always been looked upon as of high value to the citizen.
Importance of the Fourth Amendment Today, there are Americans who argue that the Constitution is an outmoded and antiquated document that is ill-suited for modern times. They argue that modern-day federal officials would never engage in the types of abuses engaged in by British officials and, therefore, that they should be trusted with omnipotent power. Nothing could be further from the truth. Thank goodness for the wisdom and foresight of our ancestors in protecting us from modern-day federal officials, especially through the express restrictions on search and seizure provided in the Fourth Amendment. How would U.S. officials operate without a Fourth Amendment and an independent judiciary to enforce it? Worse than British officials did with their general writs and writs of assistance! How do we know this? Because we’ve seen how they have operated with omnipotent power in occupied Iraq. In occupied Iraq, armed U.S. soldiers routinely barge into people’s homes and businesses and conduct intrusive searches of the premises and of the persons who are unfortunate to be there at the time. If they find any contraband, including weapons, they seize it and take it with them. Not having to answer to any court, they operate with omnipotent power, and their searches and seizures in Iraq are arbitrary and indiscriminate. One might have expected that U.S. officials, even when operating overseas, would believe that the principles against warrantless and unreasonable searches were so important that they shouldn’t be violated even without express constitutional restraints. Not so! With omnipotent power, U.S. officials have behaved much more abominably in occupied Iraq, especially in the area
of search and seizure, than British officials behaved in colonial America, which is a primary reason that many Iraqis are reacting to such mistreatment in much the same way that the British colonists reacted to similar mistreatment. And make no mistake about it: If it hadn’t been for the wisdom of our ancestors in carefully crafting and then adopting the Fourth Amendment, U.S. officials would be doing to us exactly what they’re doing to the people of Iraq — barging into people’s homes and businesses at will, searching for any suspicious evidence to indicate terrorist activity, and prosecuting those against whom supposedly incriminating evidence was found. After all, who honestly thinks that U.S. officials would stop with doing what they’re doing to American accused terrorist Jose Padilla — trying to detain him for the rest of his life without benefit of trial by jury, right to counsel, due process of law, and habeas corpus? And who can doubt that there would be the standard government apologists who would be exclaiming, “If you have nothing to hide, you shouldn’t care that the government is searching your home or business because it’s keeping us safe”? Compare the situation here in the United States with that in Iraq. Despite the many exceptions in the area of search and seizure that have unfortunately crept into our legal system, primarily as part of the government’s 35-year “war on drugs” and, more recently, as part of the USA PATRIOT Act, the general rule remains intact — that in order to search a person’s home or business, government agents of the executive branch must first secure a warrant from an independent magistrate in the judicial branch. That is, the magistrate, not the executive-branch agents, decides whether someone’s home or business is going to be searched. The judge bases his decision on affidavits (sworn testimony) provided by the executive branch, which must document the reasons for the search and specify what exactly those agents are looking for. While some searches have been authorized to be made without warrants, they must nonetheless still meet a “reasonableness” standard. In every generation, there are those who gravitate toward the notion of ever-increasing government power, even at the expense of liberty. On the other hand, throughout history there have been those for whom liberty is their highest value, which has motivated them to impose and maintain constraints on government power. The Fourth Amendment, which safeguards our homes and businesses from tyrannical power, stands as a living testament to the fact that the lovers of liberty can prevail over the supporters of tyranny. Jacob Hornberger is founder and president of The Future of Freedom Foundation.
This article was originally published in the October 2004 edition of Freedom Daily.