Timothy P. O'Neill

Chicago Daily Law Bulletin
Volume: 152 Issue: 76

April 19, 2006

Beyond 2 Camps On Top Court, Another Theory

Do you understand search and seizure law? If so, you may be all alone.

Commentators have variously described the current state of Fourth Amendment jurisprudence as an ''embarrassment'' and ''a mass of contradictions and obscurities.'' Akhil Reed Amar, ''Fourth Amendment First Principles,'' 107 Harvard L.Rev. 757, 757 (1994); Craig M. Bradley, ''Two Models of the Fourth Amendment,'' 83 Michigan L.Rev. 1468, 1468 (1985). My current favorite is the observation that each new Fourth Amendment doctrine ''is more duct tape on the amendment's frame and a step closer to the junkyard.'' Erik G. Luna, ''Sovereignty and Suspicion,'' 48 Duke L.Jour. 787, 787-88 (1999).

What's the problem? It is the lack of consensus on even the most fundamental idea of what the Fourth Amendment means. Currently on the U.S. Supreme Court we have justices who champion two diametrically opposed theories on how to interpret the Fourth Amendment.

So which side is right? A growing body of commentators now emphatically answer ''They're both dead wrong.'' This group is now offering yet a third view of the Fourth Amendment that challenges more than a century of Supreme Court case law.

First, let's review the language of the Fourth Amendment itself.

The amendment consists of two clauses. The first guarantees the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures. Let's call this the Reasonableness Clause. The second provides that no warrants shall issue without a variety of components, among them probable cause. Let's call this the Warrant Clause.

The current cleavage on the Supreme Court concerns the proper relationship between these two clauses.

The majority theory on the Supreme Court contends there is an identity between the two clauses; that is, the rules contained in the Warrant Clause actually define what it means for a search and seizure to be reasonable. Under this theory, the Fourth Amendment mandates that every search and seizure must be authorized by a warrant — subject to narrow exceptions. This is known as the ''warrant preference'' theory of the Fourth Amendment. It is the theory that has traditionally been used by the U.S. Supreme Court.

In the landmark case of Katz v. U.S., 389 U.S. 347, 357 (1967), the court stated, ''Searches conducted outside the judicial process, without prior approval of judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-defined exceptions.''

The opposing theory on the court holds that there is no necessary relation between the two clauses. This theory holds that the basic command of the Fourth Amendment is that searches and seizures be ''reasonable.'' Sometimes a warrant is necessary for a reasonable search and seizure, sometimes it is not. There is no automatic preference for warrants. The only function of the Warrant Clause is to provide the details necessary for a legal warrant, in those circumstances when one is necessary.

You could refer to this view as the ''Two Clause'' theory: there is no necessary identity between the two clauses. Currently, I would count Justices Antonin Scalia and Clarence Thomas as Two-Clause proponents. It remains to be seen if they will be joined by either Chief Justice John G. Roberts Jr. or Justice Samuel A. Alito Jr.

Yet the hegemony of both of these theories has been challenged by a new theory supported by commentators such as Thomas Y. Davies and David E. Steinberg. See Thomas Y. Davies, ''Recovering the Original Fourth Amendment,'' 98 Michigan L.Rev. 547 (1999); David E. Steinberg, ''The Original Understanding of Unreasonable Searches and Seizures,'' 56 Florida L.Rev. 1051 (2004).

Unlike the Warrant Preference theory, this new theory rejects the idea that the Fourth Amendment originally meant that searches and seizures could not generally be conducted without warrants. And unlike Scalia and Thomas, these writers deny that the Fourth Amendment is a general command that government searches and seizures must simply be reasonable.

Instead, they contend that the Fourth Amendment embodied one — and only one — idea: ''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.'' Steinberg, at 1053.

The early origins of the Fourth Amendment, these writers contend, had nothing to do with concerns over abuses of government power. Instead, its lineage can be traced back to laws protecting homes against breaking and entering by private citizens. Between the seventh and the 14th century, England saw a succession of laws that protected houses from invasion by private citizens. These laws included trespass, housebreaking and burglary.

It was only after 1485 that trespass by government officials became an issue. Tudor monarchs began ordering searches of houses for evidence of customs violations, religious heresy and political dissent. And, somewhat ironically, at the same time government agents were violating the privacy of the home, citizens began to adamantly proclaim that ''A man's home is his castle.''

And the biggest threat to the privacy of the home by the government was the use of general warrants. A general warrant could have either of two deficiencies: first, it could fail to adequately describe the places to be searched or the persons to be seized; second, it could fail to be supported by evidence sufficient to support the search of the home.

The 1760s saw several famous cases in which citizens tried to restrain the power of government to search their homes pursuant to general warrants. Between 1763 and 1769 in a series of decisions known as the John Wilkes Cases, English courts ruled that house searches pursuant to general warrants violated common law. The courts found the government officers liable for trespass and ordered them to pay damages to the homeowners.

Around the same time in America, James Otis was arguing on behalf of Boston merchants against the use of ''writs of assistance,'' the colonial version of the general warrant. Although Otis lost the case in 1761, John Adams later wrote that it was during this argument that ''American independence was then and there born.'' And in 1767 American merchants once again opposed searches based on writs of assistance, this time authorized by Parliament through the Townshend Act.

All of these English and American cases had one thing in common: the plaintiffs complained only about unlawful searches of their houses. No issue was raised concerning searches of shops, warehouses or commercial establishments. Despite the facts that in America the targets were merchants and businessmen, the claims were exclusively concerned with unlawful physical entries of their houses, not their places of business. Indeed, in 1774 the Continental Congress limited its criticism of customs officials to those who entered houses without proper authority.

Thus, writers such as Davies and Steinberg contend that the sole purpose of the Fourth Amendment was to proscribe physical searches of houses either through a general warrant or no warrant at all. They find support in the fact that Joseph Story's magisterial Commentaries on the Constitution devotes a total of one page to the Fourth Amendment, merely stating that it affirms the common-law doctrine on general warrants. Later in the 19th century, Thomas Cooley in his treatise likewise emphasized that the Fourth Amendment was concerned with house searches.

According to this new theory, this is why Fourth Amendment doctrine is so incoherent. The amendment was originally designed to condemn just one kind of government behavior. The Framers used the phrase ''unreasonable searches and seizures'' to apply only to the narrow, specific problem of unlawful physical searches of houses performed either with a general warrant or no warrant at all. Now it is applied to a wide variety of government evidence-gathering activities to which, this theory contends, the amendment was never meant to apply.

So, short of overruling a century of Fourth Amendment case law, where do we go from here?

Obviously, the search and seizure problems we deal with today could never have been envisioned by the Framers, who would not have even known what a ''police department'' was. And certainly the language of the Fourth Amendment comes the closest to dealing with these problems. But at the very least, the Davies-Steinberg theory should make each Supreme Court justice pause for a moment before ever again telling us what the Fourth Amendment clearly demands.