Fourth Amendment:

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.

Few provisions of the Bill of Rights grew so directly out of the colonial experience as the Fourth Amendment, which protects against the government’s use of “writs of assistance.” 1 Although it does not appear to have been discussed in political tracts published in the colonies until 1772,2 the idea that freedom from unreasonable searches and seizures is a fundamental right had been a long-standing tenet of English political thought. “Every man’s house is his castle” was a celebrated maxim in England, as demonstrated in the 1603 Semayne’s Case.3 A civil case regarding execution of process, Semayne’s Case recognized the homeowner’s right to defend his house against unlawful entry, even by the King’s agents, and the authority of government officers to enter property upon notice in order to arrest or execute the King’s process.4 Two other landmark English cases were Entick v. Carrington5 and Wilkes v. Wood.6 In Wilkes, John Wilkes sued officers, challenging the legality of warrants issued against him for his political activity.7 The court declared that the warrants amounted to “a discretionary power given to messengers to search where their suspicions may chance to fall. If such a power is truly invested in a Secretary of State, and he can delegate this power, it certainly may affect the person and property of every man in this kingdom, and is totally subversive of the liberty of the subject.” 8 Entick v. Carrington was one of a series of civil actions against state officers who, pursuant to general warrants, had raided many homes and other places in search of materials connected with John Wilkes’ polemical pamphlets attacking not only governmental policies but the King himself.9

Entick, an associate of Wilkes, sued because agents had forcibly broken into his house, broken into locked desks and boxes, and seized many printed charts, pamphlets, and the like.10 In an opinion sweeping in terms, the court declared the warrant and the behavior it authorized subversive “of all the comforts of society,” and the issuance of a warrant for the seizure of all of a person’s papers rather than only those alleged to be criminal in nature “contrary to the genius of the law of England.” 11 Besides its general character, the court said, the warrant was bad because it was not issued on a showing of probable cause and no record was required to be made of what had been seized.12

The Supreme Court has said that Entick v. Carrington is a “great judgment,” “one of the landmarks of English liberty,” “one of the permanent monuments of the British Constitution,” and a guide to an understanding of what the Framers meant in writing the Fourth Amendment.13 It is these landmark cases, the Court has noted that “the battle of individual liberty and privacy was finally won.” 14

In the colonies, smuggling rather than seditious libel afforded the leading examples of the necessity for protection against unreasonable searches and seizures. In order to enforce the revenue laws, English authorities made use of writs of assistance, which were general warrants authorizing the bearer to enter any house or other place to search for and seize “prohibited and uncustomed” goods, and command all subjects to assist in these endeavors. Once issued, the writs remained in force throughout the lifetime of the sovereign and six months thereafter. When, upon the death of George II in 1760, the authorities were required to obtain new writs, James Otis attacked such writs on libertarian grounds in 1761, asserting the authorizing statutes were invalid because they conflicted with England’s constitution.15 Otis lost and the writs were issued and used, but his arguments were much cited in the colonies not only on the immediate subject but also with regard to judicial review.

The provision that became the Fourth Amendment underwent some modest changes in Congress. James Madison’s introduced version provided: “The rights to be secured in their persons, their houses, their papers, and their other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause, supported by oath or affirmation, or not particularly describing the places to be searched, or the persons or things to be seized.” 16 As reported from committee, with an inadvertent omission corrected on the floor,17 the section was almost identical to the introduced version. The House defeated a motion to substitute “and no warrant shall issue” for “by warrants issuing” in the committee draft. The rejected language, however, was ultimately included in the ratified constitutional provision.18

As noted above, the noteworthy disputes over search and seizure in England and the colonies involved the character of warrants. There were, however, lawful warrantless searches, primarily searches incident to arrest, and these apparently elicited less controversy. Thus, the question arises whether the Fourth Amendment’s two clauses should be read together to mean that searches and seizures that are “reasonable” are those which meet the requirements of the second clause; that is, are searches and seizures pursuant to warrants issued under the prescribed safeguards, or whether the two clauses are independent, so that searches under warrant must comply with the second clause but that there are “reasonable” searches under the first clause that need not comply with the second clause.19 Over time, the Court has considered the scope of the right to search incident to arrest.20

Footnotes

1

See Riley v. California, 573 U.S. 373, 403 (2014) (explaining that “the Fourth Amendment was the founding generation’s response to the reviled ‘general warrants’ and ‘writs of assistance’ of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity” ).

2

Apparently the first statement of freedom from unreasonable searches and seizures appeared in The Rights of the Colonists and a List of Infringements and Violations of Rights, 1772, which Samuel Adams took the lead in drafting. 1 B. Schwartz, The Bill of Rights: A Documentary History 199, 205–06 (1971).

3

5 Coke’s Repts. 91a, 77 Eng. Rep. 194 (K.B. 1604). One of the most forceful expressions of the maxim was that of William Pitt in Parliament in 1763: “The poorest man may in his cottage bid defiance to all the force of the crown. It may be frail—its roof may shake—the wind may blow through it—the storm may enter, the rain may enter—but the King of England cannot enter—all his force dares not cross the threshold of the ruined tenement.”

4

Id. at 195–96 ( “In all cases when the King is party, the Sheriff (if the doors be not open) may break the party’s house, either to arrest him, or to do other execution of the K.'s process, if otherwise he cannot enter. But before he breaks it, he ought to signify the cause of his coming, and to make request to open doors.” ).

5

19 Howell’s State Trials 1029, 95 Eng. Rep. 807 (1765).

6

19 How. St. Tr. 1153, 98 Eng. Rep. 489 (1763)

7

Id. at 490. It was alleged that “Mr. Wood, with several of the King’s messengers, and a constable, entered Mr. Wilkes’s house; that Mr. Wood was aiding and assisting to the messengers, and gave directions concerning breaking open Mr. Wilkes’s locks, and seizing his papers . . . .” Id. at 489; see also id. at 499 ( “As to the proof of what papers were taken away, the plaintiff could have no account of them; and those who were able to have given an account . . . have produced none.” ).

8

Id. at 498.

9

See also Wilkes v. Wood, 98 Eng. 489 (C.P. 1763); Huckle v. Money, 95 Eng. Rep. 768 (K.B. 1763), aff’d 19 Howell’s State Trials 1002, 1028, 97 Eng. Rep. 1075 (K.B. 1765).

10

Id. at 807–08.

11

95 Eng. Rep. 817, 818 (1705).

12

See Id. at 817 ( “[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour’s ground, he must justify it by law.” ).

13

Boyd v. United States, 116 U.S. 616, 626 (1886).

14

Stanford v. Texas, 379 U.S. 476, 483 (1965).

15

The arguments of Otis and others as well as much background material are contained in Quincy’s Massachusetts Reports, 1761–1772, App. I, pp. 395–540, and in 2 Legal Papers of John Adams 106–47 (Wroth & Zobel eds., 1965). See also Dickerson, Writs of Assistance as a Cause of the American Revolution, in The Era of the American Revolution: Studies Inscribed to Evarts Boutell Greene 40 (R. Morris, ed., 1939).

16

1 Annals of Congress 434–35 (June 8, 1789).

17

The word “secured” was changed to “secure” and the phrase “against unreasonable searches and seizures” was reinstated. Id. at 754 (August 17, 1789).

18

Id. It has been theorized that the author of the defeated revision, who was chairman of the committee appointed to arrange the amendments prior to House passage, simply inserted his provision and that it passed unnoticed. N. Lasson, The History and Development of The Fourth Amendment to The United States Constitution 101–03 (1937).

19

The amendment was originally in one clause as quoted above; it was the insertion of the defeated amendment to the language which changed the text into two clauses and arguably had the effect of extending the protection against unreasonable searches and seizures beyond the requirements imposed on the issuance of warrants. It is also possible to read the two clauses together to mean that some seizures even under warrants would be unreasonable, and this reading has indeed been effectuated in certain cases, although for independent reasons. Boyd v. United States, 116 U.S. 616 (1886); Gouled v. United States, 255 U.S. 298 (1921), overruled by Warden v. Hayden, 387 U.S. 294 (1967); but see id. at 303 (reserving the question whether “there are items of evidential value whose very nature precludes them from being the object of a reasonable search and seizure.” )

20

Approval of warrantless searches pursuant to arrest first appeared in dicta in several cases. Weeks v. United States, 232 U.S. 383, 392 (1914); Carroll v. United States, 267 U.S. 132, 158 (1925); Agnello v. United States, 269 U.S. 20, 30 (1925). Whether or not there is to be a rule or a principle generally preferring or requiring searches pursuant to warrant to warrantless searches, however, has ramifications far beyond the issue of searches pursuant to arrest. See e.g., United States v. United States District Court, 407 U.S. 297, 319–20 (1972).