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.

The Supreme Court has distinguished the Fourth Amendment protection from unreasonable searches from the Fifth Amendment protection from self-incrimination. While the Court initially appeared to find some overlap between these two protections in its 1886 decision, Boyd v. United States,1 the Court’s modern jurisprudence views the two Amendments as addressing different concerns.

In its first lengthy consideration of the Fourth Amendment, the Court addressed the protections the Fourth and Fifth Amendments afforded. In Boyd, the Government had alleged that goods had been imported illegally and were thereby subject to forfeiture pursuant to a quasi-criminal proceeding. In assessing the legality of a statute that authorized courts to require defendants to produce any document that might “tend to prove any allegation made by the United States,” 2 the Court unanimously agreed that there was a Fifth Amendment self-incrimination problem. Justice Joseph Bradley for a majority of the Court, however, also relied on the Fourth Amendment. Although the statute did not authorize a search but instead compelled production of documents, Justice Joseph Bradley concluded that the law was within Search and Seizure Clause restrictions.3 With this point established, Justice Joseph Bradley relied on Lord Camden’s opinion in Entick v. Carrington4 for the proposition that seizure of items to be used only as evidence was impermissible. Justice Joseph Bradley announced that the “essence of the offence” committed by the government against Boyd:

Although it may be doubtful that equating search warrants with subpoenas and other compulsory process ever really amounted to much of a limitation,6 the Court currently dispenses with any theory of “convergence” of the two amendments.7 In Warden v. Hayden,8 Justice William Brennan for the Court cautioned that the items seized were not “'testimonial’ or ‘communicative’ in nature, and their introduction therefore did not compel respondent to become a witness against himself in violation of the Fifth Amendment. . . . This case thus does not require that we consider whether there are items of evidential value whose very nature precludes them from being the object of a reasonable search and seizure.”

Following Warden, police executed a warrant to search the defendant’s offices for specified documents pertaining to a fraudulent land sale in Andresen v. Maryland.9 The Andresen Court sustained the lower court’s admission of the papers discovered as evidence at the defendant’s trial. The Court held that the Fifth Amendment did not apply because the defendant had not been forced to produce or authenticate the documents.10 As for the Fourth Amendment, because the “business records” seized were evidence of criminal acts, the Court held that they could be seized under Warden v. Hayden; the fact that they were “testimonial” in nature (records in the defendant’s handwriting) was irrelevant.11 Acknowledging that “there are grave dangers inherent in executing a warrant authorizing a search and seizure of a person’s papers,” the Court observed that, although some “innocuous documents” would have to be examined to ascertain which papers were to be seized, authorities, just as with electronic “seizures” of telephone conversations, “must take care to assure that [searches] are conducted in a manner that minimizes unwarranted intrusions upon privacy.” 12 As Andresen concerned business records, it is unclear whether its discussion equally applies to “personal” papers, such as diaries and letters, for which the privacy interest is greater.13

Footnotes

1

116 U.S. 616 (1886).

2

Act of June 22, 1874, § 5, 18 Stat. 187.

3

Boyd v. United States, 116 U.S. 616, 622 (1886).

4

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

5

Boyd v. United States, 116 U.S. 616, 630 (1886) See Agnello v. United States, 269 U.S. 33–34 (1925) ( “It is well settled that, when properly invoked, the Fifth Amendment protects every person from incrimination by the use of evidence obtained through search or seizure made in violation of his rights under the Fourth Amendment.” ); Marron v. United States, 275 U.S. 192, 194 (1927) ( “It has long been settled that the Fifth Amendment protects every person against incrimination by the use of evidence obtained through search or seizure made in violation of his rights under the Fourth Amendment.” ).

6

E.g., Oklahoma Press Publishing Co. v. Walling, 327 U.S. 186, 208–09 (1946).

7

Andresen v. Maryland, 427 U.S. 463 (1976); Fisher v. United States, 425 U.S. 391, 405–14 (1976). Fisher states that “the precise claim sustained in Boyd would now be rejected for reasons not there considered.” Id. at 408.

8

387 U.S. 294, 302–03 (1967). Seizure of a diary was at issue in Hill v. California, 401 U.S. 797, 805 (1971), but it had not been raised in the state courts and was deemed waived.

9

427 U.S. 463 (1976).

10

427 U.S. at 470–77.

11

427 U.S. at 478–84.

12

427 U.S. at 482, n.11. Minimization, as required under federal law, has not proved to be a significant limitation. Scott v. United States, 425 U.S. 917 (1976).

13

E.g., United States v. Miller, 425 U.S. 435, 440, 444 (1976); Fisher v. United States, 425 U.S. 391, 401 (1976); California Bankers Ass’n v. Shultz, 416 U.S. 21, 78–79 (1974) (Powell, J., concurring).