Just as the concept of democratic policing is meant to ensure that policing practices are consistent with the will of the people, warrants are a similar safeguard in individual police actions. Before the police burst into someone’s home, or seize them or their property, another branch of government—the judiciary—checks to make sure that the facts justify what is about to occur. Warrants are one way to keep mistakes from happening. That is why, as the Supreme Court has said for over one hundred years, the Fourth Amendment expresses a preference that before police act, they have a judicial warrant.
In actual practice, though, the obligation to get a warrant is far more honored in the breach. Worse yet, of late, some Supreme Court justices have started to argue the Fourth Amendment doesn’t really require warrants anyway. Thus, ironically, at the very moment technology is making it easier for the police to get warrants, judges are tripping over themselves to excuse them.
This is a mistake.
A REMARKABLE, UNREMARKABLE CASE
“The facts are remarkable.” So began the opinion of the federal appellate judges in the case of Frunz v. City of Tacoma. The case is indeed remarkable, but perhaps not for the reason the judges had in mind.1
Susan Frunz and her husband, Ted Quandt, had divorced. Quandt had possession of the house and an order restraining Frunz from entering his residence. But when Quandt moved to California, in mid-November 2000, he gave the house back to Frunz, mailing the keys to her divorce lawyer, William Dippolito. After having the phone and power turned back on, Frunz moved in, and—shortly thereafter—had two guests over.2
The police enter this story because of Frunz’s neighbor, Clinton Staples. On November 18, 2000, Staples called the police and told them that Quandt had asked him to watch the house, and that Quandt’s ex-wife (Frunz) had shown up with a companion. Officers responded, and knocked at Frunz’s door. When no one answered, they left. Four hours later, Staples called again, to report that someone had come to the door; he had seen Frunz answer it and let the person in. This time Staples told dispatch that there was a restraining order out on Frunz precluding her from entering the premises.3
Six or seven officers returned, and observed people in the house. Covering the front door, they broke into the back one. Frunz heard the crash and went to investigate. She encountered an officer, who thrust a gun in her face, just inches from her head. Frunz and her guests were ordered to the floor—one was physically slammed there—and they were handcuffed. One guest was moved to the lawn and hog-tied, his feet secured as well.4
Once the officers determined there were no warrants on the men they released them, but—inexplicably—kept Frunz handcuffed. They moved her to a chair, and began to interrogate her. They repeatedly demanded Frunz’s name, asked other questions. Every time she tried to explain, someone would say, “Shut up,” and insist, “You’re a burglar.” They threatened to jail her. Even when one officer found some paperwork in the house containing Frunz’s name, they refused to believe her. Cold and in tears, Frunz told them just to take her to jail, to end the nightmare.5
Finally, Frunz persuaded the officers to call her divorce lawyer. Given that it was a Saturday, and that Dippolito himself was in Florida, it was sheer luck that Dippolito’s son answered and connected his father with the police. Eventually, Dippolito confirmed Frunz’s story, to the officers’ satisfaction. Whereupon they simply up and left. The required incident report was never even filed.6
Faced with this set of facts, the judges played “you be the police officer.” How else might the officers have handled the situation? The lawyer arguing on behalf of the officers insisted they’d done the only thing possible; they were confronted with an emergency, and so they went in. The judges demurred; they were able to think of a host of other possibilities. For example, the police might have “questioned the neighbor as to his last contact with the husband, in which case they may have learned that the husband had moved out of the house and was living in another state.” They even could have knocked at the door, as they had done just an hour and a half earlier, and politely asked the occupants whether they were entitled to be there.7
But the last thing the judges pointed to was (in their words) “most important”—the failure to get a warrant. “Reasonable officers,” the court said, would not have “[b]urst through the back door unannounced with guns drawn and handcuffing the occupants—the owner for a full hour.” They would “have tried to obtain a warrant … and monitored the house to see if anyone went in and out.” 8
The jury awarded Frunz $27,000 in compensation, and another $111,000 in punitive damages. If anything, the judges thought, this was kind to the officers. “[T]he citizens of Tacoma,” they said, “would not want to be treated in their own homes the way the jury found officers … treated Frunz and her guests.” In addition to fining the defendants for filing a frivolous appeal, the judges ordered that the City Attorney inform the City Council what happened. The author of the court’s opinion was one of this country’s best-known judges, a conservative with a libertarian streak, Alex Kozinski.9
While the court called the facts of Frunz’s case “remarkable,” police officers conduct searches and seizures without warrants frequently, despite having ample time to obtain them. In fact, these days police officers almost never get warrants before searching. As is true in so many other areas of policing, it is difficult to get hard data. But there is some clear evidence. One study from the 1980s concluded that “the overwhelming majority of criminal investigations are conducted without recourse to a search warrant” and that few law enforcement officers sought warrants. Another study from 1991, looking at seven jurisdictions with a combined population of almost four million, found that only 2,115 search warrants were issued in a six-month period. Two academics conducting fieldwork in 2004 in a mid-sized American city observed 115 searches; none were by warrant. Even warrantless entries of the home—what bothered the judges most in Frunz—are common, as but a few minutes on the Internet will reveal.10
The reason police don’t bother to get warrants is because the Supreme Court has taken a cavalier, if not outright dismissive, attitude toward them. Given the justices’ willingness to approve what police do without a warrant, it can come as no surprise that police don’t bother to get them.
What happened to Susan Frunz is all too common, and yet quite avoidable. The judges in Frunz’s case were right to be angry and to treat the case as remarkable. One wishes that sort of reaction to the failure of police to get a warrant were more typical, and that as a result more warrants were obtained—especially now that technology has made it much easier to do so.
THE IMPORTANCE OF WARRANTS
In the film classic The Maltese Falcon, police visit the home of the private detective Sam Spade—played by Humphrey Bogart—suspecting him of having shot his business partner. They ask what kind of gun he carries, and Spade replies, “None. I don’t like them much.” When pressed on whether he has one at the house, he denies it and urges the officers, “Look around.” Then he taunts them: “Turn the dump upside-down if you want. I won’t squawk—if you’ve got a search warrant.”11
That was 1941, and at the time, Supreme Court precedent squarely supported Spade’s insistence on a warrant. Indeed, in 1877, in one of their first Fourth Amendment decisions ever, the justices wrote, “Whilst in the mail, [a person’s papers] can only be opened and examined under like warrant,… as is required when papers are subjected to search in one’s household.” The justices have said similar things time and again since—until very recently.12
Why warrants? In common parlance, “unwarranted” means unjustified. So, too, when it comes to particular searches or seizures: warrants are a form of approval by a neutral third party—a magistrate or judge—acknowledging good reasons (“probable cause”) to allow police to invade someone’s life. Police—on a mission to get the bad guys—may act too hastily. They may, as in Susan Frunz’s case, be overly confident in their assessment of the necessity of searching a particular person or place. All this is both predictable and understandable. Thus the importance of warrants. Warrants simply ensure, as Justice Robert Jackson explained in 1948, that the ultimate decision to search is made “by a … magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.”13
Intuition and experience support the requirement to ask permission. How often have you had an idea, one you were persuaded was a really good one, only to have it collapse when you said it out loud to someone else? Even your best friend. Sometimes just the thought of telling someone else what we intend to do can cause us to cringe, to realize what seemed smart a moment ago is actually foolish. Police are no different; the simple fact of having to check in with a judge can cause cops to stop and think. To ask, “Do I have this right?” or “Is this really necessary?” That is exactly why, as the Supreme Court has said, the “informed and deliberate determinations of magistrates” are “to be preferred over the hurried action of officers.”14
There’s lots of social science that supports the idea that asking to search will lead to better decisions. When people are forced to justify their decisions to a third party, research shows, those decisions tend to be more rational and less biased. For example, it turns out to be more likely that legal disputes will settle before trial if the parties are forced to consider the best arguments of their opponents; this allows people to see things in a more balanced light.15
That’s what warrants are about. Giving reasons. And getting approval. From another person, one step removed from the chase. Because, as what happened to Susan Frunz demonstrates all too vividly, mistakes by the police can be traumatic to the innocent people who suffer them.
WATERING DOWN THE WARRANT REQUIREMENT
In 1967, in a case called Katz v. United States, the Supreme Court restated the requirement that officers get warrants before searching, in the firmest of terms. Searches without warrants, the justices declared, are “per se unreasonable.” That’s strong stuff in the law; it means that unless the police get a warrant first, a court simply will presume that what they did was unlawful. Unconstitutional. Katz has been cited time and again for the proposition that warrants are required.16
Since then, though, the justices have riddled the seemingly strong rule with exception after exception, to the point that the warrant “requirement” now looks like a piece of “Swiss cheese.”17
To be clear, there have always been exceptions to the warrant requirement, but they were rooted squarely in necessity. The most important exception—the one the police relied on (wrongly) to defend their actions in Frunz’s case—is “exigent circumstances.” This exception states the obvious: the police need not get a warrant if there is no time to do so. No court has ever demanded a warrant in an emergency.18
Two of history’s longest-standing exceptions to getting warrants were built squarely on this idea of exigency. It has been the rule for centuries that people can be arrested without a warrant. But that’s obviously because people did not tend to stay put while a warrant was procured to take them into custody. Similarly, a search of the person and nearby property was allowed “incident to a lawful arrest,” so that police could locate evidence (which otherwise could be quickly destroyed) or weapons (which could be used to injure the police or others).19
Of late, though, the Supreme Court has created so many new exceptions to the warrant “requirement” that legal scholars cannot even agree how many: they simply call the number “vast” or a “multitude.” Justice Scalia himself claimed there were twenty-two. The exceptions now include immigration checkpoints, administrative searches of regulated businesses, “consent” searches, searches of welfare recipients, students, parolees, and government employees, inventory searches, searches of moveable containers, automobile searches, boat searches, fire investigation searches—the list goes on.20
Nothing captures the Supreme Court’s current disregard for warrants so much as the so-called automobile exception. Basically the justices have eliminated the need for a warrant whenever a car is searched. Now, cars obviously are mobile: in many circumstances exigency itself may justify a warrantless automobile search. But the Supreme Court has announced a blanket exception for cars—even immobile cars, like one case in which the owner was in custody and the police had the keys.21
Although the automobile exception is now firmly ensconced in law, the justices cannot offer a coherent explanation for it, try though they might. They have said that police don’t need warrants to search cars, because people are visible in them. But houses have windows too; that doesn’t mean the police can simply walk in and search through our stuff. They have made the point that cars are used for transportation, not storage; that hardly covers the trunk of the car, and besides people need personal security when they are traveling just as much as when they are at home. The justices have even suggested that warrants are not necessary because state law requires registering cars—which seems to have nothing to do with anything at all.22
In the roughly fifty years from its declaration in Katz that warrantless searches are “per se unreasonable” the Court effectively has reversed direction—in large part under pressure from the war on drugs—dismantling the warrant “requirement.” Here’s the critical thing, though: None of the cases explains why warrants are undesirable or unnecessary. There’s not a bad word about warrants to be found. It is just that same phenomenon we saw in Chapter 3, of courts bowing after the fact to what the police have already done, and in the process creating exception after exception until the rule itself is practically obliterated.
CALLING THE WARRANT REQUIREMENT INTO QUESTION
But things are worse than that. There is nowadays an indication the justices—certainly some of them—are ready to say the Constitution doesn’t really call for warrants. Again, none of them has even tried to offer any policy reason against warrants. Rather, today’s effort by some justices to undermine the use of warrants is based solely on the Fourth Amendment’s somewhat oddly written text, and an idiosyncratic interpretation of its history. They are wrong in this, and it is important to see why because the argument reverberates well beyond warrants, to the Fourth Amendment’s probable cause requirement, and to the question of how we are to regulate most aspects of the new policing.
Begin with the text of the Fourth Amendment (with a couple of numbers inserted)—and note how it does indeed seem to leave something unsaid:
(1) The right of the people to be secure in their persons, homes, papers, and effects, against unreasonable searches and seizures, shall not be violated, (2) 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.23
Clause (1) creates a right to be free from “unreasonable searches and seizures.” Then, clause (2) bans the issuance of warrants without probable cause, etc. But, as a Joint Committee of the American Bar Association and the American Law Institute said of that text in 1966, “the amendment nowhere connects the two clauses.” Specifically, “it nowhere says in terms what one might expect it to say: that all searches without a warrant … are … unreasonable.” Can you see that? On its face the Amendment does not seem to require warrants explicitly.24
This omission has left room to argue that warrants are simply unnecessary. Two noted scholars—Telford Taylor writing in 1969, and Akhil Amar writing in 1994—have done just that. Under their theory, the failure to come right out and insist on warrants was not a mistake. It was quite intentional, they argue, because the Framers of the Fourth Amendment disfavored warrants, and hardly would have insisted upon them.25
How this seemingly topsy-turvy reading could make sense requires recalling—Taylor and Amar tell us—that back in olden days the remedy for an unlawful search or seizure was to sue the offender for money damages. But if the searcher had a warrant, that warrant would provide almost complete immunity from liability. In other words, historically warrants were like “Get Out of Jail Free” cards—call them “Search and Seize As You Will” cards. The abuse of warrants to immunize British officials, Taylor and Amar argue, led the framers of the Fourth Amendment to disdain warrants and impose controls on them. Because of this history, Taylor and Amar conclude, it is wrong to read the Fourth Amendment as requiring warrants. All the amendment requires is that searches and seizures be “reasonable.” And it instructs how to control these dangerous warrants, should they be used.26
Now, it is indeed a fact that the colonists loathed the British use of “general warrants”—warrants that did not specify who or what could be searched or seized, but provided immunity to the searchers nonetheless. These warrants were issued indiscriminately. As a result, British officers were given complete discretion, frequently abused, to search who and what they would. Focus closely on this somewhat hysterical message from the Boston Town Meeting in 1772—we’ll come back to it—as it gives the sense of how the colonists felt about the British warrants:
Thus our houses and even our bed chambers, are exposed to be ransacked, our boxes chests & trunks broke open ravaged and plundered by wretches, whom no prudent man would venture to employ even as menial servants; whenever they are pleased to say they suspect there are in the house wares &c for which the dutys have not been paid. Flagrant instances of the wanton exercise of this power, have frequently happened in this and other sea port Towns. By this we are cutoff from that domestic security which renders the lives of the most unhappy in some measure agreeable. Those Officers may under colour of law and the cloak of a general Warrant break thro’ the sacred rights of the domicil, ransack mens houses, destroy their securities, carry off their property, and with little danger to themselves commit the most horred murders.27
Nonetheless, the problem with Taylor and Amar’s theory is that although the colonists hated general warrants, they were quite happy with “specific warrants,” i.e., those that were based on probable cause and did specify who or what was to be searched. Indeed, by the time the Fourth Amendment was adopted, they had come to insist upon them. But, as we are about to see, Taylor and Amar take no account of this.
THE SUPREME COURT BITES
Taylor and Amar’s theory would have remained just what it is—an academic theory—had not Justice Antonin Scalia bought into Taylor and Amar’s view of history in a case called California v. Acevedo. What he said there should sound quite familiar by now: “The Fourth Amendment does not by its terms require a prior warrant for searches and seizures; it merely prohibits searches and seizures that are ‘unreasonable.’” The Warrant Clause provides “limitation upon their issuance rather than requirement of their use.” This is because “the warrant was a means of insulating officials from personal liability assessed by colonial juries.”28
Justice Scalia wrote alone in Acevedo, but soon enough he was writing for the Court’s majority, making much the same point—or worse. In 1999, in Wyoming v. Houghton, he gave a two-part test for whether a government search was lawful. “[W]e inquire first,” he said, “whether the action was regarded as an unlawful search or seizure under the common law when the Amendment was framed.” If the Framers would have allowed or forbidden warrantless searching, that’s the end of the matter. However, “[w]here that inquiry yields no answer, we must evaluate the search or seizure under traditional standards of reasonableness by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.”29
Look what just happened. No longer are warrants per se unreasonable, as Katz v. United States declared. Now warrants aren’t needed at all, unless they were required “under the common law when the Amendment was framed.” (Obviously, there were no common law rules for things like automobiles or SWAT raids or drug testing or digital surveillance technology when the Fourth Amendment was ratified in 1791.) And if the warrant was not required by the common law, then the fallback question—the entire weight of our liberties—comes down to a generalized assessment by the judges of whether what the police did was “unreasonable.” As we saw in Chapter 3, the sort of balancing test Justice Scalia calls for gives judges free license—usually to approve what the government has done.
Katz’s insistence on warrants isn’t gone completely; recent cases seem to seesaw between the two theories. But Houghton’s balancing test has been used of late to justify any number of searches, among them the government collecting cell site location data without a warrant, DNA testing of people under arrest for serious offenses, and strip searches of juveniles in private group homes. Warrants have fallen from favor.30
So, who’s right? Justice Jackson or Justice Scalia? Katz or Houghton? To figure this out, we are going to take a brief tour of the two most important moments in the history of the young Fourth Amendment: the British “Wilkesite” cases, and the American fight against “writs of assistance” in the 1760s and 1770s.
What we’re about to see is that there is no war between history and common sense. To the contrary, it turns out Justice Scalia committed two serious historical errors. The first was in imagining that the law regarding warrants was fixed for all time by the common law as it stood in 1791. The second was in buying into the argument that warrants were disfavored in 1791 anyway. To the contrary, the generation that ratified the Fourth Amendment had precisely the preference for warrants the Supreme Court itself has continually expressed, until very recently.
“WILKES AND LIBERTY” … AND LEGAL CHANGE
Britain’s suppression of John Wilkes and other opposition pamphleteers in the mid-1760s resulted in some of the most famous judicial precedents regarding government searching in the years leading up to the American Revolution. “Wilkes and Liberty” became a rallying cry for the colonists, especially the Sons of Liberty (of Boston Tea Party fame), whose actions so infuriated the British. The importance of these cases was such that Wilkes, and the judge who decided many of the cases, Lord Camden, had notable American locales named after them—from Wilkes-Barre, Pennsylvania, to Camden Yards where the Baltimore Orioles play.31
Wilkes was an unlikely hero. The second son of a well-to-do British distiller, well-educated and cultivated, Wilkes bought himself a seat in Parliament in his early thirties. He was a libertine, a member of a well-connected group dubbed the Hell-Fire Club for its bacchanalia, which involved, at the least, heavy drinking and blasphemy, and perhaps regular orgies. Benjamin Franklin called Wilkes “an outlaw and exile of bad personal character, not worth a farthing.”32
Wilkes never distinguished himself in Parliament, but made his fame outside it as an anonymous pamphleteer. When King George III’s government started publishing the pro-government pamphlet The Briton, Wilkes responded by putting out The North Briton, a mocking and satirical response to government policy. Freedom of the press wasn’t what it is today, and there was plenty of talk of shutting The North Briton down. When Wilkes was asked by a notable Frenchman how far liberty of the press extended, he responded, “I cannot tell, but I am trying to know.”33
In response to issue Number 45 of The North Briton—which went after the king in a backhanded way—the government’s ministers decided it was time to shut the publication down. Though everyone knew by word of mouth who was publishing The North Briton, that and clear proof were two very different things. So the Secretary of State, Lord Halifax, issued a broad, ill-defined warrant for his messengers “to make a strict & diligent Search for the Authors, Printers & Publishers of a Seditious, & Treasonable Paper, intitled, the North Briton, Number 45.”34
Lord Halifax’s general warrant led to the most indiscriminate of searching. On little proof at all, Dryden Leach, publisher of an earlier edition of The North Briton but having nothing to do with Number 45, was hauled out of his bed in the middle of the night, subjected to a six-hour search of all his papers, saw fourteen of his journeymen printers and servants arrested, and was held for four days. All and all some forty-nine people were seized. Among them, of course, was Wilkes. His house was torn apart, hundreds of locks broken, numerous papers seized including the most private having nothing to do with The North Briton at all. He was taken to the Tower of London, and from there ascended to stardom on behalf of British liberty.35
Wilkes and the other victims of the searches sued Halifax and the messengers, in numerous lawsuits, succeeding brilliantly. The government is said to have paid a total of around £100,000 in “costs and judgments.”36
In deciding these cases, the judges made eloquent statements vilifying “general warrants”—which is to say dragnet warrants that failed to specify their targets, the reason for suspecting them of anything, and precisely what was to be searched or seized. Granting Wilkes his freedom from the Tower of London, Judge Pratt (who later ascended to the peerage as Lord Camden) volunteered that “[t]he warrant I think [is] a very extraordinary one, I know of no law that can authorize it, nor any practice that it can be founded on.” When Wilkes’s case against the officials came before him, Pratt declared: “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.”37
The really important part of this story, though, is not that general warrants were condemned—no one disagrees with that. Rather, this became a landmark moment in history precisely because the decisions punishing Halifax and the messengers were an extraordinary departure from preexisting precedent. This whole story, central to the adoption of our Fourth Amendment, calls into question Justice Scalia’s peculiar notion in Houghton that the common law (and thus our rights) is ever fixed at any particular point in time.
General warrants—which were better than what long preceded them: forcible intrusion and seizure with no warrant at all—had been in use in Britain for more than 150 years before the Wilkesite cases. The King’s ministers who decided to go after Wilkes had not acted lightly; they had consulted the precedents carefully.38 When lawyers representing the defendants in the Wilkesite cases fashioned their arguments, they relied heavily on these precedents approving general warrants. The Duke of Newcastle, who had served as Secretary of State himself, wrote to a friend, saying, “Pratt [is] (I fancy) a little mistaken … If I remember, I have signed many in the same form & words.” In the printer Leach’s case, Money v. Leach, Solicitor General de Grey insisted, “Similar warrants have been brought before this Court for a century past and never disallowed.” Pratt himself, when Attorney General, had issued a general warrant.39
What’s notable is that when the Wilkesite cases came to court, the judges didn’t hesitate a moment over these long-existing precedents they felt were incompatible with personal security. In Money v. Leach Lord Mansfield said, “It is said that usage will justify it … Usage has great weight, but will not hold against clear and solid principles of law.” His colleague Justice Yates concurred: the warrant was “[s]o totally bad, that an usage, even from the foundation of Rome itself, would not make them good.” In Wilkes v. Wood, Pratt himself noted that “[t]he defendants claimed a right, under precedents, to force persons houses, break open escrutores, seize their papers, &c. upon a general warrant.” But he refused to accept those precedents as governing, deeming them “totally subversive of the liberty of the subject.”40
These statements must seem a little strange. What does it even mean to say that long “usage” will not hold against “solid principles of law”? Wasn’t that long usage the law itself? How could something that had endured from “the foundation of Rome” be suddenly “bad” and thus unlawful?
The answer to this question explains why Justice Scalia was so far off in claiming that the “common law” at the time the Fourth Amendment was adopted necessarily binds us today. What Justice Scalia and his colleagues failed to acknowledge (for surely they knew!) is that the common law is both extant from time immemorial, and yet ever-changing.41 As Supreme Court Justice Joseph Story, one of the United States’ greatest lawyers, wrote in 1837, “In truth, the common law is not in its nature and character an absolutely fixed, inflexible system … It is rather a system of elementary principles and of general judicial truths, which are continually expanding with the progress of society.” This ability to evolve “with the progress of society” was the “genius” of the common law. While the change was never directly acknowledged—for what gives the common law its fundamental stature is its apparent continuity—if it were incapable of gradual adaptation it would have withered on the vine long ago.42
In short, the Wilkesite cases—which mattered so much to those who authored the Fourth Amendment—represented an important shift in the common law. Before, the hated general warrants were in common use. After, as a result of the judges’ actions, the Crown was limited in its ability to rely upon them. The common law was not fixed and unchanging, as Houghton implied; rather, when “the progress of society” demanded change, the common law adapted.
In light of this understanding of the common law, it is hard to fathom the Supreme Court claiming that our right to be free from a warrantless search is fixed in any way by the common law as it was more than two hundred years ago. Before automobiles (let alone drones and through-the-wall cameras) were invented. One can understand this sort of reasoning from Justice Scalia, who was an “originalist,” which is to say he believed the Constitution must be interpreted as it was at the time it was ratified, without taking into account intervening societal change. (With his passing, Clarence Thomas became the sole remaining originalist justice.) But the rest of Scalia’s colleagues on the Court don’t feel that way at all. In a recent decision, the justices were required to decide whether warrants were necessary before searching cell phones incident to a lawful arrest—one of the historical exceptions to the warrant requirement. The Court’s opinion in the cell phone case, Riley v. California, written by Chief Justice John Roberts, limited the historical common law exception in light of modern technology. Even Akhil Amar, whose theory Scalia was cribbing, disagrees with him that the common law is fixed in stone. “Reasonableness” under the Fourth Amendment, Amar insists, “is not some set of specific rules, frozen in 1791 … amber.” 43
THE WRITS OF ASSISTANCE … AND REVOLUTION
Even if Justice Scalia were correct that our rights were fixed as of 1791, a look at developments across the Atlantic suggests he was wrong anyway about what the common law had to say on the subject of warrants at the time the Fourth Amendment was written.
In some very odd way, what Justice Scalia really seemed to have missed was the American Revolution. He often fixated on the common law in Britain; he seemed to forget the colonists were rebelling against the British way of doing things. Two of the most notable sources of their frustration were the continued usage of general warrants by the British in the colonies—in the guise of “writs of assistance” to enforce the customs laws—and the supremacy of Parliament, which allowed that to happen. In the end, the colonists rejected both parliamentary supremacy and general warrants; they came instead to favor constitutional limitations on the legislature, and warrants to control the executive branch.
The rule that eventually emerged in Great Britain was that general warrants were invalid—unless and until Parliament approved them! Narrowing Judge Pratt’s decisions on appeal, the King’s Bench agreed Crown officials could not use general warrants on their own say-so, but the same was not true in the “many cases where particular Acts of Parliament have given authority to apprehend, under general warrants.” In other words: the King could not use general warrants on his own, but could if Parliament gave the okay. What followed was a battle royal in Parliament itself over whether general warrants should ever be allowed. The final result was a ban on their use—“except in cases provided for by act of Parliament.” Some progress.44
In Britain, once Parliament spoke, that was the end of the matter. As William Blackstone—the great chronicler of British common law—explained at the time of the American Revolution, “[T]here is no court that has the power to defeat the intent of the legislature.” This was true even if the parliamentary act was believed to be contrary to Britain’s unwritten constitution. Parliament still had the final say: What Parliament chose to do, wrote Blackstone, “no authority upon earth can undo.” 45
But it was precisely this idea of parliamentary supremacy that the colonists ultimately rebelled against. And a critical battle in that fight was over writs of assistance.
Writs of assistance were a tool—not unlike general warrants—used to enforce hated British customs duties. They allowed British customs collectors to search and seize where and when they wished, and to demand help in doing so. This was precisely the sort of thing the Boston meeting complained of so vociferously, in the long quote we read earlier.46
The fight over the writs of assistance got under way in about 1755 when Charles Paxton, Boston’s much-loathed customs collector, showed up at a warehouse to enforce a writ of assistance. Paxton was searching for Spanish iron on which supposedly duty had not been paid. Thomas Hutchinson, the brother of the warehouse owner, was present at the time. Hutchinson unlocked the door to the storehouse to show that there was no iron, but then told Paxton he could have sued him because his writ was illegal. Hutchinson’s argument was that the governor lacked authority to issue writs of assistance, something the governor quickly remedied by arranging for the Superior Court to issue them instead. Soon thereafter, a group of more than sixty Boston merchants petitioned the Superior Court to disallow the writs entirely.47
The lawyer for the merchants challenging the writs of assistance, James Otis, famously argued in Paxton’s Case that the writs were flat out invalid. The judge in the case—none other than Thomas Hutchinson, who since his interaction with Paxton had been appointed to the Massachusetts Superior Court—explained that Otis “objected to the writs, that they were in the nature of general warrants.” Or, as Otis himself put it, memorably:
A man’s house is his castle; and while 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 may inquire.48
Under British law the answer to Otis, of course, was that Parliament had provided for issuance of the writs and so they were perfectly fine. But Otis’s understanding of legislative supremacy was quite different from Blackstone’s: he informed the Superior Court in the writs of assistance case that “[n]o Acts of Parliament can establish such a writ … AN ACT AGAINST THE CONSTITUTION IS VOID.” If general warrants and writs of assistance were invalid under Britain’s unwritten constitution—as the colonists felt they were—then the fact that Parliament issued them hardly fixed things. This argument formed the very essence of the American Revolution, the notion on the American side of the Atlantic that legislative authority was subject both to the higher will of the people and the higher law of a constitution.49
John Adams, who was present in the courtroom that day and heard Otis’s argument, said years later (engaging in a bit of hyperbole), “Then and there the child Independence was born.” He deemed James Otis’s argument “the first scene of the first Act of Opposition to the arbitrary Claims of Great Britain.” And one could indeed trace a line from Otis’s argument to the decision to rebel and seek independence. Thomas Hutchinson, who as the judge in Paxton’s Case eventually granted the writs of assistance, had his house burned during the Stamp Act riots of 1765. British authorities soon learned that though they could obtain writs of assistance, enforcing them was another matter entirely. When the customs collectors came to call, Massachusetts residents staged “liberations” of the goods, making the work of those collectors impossible. When Connecticut courts then refused to grant the writs, it led in 1767 to British passage of the Townshend Revenue Acts, which in turn triggered opposition to writs of assistance throughout the colonies. In 1774, in addresses to the American people and to the British Crown, the Continental Congress protested the power “to break open and enter houses without the authority of any civil magistrate founded on legal information.” 50
Edward Thurlow, Attorney General of Great Britain and an opponent of American independence, found it strange that colonial judges who refused to enforce writs of assistance “should think the laws of the mother country too harsh for American Liberty.” But so they were.51
THE AMERICANS CHOOSE SPECIFIC WARRANTS
Even as he condemned general warrants, Otis told the court that what was needed were “special warrants … issued by justices of the peace, to search in places set forth in the warrants” based on “information given upon oath.” In other words, Otis was saying that if the government wanted to search it had to get a warrant to search a particular place, based on specific information indicating that what the government sought was in that place. Just like the Fourth Amendment says.52
Otis was ahead of his time, but by 1791 when the Fourth Amendment was ratified, such specific warrants were strongly preferred in the new United States. This was the emerging common law in the United States at the time of ratification, and to the extent Justice Scalia and his colleagues believed otherwise, they simply were wrong.53
Prior to 1760, general warrants were, if anything, more omnipresent in the colonies than in the mother country. But opposition in Massachusetts to general searches flared in response to British naval impressment gangs, the collection of excise taxes, and door-to-door smallpox searches. As a result, Massachusetts’s law increasingly came to rely on the specific warrant. The same would occur in the other colonies, then states, in the thirty-year period that saw the Revolution, the Constitution, and then the Bill of Rights.54
Sentiment and action against the Townshend Acts confirmed that the distaste for general warrants was being replaced by a preference for specific ones. British officials applying for their writs found themselves frequently stymied by colonial courts that sometimes denied them explicitly, more often simply dragged heels or feigned illness—but would issue them in specific form. When in 1771 Pennsylvania Collector John Sift sought his writ, the court demurred: “Yes, if you will make oath that you have had an information that … [smuggled goods] are in any particular place, I will grant you a writ to search that particular place but no general writ to search every house—I would not do that for any consideration.”55
In the period following the American Revolution, the now-united states gradually abolished all general warrants and displayed their signal preference for specific warrants whenever possible—with some exception for warrantless searches of particular businesses, such as distilleries. The Fourth Amendment was ratified in 1791, and—as documented meticulously by the historian William Cuddihy—between the Revolution and 1791 the states definitively turned against general warrants and in favor of specific ones.56 Indeed, to the extent there was resistance to the transformation, it was in the Southern states, which adhered, for example, to copious and unregulated search-and-seizure discretion in slave patrols. Hardly a model for our modern Fourth Amendment.57
The movement in the United States to adopt a national constitution fostered the insistence on specific warrants, given fears about the power the new central government would possess. Throughout the process of ratification, leading Anti-Federalists demanded a protection against indiscriminate searches and seizures. Patrick Henry—of “Give me liberty or give me death!” fame—may have been the most florid, but the sentiments he expressed were common:
The officers of Congress may come upon you now, fortified with all the terrors of paramount federal authority. Excisemen may come in multitudes; for the limitation of their numbers no man knows. They may, unless the general government be restrained by a bill of rights, or some other restriction, go into cellars and rooms, and search, ransack, and measure, everything you eat, drink and wear.58
Leading treatise writers of the early nineteenth century recognized that following adoption of the Bill of Rights, specific warrants were required. Here is what the Virginian St. George Tucker, a deeply admired law professor and judge, said about the Fourth Amendment, updating Blackstone’s Commentaries on the British common law to make them applicable to the United States: “In the administration of preventative justice, the following principles have been held sacred: that some probable ground of suspicion be exhibited before some judicial authority; that it be supported by oath or affirmation.” That sure sounds like a warrant requirement, a point Tucker made even clearer in his lecture notes:
What shall be deemed unreasonable searches and seizures. The same article informs us, by declaring, “that no warrant shall issue, but first, upon probable cause—which cause secondly, must be supplied by oath or affirmation; thirdly the warrant must particularly describe the place to be searched; and fourthly—the persons, or things to be seized. All other searches or seizures, except such as are thus authorized, are therefore unreasonable and unconstitutional. And herewith agrees our State bill of rights—Art. 10.59
William Rawle, who was appointed the United States Attorney for Pennsylvania in 1791, the year the Bill of Rights was ratified, agreed. In 1825 he published his treatise, A View of the Constitution of the United States of America. In it, Rawle is foursquare with Tucker: “The term unreasonable is used to indicate that the sanction of a legal warrant is to be obtained, before such searches or seizures are made.”60
For these Americans, the meaning of the Fourth Amendment, in light of history, was quite apparent: warrants were required. Although the Amendment was only explicit in what a valid warrant looked like, it was implicit that—absent an established exception rooted in history and based in necessity—a warrant was requisite. After all, how could it be that the favored alternative to a search based on a valid warrant was a search based on no warrant at all?61 As the law professor Thomas Davies has responded to Amar, after exhaustive historical research, “the Framers expected that warrants would be used … [T]hey believed that the only threat to the right to be secure came from the possibility that too-loose warrants might be used.” 62
In 1921, the Supreme Court made clear that it understood history just this way. In Gouled v. United States, the justices explained:
“The wording of the Fourth Amendment implies that search warrants were in familiar use when the Constitution was adopted … Searches and seizures are as constitutional under the Amendment when made under valid search warrants as they are unconstitutional, because unreasonable, when made without them—the permission of the amendment has the same constitutional warrant as the prohibition has, and the definition of the former restrains the scope of the latter.” 63
The Supreme Court’s movement away from warrants is simply bad history. While general warrants were indeed hated, and the Fourth Amendment was adopted to control them, those who drafted and ratified the Amendment believed the answer to the problem of general warrants was not no warrant at all—it was specific warrants.
MORE WARRANTS, NOT FEWER
Rejecting a warrant requirement is bad policy as well. If anything, insistence on a warrant is more important and more appropriate today than it was at the time of the Fourth Amendment’s adoption. There are two reasons for this.
First, today warrants may be the only effective weapon we now have against unlawful searches. Recall that Taylor and Amar’s entire argument that warrants were not required by the Fourth Amendment rested on the assumption that if officers search unlawfully without warrants, they will be held liable for money damages. At common law, such liability was a real deterrent to feckless searches. As we saw in Chapter 3, though, the Supreme Court has now made it almost impossible to get money damages for unlawful searches—and has cut way back on the other remedy, the exclusionary rule, as well. Indeed, although Justice Scalia was wont to claim the exclusionary rule was not needed in light of the possibility of obtaining money damages, he voted consistently in favor of limiting money damages also. If Justice Scalia had had his way, we would be left with virtually no remedy for Fourth Amendment violations: no money damages, no exclusion, no warrants.
In law we typically prefer remedies for unlawful conduct to come after the law is violated, not before. We don’t lock people up because they might rob a house; we wait until they’ve robbed it to impose punishment. Similarly, we don’t by statute require people to mop the floor of their store, but if someone slips and falls we make them pay for failing to alert the public till it was dry. In this way—the way of deterrence—people learn to avoid imposing harm.
Sometimes, though, after-the-fact remedies are so ineffective, and the potential harms are so great, that we require permission up front. We don’t allow people to build buildings and then if things are not in order have them torn down. We require them to get building permits first. We don’t let anyone operate surgically on you and then simply impose money damages if they mess up. We do impose damages for medical malpractice, but we also license surgeons on the front end.
Warrants are, in this critical way, a before-the-fact means to prevent Fourth Amendment violations. They are a license to search. Because we are so bad after the fact at saying the police went astray and imposing money damages, or excluding unconstitutionally seized evidence, the right answer is for police to get permission up front. That is what warrants are: before-the-fact permission. In this way, many unlawful searches—like the one Susan Frunz experienced—will be avoided in the first place.64
Besides, it seems flat-out strange to limit the requirement to obtain warrants at the very time in history that technology has made getting them quickly so much easier. As we have seen, many of the exceptions to the warrant requirement rest in exigency, the idea that there is simply no time to get a warrant, so we won’t require one. That is true of arrests, of searches incident to lawful arrests, and for many automobile searches.
In the old days, it could take a lot of time to prepare a warrant application, get it to a judge, and get it approved. Even as late as 1970, one pictures a cop sitting at a Remington typewriter laboriously hunting and pecking out a warrant application in triplicate.65
These are not the old days. As the Frunz judges pointed out, the officers could have obtained “a telephone warrant if they believed it was urgent.” Telephonic warrants, which actually have been with us since the 1970s, are increasingly the norm. The rules that govern cases in federal court were recently amended to encourage reliance on just this sort of rapid, electronic communication.66
Nowadays, jurisdictions are experimenting even more with rapid warrant technology. Some Florida officers use Skype to obtain judicial permission to test drivers for alcohol. Similarly, Louisiana officers at drunk-driving roadblocks request prompt search warrants from judges when authority is needed to take blood samples. In Butte County, California, the judges have iPads so they can issue warrants at all hours, using DocuSign for electronic signatures. The justices themselves have recognized that “[w]ell over a majority of the States allow police officers or prosecutors to apply for search warrants remotely through various means, including telephonic or radio communications, electronic communications such as e-mail, and video-conferencing.” 67
Indeed, given the available technology, it seems apparent we should be requiring warrants in more circumstances rather than fewer, including those in which we do not currently—like for many administrative searches—or even for arrests. Depriving someone of their liberty is a grave, grave thing. Historically we did not demand warrants for arrests, because it was impossible to get them fast enough. Today, police could get electronic permission while the suspect waits in the police cruiser.
There are some hopeful signs on the horizon. In a 2013 drunk-driving case, in which the question was whether officers could take blood without consent or a warrant, the justices said no. Changes in technology making it faster to get warrants demanded the government prove in each case that getting a warrant was impossible. Similarly, in the 2014 case holding that cell phones could not be searched without a warrant, the Chief Justice said, “Our cases have determined that ‘[w]here a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing … reasonableness generally requires the obtaining of a judicial warrant.’” That’s a kindness by the Chief Justice to a body of decisions that have in fact dismantled the warrant requirement. But it is the direction in which we should be moving. Whenever police can get permission—a warrant—before searching or seizing, they should have to do so.68
Of course, warrants aren’t everything. They are only as good as the “probable cause” that supports them, a topic we turn to next. But getting warrants—authorization before cops act—would go a long way toward protecting our liberties, and avoiding the sort of thing that happened to Susan Frunz, and happens all too often today. Mistakes are part of life, but we should do what we can to avoid them, particularly if it is relatively easy to do.