Search and Seizure Law, Known

Search and Seizure Law, known currently in the United States as law under the Fourth Amendment to the Constitution, has been in existence in one form or another since biblical times. Those wishing to protect their property and privacy against unreasonable search and seizure have often battled governments, courts, employers, secular groups, and even one another in a struggle between the rights of the individual and the rights of the general public and legal systems. Yet while individuals struggle to retain their right to privacy and rights against unreasonable search and seizure, the United States Court system has consistently narrowed these rights. It is this history of conflict that has led to the current interpretations of the search and seizure law, and has made these issues some of the most important in the United States culture today.

To understand the current interpretation of the law of search and seizure, one must first examine the history of such concepts. As mentioned, the protection of property is not a new idea, but one that has prevailed since ancient times, where the home was considered a place of privacy, shelter, and protection (Lasson, 13). In one comment from ancient legal texts, there is mention of a common law that states no one can enter the house of another without express permission (Lasson, 14).

Further proof that search and seizure issues existed in ancient times can be found in the Talmud, a sacred text that discusses rabbinic discussions of Jewish law. According to Hebrew law, no writ of the return of personal property can be granted, unless the bailee, or holder of the property, admits to possessing it. If the bailee does admit possession, but denies ownership by the plaintiff, a writ can be issued (Lasson, 14).

Even the Bible records instances of a strong desire for privacy in relation to property. In the story of the theft by Achan, Joshua did not send messengers into Achan's tent to search for and seize the articles stolen until after Achan confessed (Joshua: 7). The Bible also states that a creditor is forbidden to enter a home, but must wait outside to obtain security for the debt (Deuteronomy 24:10). In Genesis, the crowd in the front of the home of Lot does not first force entry, but instead demands that Lot deliver the strangers (Genesis 19: 4-11). In Exodus, the law states that housebreaking at night is punishable by death (Exodus, 22:2-3). While these examples do not directly address search and seizure law, they do show the high regard for the protection of the home, and the high regard for personal privacy.

Similar ideas are presented in Roman history. According to Roman culture, the house was under special protection of the household gods. Anyone who reached the fireplace of a house was offered the protection of the gods. Even Cicero discussed the concept of the home as a protected asylum, when he stated that the house of a citizen was to be defended since in was "a place of refuge so sacred to all men that to be dragged from thence is unlawful" (Lasson, 15).

However, it is in these Roman times that one can begin to see the shift to allow for certain types of search and seizure within a court of law. While individual persons were responsible for their own prosecution against others, they were still given a warrant, which allowed them full rights to gather evidence. This "evidence" included all papers and documents relating to the case, and was obtained through a search of the home of the accused, or through a search of any other home (Lasson, 16). As one can see, the ambiguousness of the warrant for search and seizure allowed the prosecution to search anyone, and seize any documents they felt "necessary."

Yet Roman law also held some protections for the accused in terms of search and seizure. In cases such as those above, the documents gathered were sealed in front of the accused, and taken immediately to the court, where the seal was first inspected. This, the Romans believed, would help eliminate any planting of evidence (Lasson, 17). In cases of stolen goods, the accuser had to describe any property in detail before that property was sought. Following description, the accuser was allowed to search the property of the accused, but could only wear an apron, and carry only a platter. There had to be a bailiff, public crier, and slave present (Lasson, 18). It is clear that even the ancient Romans believed there was a fine line between protection against search and seizure, and upholding the rights of others. Further, by providing protection to those searched, the Romans led the way for the rest of civilization to enact laws and regulations to do the same.

Angelo-Saxon English laws show clearly this continuation of a balance between protection for the accused and the right to evidence by the prosecution, as well as of the protection of privacy. Alfred the Great (871-891), known for his protection of his subjects, was reported to have hung a judge responsible for punishing an accused person through evidence obtained through a "false warrant," which accused the wrong individual. Further, the laws of the time protected the home by putting to death anyone that obtained forced entry into another's home (Lasson, 19).

Perhaps the most influential document in the history of search and seizure law is Magna Carta. Drafted in 1215 in response to abuses of power by King John, the original Magna Carta was known first as the 'Article of the Barons'. Following years of abuses of power by King John, the barons overtook London in June of 1215, forcing King John to sign the article, which consisted of 63 articles designed to limit the powers of the King (Holt, 25). The formal document was titled "Magna Carta."

When the barons left England, King John denounced Magna Carta, much to the disdain of his subjects, and England plunged into civil war (Holt, 32). King John perished in 1216 during the war, and his 9-year-old son, Henry, was crowned King (Holt, 45). By November of that year, Magna Carta had been reestablished by Henry and his regents, with some articles removed (Holt, 48). Henry rewrote the Magna Carta at age 18, and reissued it again with only 37 clauses (Holt, 54). By the time King Henry died in 1272, Magna Carta was a settled portion of English legal precedent.

Magna Carta protected, among other things, the subjects of the kingdom from abuses of royal officials. Article 39 of the original Magna Carta was the ancestor of search and seizure law in centuries to come. According to Article 39:

No free man shall be arrested, or imprisoned, or deprived of his property, or outlawed, or exiled, or in any way destroyed, nor shall we go against him or send against him, unless by legal judgement of his peers, or by the law of the land." (Article 39 of Magna Carta, in Holt, 34).

This Article, now Article 29 in the recongized 1297 version of Magna Carta, is one of the few Articles still in use in English law. Clearly, the importance of protection against search and seizure has been an issue for centuries.

During the centuries that followed, England passed a number of laws and statutes, both allowing for more frequent and easier searches and seizures, and in some cases, for protection against abuses of those laws. By the first half of the fourteenth century, and through the end of the 17th century, England passed legislation relating to search and seizure, and did so by granting extremely general and unrestricted powers to government authorities and other parties. For example, in 1335, legislation was passed which reuired innkeepers to search their customers for smuggled monies. In turn, officials of the kingdom were to search the inns. However, due to abuses, a law resticting these searches was passed in 1405 (Lasson, 23).

By the late 17th century, England had begun to issue "writs of assistance" and "general warrants." These documents were designed to assist customs agents and police in searching for writings against the king, and smuggled goods. The writs, however, served one function only, and that was to give government authorities unlimited right to search and seize. Under English common law, if a government official were to invade private property without good cause, they could be tried for tresspassing. However, these writs and warrants gave these officials immunity and allowed them to search any private property without fear of retribution. These writs and warrants did not specify places, persons, or things to be searched, but were general warrants to allow for any search or seizure (McWhirter, 1).

By 1761, the American colonies were using such writs, as well. Following the French and Indian War, England began intently pursuing illegal smuggling within the colonies, and the merchants began to rebel against the use of writs. These writs, like those in England, were broad in nature, allowing for searches of shops, homes, ships, and warehouses at will. Further, these writs, once issued, could be reused, and did not expire until the death of the reigning monarch (Knappman, 33).

In Massachusetts, a group of colonial merchants, represented by James Otis, petitioned the Superior Court to refuse any new applications of writ following the death of George II. Otis, using the phrase "A man's house is his castle," argued in the case that the writs were a direct violation of Englis liberties and traditional English customs. While his case was heard, the court elected to defer decision until English legal authorities could decide the case. Eventually, the court upheld the use of writ, but no further writs were issued (Knappman, 34).

Clearly, the issue of search and seizure was to be important in the foundation of the United States, and one can see even prior to the Constitution evidence of such importance in the states' Bills of Rights. Virginia, the first state to draft such a Bill, created a clause which stated:

general warrants whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offense is not particularly described and supported by evidence, are grievous and oppressive and ought not to be granted" (Lasson, 79).

Other states began to copy this type of clause in their own Bill of Rights, although some varied from the original. In Pennsylvania's Declaration of Rights, section 10 closely resembled what is now the Fourth Amendment. It is in Massachusetts Declaration of Rights that one can find the first use of the term "unreasonable search and seizure," which found its way directly into the Fourth Amendment (Lasson, 86).

The United States Constitution was drafted without mention of a Bill of Rights. Over the course of the next two years, 10 Amendments were ratified, and made into the Bill of Rights for the United States. Among these was the Fourth Amendment, which states:

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." (U.S. Constitution, amend. IV).

As one can see, the issues discussed in the history of the search and seizure law are represented in the wording of the Amendment. From the Biblical story of Achan, where Joshua required some proof of wrongdoing before searching, to the rebellion against non-specific writs of assistance, the Fourth Amendment specifically protected U.S. citizens against searches and seizures without cause.

Once written into law, however, there was still an issue with the interpretation and application of the Amendment. Since the original ratification of the Fourth Amendment, the legal system has struggled to determine how to apply the law. First, there is the question of what constitutes an "unreasonable" search and seizure. Secondly, the Amendment does not state that a warrant must be obtained to conduct a search, but only outlines the regulations required to obtain a search warrant. Third, while the Amendment states that "persons, houses, papers, and effects" are protected, it is unclear if this list is intended to be exhaustive or just examples. Finally, there is a question of what constitutes "probable cause" (McWhirter, 12).

The Courts began to address these issues with the first case in 1886, that of Boyd v. United States.

Before any interpretation of the law could begin, the Court first had to decide what the intention of the Amendment was. In the Boyd case, glass merchants were charged with possession of plate glass that had not been properly taxed. The lower court judged ordered the merchants to produce the invoice, to prove whether the glass had been imported. When the Supreme Court heard the case, however, the Justices rules that the merchants did not have to produce the invoice, since demanding the document would be in violation of the Fourth Amendment. The Court discussed at length the intensions of the Fourth Amendment, and their interpretation that the Amendment was designed to protect the privacies of life from arbitrary power (McWhirter, 13). The Court had made the first interpretation of the search and seizure law, that a person has a right to be safe and private in his or her home or business, and that discretion must be used when deciding to violate that right. Additionally, the Court's decision showed that documents, when obtained through illegal measures, were not to be used against the defendant, or accused.

It was almost three decades later before the Court handed down another ruling regarding interpretation of search and seizure law. In 1914, during Weeks v. United States, a man was arrested and charged with mail fraud, while a police officer was searching the man's home at another location. The officer searching the home had not obtained a search warrant. It was during this case that the Supreme Court began to establish the Exclusion Rule, or the concept that some evidence, if gathered in violation of the Fourth Amendment, could not be used as evidence in a federal court (McWhirter, 14).

This inadmissibility, however, only applied to federal courts until Mapp v. Ohio in 1961. While cases had come before the Court dealing with the application of the Fourth Amendment to individual states, such as Wolf v. Colorado in 1949, the Supreme Court had continuously decided that the States were capable of making their own regulations and statues to safeguard their citizens against unreasonable search and seizure. However, in Mapp, police officers forced their way into a residence while waving a "piece of paper" at the accused, which was not a warrant. The police were searching for a bombing suspect, but found pornography images in violation of Ohio law, and arrested Mapp on obscenity charges. In their decision, the Supreme Court ruled that Mapp's conviction should be overturned, because the evidence against her had been obtained in violation of the Fourth Amendment (McWhirter, 102). In doing so, the Court had set precedence that any and all evidence found in searches that violated the Constitution was inadmissible, even in a state court.

As mentioned, another issue with search and seizure law interpretation occurs when the information in question is not in the form of a "person, house, paper, or effect," those items mentioned in the Fourth Amendment. In Katz v. United States, the Court had to interpret this issue, since the information in question was a telephone conversation obtained through a phone tap of a public telephone. This issue, originally visited in 1928 in Olmsted v. United States, has been previously decided based on the idea that the wiretap allowed officers to obtain evidence without searching the person's home, and thus, did not fall under the Fourth Amendment. The Olmsted decision was then applied to Goldman v. United States in 1942, and again in Lee v. United States in 1952. In both cases, the obtaining of electronic evidence was not found to be unreasonable search and seizure, since the information was obtained without an intrusion on a "constitutionally protected area" such as a home (Lively, 282).

However, in Katz, the Court decided that a public telephone was considered a "protected area," since it was reasonably assumed that one would enter a public phone booth to obtain audio privacy, and that to gather information, unbeknownst to the accused, by bugging that private conversation was, in fact, unreasonable search and seizure (Lively, 283). In the Katz case, the Court finally decided that the Fourth Amendment was not to be taken literally, in terms of what the law protected against unreasonable search and seizure. With Katz, the Court set precedence that any search, be it physical, audio, visual, or using any other method, was to be at least considered protected.