Fourth Amendment — Historical Background on Fourth Amendment

Amdt4.2 Historical Background on Fourth Amendment

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