Fourth Amendment: Historical Background

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 experience of the colonials as the Fourth Amendment, embodying as it did the protection against the use of the “writs of assistance.” But though the insistence on freedom from unreasonable searches and seizures as a fundamental right gained expression in the colonies late and as a result of experience,1 Footnote
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, in the drafting of which Samuel Adams took the lead. 1 B. Schwartz , The Bill of Rights: A Documentary History 199, 205–06 (1971) . there was also a rich English experience to draw on. “Every man’s house is his castle” was a maxim much celebrated in England, as Saman’s Case demonstrated in 1603.2 Footnote
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.” A civil case of execution of process, Saman’s Case nonetheless recognized the right of the homeowner to defend his house against unlawful entry even by the King’s agents, but at the same time recognized the authority of the appropriate officers to break and enter upon notice in order to arrest or to execute the King’s process. Most famous of the English cases was Entick v. Carrington ,3 Footnote
19 Howell’s State Trials 1029, 95 Eng. Rep. 807 (1705) . 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.4 Footnote
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).

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. 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.” 5 Footnote
95 Eng. Rep. 817, 818 (1705) . 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. Entick v. Carrington , the Supreme Court has said, 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.6 Footnote
Boyd v. United States, 116 U.S. 616, 626 (1886) .

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 commanding 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 the issuance of new writs, opposition was led by James Otis, who attacked such writs on libertarian grounds and who asserted the invalidity of the authorizing statutes because they conflicted with English constitutionalism.7 Footnote
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) . 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 language of the provision that became the Fourth Amendment underwent some modest changes on its passage through the Congress, and it is possible that the changes reflected more than a modest significance in the interpretation of the relationship of the two clauses. 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.” 8 Footnote
1 Annals of Congress 434–35 (June 8, 1789) . As reported from committee, with an inadvertent omission corrected on the floor,9 Footnote
The word “secured” was changed to “secure” and the phrase “against unreasonable searches and seizures” was reinstated. Id. at 754 (August 17, 1789). the section was almost identical to the introduced version, and the House defeated a motion to substitute “and no warrant shall issue” for “by warrants issuing” in the committee draft. In some fashion, the rejected amendment was inserted in the language before passage by the House and is the language of the ratified constitutional provision.10 Footnote
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) .

As noted above, the noteworthy disputes over search and seizure in England and the colonies revolved about the character of warrants. There were, however, lawful warrantless searches, primarily searches incident to arrest, and these apparently gave rise to no disputes. Thus, the question arises whether the Fourth Amendment’s two clauses must be read together to mean that the only searches and seizures which are “reasonable” are those which meet the requirements of the second clause, that is, are 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.11 Footnote
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.” ) This issue has divided the Court for some time, has seen several reversals of precedents, and is important for the resolution of many cases. It is a dispute that has run most consistently throughout the cases involving the scope of the right to search incident to arrest.12 Footnote
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. United States v. United States District Court, 407 U.S. 297, 320 (1972) . Although the right to search the person of the arrestee without a warrant is unquestioned, how far afield into areas within and without the control of the arrestee a search may range is an interesting and crucial matter.

Footnotes 1 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, in the drafting of which Samuel Adams took the lead. 1 B. Schwartz , The Bill of Rights: A Documentary History 199, 205–06 (1971) . 2 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.” 3 19 Howell’s State Trials 1029, 95 Eng. Rep. 807 (1705) . 4 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). 5 95 Eng. Rep. 817, 818 (1705) . 6 Boyd v. United States, 116 U.S. 616, 626 (1886) . 7 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) . 8 1 Annals of Congress 434–35 (June 8, 1789) . 9 The word “secured” was changed to “secure” and the phrase “against unreasonable searches and seizures” was reinstated. Id. at 754 (August 17, 1789). 10 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) . 11 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.” ) 12 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. United States v. United States District Court, 407 U.S. 297, 320 (1972) .

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