Cases and Articles Combined

U.S. v. Wurie, 728 F.3d 1 (2013)

728 F.3d 1 United States Court of Appeals, First Circuit. UNITED STATES of America, Appellee, v. Brima WURIE, Defendant, Appellant. No. 11–1792.

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May 17, 2013.

Synopsis Background: Following denial of his motion to suppress the evidence obtained as a result of a warrantless search of his cell phone, defendant was convicted in the United States District Court for the District of Massachusetts, Richard G. Stearns, J., 612 F.Supp.2d 104, of possessing with intent to distribute and distributing cocaine base and with being a felon in possession of a firearm and ammunition, and he appealed.

Holding: The Court of Appeals, Stahl, Circuit Judge, held that search-incident-to-arrest exception did not authorize the warrantless search of data on a cell phone seized from arrestee's person.

Denial of motion to suppress reversed; conviction vacated; remanded. Howard, Circuit Judge, filed dissenting opinion.

Attorneys and Law Firms *1 Ian Gold, Assistant Federal Public Defender, for appellant. Michael R. Dreeben, Attorney, United States Department of Justice, with whom Carmen M. Ortiz, United States Attorney, and Kelly Begg Lawrence, Assistant United States Attorney, were on brief, for appellee. Before HOWARD, STAHL, and LIPEZ, Circuit Judges.

Opinion STAHL, Circuit Judge. This case requires us to decide whether the police, after seizing a cell phone from an individual's person as part of his lawful arrest, can search the phone's data without a warrant. We conclude that such a search exceeds the boundaries of the Fourth Amendment search-incident-to-arrest exception. Because the government has not argued that the search here was justified by exigent circumstances or any other exception to the warrant requirement, we reverse the denial of defendant-appellant Brima Wurie's motion to suppress, vacate his conviction, and remand his case to the district court.

I. Facts & Background On the evening of September 5, 2007, Sergeant Detective Paul Murphy of the Boston Police Department (BPD) was performing routine surveillance in South Boston. He observed Brima Wurie, who was driving a Nissan Altima, stop in the parking lot of a Lil Peach convenience store, pick up a man later identified as Fred Wade, and engage in what Murphy believed was a drug sale in the car. Murphy and another BPD officer subsequently stopped Wade and found two plastic bags in his pocket, each containing 3.5 grams of crack cocaine. Wade admitted that he had bought the drugs from “B,” the man driving the Altima. Wade also told the officers *2 that “B” lived in South Boston and sold crack cocaine. Murphy notified a third BPD officer, who was following the Altima. After Wurie parked the car, that officer arrested Wurie for distributing crack cocaine, read him Miranda warnings, and took him to the police station. When Wurie arrived at the station, two cell phones, a set of keys, and $1,275 in cash were taken from him. Five to ten minutes after Wurie arrived at the station, but before he was booked, two other BPD officers noticed that one of Wurie's cell phones, a gray Verizon LG phone, was repeatedly receiving calls from a number identified as “my house” on the external caller ID screen on the front of the phone. The officers were able to see the caller ID screen, and the “my house” label, in plain view. After about five more

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minutes, the officers opened the phone to look at Wurie's call log. Immediately upon opening the phone, the officers saw a photograph of a young black woman holding a baby, which was set as the phone's “wallpaper.” The officers then pressed one button on the phone, which allowed them to access the phone's call log. The call log showed the incoming calls from “my house.” The officers pressed one more button to determine the phone number associated with the “my house” caller ID reference. One of the officers typed that phone number into an online white pages directory, which revealed that the address associated with the number was on Silver Street in South Boston, not far from where Wurie had parked his car just before he was arrested. The name associated with the address was Manny Cristal. Sergeant Detective Murphy then gave Wurie a new set of Miranda warnings and asked him a series of questions. Wurie said, among other things, that he lived at an address on Speedwell Street in Dorchester and that he had only been “cruising around” in South Boston. He denied having stopped at the Lil Peach store, having given anyone a ride, and having sold crack cocaine. Suspecting that Wurie was a drug dealer, that he was lying about his address, and that he might have drugs hidden at his house, Murphy took Wurie's keys and, with other officers, went to the Silver Street address associated with the “my house” number. One of the mailboxes at that address listed the names Wurie and Cristal. Through the first-floor apartment window, the officers saw a black woman who looked like the woman whose picture appeared on Wurie's cell phone wallpaper. The officers entered the apartment to “freeze” it while they obtained a search warrant. Inside the apartment, they found a sleeping child who looked like the child in the picture on Wurie's phone. After obtaining the warrant, the officers seized from the apartment, among other things, 215 grams of crack cocaine, a firearm, ammunition, four bags of marijuana, drug paraphernalia, and $250 in cash. Wurie was charged with possessing with intent to distribute and distributing cocaine base and with being a felon in possession of a firearm and ammunition. He filed a motion to suppress the evidence obtained as a result of the warrantless search of his cell phone; the parties agreed that the relevant facts were not in dispute and that an evidentiary hearing

was unnecessary. The district court denied Wurie's motion to suppress, United States v. Wurie, 612 F.Supp.2d 104 (D.Mass.2009), and, after a four-day trial, the jury found Wurie guilty on all three counts. He was sentenced to 262 months in prison. This appeal followed.

II. Analysis In considering the denial of a motion to suppress, we review the district court's *3 factual findings for clear error and its legal conclusions de novo. United States v. Kearney, 672 F.3d 81, 88–89 (1st Cir.2012). The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” and provides that “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. Const. amend. IV. The amendment grew out of American colonial opposition to British search and seizure practices, most notably the use of writs of assistance, which gave customs officials broad latitude to search houses, shops, cellars, warehouses, and other places for smuggled goods. The Honorable M. Blane Michael, Reading the Fourth Amendment: Guidance from the Mischief that Gave it Birth, 85 N.Y.U.L. Rev. 905, 907–09 (2010); see generally William J. Cuddihy, The Fourth Amendment: Origins and Original Meaning 602–1791 (2009). James Otis, a lawyer who challenged the use of writs of assistance in a 1761 case, famously described the practice as “plac[ing] the liberty of every man in the hands of every petty officer” and sounded two main themes: the need to protect the privacy of the home (what he called the “fundamental ... Privilege of House”), Michael, supra, at 908 (citations and internal quotation marks omitted), and “the inevitability of abuse when government officials have the sort of unlimited discretion sanctioned by the writ,” id. at 909. The Supreme Court has described Otis's argument as “perhaps the most prominent event which inaugurated the resistance of the colonies to the oppressions of the mother country.” Boyd v. United States, 116 U.S. 616, 625, 6 S.Ct. 524, 29 L.Ed. 746 (1886).


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Today, a warrantless search is per se unreasonable under the Fourth Amendment, unless one of “a few specifically established and well-delineated exceptions” applies. Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)) (internal quotation marks omitted). One of those exceptions allows the police, when they make a lawful arrest, to search “the arrestee's person and the area within his immediate control.” Id. at 339, 129 S.Ct. 1710 (quoting Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969)) (internal quotation marks omitted). In recent years, courts have grappled with the question of whether the search-incident-to-arrest exception extends to data within an arrestee's cell phone. 1

A. The legal landscape The modern search-incident-to-arrest doctrine emerged from Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), in which the Supreme Court held that a warrantless search of the defendant's entire house was not justified by the fact that it occurred as part of his valid arrest. The Court found that the search-incident-toarrest exception permits an arresting officer “to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction” and to search “the area into *4 which an arrestee might reach in order to grab a weapon or evidentiary items.” Id. at 763, 89 S.Ct. 2034. The justifications underlying the exception, as articulated in Chimel, were protecting officer safety and ensuring the preservation of evidence. Id. Four years later, in United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), the Supreme Court examined how the search-incident-to-arrest exception applies to searches of the person. Robinson was arrested for driving with a revoked license, and in conducting a pat down, the arresting officer felt an object that he could not identify in Robinson's coat pocket. Id. at 220–23, 94 S.Ct. 467. He removed the object, which turned out to be a cigarette package, and then felt the package and determined that it contained something other than cigarettes. Upon opening the package, the officer found fourteen capsules of heroin. Id. at 223, 94 S.Ct. 467. The Court held that the warrantless search of the cigarette package was valid, explaining that the police have the authority to conduct “a full search of the person” incident to a lawful arrest. Id. at 235, 94 S.Ct. 467.

Robinson reiterated the principle, discussed in Chimel, that “[t]he justification or reason for the authority to search incident to a lawful arrest rests quite as much on the need to disarm the suspect in order to take him into custody as it does on the need to preserve evidence on his person for later use at trial.” Id. at 234, 94 S.Ct. 467. However, the Court also said the following: The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. Id. at 235, 94 S.Ct. 467. The following year, the Court decided United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974). Edwards was arrested on suspicion of burglary and detained at a local jail. After his arrest, police realized that Edwards's clothing, which he was still wearing, might contain paint chips tying him to the burglary. The police seized the articles of clothing and examined them for paint fragments. Id. at 801–02, 94 S.Ct. 1234. The Court upheld the search, concluding that once it became apparent that the items of clothing might contain destructible evidence of a crime, “the police were entitled to take, examine, and preserve them for use as evidence, just as they are normally permitted to seize evidence of crime when it is lawfully encountered.” Id. at 806, 94 S.Ct. 1234. The Court again addressed the search-incident-to-arrest exception in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), abrogated on other grounds by California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991), this time emphasizing that


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not all warrantless searches undertaken in the context of a custodial arrest are constitutionally reasonable. In Chadwick, the defendants were arrested immediately after having loaded a footlocker into the trunk of a car. Id. at 3–4, 97 S.Ct. 2476. The footlocker remained under the exclusive control of federal narcotics agents until they opened it, without a warrant and about an hour and a half after the defendants were arrested, and found marijuana in it. Id. at 4–5, 97 S.Ct. 2476. The Court *5 invalidated the search, concluding that the justifications for the search-incident-to-arrest exception— the need for the arresting officer “[t]o safeguard himself and others, and to prevent the loss of evidence”—were absent. Id. at 14, 97 S.Ct. 2476. The search “was conducted more than an hour after federal agents had gained exclusive control of the footlocker and long after respondents were securely in custody” and therefore could not “be viewed as incidental to the arrest or as justified by any other exigency.” Id. at 15, 97 S.Ct. 2476. Finally, there is the Supreme Court's recent decision in Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). Gant involved the search of an arrestee's vehicle, which is governed by a distinct set of rules, see id. at 343, 129 S.Ct. 1710, but the Court began with a general summary of the search-incident-to-arrest doctrine. Once again, the Court reiterated the twin rationales underlying the exception, first articulated in Chimel: “protecting arresting officers and safeguarding any evidence of the offense of arrest that an arrestee might conceal or destroy.” Id. at 339, 129 S.Ct. 1710 (citing Chimel, 395 U.S. at 763, 89 S.Ct. 2034). Relying on those safety and evidentiary justifications, the Court found that a search of a vehicle incident to arrest is lawful “when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” Id. at 343, 129 S.Ct. 1710. 2 Courts have struggled to apply the Supreme Court's searchincident-to-arrest jurisprudence to the search of data on a cell phone seized from the person. The searches at issue in the cases that have arisen thus far have involved everything from simply obtaining a cell phone's number, United States v. Flores–Lopez, 670 F.3d 803, 804 (7th Cir.2012), to looking through an arrestee's call records, United States v. Finley, 477 F.3d 250, 254 (5th Cir.2007), text messages, id., or photographs, United States v. Quintana, 594 F.Supp.2d 1291, 1295–96 (M.D.Fl.2009).

Though a majority of these courts have ultimately upheld warrantless cell phone data searches, they have used a variety of approaches. Some have concluded that, under Robinson and Edwards, a cell phone can be freely searched incident to a defendant's lawful arrest, with no justification beyond the fact of the arrest itself. E.g., People v. Diaz, 51 Cal.4th 84, 119 Cal.Rptr.3d 105, 244 P.3d 501 (2011). Others have, to varying degrees, relied on the need to preserve evidence on a cell phone. E.g., United States v. Murphy, 552 F.3d 405, 411 (4th Cir.2009); Finley, 477 F.3d at 260; Commonwealth v. Phifer, 463 Mass. 790, 979 N.E.2d 210, 213–16 (2012). The Seventh Circuit discussed the Chimel rationales more explicitly in Flores–Lopez, assuming that warrantless cell phone searches must be justified by a need to protect arresting officers or preserve destructible evidence, 670 F.3d at 806–07, and finding that evidence preservation concerns outweighed the invasion of privacy at issue in that case, because the search was minimally invasive, id. at 809. A smaller number of courts have rejected warrantless cell phone searches, with similarly disparate reasoning. In United States v. Park, No. CR 05–375 SI, 2007 WL 1521573 (N.D.Cal. May 23, 2007), for example, the court concluded that a cell *6 phone should be viewed not as an item immediately associated with the person under Robinson and Edwards but as a possession within an arrestee's immediate control under Chadwick, which cannot be searched once the phone comes into the exclusive control of the police, absent exigent circumstances, id. at *8. In State v. Smith, 124 Ohio St.3d 163, 920 N.E.2d 949 (2009), the Ohio Supreme Court distinguished cell phones from other “closed containers” that have been found searchable incident to an arrest and concluded that, because an individual has a high expectation of privacy in the contents of her cell phone, any search thereof must be conducted pursuant to a warrant, id. at 955. And most recently, in Smallwood v. State, 113 So.3d 724, 2013 WL 1830961 (Fla. May 2, 2013), the Florida Supreme Court held that the police cannot routinely search the data within an arrestee's cell phone without a warrant, id. at *10. The court read Gant as prohibiting a search once an arrestee's cell phone has been removed from his person, which forecloses the ability to use the phone as a weapon or to destroy evidence contained therein. Id.

B. Our vantage point


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We begin from the premise that, in the Fourth Amendment context, “[a] single, familiar standard is essential to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront.” Dunaway v. New York, 442 U.S. 200, 213–14, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). The Supreme Court has therefore rejected “inherently subjective and highly fact specific” rules that require “ad hoc determinations on the part of officers in the field and reviewing courts” in favor of clear ones that will be “readily understood by police officers.” Thornton v. United States, 541 U.S. 615, 623, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004); see also New York v. Belton, 453 U.S. 454, 458, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) (“A highly sophisticated set of rules, qualified by all sorts of ifs, ands, and buts and requiring the drawing of subtle nuances and hairline distinctions, may be the sort of heady stuff upon which the facile minds of lawyers and judges eagerly feed, but they may be literally impossible of application by the officer in the field.” (citation and internal quotation marks omitted)). As a result, when it upheld the warrantless search of the cigarette pack in Robinson, “the Court hewed to a straightforward rule, easily applied, and predictably enforced.” Belton, 453 U.S. at 459, 101 S.Ct. 2860. Thus, we find it necessary to craft a bright-line rule that applies to all warrantless cell phone searches, rather than resolving this case based solely on the particular circumstances of the search at issue. 3 The government seems to agree, urging us to find that a cell phone, like any other item carried on the person, can be thoroughly searched incident to a lawful arrest. 4 The government's reasoning goes *7 roughly as follows: (1) Wurie's cell phone was an item immediately associated with his person, because he was carrying it on him at the time of his arrest (or at least he does not argue otherwise); (2) such items can be freely searched without any justification beyond the fact of the lawful arrest, see Robinson, 414 U.S. at 235, 94 S.Ct. 467; (3) the search can occur even after the defendant has been taken into custody and transported to the station house, see Edwards, 415 U.S. at 803, 94 S.Ct. 1234; 5 and (4) there is no limit on the scope of the search, other than the Fourth Amendment's core reasonableness requirement, see id. at 808 n. 9, 94 S.Ct. 1234. 6 This “literal reading of the Robinson decision,” Flores– Lopez, 670 F.3d at 805, fails to account for the fact that the

Supreme Court has determined that there are categories of searches undertaken following an arrest that are inherently unreasonable because they are never justified by one of the Chimel rationales: protecting arresting officers or preserving destructible evidence. E.g., Gant, 556 U.S. 332, 129 S.Ct. 1710; Chadwick, 433 U.S. 1, 97 S.Ct. 2476. As we explain below, this case therefore turns on whether the government can demonstrate that warrantless cell phone searches, as a category, fall within the boundaries laid out in Chimel. The government admitted at oral argument that its interpretation of the search-incident-to-arrest exception would give law enforcement broad latitude to search any electronic device seized from a person during his lawful arrest, including a laptop computer or a tablet device such as an iPad. The search could encompass things like text messages, e.g., Finley, 477 F.3d at 254, emails, e.g., People v. Nottoli, 199 Cal.App.4th 531, 130 Cal.Rptr.3d 884, 894 (2011), or photographs, e.g., Quintana, 594 F.Supp.2d at 1295–96, though the officers here only searched Wurie's call log. Robinson *8 and Edwards, the government claims, compel such a finding. We suspect that the eighty-five percent of Americans who own cell phones and “use the devices to do much more than make phone calls,” Maeve Duggan & Lee Rainie, Cell Phone Activities 2012, Pew Internet & American Life Project, 2 (Nov. 25, 2012), http://pewinternet.org/ ~/media//Files/Reports/2012/PIP_Cell Activities_11.25.pdf, would have some difficulty with the government's view that “Wurie's cell phone was indistinguishable from other kinds of personal possessions, like a cigarette package, wallet, pager, or address book, that fall within the search incident to arrest exception to the Fourth Amendment's warrant requirement.” 7 In reality, “a modern cell phone is a computer,” and “a computer ... is not just another purse or address book.” Flores–Lopez, 670 F.3d at 805. The storage capacity of today's cell phones is immense. Apple's iPhone 5 comes with up to sixty-four gigabytes of storage, see Apple, iPhone, Tech Specs, http://www.apple.com/iphone/ specs.html (last visited May 16, 2013), which is enough to hold about “four million pages of Microsoft Word documents,” Charles E. MacLean, But, Your Honor, a Cell Phone is Not a Cigarette Pack: An Immodest Call for a Return to the Chimel Justifications for Cell Phone Memory Searches Incident to Lawful Arrest, 6 Fed. Cts. L. Rev. 37, 42 (2012). 8


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That information is, by and large, of a highly personal nature: photographs, videos, written and audio messages (text, email, and voicemail), contacts, calendar appointments, web search and browsing history, purchases, and financial and medical records. See United States v. Cotterman, 709 F.3d 952, 957 (9th Cir.2013) (en banc) (“The papers we create and maintain not only in physical but also in digital form reflect our most private thoughts and activities.”). 9 It is the kind of information one would previously have stored in one's home and that would have been off-limits to officers performing a search incident to arrest. See Chimel, 395 U.S. 752, 89 S.Ct. 2034. Indeed, modern cell phones provide direct access to the home in a more literal way as well; iPhones can now connect their owners directly to a home computer's webcam, via an application called iCam, so that users can monitor the inside of their homes remotely. Flores–Lopez, 670 F.3d at 806. “At the touch of a button a cell *9 phone search becomes a house search, and that is not a search of a ‘container’ in any normal sense of that word, though a house contains data.” Id. In short, individuals today store much more personal information on their cell phones than could ever fit in a wallet, address book, briefcase, or any of the other traditional containers that the government has invoked. See id. at 805 (rejecting the idea that a cell phone can be compared to other items carried on the person, because today's cell phones are “quite likely to contain, or provide ready access to, a vast body of personal data”). 10 Just as customs officers in the early colonies could use writs of assistance to rummage through homes and warehouses, without any showing of probable cause linked to a particular place or item sought, the government's proposed rule would give law enforcement automatic access to “a virtual warehouse” of an individual's “most intimate communications and photographs without probable cause” if the individual is subject to a custodial arrest, even for something as minor as a traffic violation. Matthew E. Orso, Cellular Phones, Warrantless Searches, and the New Frontier of Fourth Amendment Jurisprudence, 50 Santa Clara L. Rev. 183, 211 (2010). We are reminded of James Otis's concerns about “plac[ing] the liberty of every man in the hands of every petty officer.” Michael, supra, at 908 (citation and internal quotation marks omitted). It is true that Robinson speaks broadly, and that the Supreme Court has never found the constitutionality of a search of

the person incident to arrest to turn on the kind of item seized or its capacity to store private information. In our view, however, what distinguishes a warrantless search of the data within a modern cell phone from the inspection of an arrestee's cigarette pack or the examination of his clothing is not just the nature of the item searched, but the nature and scope of the search itself. In Gant, the Court emphasized the need for “the scope of a search incident to arrest” to be “commensurate with its purposes,” which include “protecting arresting officers and safeguarding any evidence of the offense of arrest that an arrestee might conceal or destroy.” 556 U.S. at 339, 129 S.Ct. 1710; see also Chimel, 395 U.S. at 762–63, 89 S.Ct. 2034 (“When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use ... [and] to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction.”). Inspecting the contents of a cigarette pack can (and, in Robinson, did) preserve destructible evidence (heroin capsules). It is also at least theoretically necessary to protect the arresting officer, who does not know what he will find inside the cigarette pack. Examining the clothing an arrestee is wearing can (and, in Edwards, did) preserve destructible evidence (paint chips). Thus, the searches at issue in Robinson and Edwards were the kinds of reasonable, self-limiting searches that do not offend the Fourth Amendment, even when conducted *10 without a warrant. The same can be said of searches of wallets, address books, purses, and briefcases, which are all potential repositories for destructible evidence and, in some cases, weapons. When faced, however, with categories of searches that cannot ever be justified under Chimel, the Supreme Court has taken a different approach. In Chadwick, the Court struck down warrantless searches of “luggage or other personal property not immediately associated with the person of the arrestee” that the police have “reduced ... to their exclusive control,” because such searches are not necessary to preserve destructible evidence or protect officer safety. 433 U.S. at 15, 97 S.Ct. 2476. Similarly, in Gant, the Court concluded that searching the passenger compartment of a vehicle once the arrestee has been secured and confined to a police car neither preserves destructible evidence nor protects officer safety. 556 U.S. at 335, 129 S.Ct. 1710; see also id. at 339, 129 S.Ct. 1710 (“If there is no possibility that an arrestee could reach


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into the area that law enforcement officers seek to search, both justifications for the search-incident-to-arrest exception are absent and the rule does not apply.”). The searches at issue in Chadwick and Gant were general, evidence-gathering searches, not easily subject to any limiting principle, and the Fourth Amendment permits such searches only pursuant to a lawful warrant. See Thornton, 541 U.S. at 632, 124 S.Ct. 2127 (Scalia, J., concurring) (“When officer safety or imminent evidence concealment or destruction is at issue, officers should not have to make fine judgments in the heat of the moment. But in the context of a general evidencegathering search, the state interests that might justify any overbreadth are far less compelling.”). We therefore find it necessary to ask whether the warrantless search of data within a cell phone can ever be justified under Chimel. See Flores–Lopez, 670 F.3d at 806–10 (considering whether either of the Chimel rationales applies to cell phone data searches); cf. United States v. Ortiz, 84 F.3d 977, 984 (7th Cir.1996) (upholding the warrantless search of a pager incident to arrest because of the risk of destruction of evidence). The government has provided little guidance on that question. Instead, it has hewed to a formalistic interpretation of the case law, forgetting that the searchincident-to-arrest doctrine does not describe an independent right held by law enforcement officers, but rather a class of searches that are only reasonable in the Fourth Amendment sense because they are potentially necessary to preserve destructible evidence or protect police officers. Indeed, the government has included just one, notably tentative footnote in its brief attempting to place warrantless cell phone data searches within the Chimel boundaries. We find ourselves unconvinced. The government does not argue that cell phone data searches are justified by a need to protect arresting officers. Wurie concedes that arresting officers can inspect a cell phone to ensure that it is not actually a weapon, see Flores–Lopez, 670 F.3d at 806 (“One can buy a stun gun that looks like a cell phone.”), but we have no reason to believe that officer safety would require a further intrusion into the phone's contents. As we mentioned earlier, the officer who conducted the search in Robinson had no idea what he might find in the cigarette pack, which therefore posed a safety risk. The officers who searched Wurie's phone, on the other hand, knew exactly what they would find therein: data. They also knew that the data could not harm them.

The government has, however, suggested that the search here was “arguably” necessary to prevent the destruction of *11 evidence. Specifically, the government points to the possibility that the calls on Wurie's call log could have been overwritten or the contents of his phone remotely wiped if the officers had waited to obtain a warrant. 11 The problem with the government's argument is that it does not seem to be particularly difficult to prevent overwriting of calls or remote wiping of information on a cell phone today. Arresting officers have at least three options. First, in some instances, they can simply turn the phone off or remove its battery. See Flores–Lopez, 670 F.3d at 808; Diaz, 119 Cal.Rptr.3d 105, 244 P.3d at 515 n. 24 (Werdegar, J., dissenting). Second, they can put the phone in a Faraday enclosure, a relatively inexpensive device “formed by conducting material that shields the interior from external electromagnetic radiation.” MacLean, supra, at 50 (citation and internal quotation marks omitted); see also Flores–Lopez, 670 F.3d at 809. Third, they may be able “to ‘mirror’ (copy) the entire cell phone contents, to preserve them should the phone be remotely wiped, without looking at the copy unless the original disappears.” Flores– Lopez, 670 F.3d at 809. Indeed, if there is a genuine threat of remote wiping or overwriting, we find it difficult to understand why the police do not routinely use these evidence preservation methods, rather than risking the loss of the evidence during the time it takes them to search through the phone. Perhaps the answer is in the government's acknowledgment that the possibility of remote wiping here was “remote” indeed. Weighed against the significant privacy implications inherent in cell phone data searches, we view such a slight and truly theoretical risk of evidence destruction as insufficient. While the measures described above may be less convenient for arresting officers than conducting a full search of a cell phone's data incident to arrest, the government has not suggested that they are unworkable, and it bears the burden of justifying its failure to obtain a warrant. See United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 96 L.Ed. 59 (1951). “[T]he mere fact that law enforcement may be made more efficient can never by itself justify disregard of the Fourth Amendment.” Mincey v. Arizona, 437 U.S. 385, 393, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978).


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Instead of truly attempting to fit this case within the Chimel framework, the government insists that we should disregard the Chimel rationales entirely, for two reasons. First, the government emphasizes that Robinson rejected the idea that “there must be litigated in each case the issue of whether or not there was present one of the reasons supporting the authority for a search of the person incident to a lawful arrest.” 414 U.S. at 235, 94 S.Ct. 467. *12 That holding was predicated on an assumption, clarified in Chadwick, that “[t]he potential dangers lurking in all custodial arrests” are what “make warrantless searches of items within the ‘immediate control’ area reasonable without requiring the arresting officer to calculate the probability that weapons or destructible evidence may be involved.” 433 U.S. at 14–15, 97 S.Ct. 2476. For the reasons we just discussed, that assumption appears to be incorrect in the case of cell phone data searches. More importantly, however, we are not suggesting a rule that would require arresting officers or reviewing courts to decide, on a case-by-case basis, whether a particular cell phone data search is justified under Chimel. Rather, we believe that warrantless cell phone data searches are categorically unlawful under the search-incident-to-arrest exception, given the government's failure to demonstrate that they are ever necessary to promote officer safety or prevent the destruction of evidence. We read Robinson as compatible with such a finding. Second, the government places great weight on a footnote at the end of Chadwick stating that searches of the person, unlike “searches of possessions within an arrestee's immediate control,” are “justified by ... reduced expectations of privacy caused by the arrest.” 433 U.S. at 16 n. 10, 97 S.Ct. 2476. The government reads that footnote as establishing an unlimited principle that searches of items carried on the person require no justification whatsoever beyond a lawful arrest, making Chimel irrelevant in this context. The Chadwick footnote is surely meant to reference similar language in Robinson explaining that, because the “custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment[,] ... a search incident to the arrest requires no additional justification.” 414 U.S. at 235, 94 S.Ct. 467. Yet the Court clearly stated in Robinson that “[t]he authority to search the person incident to a lawful custodial arrest” is “based upon the need to disarm and to discover evidence,”

id., and Chadwick did not alter that rule. When the Court decided Robinson in 1973 and Chadwick in 1977, any search of the person would almost certainly have been the type of self-limiting search that could be justified under Chimel. The Court, more than thirty-five years ago, could not have envisioned a world in which the vast majority of arrestees would be carrying on their person an item containing not physical evidence but a vast store of intangible data—data that is not immediately destructible and poses no threat to the arresting officers. In the end, we therefore part ways with the Seventh Circuit, which also applied the Chimel rationales in Flores–Lopez. Though the court described the risk of evidence destruction as arguably “so slight as to be outweighed by the invasion of privacy from the search,” it found that risk to be sufficient, given the minimal nature of the intrusion at issue (the officers had only searched the cell phone for its number). Flores– Lopez, 670 F.3d at 809. That conclusion was based, at least in part, on Seventh Circuit precedent allowing a “minimally invasive” warrantless search. Id. at 807 (citing United States v. Concepcion, 942 F.2d 1170 (7th Cir.1991)). We are faced with different precedent and different facts, but we also see little room for a case-specific holding, given the Supreme Court's insistence on bright-line rules in the Fourth Amendment context. See, e.g., Thornton, 541 U.S. at 623, 124 S.Ct. 2127. A series of opinions allowing some cell phone data searches but not others, based on the nature and reasonableness of the intrusion, would create exactly the “inherently subjective and highly *13 fact specific” set of rules that the Court has warned against and would be extremely difficult for officers in the field to apply. Id. Thus, while the search of Wurie's call log was less invasive than a search of text messages, emails, or photographs, it is necessary for all warrantless cell phone data searches to be governed by the same rule. A rule based on particular instances in which the police do not take full advantage of the unlimited potential presented by cell phone data searches would prove impotent in those cases in which they choose to exploit that potential. We therefore hold that the search-incident-to-arrest exception does not authorize the warrantless search of data on a cell phone seized from an arrestee's person, because the government has not convinced us that such a search is ever necessary to protect arresting officers or preserve


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destructible evidence. See Chimel, 395 U.S. at 763, 89 S.Ct. 2034. Instead, warrantless cell phone data searches strike us as a convenient way for the police to obtain information related to a defendant's crime of arrest—or other, as yet undiscovered crimes—without having to secure a warrant. We find nothing in the Supreme Court's search-incident-toarrest jurisprudence that sanctions such a “general evidencegathering search.” Thornton, 541 U.S. at 632, 124 S.Ct. 2127 (Scalia, J., concurring). 12 There are, however, other exceptions to the warrant requirement that the government has not invoked here but that might justify a warrantless search of cell phone data under the right conditions. Most importantly, we assume that the exigent circumstances exception would allow the police to conduct an immediate, warrantless search of a cell phone's data where they have probable cause to believe that the phone contains evidence of a crime, as well as a compelling need to act quickly that makes it impracticable for them to obtain a warrant—for example, where the phone is believed to contain evidence necessary to locate a kidnapped child or to investigate a bombing plot or incident. See United States v. Tibolt, 72 F.3d 965, 969 (1st Cir.1995) (discussing the exigent circumstances exception).

C. The good-faith exception That leaves only the government's belated argument, made for the first time in a footnote in its brief on appeal, that suppression is inappropriate here under the good-faith exception to the exclusionary rule. See United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The government bears the “heavy burden” of proving that the good-faith exception applies, United States v. Syphers, 426 F.3d 461, 468 (1st Cir.2005), and it did not invoke the exception before the district court. This is not a case in which an intervening change in the law made the good-faith exception relevant only after the district court issued its opinion. E.g., Davis v. United States, ––– U.S. ––––, 131 S.Ct. 2419, 2425–26, 180 L.Ed.2d 285 (2011); United States v. Sparks, 711 F.3d 58, 61–62 (1st Cir.2013); United States v. Lopez, 453 Fed.Appx. 602, 605 (6th Cir.2011); see also United States v. Curtis, 635 F.3d 704, 713–14 (5th Cir.2011) (applying the good-faith exception “to a search that was legal at the time it was conducted but has been rendered illegal by an intervening change in the

law”); United States v. McCane, 573 F.3d 1037, 1044 (10th Cir.2009) (finding *14 that “a police officer who undertakes a search in reasonable reliance upon the settled case law of a United States Court of Appeals, even though the search is later deemed invalid by Supreme Court decision, has not engaged in misconduct”). The government emphasizes that we may affirm the district court's suppression ruling on any ground made manifest by the record. United States v. Doe, 61 F.3d 107, 111–12 (1st Cir.1995). In this case, however, we do not believe that ground should be one with respect to which the government bore the burden of proof and entirely failed to carry that burden below, despite the fact that the issue was ripe for the district court's review. 13

III. Conclusion Since the time of its framing, “the central concern underlying the Fourth Amendment” has been ensuring that law enforcement officials do not have “unbridled discretion to rummage at will among a person's private effects.” Gant, 556 U.S. at 345, 129 S.Ct. 1710; see also Chimel, 395 U.S. at 767–68, 89 S.Ct. 2034. Today, many Americans store their most personal “papers” and “effects,” U.S. Const. amend. IV, in electronic format on a cell phone, carried on the person. Allowing the police to search that data without a warrant any time they conduct a lawful arrest would, in our view, create “a serious and recurring threat to the privacy of countless individuals.” Gant, 556 U.S. at 345, 129 S.Ct. 1710; cf. United States v. Jones, ––– U.S. ––––, 132 S.Ct. 945, 950, 181 L.Ed.2d 911 (2012) (“At bottom, we must ‘assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.’ ” (quoting Kyllo v. United States, 533 U.S. 27, 34, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001))). We therefore reverse the denial of Wurie's motion to suppress, vacate his conviction, and remand for further proceedings consistent with this opinion.

HOWARD, Circuit Judge, dissenting. Undoubtedly, most of us would prefer that the information stored in our cell phones be kept from prying eyes, should a phone be lost or taken from our hands by the police during an arrest. One could, individually, take protective


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steps to enhance the phone's security settings with respect to that information, or for that matter legislation might be enacted to make such unprotected information off-limits to finders or to the police unless they first obtain a warrant to search the phone. But the question here is whether the Fourth Amendment requires this court to abandon long-standing precedent and place such unprotected information contained in cell phones beyond the reach of the police when making a custodial arrest. I think that we are neither required nor authorized to rule as the majority has.

legality was beyond dispute. Judge Coffin, for the court, noted as an initial matter that “[a]ppellant concedes, as he must, that his arrest was lawful and that therefore the search of his wallet was legal.” Id. (emphasis added). It is not as though Sheehan left the legality of the search unresolved; rather, the court considered the issue uncontroversial, and therefore provided no elaboration. See also United States v. Uricoechea–Casallas, 946 F.2d 162, 165–66 (1st Cir.1991) (upholding the warrantless search of a wallet incident to a custodial arrest).

Instead, this case requires us to apply a familiar legal standard to a new form of technology. This is an exercise we must often undertake as judges, for the Constitution is as durable as technology is disruptive. In this exercise, consistency is a virtue. Admittedly, when forced to confront the boundaries not only of the Fourth Amendment, but also of the technology in question, it is not surprising that we would look beyond the case at hand and theorize about the long-term effects of our decision. Yet the implications of our decisions, while important, are ancillary to our *15 constitutionally defined power to resolve each case as it appears before us. Having scrutinized the relevant Supreme Court decisions, as well as our own precedent, I find no support for Wurie's claim that he had a constitutional right protecting the information obtained during the warrantless search. Nor do I believe that we possess the authority to create such a right. Therefore, I respectfully dissent.

Sheehan was no outlier. Courts have regularly upheld warrantless searches of nearly identical information in a range of “containers.” E.g., United States v. Ortiz, 84 F.3d 977, 984 (7th Cir.1996) (telephone numbers from a pager); United States v. Rodriguez, 995 F.2d 776, 778 (7th Cir.1993) (address book kept inside a wallet); United States v. Molinaro, 877 F.2d 1341, 1346–47 (7th Cir.1989) (phone numbers on slips of paper found in a wallet); United States v. Holzman, 871 F.2d 1496, 1504–05 (9th Cir.1989) (address book), abrogated on other grounds by Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990).

The facts are clear: the police conducted a valid custodial arrest of Wurie; the cell phone was on Wurie's person at the time of the arrest; after seeing repeated calls to Wurie's cell phone from “my house,” the police flipped it open and, pressing two buttons, retrieved the associated number. We have long acknowledged that police officers can extract this type of information from containers immediately associated with a person at the time of arrest. In United States v. Sheehan, 583 F.2d 30 (1st Cir.1978), police arrested a suspected bank robber and then searched his wallet, which included a piece of paper bearing several names and telephone numbers. Id. at 30–31. The police officers copied this piece of paper, which action Sheehan challenged as an unconstitutional seizure. The claim is made that Sheehan is inapposite to the present case because it concerned a challenge to the seizure, not the search. We, however, did not address the warrantless search in Sheehan because its

The police officers' limited search of one telephone number in Wurie's call log was even less intrusive than the searches in these cases. The police observed, in plain view, multiple calls from “my house”—a shorthand similar to what millions of cell phone owners use to quickly identify calls instead of the number assigned by the service provider—to Wurie's cell phone. Only then did they initiate their search and only for the limited purpose of retrieving the actual phone number associated with “my house.” The police did not rummage through Wurie's cell phone, unsure of what they could find. Before they had even begun their search, they knew who was calling Wurie and how many times the person had called. The additional step of identifying the actual telephone number hardly constituted a further intrusion on Wurie's privacy interests, especially since that information is immediately known to the third-party telephone company. See United States v. Flores–Lopez, 670 F.3d 803, 807 (7th Cir.2012) (holding that the police could retrieve an arrestee's cell phone number from his phone without a warrant, in part, because “the phone company *16 knows a phone's number as soon as the call is connected to the telephone network; and obtaining that information from the phone company isn't a search because by subscribing to the telephone service the user of the phone is deemed to surrender any privacy


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interest he may have had in his phone number”) (citing Smith v. Maryland, 442 U.S. 735, 742–43, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979)); see also Matthew E. Orso, Cellular Phones, Warrantless Searches, and the New Frontier of Fourth Amendment Jurisprudence, 50 Santa Clara L. Rev. 183, 210 (suggesting a rule that permits the warrantless search of “call lists and text message addressees” pursuant to an arrest). This case fits easily within existing precedent. Nor are there any other persuasive grounds for distinguishing this case from our previous decisions. That the container the police searched was a cell phone is not, by itself, dispositive, for “a constitutional distinction between ‘worthy’ and ‘unworthy’ containers would be improper.” United States v. Ross, 456 U.S. 798, 822, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). We made a similar observation in United States v. Eatherton, 519 F.2d 603 (1st Cir.1975), where we upheld the warrantless search of a briefcase incident to an arrest. Id. at 610–11. We recognized that a briefcase had some unique characteristics, but explicitly rejected any analysis turning on the nature of the searched container: “While a briefcase may be a different order of container from a cigarette box, it is not easy to rest a principled articulation of the reach of the fourth amendment upon the distinction.... [W]hile [such a distinction] may have analytical appeal, it does not presently represent the law.” Id. at 610 (citations omitted). Even assuming that cell phones possess unique attributes that we must consider as part of our analysis, none of those attributes are present in this case. Though we do not know the storage capacity of Wurie's cell phone, we know that the police did not browse through voluminous data in search of general evidence. Nor did they search the “cloud,” 14 or other applications containing particularly sensitive information. Instead, they conducted a focused and limited search of Wurie's electronic call log. If the information that they sought had been written on a piece of paper, as opposed to stored electronically, there would be no question that the police acted constitutionally, so I see no reason to hold otherwise in this case. The constitutionality of a search cannot turn solely on whether the information is written in ink or displayed electronically. The issue of warrantless cell phone searches has come before a number of circuits. E.g., Flores–Lopez, 670 F.3d at 803– 10; United States v. Curtis, 635 F.3d 704, 712 (5th Cir.2011);

Silvan W. v. Briggs, 309 Fed.Appx. 216, 225 (10th Cir.2009) (unpublished); United States v. Murphy, 552 F.3d 405, 411 (4th Cir.2009). None of them have adopted the majority's categorical bar on warrantless cell phone searches. Instead, they unanimously have concluded that the cell phone searches before them did not violate the Fourth Amendment. I reach the same conclusion here. Wurie's cell phone was on his person at the time of the arrest. The information that the police looked at was of a character that we have previously held searchable during *17 a custodial arrest. Wurie has made no convincing argument for why this search is any different than the search for phone numbers kept in a wallet or an address book. Thus, I see no reason to look for complications where none exist; Wurie has not shown a violation of his Fourth Amendment rights. In my view, there is another rationale, apparent from the record, for upholding this search: the risk that others might have destroyed evidence after Wurie did not answer his phone. Wurie received repeated calls from “my house” in the span of a few minutes after his arrest. His failure to answer these phone calls could have alerted Wurie's confederates to his arrest, prompting them to destroy further evidence of his crimes. The majority asserts that this scenario would be present “in almost every instance of a custodial arrest,” giving police an ever-ready justification to search cell phones. Supra at 11 n. 11. On the contrary, the justification is based on the specific facts of this case. The fact that “my house” repeatedly called Wurie's cell phone provided an objective basis for enhanced concern that evidence might be destroyed and thus gave the police a valid reason to inspect the phone. See Chimel v. California, 395 U.S. 752, 762–63, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). This additional reason for affirmance is not a novel one. United States v. Gomez, 807 F.Supp.2d 1134 (S.D.Fla.2011), presents a comparable example. In that case, police officers, after observing multiple phone calls from the same number to an arrested drug dealer's cell phone, first answered the ringing cell phone and thereafter communicated to the caller via text message while posing as the arrestee, which led to the discovery of additional evidence. Id. at 1139. The district court denied a motion to suppress this evidence, holding the police acted according to “the exigencies commensurate with the Defendant's ringing cell phone.” Id. at 1152; see also United States v. De La Paz, 43 F.Supp.2d


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370, 375–76 (S.D.N.Y.1999) (admitting evidence—under the exigent circumstances exception—obtained when the police answered an arrestee's cell phone and heard multiple callers identify the arrestee by his drug dealer moniker). The police action in this case is analogous—arguably less invasive— and a further reason why Wurie's constitutional challenge founders on the specific facts of this case. Granted, my fact-specific view does not comport with the all-or-nothing approach adopted by the majority and some state courts, see Smallwood v. State, No. SC11–1130, 113 So.3d 724, 2013 WL 1830961 (Fla. May 2, 2013); State v. Smith, 124 Ohio St.3d 163, 920 N.E.2d 949 (2009). But I find the competing rationale unpersuasive. 15 Most pointedly, for the reasons explained above, Wurie himself suffered no constitutional violation during the search. If we are to fashion a rule, it cannot elide the facts before us. “The constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual *18 context of the individual case.” Sibron v. New York, 392 U.S. 40, 59, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). Yet the competing analysis focuses on hypothetical searches that have not emerged in any case or controversy before this court. Those scenarios may one day form the basis of our reasoning in another case, but they cannot govern our analysis of Wurie's claim. The majority gets around this problem by requiring the government to “demonstrate that warrantless cell phone searches, as a category, fall within the boundaries laid out in Chimel.” Supra at 7. It cites United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), abrogated on other grounds by California v. Acevedo, 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991), and Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), to support this approach. The Supreme Court did hold on those two occasions, neither of which involved the search of items held by the arrestee, that certain types of searches require a warrant because they lack any Chimel justification. But the Supreme Court has not extrapolated from those cases a general rule that the government justify each category of searches under Chimel, nor a requirement that the appellate courts conduct this sort of analysis. Indeed, if the Supreme Court wishes us to look at searches incident to arrest on a categorical basis, it is curious that

the Court has offered absolutely no framework for defining what constitutes a distinct category. Each arrest has its own nuances and variations, from the item searched (as in this case) to the officer's control over it (as was the case in Chadwick ), and there could be infinite distinct categories of searches based on these variations. Yet no relevant criteria are articulated for establishing these categories. That is not a good way to impose this new paradigm, under which every arrestee is now invited to argue that his search falls into some distinct category and therefore must be justified under Chimel. Thus, either we are drastically altering the holding in United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), by forcing the government to provide a Chimel rationale for practically every search, or we are putting ourselves in the position of deciding, without any conceptual basis, which searches are part of a distinct “category” and which are not. This runs the risk of spreading confusion in the law enforcement community and multiplying, rather than limiting, litigation pertaining to these searches. It is argued that the categorical approach flows from the Supreme Court's opinion in Gant, which reaffirmed “the fundamental principles established in the Chimel case regarding the basic scope of searches incident to lawful custodial arrests.” Gant, 556 U.S. at 343, 129 S.Ct. 1710 (quoting New York v. Belton, 453 U.S. 454, 460 n. 3, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981)). Gant did take a categorical, Chimel-based approach to the search in question, but its usefulness for our analysis should not be overstated. As the government points out, the Supreme Court cases treat searches of the arrestee and the items on the arrestee—as is the case here—as either not subject to the Chimel analysis, or at least subject to a lower level of Chimel scrutiny. These cases, unlike Chimel and Gant, are on point with Wurie's case, and we are not free to disregard them in favor of the principles enunciated in Gant. As an inferior court, we are cautioned against “conclud[ing] [that] more recent cases have, by implication, overruled an earlier precedent.... [I]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line *19 of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997) (internal quotation marks and alterations omitted).


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In Robinson, the Supreme Court drew a sharp distinction between two types of searches pursuant to an arrest: searches of the arrestee and searches of the area within his control. “The validity of the search of a person incident to a lawful arrest has been regarded as settled from its first enunciation, and has remained virtually unchallenged.... Throughout the series of cases in which the Court has addressed the second [type of search,] no doubt has been expressed as to the unqualified authority of the arresting authority to search the person of the arrestee.” Robinson, 414 U.S. at 224–25, 94 S.Ct. 467. The Supreme Court did state that the basis of this authority is “the need to disarm and to discover evidence,” id. at 235, 94 S.Ct. 467, but in the next sentence clarified that “[a] custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification,” id. Indeed, the Court could not rely on a Chimel justification in Robinson, as the arresting officer conceded that he “did not in fact believe that the object in [Robinson]'s coat pocket was a weapon” and that he gave no thought to the destruction of evidence either. Id. at 251, 94 S.Ct. 467 (Marshall, J., dissenting) (quoting the arresting officer's testimony: “I didn't think about what I was looking for. I just searched him.”). Robinson may not have rejected Chimel in the context of searches of an arrestee and items on the arrestee, but it did establish that these searches differ from other types of searches incident to arrest. The Supreme Court reiterated Robinson 's holding in United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974), in which the Court upheld the search and seizure of an arrestee's clothing ten hours after he was arrested. While most of the analysis focused on the timing of the search, the opinion assumed that law enforcement could “tak[e] from [the arrestee] the effects in his immediate possession that constituted evidence of crime. This was and is a normal incident of a custodial arrest....” Id. at 805, 94 S.Ct. 1234; see also id. at 803, 94 S.Ct. 1234 (“[B]oth the person and the property in his immediate possession may be searched at the station house after the arrest has occurred....”). Once again, the Supreme Court was unconcerned with the existence or nonexistence of Chimel rationales. The opinion barely discussed them, and the government did not seek to prove that they were present. Id. at 811 n. 3, 94 S.Ct.

1234 (Stewart, J., dissenting) (“No claim is made that the police feared that Edwards either possessed a weapon or was planning to destroy the paint chips on his clothing. Indeed, the Government has not even suggested that he was aware of the presence of the paint chips on his clothing.”). Even in Chadwick, where the Supreme Court did require the police to obtain a warrant for a category of searches, it continued to treat the search of an arrestee and items immediately associated with him as independently justified by “reduced expectations of privacy caused by the arrest.” Chadwick, 433 U.S. at 16 n. 10, 97 S.Ct. 2476. Thus, the holding in Chadwick applied only to “luggage or other personal property not immediately associated with the person of the arrestee.” Id. at 15, 97 S.Ct. 2476 (emphasis added). These cases, *20 taken together, establish that items immediately associated with the arrestee—as a category —may be searched without any Chimel justification. The majority seeks a bright-line rule to govern cell phone searches, but denies the fact that such a rule—covering all items on the arrestee's person—already exists. But even if searches of items on an arrestee required Chimel justifications, I cannot see why cell phones fail to meet this standard if wallets, cigarette packages, address books, briefcases, and purses do. The attempt is made to distinguish cell phones from these other items, but those distinctions do not hold up under scrutiny. One argument is that these other items, unlike cell phones, all theoretically could contain “destructible” evidence, which justifies examining them. But the evidence in a cell phone is just as destructible as the evidence in a wallet: with the press of a few buttons, accomplished even remotely, cell phones can wipe themselves clean of data. Any claim that the information is not destructible strikes me as simply wrong. 16 Perhaps what is meant is that the cell phone data is no longer destructible once it is within the exclusive control of law enforcement officers. But even accepting that the likelihood of destruction is reduced to almost zero once the officers are in control of a cell phone, this is equally true of cigarette packages, wallets, address books, and briefcases. Drugs do not disappear into thin air; weapons do not flee of their own accord. If that is the basis for the reasoning, then a warrant should be required before searching any object within the exclusive control of the police. I do not think that the


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majority is arguing for this rule, but I cannot see any other outcome under its analysis. Ironically, cell phones arguably pose a greater Chimel risk than most other items because, unlike cigarette packages or wallets, the evidence contained in cell phones remains destructible even after the police have assumed exclusive control of the phone via remote wiping. 17 Another argument is that because cell phone searches are not “self-limiting,” they always require a warrant. The majority does not precisely define the term “self-limiting,” but I gather that it refers to the danger that cell phones, because of their vast storage capabilities, are susceptible to “general, evidence-gathering searches.” Supra at 10 (citing Thornton v. United States, 541 U.S. 615, 632, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004) (Scalia, J., concurring)). As an initial matter, this has never been the focus of Supreme Court cases discussing the search incident to arrest exception for items immediately associated with the arrestee. 18 Thus, I am *21 reluctant to give it much weight in assessing Wurie's constitutional claim. Nonetheless, if we are concerned that police officers will exceed the limits of constitutional behavior while searching cell phones, then we should define those limits so that police can perform their job both effectively and constitutionally. Instead, the majority has lumped all cell phone searches together, even while perhaps acknowledging that its broad rule may prohibit some otherwise constitutional searches. Supra at 13 (“Thus, while the search of Wurie's call log was less invasive than a search of text messages, emails, or photographs, it is necessary for all warrantless cell phone data searches to be governed by the same rule.”). But this need not be the solution. We can draw the appropriate line for cell phone searches, just as we have done in other contexts. For instance, a body search, like a cell phone search, is not inherently self-limiting. A frisk can lead to a strip search, which can lead to a cavity search, which can lead to xray scanning. But this parade of horribles has not come to pass because we have established the constitutional line, and conscientious law enforcement officers have largely adhered to it. See Swain v. Spinney, 117 F.3d 1, 5–9 (1st Cir.1997) (holding that police officers may not conduct a strip search of an arrestee incident to the arrest); see also Roberts v. Rhode Island, 239 F.3d 107, 113 (1st Cir.2001) (holding that indiscriminate strip searches of misdemeanant arrestees during administrative processing at a detention facility violated the Fourth Amendment). The majority has

instead chosen to ignore this option in favor of a rule that sweeps too far. Still, I share many of the majority's concerns about the privacy interests at stake in cell phone searches. While the warrantless search of Wurie's phone fits within one of our “specifically established and well-delineated exceptions,” United States v. Camacho, 661 F.3d 718, 724 (1st Cir.2011) (citations omitted) (internal quotation marks omitted), due to the rapid technological development of cell phones and their increasing prevalence in society, cell phone searches do pose a risk of depriving arrestees of their protection against unlawful searches and seizures. There must be an outer limit to their legality. In Flores–Lopez, Judge Posner suggested that courts should balance the need to search a cell phone against the privacy interests at stake. [E]ven when the risk either to the police officers or to the existence of the evidence is negligible, the search is allowed, provided it's no more invasive than, say, a frisk, or the search of a conventional container, such as Robinson's cigarette pack, in which heroin was found. If instead of a frisk it's a strip search, the risk to the officers' safety or to the preservation of evidence of crime must be greater to justify the search. Flores–Lopez, 670 F.3d at 809 (citations omitted). I believe that cell phone searches should follow this formula. That *22 is not to say that the police must prove a risk to officer safety or destruction of evidence in every case. There is, inherent in every custodial arrest, some minimal risk to officer safety and destruction of evidence. Moreover, Chadwick states that the arrest itself diminishes the arrestee's privacy rights over items “immediately associated” with the arrestee. Chadwick, 433 U.S. at 15, 97 S.Ct. 2476. But the invasion of the arrestee's privacy should be proportional to the justification for the warrantless search. This approach respects “the Fourth Amendment's general proscription against unreasonable searches and seizures.” Edwards, 415 U.S. at 808 n. 9, 94 S.Ct. 1234 (citations


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omitted) (internal quotation marks omitted). It is also consistent with the core reasonableness limit that has been acknowledged in Robinson, which does not permit “extreme or patently abusive” searches, Robinson, 414 U.S. at 236, 94 S.Ct. 467, and its offspring, see, e.g., Swain, 117 F.3d at 5–9. The Supreme Court's recent opinion in Missouri v. McNeely, ––– U.S. ––––, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), shows that the reasonableness inquiry remains a touchstone of Fourth Amendment analysis. The Court held that, in the context of warrantless blood tests of drunk drivers, courts had to look to “the totality of the circumstances” to determine whether police officers' reliance on the exigency exception was reasonable. Id. at 1558–63. Similarly, while Robinson 's principles generally authorize cell phone searches, and certainly encompass the search in this case, there are reasonable limits to Robinson that we should not hesitate to enforce, especially in light of a cell phone's unique technological capabilities, for “[i]t would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology.” Kyllo v. United States, 533 U.S. 27, 33–34, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). I find helpful the analysis in United States v. Cotterman, 709 F.3d 952 (9th Cir.2013) (en banc). In that case, the Ninth Circuit determined whether a warrantless forensic examination of a laptop computer during a border search

violated the Fourth Amendment. The court conducted a reasonableness analysis, balancing the privacy interests of the individual against the sovereign's interests in policing its borders. Id. at 960. It stated that, had the search only involved “turn[ing] on the devices and open[ing] and view[ing] image files ... we would be inclined to conclude it was reasonable.” Id. at 960–61. However, the invasive nature of the forensics examination, which included restoring previously deleted files, as well as “the uniquely sensitive nature of data on electronic devices,” id. at 966, convinced the court that the forensics examination was an unreasonable border search absent a showing of reasonable suspicion, id. at 968. A similar reasonableness analysis would restrain certain types of cell phone searches under Robinson. The inherent risks in a custodial arrest, along with the reduced privacy expectations of the arrestee, must be balanced against the wide range of private data available in a cell phone. But ultimately the question of what constitutes an unreasonable cell phone search should be left for another day. The majority has outlined some of the more troubling privacy invasions that could occur during a warrantless search. So long as they remain in the hypothetical realm, I think it premature to draw the line. Suffice it to say that, for the reasons I have stated, the search in this case fell on the constitutional side of that line. 19 I respectfully dissent.

Footnotes

1 2 3

4

On appeal, Wurie does not challenge the seizure of his phone, and he concedes that, under the plain view exception, see United States v. Paneto, 661 F.3d 709, 713–14 (1st Cir.2011), the officers were entitled to take notice of any information that was visible to them on the outside of the phone and on its screen (including, in this case, the incoming calls from “my house”). The Court also concluded, “[a]lthough it does not follow from Chimel,” that “circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” Gant, 556 U.S. at 343, 129 S.Ct. 1710 (citation and internal quotation marks omitted). The dissent, advocating a case-by-case, fact-specific approach, relies on Missouri v. McNeely, ––– U.S. ––––, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), which rejected a per se rule for warrantless blood tests of drunk drivers. But McNeely involved the exigent circumstances exception to the warrant requirement, and courts must “evaluate each case of alleged exigency based ‘on its own facts and circumstances.’ ” Id. at 1559 (quoting Go–Bart Importing Co. v. United States, 282 U.S. 344, 357, 51 S.Ct. 153, 75 L.Ed. 374 (1931)). The Supreme Court explicitly distinguished the exigency exception, which “naturally calls for a case-specific inquiry,” from the search-incident-to-arrest exception, which “appl[ies] categorically.” Id. at 1559 n. 3. It is worth noting three things that the government is not arguing in this case. First, it does not challenge the district court's finding that what occurred here was a Fourth Amendment search. See Wurie, 612 F.Supp.2d at 109 (“It seems indisputable that a person has a subjective expectation of privacy in the contents of his or her cell phone.”). Second, the government does not suggest that Wurie's


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5

6

7

8

9 10

11

12 13 14

expectation of privacy was in any way reduced because his phone was apparently not password-protected. Third, it does not claim that this was an inventory search. See Illinois v. Lafayette, 462 U.S. 640, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983). It is not clear from the record how much time passed between Wurie's arrest and the search of his cell phone at the station house. Nonetheless, because Wurie has not raised the argument, we need not decide whether the government is correct that, under Edwards, the search here was “incident to” Wurie's arrest, despite the delay. See 415 U.S. at 803, 94 S.Ct. 1234 (“[S]earches and seizures that could be made on the spot at the time of arrest may legally be conducted later when the accused arrives at the place of detention.”). The government has also suggested a more limited way for us to resolve this case: by holding that this particular search was lawful under United States v. Sheehan, 583 F.2d 30 (1st Cir.1978). But Sheehan was a seizure case, not a search case, and “[i]t is extremely important to distinguish a search of the person from a seizure of objects found in that search.” 3 Wayne R. LaFave, Search & Seizure § 5.2(j), at 185 (5th ed. 2012). The defendant in Sheehan conceded that “the search of his wallet was legal”; he challenged only the seizure of a list of names and telephone numbers in the wallet. 583 F.2d at 31. Because the list was not “a fruit, instrumentality, or contraband, probative of a crime,” but rather “mere evidence,” we analyzed whether probable cause existed to support the seizure. Id. (citing Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967)). The lawfulness of a search of the person incident to arrest, however, does not turn on the likelihood that evidence of the crime of arrest will be discovered. See Robinson, 414 U.S. at 234, 94 S.Ct. 467. The Supreme Court did articulate such a rule in Gant but limited it to the vehicle context. 556 U.S. at 343, 129 S.Ct. 1710. See, e.g., United States v. Ortiz, 84 F.3d 977, 984 (7th Cir.1996) (pager); United States v. Uricoechea–Casallas, 946 F.2d 162, 166 (1st Cir.1991) (wallet); United States v. Holzman, 871 F.2d 1496, 1504–05 (9th Cir.1989) (address book), overruled on other grounds by Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990); United States v. Burnette, 698 F.2d 1038, 1049 (9th Cir.1983) (purse); United States v. Eatherton, 519 F.2d 603, 610–11 (1st Cir.1975) (briefcase). We are also cognizant of the fact that “[m]obile devices increasingly store personal user data in the cloud instead of on the device itself,” which “allows the data to be accessed from multiple devices and provides backups.” James E. Cabral et al., Using Technology to Enhance Access to Justice, 26 Harv. J.L. & Tech. 241, 268 (2012). Though the government insisted at oral argument that it was not seeking a rule that would permit access to information stored in the cloud, we believe that it may soon be impossible for an officer to avoid accessing such information during the search of a cell phone or other electronic device, which could have additional privacy implications. See United States v. Cotterman, 709 F.3d 952, 965 (9th Cir.2013) (en banc) (“With the ubiquity of cloud computing, the government's reach into private data becomes even more problematic.”). For cases demonstrating the potential for abuse of private information contained in a modern cell phone, see, for example, Schlossberg v. Solesbee, 844 F.Supp.2d 1165 (D.Or.2012), and Newhard v. Borders, 649 F.Supp.2d 440 (W.D.Va.2009). The record here does not reveal the storage capacity of Wurie's cell phone, but that is of no significance, for two reasons. First, “[e]ven the dumbest of modern cell phones gives the user access to large stores of information.” Flores–Lopez, 670 F.3d at 806. Second, neither party has suggested that our holding today should turn on the specific features of Wurie's cell phone, and we find such a rule unworkable in any event. See Thornton, 541 U.S. at 623, 124 S.Ct. 2127; Murphy, 552 F.3d at 411 (“[T]o require police officers to ascertain the storage capacity of a cell phone before conducting a search would simply be an unworkable and unreasonable rule.”). The government and our dissenting colleague have also suggested that Wurie's failure to answer calls or to return home after the drug deal might have alerted others to the fact of his arrest and caused them to destroy or conceal evidence (presumably the drug stash later discovered at his home). That is mere speculation, and it is also a possibility present in almost every instance of a custodial arrest; we do not think that such concerns should always justify the search of a cell phone or other electronic device. Furthermore, the risk of destruction, as we understand it, attaches to the evidence that the arrestee is actually carrying on his person—not to evidence being held or guarded elsewhere by a co-conspirator. See Gant, 556 U.S. at 339, 129 S.Ct. 1710 (describing the need to safeguard “any evidence of the offense of arrest that an arrestee might conceal or destroy” (emphasis added)); Chimel, 395 U.S. at 763, 89 S.Ct. 2034 (“In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction.” (emphasis added)). We acknowledge that we may have to revisit this issue in the years to come, if further changes in technology cause warrantless cell phone data searches to become necessary under one or both of the Chimel rationales. The government invokes United States v. Grupee, 682 F.3d 143, 148 (1st Cir.2012), in which we addressed the good-faith exception despite the fact that the district court had not done so in its opinion. However, the record in that case reveals that the government had raised the good-faith exception below; the district court simply did not reach it. The government does not claim a right to conduct warrantless searches of information in the cloud. This is an important concession, for it suggests that the government accepts that there are limits to searches of items found on custodial arrestees. I discuss my view of those limits later.


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15

16

17

18

19

The insistence on a bright-line rule contrasts with the recent Supreme Court opinion in Missouri v. McNeely, ––– U.S. ––––, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), which rejected a bright line rule and instead relied on a totality of the circumstances analysis for warrantless blood tests of drunk drivers, id. at 1564 (“[A] case-by-case approach is hardly unique within our Fourth Amendment jurisprudence. Numerous police actions are judged based on fact-intensive, totality of the circumstances analyses rather than according to categorical rules, including in situations that are [ ] likely to require police officers to make difficult split-second judgments.”). While it can be argued that a bright-line rule is preferable, it cannot be claimed that such a rule is necessary. The term “destructible” evidence is perhaps intended to mean “physical” or “tangible” evidence. That distinction does not fly, for two reasons. First, just because evidence is intangible does not make it indestructible. As noted, an arrestee can delete data just as easily as he can discard drugs. Second, any distinction based on the difference between tangible and intangible evidence ignores the fact that we have upheld the warrantless search of intangible information during a custodial arrest. United States v. Sheehan, 583 F.2d 30, 31 (1st Cir.1978). It is also half-heartedly suggested that containers that hold physical objects, unlike cell phones, pose a risk to officer safety. “[T]he officer who conducted the search in Robinson had no idea what he might find in the cigarette pack, which therefore posed a safety risk.” Supra at 10. I find it hard to believe that a reasonable police officer is more justified in remaining on guard against boobytrapped cigarette packs and wallets in the line of duty, than she is against sophisticated electronic devices. For instance, in Robinson, the police conducted their search pursuant to a standard operating procedure of the police department, which trained officers to carry out a full field search after any arrest. United States v. Robinson, 414 U.S. 218, 221 n. 2, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). That entailed “completely search[ing] the individual and inspect[ing] areas such as behind the collar, underneath the dollar [sic], the waistband of the trousers, the cuffs, the socks and shoes ... [as well as] examin[ing] the contents of all the pockets' [sic] of the arrestee....” Id. (internal quotation marks omitted). Given that Robinson was arrested for a traffic violation, and that the arresting officer conceded that he felt no personal risk during the arrest, the only conceivable purpose for this search was to gather general evidence. If there had been a constitutional violation here, the application of the good faith exception would present an interesting question. Because I would find no constitutional violation, however, I do not address the government's good faith exception argument. But I disagree with the majority's decision not to consider the good faith exception to the extent that it based that decision on the government's failure to invoke the exception before the district court. We may affirm on any basis apparent from the record. See United States v. Sanchez, 612 F.3d 1, 4 (1st Cir.2010). Of course, if the record is underdeveloped because the appellee did not present the issue to the district court, the appellee must suffer the consequences. See Giordenello v. United States, 357 U.S. 480, 488, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958) (“To permit the Government to inject its new theory into the case at this stage would unfairly deprive petitioner of an adequate opportunity to respond. This is so because in the District Court petitioner, being entitled to assume that the warrant constituted the only purported justification for the arrest, had no reason to ... adduce evidence of his own to rebut the contentions that the Government makes here for the first time.”). Such is not the case here. The good faith exception is merely an extension of the government's main argument that this search complied with existing law. The factual record appears sufficiently developed to allow our consideration of this argument, and the government, by raising it in its brief on appeal, gave Wurie the opportunity to respond in his reply brief. Thus, I would not bypass this argument merely because the government first raised it on appeal. See Jordan v. U.S. Dep't of Justice, 668 F.3d 1188, 1200 (10th Cir.2011) (holding that an appellate court may affirm on an alternate ground “provided that the alternate ground is within our power to formulate and the opposing party has had a fair chance to address it”) (citations omitted) (internal quotation marks and alterations omitted).

End of Document



17

City of Ontario, Cal. v. Quon, 560 U.S. 746 (2010) 130 S.Ct. 2619, 93 Empl. Prac. Dec. P 43,907, 177 L.Ed.2d 216, 78 USLW 4591...

130 S.Ct. 2619 Supreme Court of the United States CITY OF ONTARIO, CALIFORNIA, et al., Petitioners, v. Jeff QUON et al. No. 08–1332. | Argued April 19, 2010. | Decided June 17, 2010. Synopsis Background: City police officer brought § 1983 action against city, police department, police chief, alleging that police department's review of officer's text messages violated Fourth Amendment, and asserted claim against wireless communications provider under Stored Communications Act (SCA). The United States District Court for the Central District of California, Stephen G. Larson, J., 445 F.Supp.2d 1116, granted summary judgment for wireless provider on SCA claim, and, following jury determination as to chief's intent in ordering review of text messages, entered judgment in favor of remaining defendants on Fourth Amendment and related state-law claims. Officer appealed. The Ninth Circuit Court of Appeals, Wardlaw, Circuit Judge, 529 F.3d 892, affirmed in part and reversed in part, holding that officer had reasonable expectation of privacy in text messages but that search was not reasonable. City's petition for certiorari was granted.

[Holding:] The Supreme Court, Justice Kennedy, held that city's review of officer's text messages was reasonable, and thus did not violate Fourth Amendment.

Reversed and remanded. Justice Stevens filed concurring opinion. Justice Scalia filed opinion concurring in part and concurring in judgment.

**2621 *746 Syllabus * Petitioner Ontario (hereinafter City) acquired alphanumeric pagers able to send and receive text messages. Its contract with its service provider, Arch Wireless, provided for a monthly limit on the number of characters each pager could send or receive, and specified that usage exceeding that number would result in an additional fee. The City issued the pagers to respondent Quon and other officers in its police department (OPD), also a petitioner here. When Quon and others exceeded their monthly character limits for several months running, petitioner Scharf, OPD's chief, sought to determine whether the **2622 existing limit was too low, i.e., whether the officers had to pay fees for sending work-related messages or, conversely, whether the overages were for personal messages. After Arch Wireless provided transcripts of Quon's and another employee's August and September 2002 text messages, it was discovered that many of Quon's messages were not work related, and some were sexually explicit. Scharf referred the matter to OPD's internal affairs division. The investigating officer used Quon's work schedule to redact from his transcript any messages he sent while off duty, but the transcript showed that few of his on-duty messages related to police business. Quon was disciplined for violating OPD rules. He and the other respondents—each of whom had exchanged text messages with Quon during August and September— filed this suit, alleging, inter alia, that petitioners violated their Fourth Amendment rights and the federal Stored Communications Act (SCA) by obtaining and reviewing the transcript of Quon's pager messages, and that Arch Wireless violated the SCA by giving the City the transcript. The District Court denied respondents summary judgment on the constitutional claims, relying on the plurality opinion in O'Connor v. Ortega, 480 U.S. 709, 107 S.Ct. 1492, 94 L.Ed.2d 714, to determine that Quon had a reasonable expectation of privacy in the content of his messages. Whether the audit was nonetheless reasonable, the court concluded, turned on whether Scharf used it for the improper purpose of determining if Quon was using his pager to waste time, or for the legitimate purpose of determining the efficacy of existing character limits to ensure that officers were not paying hidden *747 work-related costs. After the jury concluded that Scharf's intent was legitimate, the court


1


granted petitioners summary judgment on the ground they did not violate the Fourth Amendment. The Ninth Circuit reversed. Although it agreed that Quon had a reasonable expectation of privacy in his text messages, the appeals court concluded that the search was not reasonable even though it was conducted on a legitimate, work-related rationale. The opinion pointed to a host of means less intrusive than the audit that Scharf could have used. The court further concluded that Arch Wireless had violated the SCA by giving the City the transcript. Held: Because the search of Quon's text messages was reasonable, petitioners did not violate respondents' Fourth Amendment rights, and the Ninth Circuit erred by concluding otherwise. Pp. 2627 – 2633. (a) The Amendment guarantees a person's privacy, dignity, and security against arbitrary and invasive governmental acts, without regard to whether the government actor is investigating crime or performing another function. Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 613–614, 109 S.Ct. 1402, 103 L.Ed.2d 639. It applies as well when the government acts in its capacity as an employer. Treasury Employees v. Von Raab, 489 U.S. 656, 665, 109 S.Ct. 1384, 103 L.Ed.2d 685. The Members of the O'Connor Court disagreed on the proper analytical framework for Fourth Amendment claims against government employers. A fourJustice plurality concluded that the correct analysis has two steps. First, because “some [government] offices may be so open ... that no expectation of privacy is reasonable,” a court must consider “[t]he operational realities of the workplace” to determine if an employee's constitutional rights are implicated. 480 U.S., at 718, 107 S.Ct. 1492. Second, where an employee has a legitimate privacy expectation, an employer's intrusion on that expectation “for noninvestigatory, work-related purposes, as well as for investigations of work- **2623 related misconduct, should be judged by the standard of reasonableness under all the circumstances.” Id., at 725–726, 107 S.Ct. 1492. Justice SCALIA, concurring in the judgment, would have dispensed with the “operational realities” inquiry and concluded “that the offices of government employees ... are [generally] covered by Fourth Amendment protections,” id., at 731, 107 S.Ct. 1492, but he would also have held “that government searches to retrieve work-related materials or to investigate violations of workplace rules—searches of the sort that are regarded as reasonable and normal in the private-employer

context—do not violate the ... Amendment,” id., at 732, 107 S.Ct. 1492. Pp. 2627 – 2629. (b) Even assuming that Quon had a reasonable expectation of privacy in his text messages, the search was reasonable under both O'Connor approaches, the plurality's and Justice SCALIA's. Pp. 2629 – 2633. *748 (1) The Court does not resolve the parties' disagreement over Quon's privacy expectation. Prudence counsels caution before the facts in this case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations of employees using employerprovided communication devices. Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. At present, it is uncertain how workplace norms, and the law's treatment of them, will evolve. Because it is therefore preferable to dispose of this case on narrower grounds, the Court assumes, arguendo, that: (1) Quon had a reasonable privacy expectation; (2) petitioners' review of the transcript constituted a Fourth Amendment search; and (3) the principles applicable to a government employer's search of an employee's physical office apply as well in the electronic sphere. Pp. 2629 – 2630. (2) Petitioners' warrantless review of Quon's pager transcript was reasonable under the O'Connor plurality's approach because it was motivated by a legitimate work-related purpose, and because it was not excessive in scope. See 480 U.S., at 726, 107 S.Ct. 1492. There were “reasonable grounds for [finding it] necessary for a noninvestigatory work-related purpose,” ibid., in that Chief Scharf had ordered the audit to determine whether the City's contractual character limit was sufficient to meet the City's needs. It was also “reasonably related to the objectives of the search,” ibid., because both the City and OPD had a legitimate interest in ensuring that employees were not being forced to pay out of their own pockets for work-related expenses, or, on the other hand, that the City was not paying for extensive personal communications. Reviewing the transcripts was an efficient and expedient way to determine whether either of these factors caused Quon's overages. And the review was also not “excessively intrusive.” Ibid. Although Quon had exceeded his monthly allotment a number of times, OPD requested transcripts for only August and September 2002 in order to obtain a large enough sample to decide the


2


character limits' efficaciousness, and all the messages that Quon sent while off duty were redacted. And from OPD's perspective, the fact that Quon likely had only a limited privacy expectation lessened the risk that the review would intrude on highly private details of Quon's life. Similarly, because the City had a legitimate reason for the search and it was not excessively intrusive in light of that justification, the search would be “regarded as reasonable and normal in the private-employer context” and thereby satisfy the approach of Justice SCALIA's concurrence, id., at 732, 107 S.Ct. 1492. **2624 Conversely, the Ninth Circuit's “least intrusive” means approach was inconsistent with *749 controlling precedents. See, e.g., Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 663, 115 S.Ct. 2386, 132 L.Ed.2d 564. Pp. 2630 – 2633. (c) Whether the other respondents can have a reasonable expectation of privacy in their text messages to Quon need not be resolved. They argue that because the search was unreasonable as to Quon, it was also unreasonable as to them, but they make no corollary argument that the search, if reasonable as to Quon, could nonetheless be unreasonable as to them. Given this litigating position and the Court's conclusion that the search was reasonable as to Quon, these other respondents cannot prevail. P. 2633. 529 F.3d 892, reversed and remanded. KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C.J., and STEVENS, THOMAS, GINSBURG, BREYER, ALITO, and SOTOMAYOR, JJ., joined, and in which SCALIA, J., joined except for Part III–A. STEVENS, J., filed a concurring opinion. SCALIA, J., filed an opinion concurring in part and concurring in the judgment.

Attorneys and Law Firms Kent L. Richland (argued), Los Angeles, CA, for the petitioners. Neal K. Katyal, for the U.S. as amicus curiae, by special leave of the Court, supporting the petitioners. Dieter Dammeier, Upland, CA, for respondents.

Dimitrios C. Rinos, Rinos & Martin, LLP, Tustin, CA, Kent L. Richland, Kent J. Bullard, Greines, Martin, Stein & Richland LLP, Los Angeles, CA, for Petitioners. Dimitrios C. Rinos, Rinos & Martin, LLP, Tustin, CA, Kent L. Richland, Kent J. Bullard, Greines, Martin, Stein & Richland LLP, Los Angeles, CA, for Petitioners. Dieter C. Dammeier, Michael A. McGill, Lackie, Dammeier & McGill, Upland, CA, for Respondents Jerilyn Quon, April Florio, Jeff Quon and Steve Trujillo. Opinion Justice KENNEDY delivered the opinion of the Court. *750 This case involves the assertion by a government employer of the right, in circumstances to be described, to read text messages sent and received on a pager the employer owned and issued to an employee. The employee contends that the privacy of the messages is protected by the ban on “ unreasonable searches and seizures” found in the Fourth Amendment to the United States Constitution, made applicable to the States by the Due Process Clause of the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Though the case touches issues of farreaching significance, the Court concludes it can be resolved by settled principles determining when a search is reasonable.

I A The City of Ontario (City) is a political subdivision of the State of California. The case arose out of incidents in 2001 and 2002 when respondent Jeff Quon was employed by the Ontario Police Department (OPD). He was a police sergeant and member of OPD's Special Weapons and Tactics (SWAT) Team. The City, OPD, and OPD's Chief, Lloyd Scharf, are petitioners **2625 here. As will be discussed, two respondents share the last name Quon. In this opinion “Quon” refers to Jeff Quon, for the relevant events mostly revolve around him.


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In October 2001, the City acquired 20 alphanumeric pagers capable of sending and receiving text messages. Arch Wireless Operating Company provided wireless service for the pagers. Under the City's service contract with Arch Wireless, each pager was allotted a limited number of characters *751 sent or received each month. Usage in excess of that amount would result in an additional fee. The City issued pagers to Quon and other SWAT Team members in order to help the SWAT Team mobilize and respond to emergency situations. Before acquiring the pagers, the City announced a “Computer Usage, Internet and E–Mail Policy” (Computer Policy) that applied to all employees. Among other provisions, it specified that the City “reserves the right to monitor and log all network activity including e-mail and Internet use, with or without notice. Users should have no expectation of privacy or confidentiality when using these resources.” App. to Pet. for Cert. 152a. In March 2000, Quon signed a statement acknowledging that he had read and understood the Computer Policy. The Computer Policy did not apply, on its face, to text messaging. Text messages share similarities with e-mails, but the two differ in an important way. In this case, for instance, an e-mail sent on a City computer was transmitted through the City's own data servers, but a text message sent on one of the City's pagers was transmitted using wireless radio frequencies from an individual pager to a receiving station owned by Arch Wireless. It was routed through Arch Wireless' computer network, where it remained until the recipient's pager or cellular telephone was ready to receive the message, at which point Arch Wireless transmitted the message from the transmitting station nearest to the recipient. After delivery, Arch Wireless retained a copy on its computer servers. The message did not pass through computers owned by the City. Although the Computer Policy did not cover text messages by its explicit terms, the City made clear to employees, including Quon, that the City would treat text messages the same way as it treated e-mails. At an April 18, 2002, staff meeting at which Quon was present, Lieutenant Steven Duke, the OPD officer responsible for the City's contract *752 with Arch Wireless, told officers that messages sent on the pagers “are considered e-mail messages. This means that [text] messages would fall under the City's policy as public information and [would be]

eligible for auditing.” App. 30. Duke's comments were put in writing in a memorandum sent on April 29, 2002, by Chief Scharf to Quon and other City personnel. Within the first or second billing cycle after the pagers were distributed, Quon exceeded his monthly text message character allotment. Duke told Quon about the overage, and reminded him that messages sent on the pagers were “considered e-mail and could be audited.” Id., at 40. Duke said, however, that “it was not his intent to audit [an] employee's text messages to see if the overage [was] due to work related transmissions.” Ibid. Duke suggested that Quon could reimburse the City for the overage fee rather than have Duke audit the messages. Quon wrote a check to the City for the overage. Duke offered the same arrangement to other employees who incurred overage fees. Over the next few months, Quon exceeded his character limit three or four times. Each time he reimbursed the City. Quon **2626 and another officer again incurred overage fees for their pager usage in August 2002. At a meeting in October, Duke told Scharf that he had become “ ‘tired of being a bill collector.’ ” Id., at 91. Scharf decided to determine whether the existing character limit was too low—that is, whether officers such as Quon were having to pay fees for sending work-related messages—or if the overages were for personal messages. Scharf told Duke to request transcripts of text messages sent in August and September by Quon and the other employee who had exceeded the character allowance. At Duke's request, an administrative assistant employed by OPD contacted Arch Wireless. After verifying that the City was the subscriber on the accounts, Arch Wireless provided the desired transcripts. Duke reviewed the transcripts *753 and discovered that many of the messages sent and received on Quon's pager were not work related, and some were sexually explicit. Duke reported his findings to Scharf, who, along with Quon's immediate supervisor, reviewed the transcripts himself. After his review, Scharf referred the matter to OPD's internal affairs division for an investigation into whether Quon was violating OPD rules by pursuing personal matters while on duty. The officer in charge of the internal affairs review was Sergeant Patrick McMahon. Before conducting a review, McMahon used Quon's work schedule to redact the transcripts in order to eliminate any messages Quon sent while off duty.


4


He then reviewed the content of the messages Quon sent during work hours. McMahon's report noted that Quon sent or received 456 messages during work hours in the month of August 2002, of which no more than 57 were work related; he sent as many as 80 messages during a single day at work; and on an average workday, Quon sent or received 28 messages, of which only 3 were related to police business. The report concluded that Quon had violated OPD rules. Quon was allegedly disciplined.

B Raising claims under Rev. Stat. § 1979, 42 U.S.C. § 1983; 18 U.S.C. § 2701 et seq., popularly known as the Stored Communications Act (SCA); and California law, Quon filed suit against petitioners in the United States District Court for the Central District of California. Arch Wireless and an individual not relevant here were also named as defendants. Quon was joined in his suit by another plaintiff who is not a party before this Court and by the other respondents, each of whom exchanged text messages with Quon during August and September 2002: Jerilyn Quon, Jeff Quon's then-wife, from whom he was separated; April Florio, an OPD employee with whom Jeff Quon was romantically involved; and Steve Trujillo, another member of the OPD SWAT Team. *754 Among the allegations in the complaint was that petitioners violated respondents' Fourth Amendment rights and the SCA by obtaining and reviewing the transcript of Jeff Quon's pager messages and that Arch Wireless had violated the SCA by turning over the transcript to the City. The parties filed cross-motions for summary judgment. The District Court granted Arch Wireless' motion for summary judgment on the SCA claim but denied petitioners' motion for summary judgment on the Fourth Amendment claims. Quon v. Arch Wireless Operating Co., 445 F.Supp.2d 1116 (C.D.Cal.2006). Relying on the plurality opinion in O'Connor v. Ortega, 480 U.S. 709, 711, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987), the District Court determined that Quon had a reasonable expectation of privacy in the content of his text messages. Whether the audit of the **2627 text messages was nonetheless reasonable, the District Court concluded, turned on Chief Scharf's intent: “[I]f the purpose for the audit was to determine if Quon was using his pager to ‘play games' and ‘waste time,’ then the audit was not constitutionally

reasonable”; but if the audit's purpose “was to determine the efficacy of the existing character limits to ensure that officers were not paying hidden work-related costs, ... no constitutional violation occurred.” 445 F.Supp.2d, at 1146. The District Court held a jury trial to determine the purpose of the audit. The jury concluded that Scharf ordered the audit to determine the efficacy of the character limits. The District Court accordingly held that petitioners did not violate the Fourth Amendment. It entered judgment in their favor. The United States Court of Appeals for the Ninth Circuit reversed in part. 529 F.3d 892 (2008). The panel agreed with the District Court that Jeff Quon had a reasonable expectation of privacy in his text messages but disagreed with the District Court about whether the search was reasonable. Even though the search was conducted for “a legitimate work-related rationale *755 ,” the Court of Appeals concluded, it “was not reasonable in scope.” Id., at 908. The panel disagreed with the District Court's observation that “there were no lessintrusive means” that Chief Scharf could have used “to verify the efficacy of the 25,000 character limit ... without intruding on [respondents'] Fourth Amendment rights.” Id., at 908–909. The opinion pointed to a “host of simple ways” that the chief could have used instead of the audit, such as warning Quon at the beginning of the month that his future messages would be audited, or asking Quon himself to redact the transcript of his messages. Id., at 909. The Court of Appeals further concluded that Arch Wireless had violated the SCA by turning over the transcript to the City. The Ninth Circuit denied a petition for rehearing en banc. Quon v. Arch Wireless Operating Co., 554 F.3d 769 (2009). Judge Ikuta, joined by six other Circuit Judges, dissented. Id., at 774–779. Judge Wardlaw concurred in the denial of rehearing, defending the panel's opinion against the dissent. Id., at 769–774. This Court granted the petition for certiorari filed by the City, OPD, and Chief Scharf challenging the Court of Appeals' holding that they violated the Fourth Amendment. 558 U.S. 1090, 130 S.Ct. 1011, 175 L.Ed.2d 617 (2009). The petition for certiorari filed by Arch Wireless challenging the Ninth Circuit's ruling that Arch Wireless violated the SCA was denied. USA Mobility Wireless, Inc. v. Quon, 558 U.S. 1091, 130 S.Ct. 1011, 175L.Ed.2d 618 (2009).


5


government offices may be so open to fellow employees or the public that no expectation of privacy is reasonable,” id., at II 718, 107 S.Ct. 1492, a court must consider “[t]he operational [1] [2] [3] The Fourth Amendment states: “The right realities of the workplace” in order to determine whether an employee's Fourth Amendment rights are implicated, id., at of the people to be secure in their persons, houses, papers, 717, 107 S.Ct. 1492. On this view, “the question whether and effects, against unreasonable searches and seizures, an employee has a reasonable *757 expectation of privacy shall not be violated ....” It is well settled that the must be addressed on a case-by-case basis.” Id., at 718, 107 Fourth Amendment's protection extends beyond the sphere S.Ct. 1492. Next, where an employee has a legitimate privacy of criminal investigations. Camara v. Municipal Court of expectation, an employer's intrusion on that expectation City and County of San Francisco, 387 U.S. 523, 530, “for noninvestigatory, work-related purposes, as well as 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967). “The Amendment for investigations of work-related misconduct, should be guarantees the privacy, dignity, and security of *756 persons judged by the standard of reasonableness under all the against certain arbitrary and invasive acts by officers of the circumstances.” Id., at 725–726, 107 S.Ct. 1492. Government,” without regard to whether the government actor is investigating crime or performing another function. [7] Justice SCALIA, concurring in the judgment, outlined a Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, different approach. His opinion would have dispensed with an 613–614, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). The inquiry into “operational realities” and would conclude “that Fourth Amendment applies as well when the Government acts the offices of government employees ... are covered by Fourth in its capacity as an employer. Treasury **2628 Employees Amendment protections as a general matter.” Id., at 731, 107 v. Von Raab, 489 U.S. 656, 665, 109 S.Ct. 1384, 103 L.Ed.2d S.Ct. 1492. But he would also have held “that government 685 (1989). searches to retrieve work-related materials or to investigate [4] The Court discussed this principle in O'Connor. There a violations of workplace rules—searches of the sort that are regarded as reasonable and normal in the private-employer physician employed by a state hospital alleged that hospital context—do not violate the Fourth Amendment.” Id., at 732, officials investigating workplace misconduct had violated 107 S.Ct. 1492. his Fourth Amendment rights by searching his office and seizing personal items from his desk and filing cabinet. All Members of the Court agreed with the general principle that “[i]ndividuals do not lose Fourth Amendment rights merely because they work for the government instead of a private employer.” 480 U.S., at 717, 107 S.Ct. 1492 (plurality opinion); see also id., at 731, 107 S.Ct. 1492 (SCALIA, J., concurring in judgment); id., at 737, 107 S.Ct. 1492 (Blackmun, J., dissenting). A majority of the Court further agreed that “ ‘special needs, beyond the normal need for law enforcement,’ ” make the warrant and probable-cause requirement impracticable for government employers. Id., at 725, 107 S.Ct. 1492 (plurality opinion) (quoting New Jersey v. T.L. O., 469 U.S. 325, 351, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985)) (Blackmun, J., concurring in judgment); 480 U.S., at 732, 107 S.Ct. 1492 (opinion of SCALIA, J.) (quoting same).

Later, in the Von Raab decision, the Court explained that “operational realities” could diminish an employee's privacy expectations, and that this diminution could be taken into consideration when assessing the reasonableness of a workplace search. 489 U.S., at 671, 109 S.Ct. 1384. In the two decades since O'Connor, however, the threshold test for determining the scope of an employee's Fourth Amendment rights has not been clarified further. Here, though they disagree on whether Quon had a reasonable expectation of privacy, both petitioners and respondents start from the premise that the O'Connor plurality controls. See Brief for Petitioners 22–28; Brief for Respondents 25–32. It is not necessary to resolve whether that premise is correct. The case can be decided by determining that the search was **2629 reasonable even assuming Quon had a reasonable expectation [5] [6] The O'Connor Court did disagree on the proper of privacy. The two O'Connor approaches—the plurality's and Justice SCALIA's—therefore lead to the same result here. analytical framework for Fourth Amendment claims against government employers. A four-Justice plurality concluded that the correct analysis has two steps. First, because “some


6


*758 III A Before turning to the reasonableness of the search, it is instructive to note the parties' disagreement over whether Quon had a reasonable expectation of privacy. The record does establish that OPD, at the outset, made it clear that pager messages were not considered private. The City's Computer Policy stated that “[u]sers should have no expectation of privacy or confidentiality when using” City computers. App. to Pet. for Cert. 152a. Chief Scharf's memo and Duke's statements made clear that this official policy extended to text messaging. The disagreement, at least as respondents see the case, is over whether Duke's later statements overrode the official policy. Respondents contend that because Duke told Quon that an audit would be unnecessary if Quon paid for the overage, Quon reasonably could expect that the contents of his messages would remain private. At this point, were we to assume that inquiry into “operational realities” were called for, compare O'Connor, 480 U.S., at 717, 107 S.Ct. 1492 (plurality opinion), with id., at 730–731, 107 S.Ct. 1492 (opinion of SCALIA, J.); see also id., at 737– 738, 107 S.Ct. 1492 (BLACKMUN, J., dissenting), it would be necessary to ask whether Duke's statements could be taken as announcing a change in OPD policy, and if so, whether he had, in fact or appearance, the authority to make such a change and to guarantee the privacy of text messaging. It would also be necessary to consider whether a review of messages sent on police pagers, particularly those sent while officers are on duty, might be justified for other reasons, including performance evaluations, litigation concerning the lawfulness of police actions, and perhaps compliance with state open records laws. See Brief for Petitioners 35–40 (citing Cal. Public Records Act, Cal. Govt.Code Ann. § 6250 et seq. (West 2008)). These matters would all bear on the legitimacy of an employee's privacy expectation. [8] *759 The Court must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer. The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become

clear. See, e.g., Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928), overruled by Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). In Katz, the Court relied on its own knowledge and experience to conclude that there is a reasonable expectation of privacy in a telephone booth. See id., at 360–361, 88 S.Ct. 507 (Harlan, J., concurring). It is not so clear that courts at present are on so sure a ground. Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices. Rapid changes in the dynamics of communication and information transmission are evident not just in the technology itself but in what society accepts as proper behavior. As one amici brief notes, many employers expect or at least tolerate personal use of such equipment by employees because it often increases worker efficiency. See Brief for Electronic Frontier **2630 Foundation et al. 16– 20. Another amicus points out that the law is beginning to respond to these developments, as some States have recently passed statutes requiring employers to notify employees when monitoring their electronic communications. See Brief for New York Intellectual Property Law Association 22 (citing Del.Code Ann., Tit. 19, § 705 (2005); Conn. Gen.Stat. Ann. § 31–48d (West 2003)). At present, it is uncertain how workplace norms, and the law's treatment of them, will evolve. Even if the Court were certain that the O'Connor plurality's approach were the right one, the Court would have difficulty predicting how employees' privacy expectations will be shaped by those changes or the degree to which society *760 will be prepared to recognize those expectations as reasonable. See 480 U.S., at 715, 107 S.Ct. 1492. Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification. That might strengthen the case for an expectation of privacy. On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cell phones or similar devices for personal matters can purchase and pay for their own. And employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.


7


A broad holding concerning employees' privacy expectations vis–à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted. It is preferable to dispose of this case on narrower grounds. For present purposes we assume several propositions arguendo: First, Quon had a reasonable expectation of privacy in the text messages sent on the pager provided to him by the City; second, petitioners' review of the transcript constituted a search within the meaning of the Fourth Amendment; and third, the principles applicable to a government employer's search of an employee's physical office apply with at least the same force when the employer intrudes on the employee's privacy in the electronic sphere.

B [9] Even if Quon had a reasonable expectation of privacy in his text messages, petitioners did not necessarily violate the Fourth Amendment by obtaining and reviewing the transcripts. Although as a general matter, warrantless searches “are per se unreasonable under the Fourth Amendment,” there are “a few specifically established and well-delineated exceptions” to that general rule. Katz, supra, at 357, 88 S.Ct. 507. The Court has held that the “ ‘special needs' ” of the workplace *761 justify one such exception. O'Connor, 480 U.S., at 725, 107 S.Ct. 1492 (plurality opinion); id., at 732, 107 S.Ct. 1492 (SCALIA, J., concurring in judgment); Von Raab, 489 U.S., at 666–667, 109 S.Ct. 1384. Under the approach of the O'Connor plurality, when conducted for a “noninvestigatory, work-related purpos[e]” or for the “investigatio[n] of work-related misconduct,” a government employer's warrantless search is reasonable if it is “ ‘justified at its inception’ ” and if “ ‘the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of’ ” the circumstances giving rise to the search. 480 U.S., at 725–726, 107 S.Ct. 1492. The search here satisfied the standard of the O'Connor plurality and was reasonable under that approach. **2631 The search was justified at its inception because there were “reasonable grounds for suspecting that the search [was] necessary for a noninvestigatory work-related

purpose.” Id., at 726, 107 S.Ct. 1492. As a jury found, Chief Scharf ordered the search in order to determine whether the character limit on the City's contract with Arch Wireless was sufficient to meet the City's needs. This was, as the Ninth Circuit noted, a “legitimate work-related rationale.” 529 F.3d, at 908. The City and OPD had a legitimate interest in ensuring that employees were not being forced to pay out of their own pockets for work-related expenses, or on the other hand that the City was not paying for extensive personal communications. As for the scope of the search, reviewing the transcripts was reasonable because it was an efficient and expedient way to determine whether Quon's overages were the result of work-related messaging or personal use. The review was also not “ ‘excessively intrusive.’ ” O'Connor, supra, at 726, 107 S.Ct. 1492 (plurality opinion). Although Quon had gone over his monthly allotment a number of times, OPD requested transcripts for only the months of August and September 2002. While it may have been reasonable as well for OPD to review transcripts of all the months in which Quon exceeded his *762 allowance, it was certainly reasonable for OPD to review messages for just two months in order to obtain a large enough sample to decide whether the character limits were efficacious. And it is worth noting that during his internal affairs investigation, McMahon redacted all messages Quon sent while off duty, a measure which reduced the intrusiveness of any further review of the transcripts. Furthermore, and again on the assumption that Quon had a reasonable expectation of privacy in the contents of his messages, the extent of an expectation is relevant to assessing whether the search was too intrusive. See Von Raab, supra, at 671, 109 S.Ct. 1384; cf. Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 654–657, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995). Even if he could assume some level of privacy would inhere in his messages, it would not have been reasonable for Quon to conclude that his messages were in all circumstances immune from scrutiny. Quon was told that his messages were subject to auditing. As a law enforcement officer, he would or should have known that his actions were likely to come under legal scrutiny, and that this might entail an analysis of his on-the-job communications. Under the circumstances, a reasonable employee would be aware that sound management principles might require the audit of messages to determine whether the pager was being appropriately used. Given that the City issued the pagers to Quon and other SWAT Team


8


members in order to help them more quickly respond to crises —and given that Quon had received no assurances of privacy —Quon could have anticipated that it might be necessary for the City to audit pager messages to assess the SWAT Team's performance in particular emergency situations. From OPD's perspective, the fact that Quon likely had only a limited privacy expectation, with boundaries that we need not here explore, lessened the risk that the review would intrude on highly private details of Quon's life. OPD's audit of messages on Quon's employer-provided pager was not nearly as intrusive as a search of his personal e-mail account *763 or pager, or a wiretap on his home phone line, would have been. That the search did reveal intimate details of Quon's life does not make it unreasonable, for under the circumstances a reasonable employer would not expect that such a review would intrude **2632 on such matters. The search was permissible in its scope. The Court of Appeals erred in finding the search unreasonable. It pointed to a “host of simple ways to verify the efficacy of the 25,000 character limit ... without intruding on [respondents'] Fourth Amendment rights.” 529 F.3d, at 909. The panel suggested that Scharf “could have warned Quon that for the month of September he was forbidden from using his pager for personal communications, and that the contents of all his messages would be reviewed to ensure the pager was used only for work-related purposes during that time frame. Alternatively, if [OPD] wanted to review past usage, it could have asked Quon to count the characters himself, or asked him to redact personal messages and grant permission to [OPD] to review the redacted transcript.” Ibid. [10] This approach was inconsistent with controlling precedents. This Court has “repeatedly refused to declare that only the ‘least intrusive’ search practicable can be reasonable under the Fourth Amendment.” Vernonia, supra, at 663, 115 S.Ct. 2386; see also, e.g., Board of Ed. of Independent School Dist. No. 92 of Pottawatomie Cty. v. Earls, 536 U.S. 822, 837, 122 S.Ct. 2559, 153 L.Ed.2d 735 (2002); Illinois v. Lafayette, 462 U.S. 640, 647, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983). That rationale “could raise insuperable barriers to the exercise of virtually all search-and-seizure powers,” United States v. Martinez–Fuerte, 428 U.S. 543, 557, n. 12, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), because “judges engaged in post hoc evaluations of government conduct can almost always imagine some alternative means by which the objectives of

the government might have been accomplished,” Skinner, 489 U.S., at 629, n. 9, 109 S.Ct. 1402 (internal quotation marks and brackets omitted). The analytic errors of the Court of Appeals in this case illustrate the necessity of *764 this principle. Even assuming there were ways that OPD could have performed the search that would have been less intrusive, it does not follow that the search as conducted was unreasonable. Respondents argue that the search was per se unreasonable in light of the Court of Appeals' conclusion that Arch Wireless violated the SCA by giving the City the transcripts of Quon's text messages. The merits of the SCA claim are not before us. But even if the Court of Appeals was correct to conclude that the SCA forbade Arch Wireless from turning over the transcripts, it does not follow that petitioners' actions were unreasonable. Respondents point to no authority for the proposition that the existence of statutory protection renders a search per se unreasonable under the Fourth Amendment. And the precedents counsel otherwise. See Virginia v. Moore, 553 U.S. 164, 168, 128 S.Ct. 1598, 170 L.Ed.2d 559 (2008) (search incident to an arrest that was illegal under state law was reasonable); California v. Greenwood, 486 U.S. 35, 43, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988) (rejecting argument that if state law forbade police search of individual's garbage the search would violate the Fourth Amendment). Furthermore, respondents do not maintain that any OPD employee either violated the law him– or herself or knew or should have known that Arch Wireless, by turning over the transcript, would have violated the law. The otherwise reasonable search by OPD is not rendered unreasonable by the assumption that Arch Wireless violated the SCA by turning over the transcripts. [11] Because the search was motivated by a legitimate workrelated purpose, and because it was not excessive in scope, the search was reasonable under the approach of the O'Connor plurality. **2633 480 U.S., at 726, 107 S.Ct. 1492. For these same reasons—that the employer had a legitimate reason for the search, and that the search was not excessively intrusive in light of that justification—the Court also concludes that the search would be “regarded as reasonable and normal in the private-employer context” and would satisfy the approach of Justice *765 SCALIA's concurrence. Id., at 732, 107 S.Ct. 1492. The search was reasonable, and the Court of Appeals erred by holding to the contrary. Petitioners did not violate Quon's Fourth Amendment rights.


9


C Finally, the Court must consider whether the search violated the Fourth Amendment rights of Jerilyn Quon, Florio, and Trujillo, the respondents who sent text messages to Jeff Quon. Petitioners and respondents disagree whether a sender of a text message can have a reasonable expectation of privacy in a message he knowingly sends to someone's employerprovided pager. It is not necessary to resolve this question in order to dispose of the case, however. Respondents argue that because “the search was unreasonable as to Sergeant Quon, it was also unreasonable as to his correspondents.” Brief for Respondents 60 (some capitalization omitted; boldface deleted). They make no corollary argument that the search, if reasonable as to Quon, could nonetheless be unreasonable as to Quon's correspondents. See id., at 65–66. In light of this litigating position and the Court's conclusion that the search was reasonable as to Jeff Quon, it necessarily follows that these other respondents cannot prevail.

*** Because the search was reasonable, petitioners did not violate respondents' Fourth Amendment rights, and the court below erred by concluding otherwise. The judgment of the Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

Justice STEVENS, concurring. Although I join the Court's opinion in full, I write separately to highlight that the Court has sensibly declined to resolve whether the plurality opinion in *766 O'Connor v. Ortega, 480 U.S. 709, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987), provides the correct approach to determining an employee's reasonable expectation of privacy. See ante, at 2628 – 2629. Justice Blackmun, writing for the four dissenting Justices in O'Connor, agreed with Justice SCALIA that an employee enjoys a reasonable expectation of privacy in his office. 480 U.S., at 737, 107 S.Ct. 1492. But he advocated a third approach to the reasonable expectation of privacy inquiry,

separate from those proposed by the O'Connor plurality and by Justice SCALIA, see ante, at 2628. Recognizing that it is particularly important to safeguard “a public employee's expectation of privacy in the workplace” in light of the “ reality of work in modern time,” 480 U.S., at 739, 107 S.Ct. 1492, which lacks “tidy distinctions” between workplace and private activities, ibid., Justice Blackmun argued that “the precise extent of an employee's expectation of privacy often turns on the nature of the search,” id., at 738, 107 S.Ct. 1492. And he emphasized that courts should determine this expectation in light of the specific facts of each particular search, rather than by announcing a categorical standard. See id., at 741, 107 S.Ct. 1492. For the reasons stated at page 2631 of the Court's opinion, it is clear that respondent Jeff Quon, as a law enforcement officer who served on a SWAT Team, should **2634 have understood that all of his work-related actions—including all of his communications on his official pager—were likely to be subject to public and legal scrutiny. He therefore had only a limited expectation of privacy in relation to this particular audit of his pager messages. Whether one applies the reasoning from Justice O'Connor's opinion, Justice SCALIA's concurrence, or Justice Blackmun's dissent * in O'Connor, the result *767 is the same: The judgment of the Court of Appeals in this case must be reversed.

Justice SCALIA, concurring in part and concurring in the judgment. I join the Court's opinion except for Part III–A. I continue to believe that the “operational realities” rubric for determining the Fourth Amendment's application to public employees invented by the plurality in O'Connor v. Ortega, 480 U.S. 709, 717, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987), is standardless and unsupported. Id., at 729–732, 107 S.Ct. 1492 (SCALIA, J., concurring in judgment). In this case, the proper threshold inquiry should be not whether the Fourth Amendment applies to messages on public employees' employer-issued pagers, but whether it applies in general to such messages on employer-issued pagers. See id., at 731, 107 S.Ct. 1492. Here, however, there is no need to answer that threshold question. Even accepting at face value Quon's and his coplaintiffs' claims that the Fourth Amendment applies to their messages, the city's search was reasonable, and thus did not violate the Amendment. See id., at 726, 107 S.Ct. 1492


10


(plurality opinion); id., at 732, 107 S.Ct. 1492 (SCALIA, J., concurring in judgment). Since it is unnecessary to decide whether the Fourth Amendment applies, it is unnecessary to resolve which approach in O'Connor controls: the plurality's or mine. * That should end the matter. *768 The Court concedes as much, ante, at 2628 – 2629, 2630 – 2633, yet it inexplicably interrupts its analysis with a recitation of the parties' arguments concerning, and an **2635 excursus on the complexity and consequences of answering, that admittedly irrelevant threshold question, ante, at 2629 – 2630. That discussion is unnecessary. (To whom do we owe an additional explanation for declining to decide an issue, once we have explained that it makes no difference?) It also seems to me exaggerated. Applying the Fourth Amendment to new technologies may sometimes be difficult, but when it is necessary to decide a case we have no choice. The Court's implication, ante, at 2629, that where electronic privacy is concerned we should decide less than we otherwise would (that is, less than the principle of law necessary to resolve the case and guide private action) —or that we should hedge our bets by concocting casespecific standards or issuing opaque opinions—is in my view indefensible. The-times-they-are-a-changin' is a feeble excuse for disregard of duty. Worse still, the digression is self-defeating. Despite the Court's insistence that it is agnostic about the proper test, lower courts will likely read the Court's self-described “instructive” expatiation on how the O'Connor plurality's

approach would apply here (if it applied), ante, at 2629 – 2630, as a heavy-handed hint about how they should proceed. Litigants will do likewise, using the threshold question whether the Fourth Amendment is even implicated as a basis for bombarding lower courts with arguments about employer policies, how they were communicated, and whether they were authorized, as well as the latest trends in employees' use of *769 electronic media. In short, in saying why it is not saying more, the Court says much more than it should. The Court's inadvertent boosting of the O'Connor plurality's standard is all the more ironic because, in fleshing out its fears that applying that test to new technologies will be too hard, the Court underscores the unworkability of that standard. Any rule that requires evaluating whether a given gadget is a “necessary instrumen[t] for self-expression, even selfidentification,” on top of assessing the degree to which “the law's treatment of [workplace norms has] evolve[d],” ante, at 2629 – 2630, is (to put it mildly) unlikely to yield objective answers. I concur in the Court's judgment.

Parallel Citations 130 S.Ct. 2619, 93 Empl. Prac. Dec. P 43,907, 177 L.Ed.2d 216, 78 USLW 4591, 159 Lab.Cas. P 61,011, 30 IER Cases 1345, 10 Cal. Daily Op. Serv. 7565, 2010 Daily Journal D.A.R. 9072, 22 Fla. L. Weekly Fed. S 470

Footnotes

* *

*

The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 50 L.Ed. 499. I do not contend that Justice Blackmun's opinion is controlling under Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977), but neither is his approach to evaluating a reasonable expectation of privacy foreclosed by O'Connor. Indeed, his approach to that inquiry led to the conclusion, shared by Justice SCALIA but not adopted by the O'Connor plurality, that an employee had a reasonable expectation of privacy in his office. See O'Connor v. Ortega, 480 U.S. 709, 718, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987) (plurality opinion). But Justice Blackmun would have applied the Fourth Amendment's warrant and probablecause requirements to workplace investigatory searches, id., at 732, 107 S.Ct. 1492 (dissenting opinion), whereas a majority of the Court rejected that view, see id., at 722, 725, 107 S.Ct. 1492 (plurality opinion); id., at 732, 107 S.Ct. 1492 (SCALIA, J., concurring in judgment). It was that analysis—regarding the proper standard for evaluating a search when an employee has a reasonable expectation of privacy—that produced the opposite result in the case. This case does not implicate that debate because it does not involve an investigatory search. The jury concluded that the purpose of the audit was to determine whether the character limits were sufficient for work-related messages. See ante, at 2627. Despite his disclaimer, ante, at 2634, n. (concurring opinion), Justice STEVENS' concurrence implies, ante, at 2633 – 2634, that it is also an open question whether the approach advocated by Justice Blackmun in his dissent in O'Connor is the proper standard.


11

City of Ontario, Cal. v. Quon, 560 U.S. 746 (2010) 130 S.Ct. 2619, 93 Empl. Prac. Dec. P 43,907, 177 L.Ed.2d 216, 78 USLW 4591... There is room for reasonable debate as to which of the two approaches advocated by Justices whose votes supported the judgment in O'Connor—the plurality's and mine—is controlling under Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977). But unless O'Connor is overruled, it is assuredly false that a test that would have produced the opposite result in that case is still in the running.

End of Document



12

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547

98 Mich. L. Rev. 547 Michigan Law Review December, 1999 Article RECOVERING THE ORIGINAL FOURTH AMENDMENT Thomas Y. Davies a1 Copyright (c) 1999 Michigan Law Review Association; Thomas Y. Davies “The past is a foreign country: they do things differently there.” aa1

Table of Contents I. II. III.

IV.

V.

Introduction and Overview Overview of the Argument in this Article The Modern Notion of “Fourth Amendment Reasonableness” Previous Treatments of the Historical Fourth Amendment -- and Their Shortcomings A. The Conventional Historical Accounts by Lasson and Cuddihy B. The Shortcomings of the Conventional Accounts C. The Generalized-Reasonableness Accounts by Taylor and Amar D. The Flaws in the Generalized-Reasonableness Accounts 1. The Framers' Attitude Toward Warrantless Intrusions 2. The Framers' Attitude Toward Specific Warrants E. Summary The Prochronistic Assumptions That Have Obscured the Authentic Meaning of the Text A. There Was No Historical “Reasonableness” Standard 1. The Absence of a Broad Reasonableness Standard in Framing-Era Law 2. The Absence of a Broad Reasonableness Standard in the Records of the Framing B. The Framers' Complaints Did Not Involve Warrantless Intrusions 1. The Concerns Expressed During the Prerevolutionary Controversies 2. The Concerns Expressed During the Ratification Debates 3. The Post-Framing Understanding of the Constitutional Search and Seizure Provisions Why It Made Sense for the Framers to Focus on Prohibiting Legislative Approval of General Warrants A. Why the Framers Were Concerned Only with Prohibiting General Warrants 1. The Salient Characteristics of Framing-Era Criminal Law Enforcement Authority 2. “Justification” for Arrests and Searches at Common Law 3. The Meager Authority of the Warrantless Officer 4. The Heightened Importance of Warrant Authority for Intrusions into Houses 5. The Framers' Acceptance of Specific Warrants 6. The Illegality of General Warrants 7. Why the Framers Feared Legislative Approval of General Warrants for Customs Searches B. Why the Framers Did Not Perceive Misconduct by Officers as a Form of Government Action C. Summary: The Framers' Concern with Banning Legislative Approval of General Warrants


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VI.

VII.

VIII.

IX.

The Actual Framing-Era Meaning of “Unreasonable Searches and Seizures” A. How the Framers Approached Declarations of Rights B. The Textual Evolution of Search and Seizure Provisions 1. The Straightforward State Bans Against General Warrants 2. Pennsylvania's Addition of an Introductory Right Statement 3. The Introduction of “Unreasonable” in the 1780 Massachusetts Provision C. What “Unreasonable” Meant, and Why John Adams Chose It 1. Coke's Use of “Against Reason” as a Label for Unconstitutionality 2. Otis's Claim that the Statute Creating the General Writ of Assistance Was “Against Reason” 3. Other Common-law Authorities' Use of “Unreasonable” to Condemn General Warrants The Original Meaning of the Fourth Amendment A. Anti-Federalist Proposals for a Federal Protection Against General Warrants B. Madison's Proposal for a Federal Ban Against “General Warrants” 1. Madison's Single-Clause Format 2. Madison's Focus on Banning Legislative Approval of General Warrants 3. Madison's Use of “Probable Cause” 4. Madison's Substitution of “Other Property” for “Possessions” C. The Committee of Eleven's Review of Madison's Proposal 1. The Committee's Substitution of “Effects” 2. The Committee's Acceptance of the Substance and Format of Madison's Proposal D. Gerry's Motion to Make Madison's Text More Imperative E. Adoption and Ratification of the Text F. Summary: The Original Meaning of the Fourth Amendment The Transformation to Modern Doctrine A. The Loss of Common-Law Restraints Against Discretionary Authority B. The Supreme Court's Stretching of the Original Understanding in Boyd C. The Supreme Court's Extension of the Fourth Amendment to Warrantless Intrusions in Weeks D. The Supreme Court's Articulation of a Relativistic “Reasonableness” Standard in Carroll The Implications of the Authentic Original Meaning A. The Inauthenticity of the Generalized-Reasonableness Construction B. The Limited Authenticity of the Warrant-Preference Construction C. The Undesirability of “Returning” to the Literal Original Meaning D. The Nonoriginalism of Selective Originalism E. The Infeasability of “Translating” the Original Meaning for the Modern Context F. Confronting the Inescapability of Doctrinal Change

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*550 I. Introduction and Overview Claims regarding the original or intended meaning of constitutional texts are commonplace in constitutional argument and analysis. All such claims are subject to an implicit validity criterion--only historically authentic assertions should matter. The rub is that the original meaning commonly attributed to a constitutional text may not be authentic. The historical Fourth Amendment is a case in point. If American judges, lawyers, or law teachers were asked what the Framers intended when they adopted the Fourth Amendment, they would likely answer that the Framers intended that all searches and seizures conducted by government officers must be reasonable given the circumstances. That answer may seem obvious--the Amendment begins with a clause that states that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .” 1 Indeed, this language has been identified as a prime example of how the original understanding can be gleaned directly from constitutional text--what could “unreasonable” mean if not inappropriate in the circumstances? 2


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*551 Of course, the reference to “unreasonable searches and seizures” does not exhaust the intended meaning of the text--the standards for valid arrest or search warrants that are set out in the second clause also show that the Framers intended to ban the use of too-loose, or “general,” warrants. Thus the Framers intended to require that all searches and seizures be reasonable and also to forbid use of general warrants. There is a difficulty embedded in the apparently obvious meanings of the two clauses, however--the text does not indicate how they fit together. It does not say whether a valid warrant should be the usual criterion for a “reasonable” police intrusion, or whether “Fourth Amendment reasonableness” should be assessed independently of use of a warrant. Put more concretely, it does not indicate whether or in what circumstances arrests or searches must be made pursuant to a warrant. Thus, it does not say when an officer should be allowed to intrude on the basis of his own judgment, or when he should be required to obtain prior approval from a judge. Largely because of this silence in the text, the need for warrants has been the central issue in the modern debate regarding search and seizure authority. A number of the historical commentaries on the Fourth Amendment have either favored or rejected a warrant requirement. However, none have supported their answer with persuasive historical evidence. If one turns to the historical sources themselves, the mystery initially deepens: the participants in the historical controversies that stimulated the framing of the Fourth Amendment simply did not discuss when a warrant was required. Odd as it may seem, the Framers simply were not troubled by the most salient issue in the modern debate. However, upon closer examination, the historical sources do provide a solution to the silence. They show that the Framers did not perceive the problem of search and seizure authority in the same way we now do. In fact, they reveal that the Framers did not even use the term “unreasonable searches and seizures” the way we do. The historical statements about search and seizure focused on condemning general warrants. In fact, the historical concerns were almost exclusively about the need to ban house searches under general warrants. Thus, the Framers clearly understood the warrant standards to be the operative content of the Fourth Amendment, as well as the earlier state search and seizure provisions. Moreover, the evidence indicates that the Framers understood “unreasonable searches and seizures” simply as a pejorative label for the inherent illegality of any searches or seizures that might be made under general warrants. In other words, the Framers did not address warrantless intrusions at all in the Fourth Amendment or in the earlier state provisions; thus, they never anticipated that “unreasonable” might be read as a standard for warrantless intrusions. *552 Perplexing as that omission may appear from a modern perspective, it made sense in the context of the Framers' understanding of the problem of search and seizure. They saw no need for a constitutional standard to regulate the warrantless officer because they did not perceive the warrantless officer as being capable of posing a significant threat to the security of person or house. That was so because the ex officio authority of the peace officer was still meager in 1789. Warrant authority was the potent source of arrest and search authority. As a result, the Framers expected that warrants would be used. Thus, they believed that the only threat to the right to be secure came from the possibility that too-loose warrants might be used. The modern interpretation of “unreasonable searches and seizures” is the product of post-framing developments that the Framers did not anticipate. During the nineteenth century, courts and legislatures responded to heightened concerns about crime and disorder by expanding peace officers' ex officio authority to arrest and search. That expansion marginalized warrant authority and thus undercut the premises that had led the Framers to believe that they could control the officer by controlling the warrant. As a result, the new discretionary arrest and search authority of the officer posed a novel threat to the security of person and house.


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In the early twentieth century, the Supreme Court belatedly responded to the new threat to the right to be secure by extending constitutional search and seizure doctrine to the warrantless officer. It was at that time that the “warrant requirement” emerged as a salient issue. And it was at that time that the reference to “unreasonable searches and seizures” in the constitutional text was reinterpreted as though it articulated the relativistic concept of reasonableness-in-the-circumstances. In sum, the authentic history of constitutional search and seizure doctrine is not a simple story of continuity; rather, it is a story that includes drastic change.

Overview of the Argument in this Article This Article begins the presentation of the authentic history of the Fourth Amendment by recovering the original understanding from the historical sources. 3 The experience of working out the authentic history has convinced me that one cannot grasp the original meaning un >til one first accepts the invalidity of the usual modern assumptions about the concerns the Framers “must have” experienced. For that reason, this Article makes two passes through the historical evidence. Parts II through IV refute the now commonplace assumption that the Framers must have meant to create a broad reasonableness standard for warrantless intrusions. Part II briefly reviews the two currently competing constructions of Fourth Amendment reasonableness: the more conventional warrant-preference construction, which treats the warrant process as the central protection called for by the Amendment, and the generalized-reasonableness construction, which rejects the need for, or value of, warrants. Part III next reviews the existing historical accounts associated with the two constructions and shows that each account is significantly flawed. The conventional accounts, which are linked to the warrant-preference construction, posit both a historical reasonableness standard, as well as the importance of warrants, but fail to clarify the Framers' understanding of when a warrant need be used. In contrast, the generalized-reasonableness accounts claim that the Framers meant for “unreasonable” to constitute the essence of the Amendment, while the warrant clause was meant only to discourage use of warrants. However, they are based in large measure on erroneous historical premises. Moreover, all of the previous accounts suffer from having made prochronistic assumptions of one sort or another; that is, at critical points they have each imposed contemporary concepts, definitions, or concerns on the historical sources and thus have misperceived the actual content of those sources. Part IV completes the historical critique of Fourth Amendment reasonableness by exposing the inauthenticity of the shared but prochronistic assumptions that have misdirected prior commentaries. It first exposes the lack of any actual evidence of a broad reasonableness-in-the-circumstances standard in framing-era arrest and search law. It next shows that the Framers' complaints were not about warrantless intrusions but were almost exclusively about revenue searches of houses under general warrants. Additionally, it shows that early interpretations of the Fourth Amendment and of the related state provisions did not include the regulation of warrantless intrusions; rather, post-framing court decisions interpreted the constitutional provisions banning “unreasonable searches and seizures” as regulating only the issuance of warrants. After exposing the defects in current treatments of the original meaning, Parts V through VII make a second pass through the historical sources to recover the Framers' understanding of the constitutional provisions. Part V consults common-law sources to reconstruct how the Framers perceived the problem of search and seizure authority and to explain why the Framers thought that control of warrant authority--and, more precisely, the prohibition of general warrant *554 authority--would suffice to preserve the right to be secure in person and house. The explanation consists of two strands. First, common-law sources indicate that it made sense for the Framers to focus only on clarifying warrant standards because the ex officio authority of the framingera officer was still rather meager. For example, the framing-era constable's arrest authority was much narrower than is generally supposed, and nowhere near that of a modern police officer. 4 Likewise, the justifications available for a warrantless entry of a house were especially limited. At common law, controlling the warrant did control the officer for all practical purposes.


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The second reason the Framers did not address warrantless intrusions was that they did not anticipate that a wrongful act by an officer might constitute a form of government illegality--rather, they viewed such misconduct as only a personal trespass by the person who held the office. Thus, there was neither a need nor a basis for addressing the conduct of a warrantless officer in a constitutional provision regulating government authority. (Likewise, because unlawful acts by officers were only personal, it never occurred to the Framers to apply an exclusionary principle to such misconduct.) The modern notion that an officer's misconduct constitutes government illegality appears to reflect a redefinition of the boundary of government action articulated during the late nineteenth-century formulation of “state action” doctrine under the Fourteenth Amendment. However, that constituted a low-visibility revolution in constitutional thought; the Framers had no such concept. Part VI traces the initial textual development of search and seizure language in the state constitutional provisions adopted prior to the Fourth Amendment. It demonstrates that each of those provisions dealt only with the banning of general warrants, and that the addition of a rhetorical invocation of a “right” regarding searches and seizures in several of those provisions was not meant to introduce a new search standard. Rather, a variety of evidence shows that the statement of the “right” may have been introduced to insert a listing of the interests to be protected and thus define the scope of the protection against general search and seizure authority--“persons, houses, papers, and possessions.” (The last term was altered to “effects” in the Fourth Amendment.) Part VI also discusses the significant fact that John Adams personally introduced the phrase “unreasonable searches and seizures” when he wrote the 1780 Massachusetts provision--the state provision that most closely anticipated the Fourth Amendment. Adams's authorship *555 reveals that “unreasonable” was derived from Sir Edward Coke's earlier use of “against reason” as a synonym for inherent illegality or unconstitutionality. 5 Thus, “unreasonable searches and seizures” was a label that denoted the inherent illegality of intrusions made under general warrants. Part VII traces the actual framing of the Fourth Amendment. It shows that James Madison, who proposed the draft that ultimately became the Fourth Amendment, viewed his proposal only as a ban against “general warrants”; hence, he also understood “unreasonable searches and seizures” as a label for intrusions under general warrants. Although Madison's draft was modified by the House of Representatives to produce the final two-clause text of the Fourth Amendment, this Part demonstrates that there is no historical support for the conventional claim that this change was made to provide a reasonableness standard to regulate warrantless intrusions. Rather, the evident purpose for the change--which inserted the words “and no warrants shall issue but . . .”-- was simply to make the ban against any authorization of general warrants more explicitly imperative than Madison's language had made it. Thus, like the earlier state provisions, the language of the Fourth Amendment was simply aimed at banning legislative authorization of general warrants for searches of houses or arrests of persons. The post-framing transformation of the original meaning into modern search and seizure doctrine is a complex story in its own right; thus, a full account is beyond the scope of this initial Article. However, Part VIII briefly identifies the key events. The conferral of discretionary authority on the warrantless officer during the nineteenth century was the catalyst for the transformation. The expansion of ex officio authority marginalized the warrant process as a means of controlling police intrusions. As a result, police began to assert broader authority to make searches “incident to arrest,” including warrantless searches of houses and offices. The Supreme Court responded to that novel threat to the right to be secure by creating the basic elements of *556 modern search and seizure doctrine. The 1914 decision Weeks v. United States extended the Fourth Amendment to a federal officer's warrantless search of a house and papers, constitutionalized the common-law warrant requirement for such searches, and adopted exclusion as the means for enforcing the right to be secure. 6 Next, the 1925 decision in Carroll v. United States assumed that the Fourth Amendment broadly protected all privately owned property but adopted a relativistic reasonableness standard to assess the constitutionality of warrantless police intrusions. 7 Notably, Chief Justice Taft's Carroll opinion was grounded on a historically false description of the original meaning of “unreasonable searches and seizures.” The two currently competing constructions of the Fourth Amendment have emerged from the tensions arising between the doctrinal elements announced in Weeks and Carroll.


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Finally, Part IX considers the normative implications of the authentic original meaning--and of the deep differences between the original meaning and modern doctrine. I argue that neither of the currently competing constructions of the Fourth Amendment adheres to the historical meaning, though the warrant-preference construction is more faithful to the Framers' concerns than the generalized-reasonableness construction. In fact, the latter is nearly the antithesis of the Framers' understanding. However, I also express doubts that the original meaning can be directly applied to address modern issues. In particular, I argue that any attempt to return to the literal original meaning--that is, to an understanding that the text only banned general warrants but did not address warrantless intrusions--would subvert the larger purpose for which the Framers adopted the text; namely to curb the exercise of discretionary authority by officers. I also argue that it would be inappropriate to employ framing-era doctrines selectively to answer specific modern issues because historic doctrines often do not accomplish the same ends in the modern context as they did during the framing era. Instead, I conclude that the authentic history is useful primarily for providing a larger perspective of the overall trajectory of the evolution of search and seizure doctrine: we now accord officers far more discretionary authority than the Framers ever intended or expected.

*557 II. The Modern Notion of “Fourth Amendment Reasonableness” The Fourth Amendment was adopted by Congress in 1789 and ratified by the states in 1791 as one of the provisions of the Bill of Rights. It reads: 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. 8 There has been a widespread consensus during the twentieth century about the basic meaning to be attributed to each of the two clauses of the text. The first clause has been understood to state a comprehensive principle--that the government shall not violate the “right to be secure” by conducting “unreasonable searches and seizures.” 9 The Supreme Court has endorsed this understanding in numerous modern opinions, asserting, for example, that “[t]he essential purpose of the proscriptions in the Fourth Amendment is to impose a standard of ‘reasonableness' upon the exercise of discretion by government officials . . . .” 10 In fact, Justices from across the ideological *558 spectrum have treated the first clause as the essence of the Fourth Amendment-even quoting it by itself as though it were the Fourth Amendment. 11 The second clause of the text--which starts “and no Warrants” and is commonly called “the Warrant Clause”--has been understood to serve the more specific purpose of regulating warrant authority. Its effect is to ban the use of a “general warrant”-a framing-era term for an unparticularized warrant (for example, ordering a search of “suspected places”), which was also commonly applied to a warrant lacking a complaint under oath or an adequate showing of cause. 12 It is not difficult to understand why the Fourth Amendment is widely thought to contain an overarching reasonableness-in-thecircumstances standard. To begin with, modern readers have approached the text with the assumption that the Framers must have intended it to serve as a comprehensive regulation of all government searches or seizures--an assumption that derives, in turn, from the *559 broader assumption that the Bill of Rights was intended to be a comprehensive catalog of rights. If one assumes the Fourth Amendment must reach all intrusions by officers, the word “unreasonable” in the first clause is the only term that could serve as a comprehensive standard. 13 Moreover, the reasonableness reading resonates with modern lawyers who are comfortable with the idea that constitutional provisions often, even usually, contain relativistic balancing notions like “reasonableness.”


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Because the first clause has been assumed to set out a broad reasonableness principle, modern debate over search and seizure doctrine has focused not on whether reasonableness should be the central concept in search and seizure doctrine, but instead on competing constructions of “Fourth Amendment reasonableness.” For most of this century, the Supreme Court has endorsed what is now called the “warrant-preference” construction of Fourth Amendment reasonableness, in which the use of a valid warrant--or at least compliance with the warrant standard of probable cause--is the salient factor in assessing the reasonableness of a search or seizure. 14 The warrant-preference construction is favored by advocates of civil liberties because it enhances the potential for judicial supervision of police conduct. Supporters of the warrant-preference construction also tend to endorse the exclusion of illegally obtained items or information from use as evidence as the proper means for enforcing government compliance with the Fourth Amendment. For several decades, the Supreme Court has been shifting away from the warrant-preference construction and toward what is now called the “generalized-reasonableness” construction, in which the value of the warrant is discounted and the constitutionality of a search or seizure is determined simply by making a relativistic assessment of the appropriateness of police conduct in light of the totality of the circumstances. 15 The generalized-reasonableness construction is favored *560 by law and order advocates because it tends to allow greater leeway for police aggressively to enforce the law. Supporters of the generalizedreasonableness construction also tend to disapprove of the exclusionary rule. The running debate over the proper construction of the reasonableness standard should not be allowed to obscure the fact that the competing constructions share common assumptions regarding the Fourth Amendment's intended meaning. Both assume the text was meant to regulate all government searches and seizures comprehensively, and both accept the centrality of a sweeping reasonableness standard or concept of some sort. They disagree only about the content of that concept.

III. Previous Treatments of the Historical Fourth Amendment--and Their Shortcomings The literature on the history of search and seizure doctrine has also almost uniformly accepted the interconnected assumptions that the text was meant to regulate government intrusions comprehensively and that it was meant to articulate a broad reasonableness standard. As in the normative commentary, the principal divide in the historical literature relates to the content of “reasonableness.”

A. The Conventional Historical Accounts by Lasson and Cuddihy The conventional account of Fourth Amendment history (which tends to parallel the warrant-preference construction) has been shaped primarily by the first serious historical treatment, a monograph by Nelson B. Lasson published in 1937. 16 Lasson appears to have defined the goal of his project largely as connecting modern search and seizure doctrine to the historical Fourth Amendment; as a result, he *561 assumed away the fundamental question of whether there really was a high degree of continuity in Fourth Amendment jurisprudence. 17 Lasson rooted the Framers' motivation for constitutional search and seizure provisions in three episodes of controversy regarding search and arrest authority that preceded the American Revolution. The first arose in Boston where customs officials had used general writs of assistance 18 (which Americans perceived as a form of general warrant 19 ) as authority to search for untaxed imported goods. In the 1761 Writs of Assistance Case, James Otis argued that the general writ violated common-law principles and the statutory authority for the writ was therefore unconstitutional. Nevertheless, the colonial court upheld the legality of the general writ. 20


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*562 The second episode occurred in England when the Tory government employed general warrants to initiate seditious libel prosecutions against John Wilkes--an opposition politician--and his supporters. Those warrants directed officers to determine who was responsible for several allegedly seditious publications, to arrest those persons, and to seize their papers. Officers used the general warrants to arrest Wilkes and numerous other men and often searched houses and seized papers. Wilkes and his supporters then brought trespass actions against the officers. In several high-visibility Wilkesite cases decided between 1763 and 1765, English courts ruled that such general warrants violated common law, and juries ordered the executing officers to pay trespass damages to Wilkes and other victims. In 1769, *563 Wilkes also won a verdict against the Secretary of State who had issued the general warrant. 21 Americans learned of the arrests and searches of Wilkesites under the general warrant and of the subsequent trespass cases through brief accounts that appeared in London and colonial newspapers. The accounts of the trials exclaimed the importance of the issue for English liberty and the sanctity of the house while condemning general warrants as “illegal,” “unconstitutional,” “void,” “oppressive,” and “unwarrantable.” 22 Similar accounts also appeared in pamphlets that circulated *565 on both sides of the Atlantic, 23 as well as in other periodicals that probably reached the colonies. 24 (The case reports that are commonly cited in modern commentary, however, were not published contemporaneously with the cases but mostly appeared a decade or more later--after American hostility toward general warrants had already hardened. 25 ) *566 The third episode of controversy over search authority broke out when Parliament reauthorized the use of the general writ for customs searches in the American colonies in the Townshend Act of 1767. That round of controversy produced legal disputes over general writs throughout the American colonies and persisted until nearly the eve of the Revolution. During that period, customs officials petitioned for the issuance of general writs, but colonial judges usually ignored or denied the petitions and often described the requested general writs as “illegal” notwithstanding the specific statutory authority. 26 The colonial *567 judges were undoubtedly influenced not only by the earlier press accounts of the Wilkesite cases, but also by Blackstone's summary of the condemnation of general warrants in those cases and, perhaps, by the appearance of the first formal reports from Wilkesite cases. 27 In 1774, the First Continental Congress also included general writs among the colonial grievances against Parliament. 28 Lasson's account clearly established that the memory of these three episodes provided the stimulus for the Framers' subsequent adoption of constitutional search and seizure provisions. The only disagreements among later commentators concern the relative importance of these episodes. (I think that the widespread and protracted controversies over the reauthorization of the general writ in the Townshend Act exerted the most direct influence on the American Framers. 29 ) *568 As to the actual drafting of the state and federal search and seizure provisions, Lasson asserted that the Framers meant to ban general warrants but that their concerns over searches and seizures broadened into a comprehensive “principle [of] freedom from unreasonable search and seizure.” 30 Although he conceded that Madison had addressed only general warrants in the draft for a federal provision, Lasson asserted that a subsequent language change made in the House of Representatives injected the broader reasonableness principle. Thus, he asserted that the first clause of the Fourth Amendment was meant to state a broad reasonableness standard for government intrusions, while the second was specifically meant to ban general warrants. 31 Lasson also described the subsequent historical development of Fourth Amendment law as though modern doctrine reflected a continuous development from the original meaning of the text. Although he noted that the federal courts had little to say about the Fourth Amendment during the early 1800s, 32 he treated the Supreme Court's 1886 ruling in Boyd v. United States 33 -that a statute was unconstitutional because it authorized an unreasonable seizure of a commercial invoice--as though it were an application of the original meaning of the text. 34 He also treated the Court's subsequent recognition of a broad exclusionary


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rule in the 1914 decision Weeks v. United States 35 as a more or less continuous development from Boyd. 36 Thus Lasson claimed that a broad reasonableness standard was always central to the Fourth Amendment's meaning. 37 Numerous commentators have relied upon and repeated Lasson's historical treatment, often claiming it supports the warrantpreference *569 interpretation. 38 Likewise, a number of Supreme Court opinions have cited Lasson's as the authoritative historical account. 39 In addition, William J. Cuddihy essentially replicated Lasson's analysis in a massive 1990 Ph.D. dissertation that added considerably to the historical documentation of the origins of the Fourth Amendment. 40 Like Lasson, Cuddihy treated the first clause as stating a *570 broad reasonableness principle. In fact, he described the Fourth Amendment as the culmination of a long development of a “concept” of unreasonable searches and seizures that ultimately took the form of a strong preference that searches be based on specific warrants. 41 Although Cuddihy's work is not yet as widely known as Lasson's, 42 one Supreme Court opinion has cited it, 43 and Professor Tracey Maclin has summarized Cuddihy's analysis and offered it as support for the warrant-preference interpretation of the Fourth Amendment. 44 Professor Leonard W. Levy, Cuddihy's dissertation adviser, has also endorsed a similar view of the original meaning of the Fourth Amendment, although he placed greater stress on the vagueness of the reasonableness concept. 45

*571 B. The Shortcomings of the Conventional Accounts The historical accounts given by Lasson and Cuddihy suffer from a serious shortcoming; neither clarifies the basic mystery that resides in the Fourth Amendment's two-clause text. As noted above, the text appears incomplete or incoherent insofar as it fails to state whether or in what circumstances a warrant is required; thus, it does not say when the warrant standards, or when only the “reasonableness” standard, apply. Given Lasson's and Cuddihy's interpretation, the silence is mysterious, even perverse, because the question of whether or when a warrant is required would seem central to any practical application of the text. 46 It is clear that the Framers did not intend that warrants be required for all searches and seizures conducted by officers. For example, the common law permitted a constable to make a warrantless arrest for a felony in some circumstances. 47 Likewise, framing-era customs statutes permitted officers to search ships without a warrant. 48 Yet the use and regulation of warrant authority was obviously important to the Framers--the inclusion of the warrant standards in the second clause of the Fourth Amendment demonstrates that. So what did the Framers intend regarding warrant use? When were each of the two clauses meant to apply? Both Lasson and Cuddihy failed to answer these questions.

C. The Generalized-Reasonableness Accounts by Taylor and Amar The absence of any clear warrant requirement in the text, and the absence of any solution to that mysterious omission in the conventional historical accounts, left an opening for competing interpretations of the historical Fourth Amendment. Professor Telford Taylor leveled the seminal challenge in a 1967 lecture. 49 He noted that the earliest state search and seizure provisions had addressed only warrant standards, but had been silent as to warrantless intrusions. 50 Largely on that basis, he asserted that the Framers viewed “the warrant” as *572 “an enemy.” 51 Thus, he concluded that the Framers had feared rather than preferred warrants, and that the modern notion of a warrant requirement “stood the Fourth Amendment on its head.” 52 Because he interpreted historical sources as showing that warrantless arrests and warrantless searches incident to arrest had long been approved in English common law, he also asserted that the Framers were “[not] at all concerned” with controlling warrantless


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intrusions by officers, and that they viewed warrantless searches made incident to arrest as “quite normal and, in the language of the fourth amendment, ‘reasonable.” ’ 53 Proponents of the generalized-reasonableness construction gave Taylor's reading a warm welcome. Perhaps because of his personal prominence, several Supreme Court opinions uncritically recited his claims, 54 and Judge Richard Posner also gave them increased visibility through his own commentary. 55 In addition, Taylor's treatment also *573 provided a jumping-off point for several further lines of commentary that rejected the conventional history, including commentaries by Professor Gerard Bradley 56 and Professor William Stuntz. 57 Professor Akhil Amar has produced a series of articles constituting the most ambitious attempt to craft a textual and historical case for the generalized-reasonableness construction. 58 Amar has followed *574 Taylor's lead in attacking the conventional understanding that the Framers valued the warrant as a protection against arbitrary intrusions, and in insisting that any warrant requirement is contrary to the Framers' intention. However, he has departed from Taylor's position that the Framers were simply unconcerned with warrantless intrusions and instead has asserted that the Framers intended for a reasonableness standard to be the essence of the Fourth Amendment. Thus, Amar has asserted that the first clause of the text should be understood as a “Reasonableness Clause” that articulates a freestanding reasonableness standard. He has also insisted that the Framers intended for reasonableness to be the “global” standard by which all government searches or seizures should be judged. In his reading, the warrant standards in the second clause were meant only to discourage the use of warrants. 59 Amar's attack is novel because, in addition to repeating Taylor's claim that the Framers viewed the warrant as “an enemy,” he has attempted to provide a historical explanation for that hostility. Specifically, he has asserted that the Framers were hostile toward the use of warrants because a warrant provided an officer with an “absolute defense” against trespass liability. Thus, if an officer used a warrant to make an arrest or search, the victim was prevented from obtaining a jury's assessment, in a subsequent trespass suit, of whether the search or seizure was actually reasonable (and thus lawful). In contrast, Amar suggests that the Framers approved of warrantless searches and arrests because no legal bar prevented a jury from subsequently assessing the reasonableness of those intrusions. 60 Not surprisingly, a Supreme Court opinion has cited Amar's key historical assertion. 61

*575 D. The Flaws in the Generalized-Reasonableness Accounts Neither Taylor nor Amar undertook to present the sort of systematic account of the original meaning that Lasson or Cuddihy offered. Taylor addressed the history to set the stage for arguing that the Supreme Court should not curb warrantless searches made “incident to arrest.” 62 Likewise, Amar has addressed only selective aspects of the history to muster support for his normative proposals for revising search and seizure doctrine. 63 Thus, if one examines Taylor's and *576 Amar's accounts closely, one finds that each offered little evidence for their central historical claims--that the Framers broadly approved of warrantless intrusions and that the Framers viewed “the warrant” as “an enemy.” Moreover, both ignored salient features of the history that are not easily reconciled with their claims.

1. The Framers' Attitude Toward Warrantless Intrusions There is no question that common law sometimes permitted warrantless arrests or searches. The significant question is how broadly they were permitted. Neither Taylor nor Amar presented significant evidence on that point. Taylor merely recited a historical description of arrest law circa the thirteenth century and a single endorsement of broad warrantless search authority from a mid-seventeenth-century pamphlet of dubious authority. 64 Likewise, Amar observed only that common law permitted


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warrantless arrests “in a variety of circumstances” and quoted Taylor's summary--but never identified the common-law rules that actually defined warrantless arrest authority. 65 Neither demonstrated that the Framers broadly approved of warrantless intrusions. In addition, neither Taylor nor Amar confronted significant features of historical doctrine that collide with any claim that the Framers would have broadly approved of warrantless intrusions. The modern warrant-preference construction favors prior judicial approval of searches as a means of preventing unjustified intrusions. The preference for warrants is premised on the expectation that magistrates will be more likely than officers to perceive when justification for a proposed search is inadequate. The historical evidence indicates that the Framers preferred use of specific warrants rather than warrantless intrusions for essentially the same reason. The Framers sought to prevent unjustified searches and arrests from occurring, not merely to provide an after-the-fact remedy for unjustified intrusions. For example, the complaints they voiced about searches concerned the breach of the security of the house. 66 Likewise, the constitutional texts they *577 wrote did not simply seek to provide a post-intrusion remedy or condemn only the actual use of a general warrant; rather, the constitutional texts adopted a preventive strategy by consistently prohibiting even the issuance of a too-loose warrant. 67 The historical evidence also demonstrates that the Framers believed that the orderly and formal processes associated with specific warrants, including the judicial assessment of whether there was adequate cause for the intrusion, provided the best means of preventing violations of the security of person or house. In particular, the Framers thought that magistrates were more capable than ordinary officers of making sound decisions as to whether a search was justified. 68 The principal difference between framing-era statements and the modern warrant-preference construction is that the former sometimes expressed outright disdain for the character and judgment of ordinary officers. 69 Indeed, the Framers' perception of the untrustworthiness of the ordinary officer was reinforced by class-consciousness and status concerns. It was disagreeable enough for an elite or middle-class householder to have to open his house to a search in response to a command from a high status magistrate acting under a judicial commission; it was a gross insult to the householder's status as a “free *578 man” to be bossed about by an ordinary officer who was likely drawn from an inferior class. For example, during the 1761 Writs of Assistance Case, James Otis complained that the delegation of authority to a petty officer by a general writ of assistance reduced a householder to being “the servant of servants.” 70 Thus, the Framers were not unconcerned about warrantless intrusions because they had any confidence in officers' judgment--rather, they were unconcerned with warrantless intrusions because they did not perceive ordinary officers as possessing any significant discretionary authority at common law to initiate arrests or searches. 71 The common-law tradition viewed any form of discretionary authority with unease--but delegation of discretionary authority to ordinary, “petty,” or “subordinate” officers was anathema to framing-era lawyers. Contrary to Amar's claims, framing-era common law never permitted a warrantless officer to justify an arrest or search according to any standard as loose or flexible as “reasonableness.” 72 Instead, as I explain in detail below, the common law imposed rigid limits on the ex officio authority of ordinary officers. For example, under framing-era common law, an officer could not even justify a warrantless arrest by showing “probable cause” to believe an offense had been committed (let alone by a loose “reasonableness” standard); rather, a framing-era peace officer (like a private person) could justify a warrantless arrest only by proving “felony in fact” (that is, that a felony had actually been committed). 73 Common-law authorities repeatedly gave a consistent reason for condemning general warrants: if such warrants had been permitted, they would have conferred on ordinary officers discretionary authority to arrest or even to search houses. In the


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early seventeenth century, Sir Edward Coke had labeled unspecific arrest warrants “against reason.” 74 In the late seventeenth century, Sir Matthew Hale condemned *579 general warrants in his treatise on criminal law because they allowed the party executing the warrant to act as his own judge. 75 Later, Serjeant William Hawkins (the leading eighteenth-century authority on criminal procedure) converted these abstract rejections of general warrants into a more concrete expression of distrust of the common officer when he condemned general warrants because “it would be extremely hard to leave it to the discretion of a common Officer to arrest what Persons, and search what Houses he thinks fit.” 76 The same theme runs throughout the condemnation of general warrants in the Wilkesite cases. In the 1765 proceedings in Leach v. Money, even the Tory Lord Mansfield condemned the unparticularized general warrant as illegal at common law because it was “not fit” for an officer to exercise any judgment as to whom to arrest or where to search. 77 Mansfield's statement was made especially visible when *580 Blackstone paraphrased it to condemn general warrants because officers ought not be left to judge whom to arrest (as well as reiterating Coke's assertion that unspecific criminal warrants were “unreasonable”). 78 Judge Pratt (Lord Camden) also condemned the discretionary character of the authority conferred by a general warrant in a number of statements made during other of the Wilkesite cases. 79 Likewise, the English pamphleteer “Father of Candor” complained that general warrants permitted arrests or searches to be “made at discretion [by] any common fellows . . . upon their own imaginations, or the surmises of their acquaintances, or upon other worse and more dangerous intimations.” 80 Hostility to conferring discretionary search authority on common officers is also the theme of American complaints about the general writ of assistance. In addition to complaining that householders were reduced to the status of a servant, Otis repeatedly condemned the discretionary authority conferred on “petty” officers by the writ of assistance when he argued the 1761 Writs of Assistance Case. He complained *581 that the general writ was “a power that places the liberty of every man in the hands of every petty officer,” that it allowed officers “to enter our houses when they please,” that it was an instrument of “arbitrary power,” that it transformed officers into “tyrant[s],” that it “[delegated] vast powers,” and that it failed even to impose the usual safeguard of requiring the officer to file a “return” with the issuing court. 81 Likewise, the Pennsylvania judges who later refused to issue general writs authorized by the Townshend Act of 1767 did so because they felt “that arming officers of the Customs with so extensive a power, to be exercised totally at their own discretion would be of dangerous consequences and was not warranted by Law”; the Virginia judges asserted that it was “unconstitutional to lodge such a Writ in the hands of the officer which gave him unlimited power to act under it according to his own arbitrary Discretion”; and William Drayton, chief justice of the colonial court for East Florida, declined to issue a general writ that might “be used discretionally, (perhaps without proper Foundation) at the will of subordinate officers . . . .” 82 Likewise, in 1774 William Henry Drayton, a judge in Charleston, complained of the discretionary authority delegated to “a petty officer” by a writ of assistance when he called on the First Continental Congress to include a ban against general writs and warrants in a declaration of *582 American rights. 83 And Patrick Henry later voiced the same concern in the Virginia ratification convention in 1788. 84 The repeated objections to allowing “subordinate” officers to exercise discretionary search or arrest authority cannot be explained away simply as a concern with the “immunizing” effect that a general warrant might have had if allowed. Rather, the nature of the complaints that were actually made about general warrants--that it would be “extremely hard” to leave the decision to intrude to an ordinary officer, that it would not be “fit” to have ordinary officers decide whom to arrest or where to search--demonstrate a deep-rooted distrust and even disdain for the judgment of ordinary officers. Given that distrust, it is wholly implausible that the Framers would have approved of broad use of warrantless intrusions, because such intrusions would


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necessarily have rested solely on the officers' own judgment. 85 *583 However, neither Taylor nor Amar confronted any of the historical condemnations of officers exercising discretionary authority. 86

2. The Framers' Attitude Toward Specific Warrants No one questions that the Framers despised and sought to ban general warrants. The modern doctrinal debate has been about whether use of specific warrants--warrants that comply with the constitutional standards--should be required or at least preferred over warrantless intrusions. Thus the significant historical inquiry is about the Framers' view of specific warrants. Taylor did not claim in so many words that the Framers were hostile to specific warrants, but he made statements criticizing the warrant requirement that implied as much. For example, Taylor's complaint that the modern warrant requirement “st[ands] the Fourth Amendment on its head” and his related generic-sounding assertion that the Framers viewed “the warrant” as “an enemy” both connote that the Framers held a negative view of specific warrants as well as general warrants. Likewise, Amar has repeatedly made the generic-sounding claim that the Framers viewed “judges and warrants” as “heavies,” 87 and has also asserted that their disapproval was “not merely of general warrants, but of . . . all search warrants.” 88 Thus, his statements also connote that historical hostility toward use of “warrants” had been diffuse, and had reached specific as well as general warrants. 89 However, *584 neither Taylor nor Amar has made out a persuasive historical case that the Framers felt any generic hostility toward all “warrants”; likewise, neither has provided evidence that the Framers preferred a post-intrusion remedy over pre-intrusion protection of the right to be secure. Taylor's assertion that the early constitutional provisions treated “the warrant” as “an enemy” was overgeneralized. The texts clearly treated the general warrant as “an enemy,” but there is nothing in the texts to suggest any hostility toward the use of specific warrants. The constitutional texts do not say “no Warrants shall issue.” Rather, they set out standards to distinguish legal, specific warrants from too-loose, general warrants. Neither the Fourth Amendment nor any of the earlier state search and seizure provisions ever undertook to limit the use of specific warrants 90 --except for requiring that the purpose for which a search is made pursuant to a warrant must be authorized by law. 91 Likewise, Taylor did not identify any historical expressions of hostility toward the use of specific warrants. Amar has held out some post-framing statements as evidence of hostility toward “all search warrants”--however, the complaints he cited were actually about house searches which could be made only under warrant authority, not complaints about specific warrants as such. 92 None of the complaints *585 he cited indicated a preference that house searches be made without warrant, or even that house searches be allowed without warrants. 93 In addition, Taylor and Amar overlooked direct evidence that the Framers approved of specific warrants. For example, during the Writs of Assistance Case, Otis endorsed the legality of the “special” (that is, specific) warrant and used it as the model for contrasting and condemning the general warrant. 94 *586 Amar's claim that the Framers viewed “judges and warrants” as “heavies” because they feared the “immunizing” effect of a “warrant” also lacks historical support. 95 The Framers did not express any general antagonism toward judges regarding search matters. In fact, Lord Camden, a judge, emerged as the hero of the Wilkesite cases, and the colonial judges who refused to issue general writs under the Townshend Act provided an example that may well have stimulated the developing American conception of judicial review. 96 In addition, the “immunizing” claim that Amar makes so much of is more in the nature of a hypothesis than a historical observation: it is not evident in historical statements. 97 For example, Amar cited ten sources to document a supposed “linkage”


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between the Framers' concerns about “warrants” and about preserving jury trials in civil trespass *587 cases. However, those sources expressed concern only that “general warrants” might be made legal--not concern regarding the “immunizing” effect of specific warrants. 98 Amar has never identified a *588 single historical complaint about the “immunizing” effect of a specific warrant. In addition, Amar's renditions of the effect a “warrant” had on trespass liability have been oversimplified and incomplete. Because a general warrant was clearly deemed illegal by the framing era, it did not protect either the issuing magistrate or the executing officer against trespass liability. 99 Only a legal (that is, specific) warrant indemnified the officer against trespass liability. Amar's “immunizing” argument would be valid if it were construed to mean only that, as a logical matter, there was a potential that a general warrant might confer immunity on an executing officer if general warrants were somehow made legal in the future. That potential could have added to the Framers' motivation for barring future authorization of general warrants (although no explicit statement by a Framer to that effect has been identified). However, even that concern indicates a basis for hostility only toward general warrants; it does not provide any ground to infer that the Framers feared or objected to the indemnifying effect of a specific warrant. Indeed, what possible reason could the Framers have had to object to the indemnification of an officer who simply executed a valid, specific warrant, within the terms of the judicial command to search or arrest? 100 *589 Moreover, a valid warrant's indemnification of the executing officer did not “preclud[e]” the victim of an unjustified intrusion from obtaining legal recourse, as Amar has asserted 101 Rather, Amar overlooked an aspect of common law that has disappeared from modern doctrine but was well known at the time of the framing: the complainant who swore out a valid search warrant was subject to trespass liability if the search proved fruitless (and that rule also applied to officers who acted as complainants). Common law assigned trespass liability for inappropriate searches under warrants where it belonged--on the complainant who initiated the search rather than on the executing officer who only did his duty 102 Most importantly, Amar's insistence on the “immunizing” effect of a valid warrant has deflected attention away from the more salient concern noted above: like modern courts, the Framers understood that the magistrate's review of the factual allegations offered as cause for a search could prevent an unjustified invasion of a house 103 Like modern judges, the Framers understood that no post-search remedy could adequately restore the breached security of the house. They valued the specific warrant, in large part, because the magistrate's judgment offered the best available protection against too-hasty invasions of houses. They did not perceive any post-intrusion remedy as an adequate substitute for preventing unjustified intrusions. 104 *590 At bottom, Taylor's and Amar's claims that the Framers feared “the warrant” only blurred the Framers' focused fear of general warrants into a diffuse-sounding disapproval of all warrants. But the history, like the texts, contradicts that overgeneralized disapproval of “warrants.”

E. Summary To sum up, the conventional historical accounts of Lasson and Cuddihy and the generalized-reasonableness accounts of Taylor and Amar have all failed to solve the puzzle of the two-clause Fourth Amendment. All of the existing treatments are seriously flawed in some substantial way. Those flaws, in turn, are rooted in these commentators' acceptance of a set of false assumptions that obstruct recovery of the Framers' thought. Each of the historical commentaries have taken for granted that the Framers must have intended to create a comprehensive constitutional standard or principle that would reach all searches or seizures conducted by officers, with or without warrant. Likewise, each of these commentaries has assumed the Framers must have intended for “unreasonable” to serve, in some


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fashion, as that broadly applicable constitutional standard or principle. But these assumptions are only prochronisms derived from modern doctrine. The historical record indicates that the Framers perceived the threat to the right to be secure more precisely than we do today. They did not have a diffuse concern about the security of person and house--the common-law rules regarding search and arrest authority provided sufficient protection against unjustified intrusions. Instead, they were concerned about a specific vulnerability in the protections provided by the common law; they were concerned that legislation might make general warrants legal in the future, and thus undermine the right of security in person and house. Thus, the Framers adopted constitutional search and seizure provisions with the precise aim of ensuring the protection of person and house by prohibiting legislative approval of general warrants. In the next Part, I demonstrate that the Framers did not conceive of the problem of search and seizure as diffusely as we do. Then, in subsequent Parts, I explain why the Framers' concern was focused on general warrants, and how they expressed that focused concern in the constitutional provisions they adopted.

*591 IV. The Prochronistic Assumptions That Have Obscured the Authentic Meaning of the Text If one examines the historical statements, and also listens for unexpected silences of the dog-that-did-not-bark-in-the-night variety, 105 there is abundant evidence that the Framers did not mean for the first clause of the Fourth Amendment to create a broad “reasonableness” standard at all. For one thing, the historical sources show that framing-era law did not recognize any “reasonableness” standard for arrests and searches. For another, they also show that the Framers focused their complaints about search and seizure authority on searches of houses under general warrants.

A. There Was No Historical “Reasonableness” Standard The near-universal assumption that the first clause of the Fourth Amendment was meant to articulate a broad reasonablenessin-the-circumstances standard runs afoul of two historical facts. The first is the widespread opposition to allowing officers to exercise discretionary search authority, as described above. That opposition is inconsistent with the use of a relativistic reasonableness standard, which would have facilitated officers' discretion to initiate intrusions. The second fact is a silence: reasonableness was not used as a standard for assessing searches or arrests in framing-era legal sources, and there is also no persuasive evidence of the use of any such standard during the framing of the state or federal constitutional provisions.

1. The Absence of a Broad Reasonableness Standard in Framing-Era Law Unfortunately, the absence of a historical reasonableness standard is not as obvious as it should be in the existing literature. One reason for the oversight is that previous commentaries did not undertake to recover a systematic understanding of the common law of arrest and search as a necessary first step toward understanding the Framers' thinking. As I explain in the next Part, common-law arrest and search authority consisted of a set of rules that were often more stringent *592 than modern search and seizure law. Thus, had the prior commentaries confronted the actual rules used to assess arrests and searches at the time of the framing, they would have discovered the incongruity of a broad reasonableness standard. They did not, however, confront the actual content of the common law. Another reason that the absence of a broad reasonableness standard has gone unnoticed is that previous commentators have not treated a reasonableness standard as an inquiry, but rather as an assumption; thus they have tended to impose a modern reasonableness standard on the historical sources. For example, Lasson failed to directly ask and answer the question “Where


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did ‘unreasonable’ in ‘unreasonable searches and seizures' come from, and what did it mean?” Instead, he referred uncritically to several historical circumstances as though they involved the use of a “reasonableness” standard-- even though the historical sources regarding those situations did not use that term. For example, he referred to “[t]he principle that search and seizure must be reasonable” in a discussion of English law following the Restoration of 1660, without citing any historical source that mentioned such a principle. 106 There was none. Cuddihy has done the same. 107 Taylor and Amar have also tended to assume the existence of a historical reasonableness standard. When discussing historical doctrine, Taylor used the terms “reasonable” and “unreasonable” as they are used in modern doctrine, but never actually claimed to find evidence of a historical reasonableness standard. 108 In contrast, Amar has conveyed the impression that evidence of a historical reasonableness-in-the-circumstances standard is abundant--for example, he has recently claimed that, “[a]t the Founding, civil juries often played a role in helping to define the idea of Fourth Amendment reasonable *593 ness.” 109 However, there is a large gap between his assertions and his evidence. The only mention of a supposed reasonableness standard that Amar has identified in the framing-era legal sources was a statement Lord Mansfield made during the 1765 proceedings in Leach v. Money, one of the Wilkesite cases. In Amar's words: [Mansfield's statement in Leach] featured the following noteworthy passage: “‘Whether there was a probable cause or ground of suspicion’ was a matter for the jury to determine: that is not now before the Court. So [too with the issue] ‘whether the defendants detained the plaintiff an unreasonable time.” ’ Here we have clear evidence of the role of the civil jury in deciding the reasonableness of government searches and seizures . . . . 110 Amar's quotation ends too abruptly. Although Mansfield did repeat a lawyer's argument that the king's messengers should not be liable for false imprisonment if they detained the plaintiff only a reasonable time (note the internal quotation marks in Mansfield's statement), Mansfield went on to say, in the lines that immediately follow those quoted, “[b]ut if it had been found to have been a reasonable time; yet it would be no justification to the [[[officers] . . . .” 111 Thus, Mansfield *594 actually stated that the reasonableness of the duration of the detention was irrelevant to the lawfulness of the officers' conduct. And almost immediately thereafter, Mansfield condemned the discretionary authority claimed by the officers under the general warrant because it was “not fit” to allow officers to make a judgment as to whom to arrest. 112 Mansfield did not endorse a relativistic reasonableness standard for assessing the lawfulness of arrests or searches; rather, he condemned the attempt to confer discretionary authority on an officer. 113 If Amar's evidence is examined closely, it turns out that he has never identified a single framing-era source that endorsed a warrantless arrest or search on the ground that it was reasonable in the circumstances. 114 That is because none did. 115

*595 2. The Absence of a Broad Reasonableness Standard in the Records of the Framing There is also a dearth of evidence of a broad reasonableness standard in the records of the framing of the American search and seizure provisions. Indeed, the phrase “unreasonable searches and seizures” did not appear until relatively late in the formulation of American constitutional search and seizure language. In all, nine states or proto-states adopted search and seizure provisions prior to the Fourth Amendment. 116 No one disputes that “unreasonable” was not introduced until the 1780 Massachusetts provision, the seventh of the nine provisions, began with the declaration that “[e]very subject has a right to be secure from all unreasonable searches and seizures of his person, his house, his papers, and all his possessions.” 117 Why, if reasonableness *596 was the “first principle” of search law, did the phrase appear so late in the evolution of American search and seizure texts?


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Previous commentators have finessed the late appearance of “unreasonable” by directing attention to the earlier 1776 Pennsylvania provision, which began by declaring that “the people have a right to hold themselves, their houses, papers, and possessions free from search and seizure . . . .” 118 Lasson asserted that a broad reasonableness principle was “imputed” in that language, and Cuddihy, Levy, and Amar have all followed that example. 119 However, there is no factual or textual basis for Lasson's claim: the Pennsylvania language clearly asserted a “right,” but it said nothing to suggest defining that right in terms of reasonableness-in-the-circumstances. There is also a dearth of evidence of a broad reasonableness standard in the discussions of the need for a federal search provision during the ratification debates of 1787-88. Even recognizing that the surviving record of those debates is incomplete, it remains striking that the prior commentaries have identified only three statements from that period as evidence of a broad reasonableness principle. In September 1787, Richard Henry Lee called for a federal bill of rights including a protection “[t]hat the citizens shall not be exposed to unreasonable searches, seizures of their persons, houses, papers or property . . . .”; 120 in December 1787, the sixth installment of the widely disseminated anti-Federalist pamphlet Letters of a Federal Farmer (which may or may not have been authored by Lee 121 ) called for a federal protection that “[n]o man [should be] subject to . . . unreasonable searches or seizures of his person, papers, or effects . . . .”; 122 and in 1788, during the Massachusetts ratification convention, Samuel Adams made (and then backed away from) a motion that called for amendments including a protection of “the people [against] unreasonable searches and seizures of their persons, papers, or possessions.” 123 *598 Previous commentaries have treated the appearance of “unreasonable searches and seizures” in these three statements as evidence of a broad reasonableness standard because the statements failed also to refer explicitly to general warrants. 124 But that interpretation outruns the statements. To begin with, none of the three statements appears to have been meant as proposed language for a constitutional provision; instead, they each appear merely to identify topics that should be addressed in a federal bill of rights. 125 It appears that each of the statements simply borrowed the reference to “unreasonable searches and seizures” from the beginning of the Massachusetts provision as a short-hand label for the topic to be addressed. 126 While it is true that these three statements refer to “unreasonable searches and seizures” without mentioning general warrants, it is also true that they do not explicitly mention warrantless searches or arrests-- their common feature is brevity. *599 In addition, other statements in the Letters of a Federal Farmer suggest that “unreasonable searches and seizures” was understood to refer to the complaint against general warrants. The reference to “unreasonable searches and seizures” quoted above, which appeared in the sixth installment, was actually the second of three discussions of a federal search protection in the Letters. The earlier fourth installment called for protection against “hasty and unreasonable search warrants”--it did not use “unreasonable searches and seizures.” 127 In addition, the later sixteenth installment, which made the most detailed call for a federal protection, proposed language for a federal provision that tracked but condensed the Massachusetts state provision, including the reference to a “right to be secure” against “unreasonable searches and seizures”; but it then referred to that proposal as a protection against “unreasonable search warrants.” 128 The interchange of “unreasonable search warrants” and “unreasonable searches and seizures” undercuts the claim that the Letters intended to call for a free-standing reasonableness standard distinct from the ban against too-loose warrants. Previous commentators, however, have either omitted or downplayed the references to “unreasonable search warrants” in the Letters. 129 *600 The three statements offered as evidence of a broad reasonableness standard are also atypical; complaints about search authority made during the ratification debates were far more likely to refer explicitly to “general warrants” than to call for a ban against “unreasonable searches and seizures.” 130 In fact, as I describe below, the first two anti-Federalist proposals for a federal protection actually introduced in state ratification conventions simply called for a ban on too-loose warrants without


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mentioning “unreasonable searches and seizures.” 131 Previous commentaries have not confronted the implications of those focused calls for banning general warrants. 132 In sum, the few isolated references to “unreasonable searches and seizures” do not provide persuasive evidence that the Framers sought a constitutional protection beyond prohibiting too-loose warrants. Although the prior commentaries have asserted that the historical sources employed a broad reasonableness standard, they simply have not identified persuasive evidence of a sweeping reasonableness-in-the-circumstances standard in the pre-framing- or framing-era sources.

B. The Framers' Complaints Did Not Involve Warrantless Intrusions The historical evidence poses an even deeper problem for prior interpretations. The assumption that the Fourth Amendment contains a broad reasonableness standard rests on the more fundamental as *601 sumption that the Framers sought to craft a comprehensive regulation of all government search and seizure authority, including warrantless searches and arrests. Viewed from a modern perspective, the assumption appears to make sense. Modern search and seizure law has become preoccupied with warrantless arrests and searches because the overwhelming bulk of today's arrests and searches are made without warrants. 133 Thus, modern readers have trouble understanding how the Framers could have been satisfied with a text banning only the use of general warrants. The historical record, however, reveals that the Framers focused their concerns and complaints rather precisely on searches of houses under general warrants. Moreover, the early interpretations of the Fourth Amendment and of the related state provisions understood the texts to pertain only to warrant standards.

1. The Concerns Expressed During the Prerevolutionary Controversies The American Whigs consistently aimed their complaints about search and seizure at general warrants. Controversies about general warrants are evident in colonial legislation even prior to the beginning of the colonists' political struggle with Parliament. 134 Moreover, the actual complaints and concerns about search and seizure expressed during the historical controversies that preceded the Revolution were focused on searches of houses under general warrants. Except for the vicarious concerns over the use of general warrants for arrests in connection with the English Wilkesite cases, which involved both arrests and searches of houses and papers, the prerevolutionary controversies were devoid of any consideration of arrest authority. 135 James Otis framed the initial American attack on searches made under the general writ of assistance by describing how use of an illegal general warrant violated “[t]he Privilege of [the] House.” However, *602 he did not complain of searches of ships or warehouses. His focus on house searches was especially noteworthy because his clients were merchants who also owned ships and warehouses. 136 Likewise, colonial press accounts of the Wilkesite cases typically stressed the violation of the house in the searches made under general warrants, and the “papers” involved in those cases were the kind generally kept in the house. 137 John Dickinson also criticized the general writ reauthorized by the Townshend Act as a violation of the house. 138 Samuel Adams complained that customs searches of houses under general warrants left citizens “cut off from that domestick security which renders [life agreeable].” 139 And William Henry Drayton attacked the general writ *603 for its violation of “private cabinets” and “houses, the castles of English subjects.” 140 Focusing criticism of the general writ on the violation of the house made sense as a strategy for attacking the legality of the writ. As I explain below, because the house enjoyed special status at common law--expressed in the motto “a man's house is


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his castle”--a valid warrant was usually required to justify “breaking” a house. 141 Thus, legal criticism of the general warrant was especially strong when the security of a house was at issue. 142 Of equal importance is the fact that the historical record of prerevolutionary grievance reveals no legal complaints about other kinds of searches and seizures. Some previous commentators have adverted to complaints about warrantless searches of houses, but close examination of the particular complaints undercuts those interpretations. 143 For example, the Continental Congress complained in 1774 *604 that “[t]he Commissioners of the Customs are empowered to break open and enter houses without the authority of any Civil Magistrate, founded on legal information.” 144 Although the statement may initially appear to be a complaint about warrantless searches of houses, the concern with the lack of “legal information” suggests that it was most likely an artfully worded attack on customs searches under illegal general writs of assistance. 145 Similarly, Lasson and later commentators have treated prerevolutionary controversies over warrantless seizures of ships as evidence that the Framers were concerned with warrantless intrusions, as well as general warrants, when they wrote the constitutional search and seizure provisions. For example, they have conflated the colonial grievance over ship seizures with the grievance over general search authority. 146 However, the colonial complaint about ship seizures did not arise from ships being exposed to general search authority, but from “customs racketeering” in the form of hypertechnical applications of customs rules or forfeiture proceedings based on perjured testimony from informers. 147 *605 The absence of legal complaints about general search authority regarding ships is not mysterious. Even during the prerevolutionary struggle with Parliament, American Whigs accepted the legitimacy of extensive government regulation and inspection of shipping. 148 Moreover, no late eighteenth-century lawyer would have imagined that ships were entitled to the same common-law protection due “houses, papers, and effects.” Ships were not ordinary property at common law, but personalities subject to admiralty law--a branch of civil law. 149 Indeed, the First Congress recognized as much when it explicitly included revenue seizures involving ships in the exclusive admiralty (that is, civil law) jurisdiction of the federal courts. 150 In late *606 eighteenth-century thought, ships were neither “houses, papers, and effects [or possessions]” nor “places.” They were ships. 151 The current notion that the Framers intended the Fourth Amendment to address ships likely derives from Chief Justice Taft's claim in Carroll that the Framers would have viewed warrantless searches of “vehicles” as “reasonable” searches under the Fourth Amendment because the First Congress had authorized customs officers to make warrantless searches of ships in the 1789 Collections Act. 152 Numerous commentators have accepted uncritically Taft's assumption that the 1789 statute reflected the Framers' understanding of the Fourth Amendment. 153 Likewise, a number of judicial opinions have since assumed that the Fourth Amendment applied to admiralty matters (and that the treatment of ship searches reflected the understanding of the Fourth Amendment). 154 In fact, Taft's assertion regarding the 1789 *607 Collections Act has become a prominent historical premise for the modern generalized-reasonableness construction. 155 (It probably has also contributed to the modern notion, which would amaze the Framers, that a house can be declared forfeit under admiralty prize court procedures. 156 ) However, Taft's assertion was ahistorical. He ignored the explicit reference to “houses, papers, and effects” in the Fourth Amendment. Likewise, he ignored the civil-law character of admiralty law as well as the First Congress's explicit treatment of revenue seizures of ships as admiralty matters. Instead, he merely assumed that the authorization of warrantless ship searches in the customs statutes must have reflected the original understanding of the Fourth Amendment.


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The numerous ship seizure cases decided by the Supreme Court between 1789 and 1925 provide powerful evidence of the invalidity of Taft's assumption. Notwithstanding that many of those cases involved seizures by federal officers in American ports or territorial waters, none of them so much as mentioned the Fourth Amendment, let alone applied it. 157 Indeed, several of those cases upheld ship seizures under *608 statutory standards that would not be reconcilable with even the weakest possible construction of the Fourth Amendment. 158 The Supreme Court had never suggested that the Fourth Amendment applied to vessels prior to its decision in Carroll. 159 In a similar vein, there is little in the historical record to support the current assumption that the Framers intended the Fourth Amendment to protect commercial premises in addition to houses. Although Americans did express anger over customs officers using general writs to search warehouses, the record does not indicate that those complaints ever became part of the legal grievance over general warrants. As noted above, the absence of complaints about warehouse searches is a pregnant silence in Otis's 1761 argument on behalf of the merchants of Boston; a similar silence exists in Dickinson's 1768 complaint and in Samuel Adams's 1772 complaint. 160 The most likely explanation for the repeated emphasis on house searches, and the virtual silence regarding searches of commercial premises, is that the Framers understood that legislative authority for official inspection of commercial premises did not violate any common-law principle comparable to the castle doctrine applicable to houses. In contrast to the free market ideology the Supreme Court imposed on the Constitution in late nineteenth- and early twentieth-century rulings, the Framers were apparently comfortable with a regime in which the colonies and then the states closely regulated commercial interests. 161

*609 2. The Concerns Expressed During the Ratification Debates The concerns and complaints about search and seizure voiced by anti-Federalists during the ratification debates of 1787-88 were similar to those voiced during the prerevolutionary grievance. Once again, little concern was expressed regarding arrest authority; on the few occasions when it was mentioned, the concern focused on the potential use of general arrest warrants. 162 The primary concern during 1787-88 was the potential for general search authority regarding houses. Cuddihy has noted that the anti-Federalists expressed concerns with revenue searches of houses both under general warrants and without any warrants. 163 However, a clearer picture emerges if one sorts out the statements made by anti-Federalists who actually called for a federal search and seizure provision, from the more demagogic statements made by anti-Federalists who simply sought to whip up opposition to the proposed constitution. The latter professed rather fanciful fears that federal officers would search and seize everything in sight to enforce a federal “excise.” 164 However, these dire predictions *610 were not usually connected to a call for a federal constitutional protection; instead, they were aimed at convincing readers that the proposed federal government would simply be impossible to control. 165 More salient for understanding the content of the Fourth Amendment are those anti-Federalist complaints raised in connection with calls for a federal bill of rights. Those antiFederalists expressed the more focused concern that a future federal government might employ general warrants. 166 In sum, the complaints expressed during the prerevolutionary controversies and during the ratification debates reveal that the Framers simply did not harbor diffuse fears regarding search and seizure *611 authority. Rather, they were concerned specifically with the threat posed by general warrants, especially in the context of revenue searches of houses.

3. The Post-Framing Understanding of the Constitutional Search and Seizure Provisions


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Previous commentaries have tended to jump from the framing of the Fourth Amendment to the 1886 Boyd decision, 167 which is widely viewed as the Supreme Court's first substantial construction of the Fourth (and Fifth) Amendment. 168 However, a variety of aspects of early nineteenth-century legal pronouncements (or silences) cast light on the original meaning of the Fourth Amendment--and reveal that the original meaning differed from modern constructions. To begin with, the First Congress did not address the warrantless arrest authority of federal officers. The 1789 Judiciary Act, enacted contemporaneously with Congressional approval of the Fourth Amendment, created authority for magistrates to issue arrest warrants for federal offenses. 169 It also created federal marshals and gave them the duty of executing writs and warrants issuing from federal courts--but was silent as to their authority to make warrantless arrests. 170 In 1792, Congress conferred on marshals authority equivalent to that of a state sheriff to call out a posse comitatus of citizens (that is, the local militia) to suppress riots or insurrections. 171 However, Congress never *612 explicitly authorized marshals to make warrantless arrests until 1935. 172 Thus, it does not appear that early Congresses were much concerned with warrantless arrests by federal officers. *613 Early nineteenth-century judicial interpretations of the Fourth Amendment and of the state search and seizure provisions also provide important evidence as to how the Framers understood these texts. (At the least, they are better guides to the original understanding than are judicial interpretations offered a century or more after the framing.) Post-framing interpretations indicate that judges understood the provisions banning “unreasonable searches and seizures” as bans against too-loose warrants, but not as standards for warrantless intrusions. Federal courts rarely addressed the Fourth Amendment during the nineteenth century. That in itself is strong evidence that the amendment was not understood to be a comprehensive regulation of searches and arrests in that period--federal officers certainly made arrests and searches. 173 Moreover, the early federal cases which did mention the Fourth Amendment almost always addressed warrant authority in some respect, and often involved a challenge to legislation that allowed a novel use of warrants. 174 For example, even the 1886 *614 Boyd decision, which involved a challenge to the constitutionality of statutory authority by which the government had obtained an invoice in a customs dispute, implicitly dealt with search warrant authority. 175 Conversely, although federal courts discussed the validity of warrantless arrests on a number of occasions, they rarely mentioned the Fourth Amendment when they did so--and the few arrest cases that did mention the Fourth Amendment were of the exception-that-proves-the-rule variety. 176 State constitutional pronouncements and judicial decisions regarding search and seizure also focused on warrant authority, rather than treating reasonableness as a standard for warrantless intrusions. When Ohio adopted a declaration of rights in 1802, it changed “unreasonable searches and seizures” to “unwarrantable searches and seizures”--hardly a change the drafters would have made if reasonableness had been the accepted constitutional standard for assessing warrantless intrusions. 177 *615 State court interpretations of state search and seizure provisions banning “unreasonable searches and seizures” also focused on warrant authority. Some state court decisions assessed the constitutionality of statutes that authorized new uses of search warrants. 178 The state courts, however, rarely addressed the constitutional provisions when they assessed the lawfulness of warrantless arrests. The few state court opinions regarding warrantless arrests to address constitutional provisions banning “unreasonable searches and seizures” concluded that such provisions were not intended to apply to warrantless arrests. 179 The 1814 Pennsylvania case Wakely v. Hart was probably the most widely cited early American case on the law of arrest. 180 Wakely sued a high constable of Philadelphia for false imprisonment, alleging that the officer had violated the state constitutional prohibition against “unreasonable searches and seizures” simply because he had arrested Wakely without


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a warrant. 181 Unsurprisingly, the Pennsylvania *616 Supreme Court rejected Wakely's strained argument. 182 However, the Pennsylvania judges did not conclude that the warrantless arrest conformed to a constitutional reasonableness standard. Rather, Chief Justice Tilghman wrote that the state search and seizure provision had nothing to do with warrantless arrests: The whole [search and seizure provision] was nothing more than an affirmance of the common law, for general warrants have been decided to be illegal; but as the practice of issuing them had been ancient, the abuses great, and the decisions against them only of modern date, the agitation occasioned by the discussion of this important question had scarcely subsided, and it was thought prudent to enter a solemn veto against this powerful engine of despotism. 183 Thus, Wakely construed the provision banning “unreasonable searches and seizures” as simply prohibiting any authorization of general warrants. 184 The Massachusetts Supreme Judicial Court gave a similar description of its state provision (the provision in which “unreasonable searches and seizures” had been introduced) in its 1850 decision Rohan v. Sawin: It has been sometimes contended, that [a warrantless arrest] was a violation of the great fundamental principles of our national and state constitutions, *617 forbidding unreasonable searches and seizures and arrests, except by warrant founded upon a complaint made under oath. Those provisions doubtless had another and different purpose, being in restraint of general warrants to make searches, and requiring warrants to issue only upon a complaint made under oath. They do not conflict with the authority of constables or other peace-officers, or private persons under proper limitations, to arrest without warrant those who have committed felonies. 185 Thus, both Wakely and Rohan construed the ban against “unreasonable searches and seizures” to be aimed at searches and seizures made under general warrants rather than warrantless arrests. 186 (Unfortunately, some recent discussions of these cases may have conveyed the misimpression that they applied constitutional search and seizure provisions to warrantless arrests. 187 ) In addition, the Massachusetts Supreme Judicial Court had earlier discussed the meaning of “unreasonable searches and seizures” in its *618 1838 decision Banks v. Farwell. 188 An officer had arrested Banks pursuant to a warrant and then, after Banks confessed to a theft, went to Banks's shop and entered without a warrant to retrieve property Banks had just admitted was there. The court concluded that neither the Fourth Amendment nor the Massachusetts provision prohibited the intrusion because “[w]hat is meant by ‘unreasonable searches and seizures,’ is clearly explained by the subsequent words in both constitutions.” 189 Of course, the “subsequent words” only set out standards for valid warrants. These judicial statements that search and seizure provisions against “unreasonable searches and seizures” did not apply to warrantless intrusions were consistent with early constitutional commentaries. St. George Tucker, William Rawle, and Justice Joseph Story each described the Fourth Amendment and state search and seizure provisions exclusively in terms of the warrant standards that banned the use of general warrants. None discussed standards for warrantless intrusions in that context, and none identified a reasonableness standard distinct from the standards for a valid warrant. 190 As late as 1868, Thomas Cooley used “Unreasonable Searches and Seizures” as the heading for his discussion of the Fourth Amendment, but discussed only warrant standards, not warrantless intrusions, under that heading. 191 *619 In sum, the historical record does not support the common assumptions that the Framers must have intended the Fourth Amendment to be a comprehensive regulation of search and arrest authority and to articulate a standard for warrantless intrusions. An authentic historical account of the original meaning of the Fourth Amendment must account for both the focused


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nature of the complaints that appeared prior to the framing and the focused character of the post-framing judicial interpretations of the search and seizure provisions.

V. Why It Made Sense for the Framers to Focus on Prohibiting Legislative Approval of General Warrants The preceding Parts have argued that existing accounts of the original meaning of the Fourth Amendment rest on misinterpretations of the historical evidence. This Part begins the task of piecing together an authentic account of the original meaning. Specifically, it offers two somewhat overlapping explanations for the Framers' focus on banning general warrants. It first draws on common-law doctrine regarding arrest and search authority to show that the Framers understood warrant authority as the most relevant and potent mode of arrest and search authority, especially when intrusions of houses were involved; thus, the Framers perceived that control of warrant authority would control the officer. It next argues that common-law doctrine did not include the notion that an officer's misconduct might constitute *620 a government illegality; thus, the Framers would not have perceived any basis for addressing the conduct of warrantless officers in a constitutional text.

A. Why the Framers Were Concerned Only with Prohibiting General Warrants Framing-era arrest and search authority was both more complex and more restrictive than modern commentaries have suggested. In particular, the common law did not provide officers with discretionary search and seizure authority. Although use of warrants was not “required” in quite the same way as it is today, the warrant was far more salient in common-law authority than it is in modern doctrine. Indeed, the historical sources show that the Framers worded the search and seizure provisions as they did to counter the possibility that legislators might authorize use of general warrants for customs searches of houses, and thereby open a unique breach in the common law's prohibition of discretionary house searches.

1. The Salient Characteristics of Framing-Era Criminal Law Enforcement Authority Proactive criminal law enforcement had not yet developed by the framing of the Bill of Rights; in fact, even post-crime investigation by officers was minimal. 192 Criminal law was still conceived largely in terms of disputes between man and man. Although the law recognized a number of complainantless crimes (such as public drunkenness and violation of Sabbath laws), they appear not to have been viewed as seriously as modern complaintless crimes such as drug offenses. In addition, the institutions of criminal justice were still rudimentary. There were no police departments in the colonies or early states. In fact, there were no professional law enforcement officers. The peace officer, most commonly a constable, 193 was usually a low status “freeman” pressed into a tour of duty for a year. 194 He was not *621 paid a salary; rather, he was a part-time officer who received small fees for performing various services, probably while attempting to maintain his usual occupation. Although constables in some cities might have been loosely organized under a “high constable,” and might have been augmented by a nightwatch, peace officers were not numerous; the usual pattern was one constable for each parish, ward, or similar local jurisdiction. Thus, the constable often depended on the assistance of bystanders to execute an arrest-- in fact, the constable's authority to command the assistance of others may have been the most distinctive attribute of his office. 195 Constables were expected to preserve order by keeping an eye on taverns, controlling drunks, apprehending vagrants, and responding to “affrays” (fights) and other disturbances 196 --but they were not otherwise *622 expected to investigate crime. 197 Instead, the mobilization of criminal justice depended almost entirely on private initiation of criminal prosecutions. Except for homicides, which might be inquired into by a coroner's inquest or grand jury, the initiation of arrests and searches


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commenced when a crime victim either raised the “hue and cry” or made a sworn complaint. How and how often (if at all) the hue and cry was used in late eighteenth-century America is not well understood, but it appears to have been reserved primarily as a response to “fresh” crimes, especially robbery and escapes. 198 *623 Because only a commissioned judicial officer possessed authority to administer an oath and act on the basis of another person's suspicion, crime victims had to make complaints to a local justice of the peace, the lowest ranking official possessing a judicial commission. The constable, who had no judicial commission, could neither administer an oath nor receive a complaint. Thus, the justice of the peace served as the gatekeeper who decided whether to activate the criminal justice apparatus for making arrests and searches. 199 Unlike the constable, the justice of the peace was a man of wealth and high status in the local community. He did not personally make arrests or searches; rather, he directed his constable (who was regarded as an officer of the judicial branch 200 ) to perform those tasks. A judicial warrant (sometimes referred to by the more generic terms “mandate,” “precept,” “writ,” or “process” 201 ) was central to law enforcement *624 authority because it was usually the only means for a justice of the peace to give binding instructions to the constable as well as to indemnify the constable against trespass claims. 202

2. “Justification” for Arrests and Searches at Common Law A few words are in order regarding “legal authority.” Official authority can be thought of either in normative terms as positive statements of what an officer is entitled to do, or in more prudential terms as descriptive statements of the potential adverse consequences if an officer oversteps his bounds. Because we cannot recover the actual attitudes and behaviors of framing-era peace officers, assessing the latter provides the more useful means of understanding past criminal law enforcement authority. Today, the exclusionary rule articulates the legal consequence that may follow an “illegal” arrest or search. Although there was no exclusionary rule in the late eighteenth century, “unlawful” arrests or searches still carried potential adverse consequences. At common law, a search or arrest was presumed an unlawful trespass unless “justified.” 203 Thus, law enforcement authority as such consisted simply of *625 those justifications for arrests or searches recognized by the common-law treatises and cases. “Unlawful” (unjustified) arrests or searches exposed the officer to lawful resistance by bystanders or the target of his intrusion. Unlike modern statutes, the common law did not make it an offense to resist an officer who attempted to make an unjustified arrest or search. Thus, there was a relatively robust understanding of a citizen's right to resist an officer who exceeded his authority. 204 Furthermore, the victim of an unlawful arrest or search could sue the offending officer for trespass damages. The common law recognized no broad doctrine of official immunity. 205 There is a dearth of *626 information, however, as to how often victims actually brought trespass suits as remedies for unlawful arrests or searches. 206 (The common-law sources also referred to the potential for criminal prosecution of officers for unlawful intrusions; however, instances of criminal prosecution would likely have been as rare then as they are today. 207 ) The most salient feature of common-law authority for present purposes is that a valid (specific) arrest or search warrant provided the officer with the clearest and strongest source of justification for an intrusion. The constable executing a valid warrant acted as the agent of the justice of the peace and, indirectly, of the sovereign political power. He was not to be trifled with. As long as he acted “ministerially”--that is, within the directions of the warrant 208 --it was an offense to *627 resist him, or even to


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refuse to assist him. Likewise, because he acted as the justice's agent, he was “indemnified” against trespass liability. 209 In contrast, an officer found it much harder to justify his actions when he attempted an arrest or search without a warrant. 210 Indeed, common-law sources often described warrantless arrests or searches as acts that an officer undertook “at his own risk” or “at his peril.” 211

3. The Meager Authority of the Warrantless Officer In the late eighteenth century, searches were still of limited utility to criminal law enforcement. The principal possessory offense was possession of stolen property. In the absence of forensic science, items other than stolen property would usually have been of limited evidentiary value. 212 Thus, as I describe below, the common law recognized a search warrant for stolen goods, and also recognized the lawfulness of taking weapons or stolen property from the “possession” of an arrestee as an “incident” of a lawful arrest made with or without a warrant. However, those appear to have been the only forms of search authority recognized in framing-era common law. 213 The limited character of common-law authority for warrantless arrests is apparent if one contrasts the framing-era rules to the ex officio authority of a modern police officer. Today, a police officer's felony arrest is generally considered legal if she had “probable cause” to believe the arrestee might be involved in crime. Likewise, an arrest *628 based on probable cause will justify a search incident to arrest. That simple picture, however, is a recent development. 214 In the late nineteenth century, statutory provisions and judicial opinions usually identified four or five different (though somewhat overlapping) justifications for warrantless arrests by officers. For example, the 1887 South Dakota arrest statute, which the Supreme Court discussed in the 1900 decision Bad Elk v. United States, set out five possible justifications for a warrantless arrest by an officer, and the Court characterized them as codifying the “common law”: (1) For a public offence committed or attempted in [the officer's] presence. [This was often referred to as an arrest “on view.” ] (2) When the person arrested has committed a felony, although not in [the officer's] presence. [This was sometimes referred to as the actual guilt justification.] (3) When a felony has in fact been committed and [the officer] has reasonable cause for believing the person arrested to have committed it. [This was often referred to as an arrest “on suspicion.” ] (4) On a charge made [by another person] upon reasonable cause of the commission of a felony by the party arrested. [This was sometimes called an arrest “on charge.” ] [(5) The officer] may also . . . arrest any person whom he has reasonable cause for believing to have committed a felony, and is justified in making the arrest, though it afterward appear that the felony had not been committed. [[[This is the modern “probable cause” standard.] 215 The listing is a virtual fossil record of the gradual expansion of arrest authority. As I discuss below, the “on charge” justification (the fourth in the list) was added in the early nineteenth century to allow the officer more leeway to assist a citizen who was making a felony arrest, and the “probable cause” justification (the fifth in the list) then evolved from the “on charge” justification and eventually displaced the earlier justifications for warrantless felony arrests by officers. However, only the first


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three justifications for warrantless arrests were recognized in *629 American law as of 1789 (and they were not augmented by any broad authority to temporarily detain persons short of arrest 216 ). a. The Three Framing-Era Justifications for Warrantless Arrest. One notable feature of the three framing-era justifications for warrantless arrests is that they were equally available to peace officers and private persons; thus, they also defined the justifications for what we now call a “citizen's arrest.” 217 In fact, the leading treatise by Serjeant William Hawkins first described the arrest authority possessed by “any person” and then opened the discussion of an officer's warrantless arrest authority by saying that “[a]s to the justifying of . . . arrests by the Constable's own authority; it seems difficult to find any Case, wherein a Constable is impowered to arrest a Man for a Felony committed or attempted, in which a private Person might not as well be justified in doing it . . . .” 218 Put another way, the idea that a peace officer possessed *630 a distinctive level of ex officio arrest authority had not yet emerged. The narrowness of the three framing-era justifications for warrantless arrests becomes apparent when one works through them. The “on view” justification (the first in the list) was the only justification for a warrantless misdemeanor arrest. Common law did not provide any justification for making a warrantless misdemeanor arrest after-the-fact; in that case, only a judicial arrest warrant could justify the arrest. 219 This limitation was significant because many serious crimes (that are now felonies) were misdemeanors at common law. 220 The restriction against making warrantless misdemeanor arrests after-the-fact meant that even a person guilty of a completed misdemeanor could lawfully resist a constable's attempt to make a warrantless arrest for that offense. 221 Likewise, even a convicted misdemeanant could bring a trespass action against an officer who had arrested him after-the-fact without a valid arrest warrant. 222 *631 Because it was more important to apprehend felons than misdemeanants, the common law provided somewhat broader justifications for felony arrests. Thus, an officer could justify a felony arrest if the arrestee was actually guilty of the felony for which the arrest was made--that is, if the arrestee was subsequently convicted of the felony. 223 The actual guilt justification depended entirely on the subsequent *632 conviction of the arrestee 224 --it did not matter what information the arresting person had about the crime at the time of the arrest. 225 The practical limitation was that the actual guilt justification involved a gamble--the officer had to predict whether a felony conviction would result (and the outcome of a trial obviously could turn on factors other than the testimony provided by the arresting person). Because the actual guilt justification was so uncertain, it appears likely that the “on suspicion” standard, the third in the list, would have been the operative common-law justification for a warrantless felony arrest. Although the “on suspicion” justification was less demanding than actual guilt, it was more demanding than the label might suggest. An officer could meet it only upon proof that “felony in fact” had actually been committed by someone and that there was “probable cause of suspicion” to think the arrestee was that person. The “probable cause of suspicion” prong does not appear to have been particularly stringent; it departed from the notion of certain truth by allowing suspicion as to who committed the offense to be merely “probable.” Moreover, it seems likely that an officer could have met this prong by testifying as to unsworn information reported by other persons. 226 The requirement that the officer prove a felony had been committed by someone “in fact,” however, was met only if the officer proved that the felony for which the arrest was made had actually (not just probably) been committed (and proof that a misdemeanor had been committed would not suffice). 227 (The principal difference between *633 the “on suspicion” justification and the modern “probable cause” standard is that the latter can be satisfied by showing a probability that a felony


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had been committed, but the former could not. 228 ) Thus, the constable had to be sure of his facts about the felony before he attempted a warrantless arrest. In addition, the framing-era officer could not avoid justifying the arrest by claiming to act at another person's request. The person who initiated an arrest had to be able to justify it, 229 and anyone who assisted *634 in making an arrest, including an officer, was justified only if the initiating person could do so. 230 b. The Expansion of the Officer's Warrantless Arrest Authority After the Framing. One indication that framing-era law actually inhibited officers from making warrantless arrests is that later--when crime and urban disorder emerged as concerns during the nineteenth century--courts and legislatures substantially relaxed the justifications for warrantless arrests by officers. The expansion of the officer's ex officio authority, which opened the way for the development of modern policing, was largely imported from developments in English law. The initial expansion of the peace officer's warrantless arrest authority occurred in the 1780 King's Bench decision, Samuel v. Payne. 231 Indeed, the change made is evident in the difference between Lord Mansfield's charge to the jury at the trial and the subsequent granting of a new trial by the Court of King's Bench. Hall, a private person, suspected that Samuel had stolen some laces, and procured a warrant to search for stolen goods (but not to arrest). Payne, a constable, assisted in executing the search. Although no stolen laces were found, Hall accused Samuel of theft, and Payne assisted Hall in arresting Samuel. After a magistrate released Samuel, Samuel sued both Hall and Constable Payne for trespass. At the trial, Mansfield instructed the jury that a constable could not justify a warrantless arrest on the basis of an unsworn charge by another person; thereupon the jury found both Hall and constable Payne liable for trespass. 232 When Constable Payne moved for a new trial in the Court of King's Bench, the judges, including Mansfield, recognized a “charge” of felony as a justification for a warrantless arrest by an officer, even if *635 there was no felony in fact. They described the earlier rule as “inconvenient.” 233 However, they did not relax the rule that a private person could not justify an arrest unless there was an actual felony. 234 The distinction drawn in Samuel between the warrantless arrest authority of a peace officer and that of a private person was the seed from which the discretionary arrest authority of the modern police officer developed. 235 Although Samuel was decided in 1780, it could not have influenced the framing of the American search and seizure provisions; the case report was not published until 1782, 236 after the “right to be secure” against “unreasonable searches and seizures” had already been introduced in the 1780 Massachusetts provision. It is possible that some of the federal Framers may have heard of Samuel by 1789, but if so they would have understood it to be a novel English ruling. 237 In fact, American courts appear to have been slow to adopt Samuel's innovation. The 1814 Pennsylvania decision in Wakely does not even hint of *636 the “on charge” standard or of the idea that an officer might possess distinctive ex officio (as opposed to personal) warrantless arrest authority. 238 The 1829 New York decision Holley v. Mix appears to have been the earliest American case to adopt the “on charge” justification. 239 However, during the remainder of the nineteenth century virtually all American jurisdictions adopted the “on charge” justification for arrests by officers. 240 The “probable cause” justification for warrantless arrests was also an English import. In 1827 the judges of the King's Bench used Samuel as a springboard for a further expansion of ex officio arrest authority in Beckwith v. Philby, which permitted an officer (but not a private person) to justify a warrantless arrest if he could show “reasonable ground to suspect that a felony


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ha[d] been committed,” even if none had been 241 --that is, on probable cause. 242 American lawyers and judges likely became familiar with the Beckwith probable cause standard by the early 1830s. Even so, it appears that the first American reported decisions to endorse the probable cause standard for warrantless arrests by officers were the 1844 Pennsylvania decision Russell v. *637 Shuster 243 and the 1850 Massachusetts decision Rohan v. Sawin. 244 During the remainder of the century, a majority of American jurisdictions adopted the probable-cause-to-suspect-felony standard. 245 Unlike the “on charge” standard, however, the probable cause standard sparked some controversy, and it was not uniformly adopted. 246 Nevertheless, by the early twentieth century the probable cause standard had become the predominant American standard for warrantless felony arrests by officers. 247 *638 The purely ex ante probable cause justification for warrantless felony arrests was a more radical enlargement of the officer's arrest authority than was the “on charge” justification. By replacing the felony “in fact” requirement with a probable felony, while at the same time not requiring any explicit charge of a felony, Beckwith provided the officer with a substantial degree of discretion to judge the appropriateness of an arrest. As a result, an officer enjoyed a much broader latitude for erroneously arresting innocent persons or for making warrantless arrests of persons who were actually guilty only of a misdemeanor. 248 The expansion of the ex officio arrest authority of state officers (which also affected federal officers 249 ) constituted a revolution in criminal justice authority and resulted in warrantless felony arrests displacing the previous reliance on arrest warrants. Additionally, the expansion of ex officio felony arrest authority expanded the opportunities for officers to make warrantless searches incident to arrest, making that power far more significant than it had been at the framing. 250 The adoption of the probable cause justification also undercut the adverse consequences that had previously policed the limits on warrantless arrest and search authority. Beckwith undercut the threat of trespass liability by allowing the officer to rely on unsworn information provided to him by other persons even when no one else actually made a felony “charge.” Thus, no particular person took on the responsibility for being the complainant for the arrest: the officer was not accountable for actually “charging” the commission of a crime. Thus, the probable cause standard blurred accountability for a mistaken arrest and severely undercut the viability of the trespass remedy *639 as a means of regulating warrantless arrests. In addition, because an innocent person could not readily appraise whether an officer who attempted an arrest was justified by “probable cause,” the right to resist unlawful arrests became unworkable and gradually collapsed. 251 In sum, the recognition of probable cause alone as a justification for a warrantless arrest marked a drastic departure from the common-law regime familiar to the Framers. The enlarged ex officio authority of the officer, coupled with the organizational might of the new police departments, fundamentally changed arrest and search doctrine and practice. The modern police officer and aggressive policing had become realities by the end of the nineteenth century; the warrant ceased to be the usual mode of arrest, and the “ministerial” label disappeared from the literature on law enforcement officers. Unfortunately, modern Supreme Court opinions and commentaries have obscured the post-framing expansion of the officer's ex officio authority by incorrectly asserting that probable cause was the American “common-law” standard for arrest at the time of the framing. 252 Indeed, that error is responsible for much of the confusion at *640 tending Fourth Amendment history. We cannot appreciate the Framers' understanding of the problem of search and seizure unless we remove the probable cause justification for arrests and related post-framing developments from the picture. The Framers understood that justifications for warrantless arrests and accompanying searches were quite limited. Thus, they did not perceive the peace officer as possessing any significant ex officio discretionary arrest or search authority.


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Likewise, the Framers did not share the modern expectation that police officers will tend to be overzealous in “the often competitive *641 enterprise of ferreting out crime.” 253 The aggressive police officer is an outgrowth of an occupational subculture created by the development of police departments and full-time, career police officers. 254 The amateur constable of the framing-era would not have had any similar notion of “real police work”; rather, he had little motive to act “at his own risk.” The principal historical complaint regarding constables was not their overzealousness so much as their inaction. 255 The bottom line is that the Framers perceived warrant authority as the salient mode of arrest and search authority. As James Wilson put it when opening his 1790-91 lecture on arrest authority, “A warrant is the first step usually taken for [the apprehension of a criminal].” 256 In that institutional context, the Framers perceived no reason to fear the *642 “ministerial” officer-especially when house searches were involved. 257

4. The Heightened Importance of Warrant Authority for Intrusions into Houses Although modern courts apply the Fourth Amendment to all privately owned property (except open fields), contemporary cases still acknowledge that the house was meant to receive special protection. 258 Even so, the rhetoric of modern doctrine falls short of recognizing the unique status accorded the house at common law. The domicile was a sacrosanct interest in late eighteenthcentury common law, as evidenced by the doctrine that “a man's house is his castle.” 259 The castle doctrine announced the householder's entitlement to be left alone in his house--what John Adams called “that strong Protection, that sweet Security, that delightful Tranquillity which the Laws have thus secured to [an Englishman] in his own House . . . .” 260 Thus, *643 except for extraordinary circumstances, an officer could not justify “breaking” (that is, opening 261 ) the outer door of a house unless he acted pursuant to a judicial warrant. Adams's cryptic notes of Otis's 1761 argument bear witness to this understanding: This [general writ of assistance] is against the fundamental Principles of Law. The Priviledge of House. A Man, who is quiet, is as secure in his House, as a Prince in his Castle, not with standing all his Debts, and civil Processes of any kind.--But For flagrant Crimes, and in Cases of great public Necessity, the Priviledge may be [encroached]. For Felonies an officer may break upon Prossess, and oath-- i.e. by a Special Warrant to search such an House, sworn to be suspected, and good Grounds of suspicion appearing. 262 Otis's claim that a house was immune to entry except upon a “special warrant” echoed earlier common-law statements. Coke had asserted a broad right to forcibly defend one's house, 263 and had described arrest warrants largely in terms of the authority they provided officers to enter a house to make a felony arrest. 264 Although Hale *644 later gave a somewhat more expansive interpretation of an officer's authority to break into a house to make a warrantless arrest for felony, he generally cautioned that the felon must actually be present in the house 265 and advised that “to avoid question in these cases, it is best to obtain the warrant of a justice, if the time and necessity will permit.” 266 Hawkins adopted a more restrictive view in his chapter on “Where Doors may be broken open in Order to make an Arrest.” He noted that an officer could break into a house to execute an arrest warrant from a justice of the peace, 267 but recognized only two situations in which an officer could do so without a warrant: if he perceived that violence was then occurring inside the house, 268 or if he was in pursuit of a person who either had just been witnessed committing an affray or was actually guilty


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of a felony. However, Hawkins asserted that an officer could not break into a house to make an arrest on suspicion of *645 felony. 269 Other eighteenth-century authorities maintained that, while an arrest warrant for a felony could justify breaking a house, an arrest warrant for a misdemeanor would not suffice. 270 The warrant was even more critical for justifying searches of houses than for entering the house to make an arrest. Commonlaw authorities recognized a search warrant for stolen goods, 271 which was also a justification for forcibly entering a house if necessary. 272 The *646 common-law sources, however, did not identify any positive justification for a warrantless search of a house--a silence that meant there was no such justification. 273 Indeed, the absence of common-law justifications for warrantless house searches, or of common-law authority for search warrants other than for stolen property, explains why Parliament had to enact statutory search authority for customs officers. 274 As the Massachusetts Supreme Judicial Court stated in 1816, “every one is presumed to know that the dwelling house of another cannot be lawfully forced, unless for purposes especially provided for by law.” 275 Modern commentators have sometimes understated the strong protection afforded the house against warrantless intrusions. For example, Professor Taylor claimed that the common law permitted a warrantless search of a house for evidence or stolen goods as an “incident” of a lawful arrest made in the house--but did not support that historical claim. 276 Although that issue apparently arose infrequently, *647 the framing-era statements that do address the point take the opposite view. 277 Similarly, Professor Amar has asserted the existence of a broad “ex post success justification” for searching for and discovering stolen goods or contraband--but has not identified any supporting authority. 278 Actually, the record indicates the opposite-that the success of *648 a search was not sufficient justification for a violation of a house. 279 The importance of a valid warrant for justifying a house search is exemplified by the 1813 New York decision Bell v. Clapp, in which a search warrant was the only justification offered for the lawfulness of a successful search. 280 Likewise, in the 1816 trespass case Sanford v. Nichols, the Massachusetts Supreme Judicial Court faced a situation in which customs officers had made a successful search of a house for uncustomed goods, but had acted under a too-loose and therefore illegal search warrant. 281 The court noted that the plaintiff was entitled to a trespass verdict against customs officers, thereby showing that a successful search did not justify the violation of a house (however, the court suggested that damages might be small because only forfeit goods were actually taken). 282 Similar implications are apparent in both the 1814 New York decision Sailly v. Smith 283 and the 1838 Massachusetts *649 decision Banks v. Farwell. 284 Thus, the common law apparently provided no justification for a search of a house beyond the ministerial execution of a valid search warrant. 285 The absence of justifications for house searches other than a valid search warrant explains why prerevolutionary controversies over search authority consistently focused on whether general warrants could constitute a legal justification for a house search. It also explains why no one seems to have claimed that customs officers (or King's Messengers) could conduct lawful warrantless searches of houses. Thus, there is a historical explanation for the silence of the Fourth Amendment (and of the state provisions) as to whether or when a warrant is to be used. The Framers of the Fourth Amendment understood that the common law already specified that many sorts of arrests or searches could only be justified by a valid warrant--especially when “houses, papers, and effects” were involved. Because they took the importance of warrant authority for granted, they perceived the task for the *650 constitutional text solely as banning the legalization of general warrants--and the warrant standards of sworn-to probable cause and particularity sufficed to accomplish that.


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Justices Jackson and Frankfurter, as well as a number of commentators, were therefore correct when they asserted that the Framers of the Fourth Amendment must have believed they could control intrusions by peace officers simply by controlling the issuance of warrants. 286 The Justices provided no supporting evidence for their conclusion, however, because they likely did not fully grasp (or were constrained from reporting) how much modern search and seizure doctrine had diverged from the common-law rules that had shaped the Framers' expectations.

5. The Framers' Acceptance of Specific Warrants The common-law sources also shed considerable light on why the Framers objected only to general warrants, but not to specific warrants. At common law, specific warrants provided several layers of protection against arbitrary searches. First, and perhaps foremost, the specific warrant gave a particularized command to the officer, thereby circumscribing the officer's exercise of his own judgment as to whom to arrest, what place to search, or what items to seize. The specific warrant controlled the officer. The second layer of protection derived from the common law's distribution of accountability for searches made under warrant. In the modern warrant process, an officer can recite hearsay information from an unidentified informant to establish probable cause for a warrant 287 (or, as a practical matter, can even invent such information or *651 informants with minimal likelihood of discovery 288 ). In framing-era law, however, only a person who had personal knowledge of an offense could swear out a complaint and warrant; thus, there were no “confidential” informants, only named complainants. 289 An officer could act as the complainant only by swearing to his own information and suspicion. In addition, a complainant had to make strong allegations: for an arrest warrant, he had to swear to knowledge of a crime in fact and that he possessed probable cause of suspicion regarding the perpetrator's *652 identity; 290 for a search warrant for stolen goods, he had to swear that goods were stolen in fact and that he possessed probable cause of suspicion as to the location of the stolen property. 291 (Note that the Fourth Amendment probable cause standard for warrants, which does not require an allegation of an offense “in fact,” is actually less demanding than the common-law standards for criminal warrants. 292 ) Swearing out a search warrant was a serious undertaking because the complainant was accountable for the outcome of the search; if it did not produce the stolen property or contraband as alleged, the complainant was liable for trespass. 293 Moreover, an officer who initiated a revenue search was as accountable as a private complainant. An officer was indemnified for executing a valid search warrant because that was a “ministerial” act he was duty-bound to perform, but swearing out a warrant was a personal act. Thus, an officer who initiated an unsuccessful revenue search of a house by swearing out a search warrant for untaxed goods was likewise liable for trespass if the search proved fruitless. 294 (Customs officers did, however, sometimes enjoy a degree *653 of statutory protection for wrongful seizures when they seized goods that had initially appeared to be untaxed but later were ruled not forfeit. 295 ) Although the complainant's trespass liability has disappeared from modern doctrine, it was an important feature of framing-era law. *654 Indeed, the complainant's oath may have been important, in part, because it clarified who was ultimately accountable for the search. A magistrate's assessment of the adequacy of a complaint added a third layer of protection to the specific warrant process. Unlike a constable, a magistrate (usually the justice of the peace) was expected to be a man of stature and sound judgment. 296 In addition to assuring that a complaint alleged, under oath, an offense “in fact,” the magistrate was expected to assess the grounds for probable cause of suspicion respecting the person to be arrested or the place to be searched. 297 In sum, the specific warrant provided substantial protections against arbitrary intrusions.


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*655 6. The Illegality of General Warrants Although there had been a long period in which general warrants had been allowed at common law, 298 common-law treatises clearly disapproved of such warrants as a doctrinal matter (even if such warrants had not been entirely eliminated in practice) by the mid-eighteenth century--and any lingering doubt was removed by the Wilkesite cases in the 1760s. 299 Courts and commentators condemned general warrants *657 precisely because they lacked each of the protections afforded by specific warrants: a complainant's swearing out of specific allegations, the complainant's accountability for fruitless searches, a judge's assessment of the grounds for the warrant, and--perhaps most importantly--clear directions to the officer as to whom to arrest or where to search. 300 The general warrant was reviled as a source of arbitrary power.

7. Why the Framers Feared Legislative Approval of General Warrants for Customs Searches One question remains: why did the Framers bother to adopt constitutional bans against general warrants in light of the apparent consensus that the general warrant was illegal at common law? Their motivation may have been partly symbolic--they responded to Parliament's earlier insult to their right to be secure by declaring that the government should never ignore that right again. But they may also have felt a genuine concern that Congress might endanger the right in the future. They had little reason to fear that judges might approve of general warrants on their own initiative--the highly visible rulings in the *658 Wilkesite cases had removed any possibility of upholding general warrants at common law. Thus, legislation posed the only plausible threat that general warrants might be made legal in the future. The Wilkesite cases, which declared general warrants illegal under common law, explicitly left open that possibility; 301 indeed, Parliament had reauthorized the general writ of assistance in the Townshend Act of 1767, after the Wilkesite cases. Thus, the Framers' constitutional concern was preventing the legislature from authorizing use of general warrants. 302 Of course, the Framers would not have anticipated that future legislators might seek to authorize general warrants in a campaign against crime. Indeed, crime was apparently not perceived as a pressing social problem in late eighteenth-century America. Nor were the Framers likely worried that a future legislature might be tempted to authorize general warrants to identify and persecute political opponents (as the *659 Tory government in England had persecuted Wilkes and his supporters). Instead, they were most likely concerned about general warrants because of their experience with the use, or at least threatened use, of general warrants for customs searches of houses. 303 Customs was a peculiar arena in several ways. First, customs enforcement was more aggressive than law enforcement generally. Customs officers had a unique motive for initiating searches and seizures that constables and other peace officers did not share: customs officers were entitled to keep a significant portion of the value of any uncustomed goods they seized. 304 Second, legislatures had a particular reason to allow unusually aggressive enforcement in customs collections: customs (“imposts”) were to be a primary source of revenues, initially for the new state governments, and then for the new national government. Thus, flagging revenue collections might prompt a legislature to approve general warrants. 305 In addition, because customs search law was understood to be the product of statutes, 306 common law was less effective as a restraint on customs collections than on criminal law enforcement. Hence, customs law was peculiarly susceptible to novel standards and modes of procedure. Parliament had crafted the writ of assistance to facilitate a *660 customs collector's ability to initiate searches and seizures, giving him greater room to exercise initiative than an ordinary peace officer enjoyed.


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Thus, the Framers likely perceived the threat to the right to be secure in house and person in very specific terms--they feared the possibility that future legislatures might authorize use of general warrants for revenue searches of houses. As a result, they wrote constitutional search and seizure provisions to address what they perceived to be the singular threat to the right to be secure in person and house--they wrote them to bar legislative authorization of general warrants. 307

B. Why the Framers Did Not Perceive Misconduct by Officers as a Form of Government Action There is a second reason that the Framers addressed only warrant standards-- they did not equate an officer's misconduct with government illegality; rather they perceived only personal misconduct when an officer exceeded his official authority. Hence, misconduct by an ordinary officer could not constitute an “unconstitutional” government act. This is a large topic, and I will only sketch the argument here. 308 In the late eighteenth century, constitutions were understood to address acts of sovereign power. In that vein, the Framers understood that a statute, which always carried the imprimatur of sovereign governmental authority, could be “unconstitutional.” 309 They also understood that a general warrant could be “illegal” and “unconstitutional” because a judicially issued warrant always carried the imprimatur of sovereign governmental authority, even if the warrant was ultimately found invalid. 310 Thus, the Framers realized that a constitutional provision *661 was an appropriate means of prohibiting future legislative authorization of general warrants. The Framers' understanding of the conduct of the ordinary officer, however, was more complex, almost paradoxical. An ordinary officer's act remained official as long as it fell within the lawful authority of his office. Thus, the officer exercised sovereign power when he executed a legal warrant, and he also exercised official authority deriving from his own office when acting without a warrant but within the lawful bounds of that office (limited as it was). However (and this is the twist), an officer's conduct ceased to be official if he exceeded his lawful authority; then he committed only an “unlawful” personal wrong for which he was subject to forcible resistance and trespass liability just as if he held no office at all. 311 Although an officer's misconduct was sometimes labeled misconduct “under color of” law, authority, or office, that meant only that there had been a pretense of official action, not that it was a form of government illegality. 312 Misconduct *662 by an officer was usually denoted a wrong, a trespass, or “unlawful”--the language of private wrongdoing which indicated that the officer was personally liable for it--but it was rarely labeled “illegal.” 313 This narrow understanding of misconduct by officers was becoming unstable by the time of the framing. For example, English legislation had afforded officers some protection from trespass liability for errors made in connection with their office, 314 and the First Congress extended comparable protections to federal revenue officers. 315 *663 Even so, there is no reason to think the Framers perceived an ordinary officer's misconduct to be a form of governmental action. Thus, they had neither a motive nor a basis for addressing the conduct of ordinary officers in constitutional provisions. The absence of a concept that officer misconduct was attributable to the government is also evident in the fact that the Framers did not address any “remedies” for officers' violations when they wrote the Fourth Amendment (or the other provisions in the Bill of Rights). Indeed, the narrow view of officer misconduct as only personal misconduct explains why the Framers never considered an exclusionary principle. The exclusionary rule is premised on the notion that an unconstitutional government act is void--but exclusion has never been seriously proposed as a consequence of private wrongdoing. 316 Because the only


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constitutional violation the Framers could have anticipated would have taken the form of a statute purporting to authorize general warrants, the primary “remedy” would have been for the judiciary to refuse to issue warrants under the void statute. 317 *664 The historical appearance of the argument for exclusion supports this analysis; the exclusionary principle was first articulated in nineteenth-century cases that challenged the constitutionality of statutes that authorized court orders for searches and seizures. Exclusion was first proposed as a constitutional remedy for illegally seized evidence in the 1841 case Commonwealth v. Dana, which involved a challenge to the constitutionality of a state statute that authorized courts to issue search warrants to seize lottery tickets. 318 Likewise, exclusion was first employed as a remedy for a violation of the Fourth Amendment in the 1886 Supreme Court decision in Boyd v. United States, which ruled unconstitutional a statute that authorized courts to issue orders to compel production of invoices in customs disputes. 319 In contrast, the argument for exclusion was not raised in cases that simply alleged unlawful searches by officers, 320 because personal *665 wrongdoing, even by a person holding an office, could not violate a constitutional standard or right. 321 For the same reason, the Framers *666 would not have believed that the government could be liable for a “constitutional tort” committed by an officer--a term that would have been a virtual oxymoron in 1789. 322 The modern notion that officer misconduct constitutes government illegality traces its origin to the development, during the late nineteenth and early twentieth centuries, of “state action” doctrine under the Fourteenth Amendment. In that context, courts came to view misconduct by officers acting “under color of” law as a form of government misconduct. 323 That development, however, which came *667 more than a century after the framing, constituted nothing less than a revolutionary expansion of the bounds of government action and the reach of constitutional standards. 324 The modern reading of the Bill of Rights as a comprehensive regulation of the conduct of government officers is possible only because of the Court's expansive redefinition of officer misconduct as a form of government action. Officer misconduct was not viewed as government illegality at the time of the framing. 325

*668 C. Summary: The Framers' Concern with Banning Legislative Approval of General Warrants In sum, the Framers did not harbor diffuse concerns about search and seizure. They did not fear warrantless intrusions because they perceived the officer's ex officio authority to be meager. Moreover, they did not have a conceptual basis for addressing misconduct by ordinary officers in a constitutional text. They also did not fear, but preferred use of, specific warrants because the warrant process carried significant protections. Thus, they thought the important issue, and the only potential threat to the right to be secure, was whether general warrants could be authorized by legislation. Hence, they were content to ban legislative approval of too-loose warrants.

VI. The Actual Framing-Era Meaning of “Unreasonable Searches and Seizures” Of course, there is still an important question to answer--if the Framers meant only to constitutionalize the standards for valid warrants, why did they include the language of the first clause of the Fourth Amendment? Where did “unreasonable” in “unreasonable searches and seizures” come from, and how was it understood? In this Part, I trace the appearance of “unreasonable searches and seizures” in the textual evolution of the state search and seizure provisions. In the next Part, I trace the framing of the Fourth Amendment itself.

A. How the Framers Approached Declarations of Rights


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Eleven of the initial thirteen states (thirteen of the initial fifteen counting Vermont and Franklin, the protostate of Tennessee) adopted state constitutions prior to the adoption of the federal Constitution; of those, seven (nine counting Vermont and Franklin) adopted declarations of rights. Several of the states not adopting declarations included some provisions regarding rights within the constitutional texts themselves. 326 Although the grievance over Parliament's authorization *669 of the general writ had yielded to more severe complaints after 1774, 327 each of the state declarations of rights included a search and seizure provision that banned general warrants (though none of the states that omitted a declaration adopted such a ban). The state search and seizure provisions provide important evidence regarding the original meaning of the Fourth Amendment, because virtually all of the language of the Fourth Amendment found its genesis in the earlier state texts. The state declarations typically included two different sets of statements. 328 One articulated the political rights of the community and reflected the political theory of social contract evident in the Declaration of Independence. The other articulated individual rights, and included a number of procedural and substantive provisions relating to criminal justice, broadly defined. Although few records of the deliberations that preceded the framing of the state declarations have survived (beyond the declarations themselves), it is apparent that the state framers did not undertake to draft comprehensive catalogs of individual rights. For one thing, the framers would not have thought it feasible to capture all of the rights of citizens in a single document. For another, *670 they would not have thought it necessary to do so because rights were already captured by another source-the common law. 329 Indeed, the ideological justification for the American Revolution consisted largely of complaints that Parliament's enactments had encroached upon the “immemorial” common-law rights, privileges, and immunities that colonists claimed as English “freemen.” 330 Given that background, the state framers did not approach the task of articulating individual rights as an exercise in abstract theorizing. They were not engaged in deducing rights, but in declaring and thus preserving rights already embedded in the larger structure of common law. 331 The degree to which the common law shaped the state framers' approach is evident in the widespread adoption of provisions guaranteeing that government would not act against citizens except according to “the law of the land”--a provision that was adopted in some form by nearly all of the initial state constitutions, including those that *671 lacked a declaration of rights as such. Such provisions echoed the most famous chapter in Magna Carta, that which declared that no man could be taken or punished by the sovereign except according to “the law of the land” 332 (or, in later iterations, except according to “due process of law” 333 ). Sir Edward Coke's writings shaped the framers' understanding of the “law of the land” chapter. Coke was not only a central figure in the Whig tradition of English liberty, 334 he was also the author of the works which the framers read to learn law. 335 The important point, for present purposes, is that Coke had presented the common-law rules of criminal procedure, including arrest authority and warrants, as being subsumed under the law of the land chapter of Magna Carta. 336 Moreover, Coke had insisted that the sovereign was obligated to comply *672 with criminal procedure rules that constituted the law of the land. 337 Thus, the phrase “law of the land” connoted that the basic features of common-law criminal procedure were essentially fixed. 338 Likewise, the fact that the framers of some state constitutions were content to simply adopt the law of the land protection, rather than a catalog of *673 more specific rights, reveals their understanding of its breadth. 339 The state framers understood the “law of the land” protection to encompass the more specific procedural requirements eventually included in American declarations of rights, including the ban against general warrants. 340


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That the framers sometimes articulated more specific procedural protections likely reflects their desire to repudiate particular past violations of the law of the land and thus preclude any repetition of those deviations. Indeed, the historical models of declarations of rights available to the state framers took the form of statements of grievances. 341 Thus, the specific provisions in the state declarations tend to address either specific grievances from English constitutional history or colonial grievances from the controversies that preceded the American Revolution. They thus reinforced what Madison would call “those essential rights, which have been thought to be in danger.” 342 The bans against general warrants were spun out from the broader “law of the land” protection because Parliament had purported to *674 authorize use of general warrants in derogation of the commonlaw liberty of the house. 343

B. The Textual Evolution of Search and Seizure Provisions As noted above, the phrase “unreasonable searches and seizures” first appeared in the 1780 Massachusetts search and seizure provision, the seventh of the nine state and proto-state provisions. 344 Why and how it appeared there are crucial to an authentic understanding of the original Fourth Amendment.

1. The Straightforward State Bans Against General Warrants The story of the state declarations began when George Mason authored the first draft of the Virginia declaration of rights in the late spring of 1776, prior to the Declaration of Independence. Mason omitted a prohibition against general warrants because he did not think it sufficiently fundamental for a declaration of rights. 345 Other members of the legislative committee that reviewed Mason's draft disagreed, however, and inserted a search and seizure provision. 346 After making further changes, the legislature adopted the following: X. That general warrants, whereby any 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 offence is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted. 347 *675 Like the earlier committee draft, the final version focused on banning general warrants; nothing in its language could be viewed as addressing warrantless intrusions or creating a broad reasonableness standard. 348 The Virginia drafters clearly banned general warrants. 349 However, they did not attempt to spell out when warrants were to be used, because the commonlaw justifications for arrest and search were not controversial. Rather, because the drafters took it as a given that a warrant provided the most potent form of arrest authority, and virtually the only authority for searching a house or papers, they were content to simply ban the use of too-loose warrants by commanding that such warrants “ought not be granted.” 350 Maryland, Delaware, and North *676 Carolina soon adopted similar provisions that also simply stated the standards for valid warrants. (The protostate of Franklin did likewise in 1784. 351 )

*677 2. Pennsylvania's Addition of an Introductory Right Statement Shortly after the Declaration of Independence was signed, Pennsylvania became the second state formally to adopt a declaration of rights. The Pennsylvania framers borrowed heavily from the committee draft of the Virginia declaration, then being circulated within the Continental Congress meeting in Philadelphia. 352 Pennsylvania adopted the following search and seizure provision:


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That the people have a right to hold themselves, their houses, papers, and possessions free from search or seizure; and therefore warrants without oaths or affirmations first made, affording a sufficient foundation for them, and whereby any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his or their property, not particularly described, are contrary to that right, and ought not to be granted. 353 The language banning general warrants (everything after “therefore”) was clearly based on the Virginia committee draft. Like the Virginia draft, the Pennsylvania provision did not use the term “general warrant” (as the final Virginia text did) but instead prohibited unparticularized warrants for “suspected places” or an undescribed person--the hallmarks of general warrants. 354 It appears that the initial draft for this provision consisted only of the ban against too-loose warrants (like the provisions being drafted in the neighboring states of Maryland and Delaware at roughly the same time). However, at some point in the drafting process, possibly quite late, the Pennsylvania framers innovated by inserting the statement declaring the “right” at issue ahead of the ban against general warrants. 355 (I refer to clauses of the type preceding “and therefore” in the Pennsylvania text as an *678 “introductory right statement” in order to reserve the “first clause” label for the opening clause of the Fourth Amendment itself.) As shown below, the Pennsylvania introductory right statement would serve as the prototype for similar language in the 1780 Massachusetts provision, and that provision, in turn, would provide the model for the language of the first clause of the Fourth Amendment. The Pennsylvania introductory right statement, however, does not contain the term “unreasonable.” In fact, it is oddly drafted: a “right to hold themselves, their houses, papers, and possessions free from search or seizure” sounds absolute. 356 Yet the provision clearly was not intended to create a complete ban against searches and seizures of the listed interests because it used “therefore” to connect the introductory right statement to the warrant standards, thus showing that the statement of the right was meant to serve as the premise for the constitutionalization of the warrant standards. 357 Why did the Pennsylvania framers add this introductory right statement? Prior commentators have assumed the statement was added to broaden the protection to regulate warrantless intrusions and have even “imputed” a broad reasonableness standard for warrantless intrusions to its language. 358 However, they have not identified a colonial grievance broader than customs searches of houses under general warrants. 359 Likewise, they have not explained why the framers would have thought an unlawful warrantless arrest or search by an officer could carry any constitutional implications. 360 (An unjustified arrest ordered by a governor might have carried constitutional implications; however, that specific abuse would have been understood to violate the “law of the land” provision that was also included in the Pennsylvania declaration, as well as other state declarations. Hence, even that concern would not have led the drafters to expand the search and seizure provision beyond banning general warrants. 361 ) *679 Prior commentators have also overlooked a noteworthy textual feature--neither the Pennsylvania provision nor any of the other state search and seizure provisions used the term “arrests”; rather, they each referred to “seizures” of persons. The terms “arrest” or “apprehension” were widely used in the framing-era common-law literature when referring to warrantless arrests; the most likely explanation for the use of “seizure” in the constitutional provisions is that it had been used in the Wilkes general warrant. 362 That the Pennsylvania introductory right statement was not meant to address warrantless intrusions brings us back to the question: why did the Pennsylvania framers add the introductory right statement? One explanation is that the statement provided a rhetorical justification for including the ban against general warrants in the declaration. Prefacing the warrant standards with an invocation of a “right” of “the people” 363 served to show that the warrant standards were not mere *680 legal niceties but were sufficiently fundamental to merit inclusion in a declaration of rights. 364 Indeed, the reference to persons, houses,


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papers, and possessions served to link the warrant standards to interests that were paramount under the common law. 365 The rhetorical explanation is especially compelling because the Pennsylvania framers were quite fond of prefacing constitutional rules with statements of rights. 366 The persons-houses-papers-possessions formula also suggests another possible explanation for the introductory right statement: the Pennsylvania framers may have added it to define the scope of the ban against use of general search authority. 367 As noted above, the colonists had aimed the legal grievance against general writs specifically at customs searches of houses, not at searches of ships or warehouses. *681 Likewise, the Wilkesite cases had been primarily concerned with searches of, and seizures of papers from, houses, as well as arrests under general warrants. Thus, the persons-houses-papers-possessions formula captured the interests involved in both the colonial grievance and the Wilkesite cases. 368 Conversely, the listing would also have served to indicate that the provision did not bar general search authority of warehouses. A motive for limiting the ban against general search authority is also evident; the Pennsylvania framers would have anticipated that customs, enforced by searches, would be the primary source of revenue for the new state government. Indeed, because Philadelphia was the busiest port in America at that time, Pennsylvania would have had an unusually strong interest in efficient customs enforcement. 369 The strongest evidence that the introductory right statement was meant to delimit the provision's scope is found in the Pennsylvania legislature's subsequent treatments of search authority. In 1780, it enacted a state customs statute that required customs officers to obtain a specific warrant to search a “dwelling house,” but permitted them to make warrantless searches of other premises, and even to obtain a writ of assistance if they met with a lack of cooperation. 370 *682 Moreover, Pennsylvania's distinction between searches of houses and other premises appears to be part of a broader pattern. Massachusetts, which also had a major port in Boston and which adopted a search and seizure provision also containing the persons-houses-papers-possessions formula, 371 enacted a customs act in 1783 that required specific search warrants to search houses but allowed somewhat broader customs search authority for other premises. 372 In contrast, Virginia, Maryland, and North Carolina--none of which had ports comparable to Philadelphia or Boston and none of which had included any listing of protected interests in their search and seizure provisions 373 --each adopted customs statutes that required specific search warrants for any search of premises on land. 374 (There are also indications that the scope of the ban against general search *683 authority was still controversial during the framing of the Fourth Amendment, as I describe below. 375 ) In addition, the Pennsylvania legislature passed a 1785 statute that repealed various earlier statutes that had permitted revenue officers “to break open dwelling houses” without specific warrants. The repeal was enacted because those earlier statutes were “in direct violation of the [search and seizure provision of the state] Bill of Rights.” Like the 1780 customs act, the 1785 statute required the use of specific warrants only to break open dwelling houses; it did not mention other premises. 376 Thus, the listing of interests in the Pennsylvania introductory right statement was understood to define the scope of the constitutional ban against general search authority. 377 Whatever the actual motive(s) behind the adoption of the Pennsylvania introductory right statement, there is neither need nor grounds to “impute” a broad reasonableness standard for warrantless intrusions. Like the other state provisions adopted in 1776, the Pennsylvania provision focused precisely on the right not to have one's person or house subjected to general warrant authority. That was also true of the 1777 Vermont provision, which copied Pennsylvania's. 378 Combining Pennsylvania and Vermont with the four states that adopted provisions that set out only warrant standards without any form of introductory right statement (Virginia, Maryland, Delaware, and North *684 Carolina), none of the initial six state provisions addressed warrantless intrusions, and none created any reasonableness standard.


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3. The Introduction of “Unreasonable” in the 1780 Massachusetts Provision Massachusetts was the first state to add “unreasonable” before “searches and seizures” when it adopted its search and seizure provision in 1780: Art. XIV. Every subject has a right to be secure from all unreasonable searches and seizures of his person, his house, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the person or objects of search, arrest, or seizure: And no warrant ought to be issued, but in cases, and with the formalities, prescribed by the laws. 379 This provision (which was copied by New Hampshire in 1783 380 ) is the longest and most systematic of the state search and seizure protections; it is also the most detailed provision in the Massachusetts declaration. Unlike the Pennsylvania provision, it makes three statements rather than two. It begins with an introductory right statement; it then “therefore” forbids the use of general warrants (like the Pennsylvania provision, it does not use that term but rather forbids unparticularized warrants to search “suspected places” or arrest “suspected persons”); finally, it commands that “and no warrant ought to be issued but in cases . . . prescribed by the laws.” This third statement, which had not appeared in any prior provision, almost certainly reflects the basic principle articulated in Lord Camden's 1765 ruling in Entick v. Carrington (one of the Wilkesite cases): that no magistrate had authority to issue a search by warrant except for purposes authorized by common law or statute. 381 The addition of the third statement probably explains why the introductory right statement was made a separate sentence; otherwise, the provision would have become a very lengthy run-on sentence. *685 A crucial fact about the Massachusetts provision, which Lasson was unaware of when he wrote the first history of the Fourth Amendment in 1937, is now well established. John Adams personally drafted the provision along with rest of the 1780 Massachusetts constitution and declaration of rights. 382 Adams used the Pennsylvania provision as a starting point, 383 borrowing “search[es] and seizure[s]” and the persons-houses-papers-possessions formula from the Pennsylvania introductory right statement. 384 He made two changes in that statement, however. First, he called the right at issue the “right to be secure,” a label that anchored the ban against general warrants in the larger set of common-law protections of person and house. 385 Adams's second, more important change was the addition of “unreasonable” before searches and seizures. Previous commentators did not examine why Adams added that term because they assumed that the Massachusetts provision simply made explicit the broad “reasonableness” standard they had already “imputed” to the Pennsylvania introductory right statement. 386 However, his motives can be discerned. The immediate reason Adams added “unreasonable” is patent; it cured the defective drafting of the Pennsylvania introductory right statement. The Pennsylvania language--a right to “hold [one's person *686 and house] free from search and seizure”-was susceptible to the misunderstanding that it barred any arrest or any search of a house, even by an officer with a valid specific warrant. 387 A careful drafter, which Adams undoubtedly was, would have perceived the need to qualify the right by adding some descriptive adjective before “searches and seizures.” The crucial question is why Adams chose “unreasonable” for the adjective, and how he and others of his generation would have understood the meaning of that term.

C. What “Unreasonable” Meant, and Why John Adams Chose It


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A word rarely carries only a single meaning. Thus, the precise meaning a word was meant to carry in a text can be identified only by examining the customary usage of a term in the specific context addressed by the text. 388 Moreover, because usages can shift over time, the meaning a word carried in a historical text can be evaluated only by considering the usage of the term in the specific historical context. 389 In current Fourth Amendment doctrine, “unreasonable” is used as a relativistic term connoting inappropriateness in the circumstances. Although the relativistic usage of “reasonableness” does appear in framing-era discourse, and even in framingera legal discourse, 390 it was not the only meaning the term carried. The modern relativistic meaning of “reasonableness” is pragmatic, but late eighteenth-century *687 legal discourse was usually of a more formal character. In the latter context, “reasonable” usually connoted logic or consistency, and “unreasonable” connoted illogic or inconsistency in the form of a violation of a rule or principle. 391 Moreover, “unreasonable” had become an extremely potent pejorative in constitutional discourse because “unreasonable”--in the form of “against reason”--had been used in famous episodes in English constitutional history to denounce violations of fundamental legal principle.

1. Coke's Use of “Against Reason” as a Label for Unconstitutionality Coke had championed the idea that the basic principles of the common law constituted the fundamental and immemorial law of the land. Like other early common-law writers, he described the common law as an embodiment of “natural equity.” 392 He also insisted that common law had a constitutional status, asserting that common-law principles sometimes restrained otherwise sovereign political power. In particular, he declared that common-law principles could limit the power of Parliament in his 1610 opinion in Dr. Bonham's Case. 393 There, Coke ruled that a statute that permitted the college of physicians to impose fines for unlawful practice of medicine was “void” because it violated the common-law principle that no man could sit in judgment of a case in which he had a direct interest. In the course of that ruling, Coke insisted that “the Common Law will controul Acts of Parliament” and then condemned the statute as being “against Common Right and Reason”--a phrase of art denoting unconstitutionality. 394 *688 To understand what Coke meant by “against . . . reason,” one must understand that “reason” carried several different meanings in seventeenth-century common-law discourse. “Natural reason” referred to logic. However, Coke and other legal writers insisted that the common law had its own “artificial reason,” 395 and sometimes used “reason” in legal contexts as a label for the basic principles of the common law. 396 Thus, “the reason” of the common law became a label for principles such as, for example, the maxim that no man could be a judge in his own cause. To say that a statute was “against reason” was to say that it violated basic principles of legality. 397 *689 Coke's “against reason” dictum was well known and often repeated by political and legal writers in the seventeenth and eighteenth centuries. For example, John Locke invoked the principle that it would be “unreasonable” for any man to be judge in his own case (an obvious reference to Coke's “against reason” in Dr. Bonham's Case) as one of his basic arguments for a social contract of government. 398 Likewise, Blackstone discussed Coke's dictum early in the first volume of his Commentaries, and, like Locke, he converted Coke's “against reason” to “unreasonable.” 399 Coke's dictum in Dr. Bonham's Case also became the model for the initial constitutional argument that American Whigs made against Parliament's imposition of taxes on the colonies--that such taxes violated the colonists' rights under common law. 400


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James Otis anticipated that use of “against reason” when he argued that the statutory authority for general writs of assistance was unconstitutional. 401

2. Otis's Claim that the Statute Creating the General Writ of Assistance Was “Against Reason” Coke's “against reason” dictum was the fulcrum for James Otis's 1761 argument during the Writs of Assistance Case. Of course, Otis denounced the general writ of assistance as a violation of American *690 liberties. But the crucial point is that he leveled a constitutional attack against the legislation authorizing the writ. 402 Otis opened by developing and emphasizing the high level of protection the common law afforded the house under the “castle” doctrine. 403 He then established that the common-law authorities had already condemned general warrants as illegal. 404 From those premises, he concluded that any statute that authorized use of a general writ would be so contrary to the principles of common law as to be “void.” John Adams not only heard Otis's argument, but took notes and subsequently wrote up an “abstract” of it. 405 His notes of Otis's argument on this point are as follows: As to Acts of Parliament. An Act against the Constitution is void: an Act against natural Equity is void: and if an Act of Parliament should be made, in the very Words of this Petition, it would be void. The executive Courts must pass such Acts into disuse. 8 Rep. 118. from Viner. Reason of the Common Law to control an Act of Parliament. 406 Previous commentators have recognized that Adams's notation to “8 Rep 118” is a citation to Coke's opinion in Dr. Bonham's Case and that “Viner” refers to Charles Viner's discussion of Coke's dictum; 407 but they have not called attention to the fact that “8 [Coke] Rep 118” cites the page on which Coke stated that an act of Parliament is “void” if it is “against common right and reason,” 408 perhaps because the phrase “against . . . reason” does not actually appear in Adams's notes. Although Adams recorded only the page citation, Otis, who spoke for four or five hours, would have read Coke's language. 409 Moreover, *691 Otis's invocation of Coke's “against reason” is evident in Adams's notation that Otis asserted “[ the r] eason of the Common Law [is] to control an Act of Parliament.” 410 That Adams recorded only the page citation may indicate (beyond the limitations of recording with a quill pen) that he was already familiar with Coke's “against reason” dictum. “Against reason” also appears in the “abstract” of Otis's argument that Adams wrote shortly after the argument (possibly with Otis's assistance). The abstract, which was probably intended for a wider lay audience, alters the order of Otis's argument from Adams's notes. There is no quotation of Coke's “against common right and reason” at the point where Adams describes Otis's argument that the statute was “void.” 411 However, Adams's abstract describes Otis asserting, at a slightly earlier point, that “Reason and the constitution are both against this writ.” 412 It is unlikely that Adams forgot Otis's claim. 413 In fact, there is direct evidence of Adams's familiarity with Coke's “against reason.” In 1765, Adams argued, as co-counsel with Otis, that the Stamp Act was unconstitutional. He declared it to be “against Reason.” 414

3. Other Common-law Authorities' Use of “Unreasonable” to Condemn General Warrants


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The scholarly Adams undoubtedly also would have been exposed to Coke's dictum through other common-law sources that had condemned general warrants as “unreasonable.” Although Hale had not used the term “unreasonable” when he condemned general warrants, he had written that a general warrant was illegal because it allowed *692 the executing officer to act as judge in his own case 415 --the same principle Coke had earlier invoked in Dr. Bonham's Case. Thereafter, it was a short step for other writers to condemn general warrants as “against reason” or “unreasonable.” A 1742 treatise on the law of arrest used in colonial Boston (probably by Otis and Adams) condemned “the Unreasonableness, and the seeming Unwarrantableness of [general warrants].” 416 In addition, during the 1765 argument in Entick, Serjeant John Glynn, the well-known London lawyer who represented Entick (and who had previously represented John Wilkes and his supporters), belittled a warrant authorizing a search of papers as an “unreasonable or unlawful warrant.” 417 Similarly, when Blackstone discussed the inherent rights of Englishmen in 1765, he invoked Coke's earlier assertion that an imprisonment under an unspecific warrant would be “against reason”--and converted “against reason” to “unreasonable.” 418 Thus, the powerful “unreasonable” had already emerged as the pejorative of choice for condemning the inherent illegality of general warrants well before Adams penned the 1780 Massachusetts provision. It is worth noting, however, that framing-era common-law sources did not apply “unreasonable” to mere “unlawful” intrusions by warrantless officers--it was too grand a pejorative for mere personal trespasses committed by ordinary officers. 419 *693 Thus, John Adams likely had a ready-made qualifier for “searches and seizures” when he wrote the Massachusetts provision. 420 Because “unreasonable” was a pejorative synonym for gross illegality or unconstitutionality, “unreasonable searches and seizures” simply meant searches and seizures that were inherently illegal at common law. 421 As a result, the Framers would have understood “unreasonable searches and seizures” as the pejorative label for searches or arrests made under that most illegal pretense of authority--general warrants. 422

VII. The Original Meaning of the Fourth Amendment The historical record of the framing of the Fourth Amendment shows that it was essentially a replay of the framing of the state provisions. The anti-Federalists who called for a federal search and seizure protection focused on the threat that general warrants might be used for federal revenue searches of houses. Madison proposed a federal provision which only forbade general warrants and which he consistently described as a ban on general warrants. Although Madison's text was altered *694 to the final twoclause format during debate in the House of Representatives, the historical record is devoid of any indication that the change was meant to create a standard for warrantless intrusions by federal officers; rather, it simply gave a more imperative tone to Madison's proposal. Like the state framers, the federal Framers believed that a ban against general warrants would suffice to protect the security of person and house.

A. Anti-Federalist Proposals for a Federal Protection Against General Warrants Any lingering question as to the illegality of general warrants had disappeared by the time of the ratification debates in 1787-88. 423 In fact, the various state legislatures had earlier banned the use of general warrants by national customs officers during a failed attempt to create a national customs revenue during the mid-1780s. 424 The only unsettled question at that time was whether the ban against general warrants also applied to premises other than houses.


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When anti-Federalists made the absence of a federal Bill of Rights the centerpiece of their opposition to ratification of the Constitution (at least without amendments), they expressed concern over the lack of a protection against general warrants. 425 Thus, those among the anti-Federalists calling for a federal bill of rights usually included a ban against general warrants among the needed protections. Interestingly, however, the anti-Federalist pamphleteers did not usually *695 adopt John Adams's reference to “unreasonable searches and seizures.” In fact, the anti-Federalist factions in the Pennsylvania and Maryland ratification conventions (the first two state conventions that witnessed substantial opposition to ratification) both proposed federal search and seizure provisions that simply banned general warrants without including any statement of the “right” at issue. The Pennsylvania anti-Federalists actually dropped the introductory right statement that had been included in their own state provision. 426 Use of the phrase “unreasonable searches and seizures” as part of an introductory right statement likely became popular among the anti-Federalists because it was used in the Letters of a Federal Farmer--the most influential of the anti-Federalist pamphlets. The author of the Letters most likely used John Adams's Massachusetts text as a template for his proposed federal protection against what he called “unreasonable searches and seizures,” or, alternatively, “hasty and unreasonable search warrants.” 427 The influence of the Letters, or of Richard Henry Lee (who may have been their author), 428 probably accounts for the inclusion of an introductory right statement regarding “unreasonable searches and seizures” in the influential proposal for a federal ban against general warrants that was adopted by the Virginia *696 ratification convention (and that was also subsequently adopted by the ratification conventions in New York and North Carolina). 429

B. Madison's Proposal for a Federal Ban Against “General Warrants” James Madison took up the task of drafting a proposal for federal rights amendments. He had the experience for it, having served on the committee that had drafted the Virginia declaration of rights and constitution in 1776, 430 and on the committee of the Virginia ratification convention that had proposed federal rights amendments in 1788. 431 Madison did not, however, simply reiterate the search and seizure proposal advanced by the Virginia ratification convention. Instead, he borrowed from a number of previous provisions to fashion a novel proposal. Rather than adopting the usual twoclause format of an introductory right statement that “therefore” required the banning of *697 general warrants, Madison collapsed the substance of the two statements into a single-clause provision: The rights of the people 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. 432 Several features of Madison's proposal are noteworthy.

1. Madison's Single-Clause Format Madison's use of a single-clause format is significant. Madison's motive for collapsing the right statement and the warrant standards into a single clause was likely stylistic--he appears to have disliked the “therefore” constructions that were common in earlier declarations of rights and proposals for a federal declaration. 433 As a result,his *699 text defined the violation of the “right” to be secure solely in terms of “warrants issued without probable cause [or particularity].” Thus, as previous


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commentators have almost uniformly conceded, Madison's text only banned general warrants but did not reach warrantless intrusions. 434 Because Madison's text reached only warrant authority, he must have used “unreasonable” to describe only those searches and seizures made under general warrants. In fact, Madison referred to this provision as a protection from “general warrants” at least once (possibly twice) in his speech introducing proposed rights amendments in the House of Representatives, as well as in three letters. 435 There is no record, *700 however, of his expressing concern about warrantless intrusions nor even of his referring generically to the provision as a protection against “unreasonable searches and seizures.” 436

2. Madison's Focus on Banning Legislative Approval of General Warrants Madison also proposed that most of the rights amendments, including the ban against general warrants, be added to Article I's limitations on Congressional power rather than be stated in a supplemental bill of rights. 437 The proposed placement strongly suggests that Madison conceived his proposal as a deprivation of Congress's power to authorize use of general warrants 438 -not as a constraint on the *701 conduct of ordinary officers. Likewise, when Madison introduced his proposals for rights amendments in the House, he specifically mentioned the need to include a provision banning “general warrants” to make clear that the Necessary and Proper Clause did not empower Congress to authorize general warrants for revenue collections (though he did not limit the threat posed by general warrants to that setting). 439 Madison's treatment of the search and seizure provision as a limit on legislative power also explains why he omitted any statement of a remedy for a violation of the right to be secure. To begin with, an explicit constitutional prohibition would inhibit Congress from authorizing general warrants. In addition, although the Framers may have held a variety of views regarding the appropriate scope of judicial review, the evidence suggests that they would have expected, at a minimum, that courts would decline to enforce legislation that conflicted with the essential rights announced in the Constitution. 440 Indeed, because *702 general warrants would have to be issued by a judge, the judiciary could enforce the ban against general warrants simply by refusing to act--the remedy Otis had sought in 1761 and that the colonial courts had provided when they refused to issue “illegal” general writs under the Townshend Act. 441 Additionally, even if Congress were to pass such a statute and a wayward judge were to issue a general warrant, another court could still treat the warrant as a nullity in a subsequent trespass action or prosecution for resisting execution of the warrant. 442 Given these layers of protection against the use of general warrants, it should not be surprising that neither Madison nor the other Framers made any explicit provision for a “remedy.”

*703 3. Madison's Use of “Probable Cause” Madison's draft also adopted “probable cause” as the standard of cause for a valid warrant, a standard that had not been used in any of the previous state provisions or anti-Federalist proposals. Instead, Madison (who had expertise in customs legislation 443 ) may have borrowed “probable cause” from a 1786 Pennsylvania statute allowing for a national customs collection. 444 Significantly, “probable cause” alone was not the common-law standard for criminal warrants; as described above, common law required that arrest or search warrants had to be based on an allegation of an offense or theft “in fact” as well as “probable cause of suspicion” as to a particular person to be arrested or place to be searched. 445 An English excise statute, however, had authorized revenue officers to obtain search warrants on probable cause standing alone, without any allegation of a “fact” of a violation 446 --a lower threshold of cause than that required for criminal warrants. 447 Madison's adoption of a *704 probable cause standard for warrants, without any reference to an allegation of an offense “in fact,” seems geared specifically to customs


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searches and indicates the federal Framers' specific concern with regulating revenue searches 448 (which may explain why “probable cause” met a mixed reception among subsequent state drafters). 449 Although Madison's formulation assured that the wording of the federal *705 ban against general warrants would not impede customs collections, 450 there is no evidence to suggest that he actually intended to reduce the *706 common-law cause standards for criminal warrants 451 (though that is what subsequently occurred).

4. Madison's Substitution of “Other Property” for “Possessions” A final noteworthy aspect of Madison's proposal is his use of “other property” as the final term in the listing of interests protected by the right to be secure. As noted above, the only controversial aspect of the ban against general warrants was the scope of the protection. The states apparently held different views as to whether the protections associated with specific warrants should apply to searches of all premises on land or only to houses. 452 Thus, the appropriate scope for the protection was still unsettled during the ratification debates. *707 The lack of consensus regarding the scope of the protection is suggested by the variation in the listing of protected interests in anti-Federalist proposals. Richard Henry Lee's initial proposal for a federal search and seizure protection approximated the Pennsylvania and Massachusetts state provisions by recognizing a right regarding persons, houses, papers-but substituted “property” for “possessions.” 453 The most complete and polished proposal for a federal protection that appeared in the sixteenth of the Letters from the Federal Farmer used the persons, houses, papers, and possessions formula. 454 However, other anti-Federalists seem to have endorsed a broader scope of protection. As noted above, the anti-Federalist factions in the Pennsylvania and Maryland ratification conventions followed the earlier Virginia state provision by omitting any right statement, and thus any listing of protected rights--an omission that implied a broad ban against general search authority. 455 Other anti-Federalists endorsed a listing of protected interests but did so in a way that seemed to reach a search of any privately owned premises; specifically, they omitted any specific mention of “houses.” For example, the initial discussion of a federal search protection in the Letters called for a protection against “searching and seizing men's papers, property, and persons.” 456 The proposals for a federal search protection adopted in the Virginia, New York, and North Carolina ratification conventions also referred to the right of a freeman regarding “his person, his papers and his property”--without mentioning the house. 457 Similarly, another of the Letters referred to a right regarding a citizen's “person, papers, or effects,” 458 and Samuel Adam's motion during the Massachusetts convention used “persons, papers, or possessions.” 459 The absence of any reference to “houses” in these formulations of a federal protection is remarkable given the prominence attached to violations of the house in the complaints about general warrants. For that reason, I speculate that the term “houses” was omitted in order to extend the protection to all privately owned property regardless of the premises on which it was located. On a related point, it is also noteworthy that the anti-Federalist proposals tended to substitute the broader-sounding terms “property” *708 or “effects,” for “possessions.” “Possessions” connoted items of tangible personal property that might be seized. 460 The term “effects” may have carried a broader connotation insofar as it was commonly used to denote commercial goods. 461 (At the time of the framing, “effects” was most commonly used in bankruptcy law, 462 though it may have *709 later acquired broader usage and connotations during the nineteenth century. 463 ) However, “effects” appears to have been similar to “possessions” insofar as it also connoted goods or items that might be seized, rather than premises.


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In contrast, the term “property” was potentially broader than “possessions” or “effects” insofar as it could have included real property as well as personal items or commercial goods; thus, “property” could have been understood to denote premises such as houses, shops, or warehouses that might be searched, as well as items or goods that might be seized. As a result, the statement of a right to be secure in one's “property” (without mentioning “houses” specifically) may have been intended to serve as a rhetorical endorsement of the importance of the protection against general warrants that did not limit the scope of the premises that enjoyed the protection. Madison proposed that the right be stated as a protection of “their persons, their houses, their papers, and their other property.” Thus, he specifically included “houses” but coupled it with the broader term “other property” rather than the narrower term “possessions”--a formulation that only Lee had previously proposed. It is possible that Madison sought to broaden the scope of the protection by using “property” rather than “possessions.” (Madison's reference to “the place to be searched” may also appear to anticipate that the provision *710 would protect premises other than houses, but it may simply be a carryover from the disapproval of the earlier language of general warrants directing search of “suspected places.” 464 ) Alternatively, he may have cobbled together an ambiguous listing in the hope of avoiding or downplaying conflict on that point.

C. The Committee of Eleven's Review of Madison's Proposal The “Committee of Eleven” of the House of Representatives initially reviewed Madison's proposals for rights amendments, and made significant changes to a number of the proposals; however, they did little to the language of his search and seizure proposal. 465 In fact, the Committee made only one deliberate change of any potential significance--it altered Madison's listing of protected interests from persons, houses, papers, and “other property” to persons, houses, papers, and “effects.”

1. The Committee's Substitution of “Effects” Because there are no records of the Committee's deliberations, one can only speculate as to why the committee substituted “effects” for Madison's “property.” It seems unlikely (though not impossible) that the Committee made the substitution only as a matter of stylistic preference. The Committee certainly did not have any general aversion to the term “property,” as it had already twice accepted Madison's use of the term in what later became the Fifth Amendment. 466 Moreover, because it seems likely that the Committee would have perceived the listing of protected interests as a controversial subject, it is unlikely that the committee would have made any casual stylistic changes in that regard. Because “effects” was usually understood to designate moveable goods or property (but not real property or premises), the most likely explanation *711 for the substitution is that the Committee intended to narrow the scope of interests protected by Madison's proposal. 467 Thus, the Committee's formulation implied that “houses” were the only type of premises protected by the right to be secure, although “effects” denoted that any type of items or goods that might be located within a house, including commercial goods, were also protected. A plausible motive for adopting a narrower expression regarding the scope of protection is patent: customs collections would be the primary source of revenue for the new government, and the Committee may have been reluctant to adopt an inflexible constitutional protection that would limit legislative authority to provide for searches of commercial premises 468 --especially given that the popular concern regarding searches focused on violations of houses. 469 At first blush, this interpretation may appear to be inconsistent with the statutory protection of commercial premises enacted by the First Congress. For example, the provisions regarding customs search authority included in the 1789 Collections Act (adopted virtually contemporaneously with the Fourth Amendment's language) did require specific warrants for searches of all buildings, rather than just houses. 470 However, Congress's decision to require use of specific *712 search warrants for


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commercial premises as a matter of policy does not show that Congress understood that the constitutional right to be secure required that treatment. Moreover, in later statutes Congress sometimes provided for warrantless search authority of commercial premises, but not dwellings. The excise search provisions adopted in 1791 and following years generally required specific warrants for searches of houses or other buildings, but provided revenue officers with warrantless search authority for buildings or rooms that had been registered as distilleries or liquor storerooms as part of the liquor licensing process. The exception suggests that Congress understood that it had leeway to confer general search authority on revenue officers regarding commercial premises--though not for places actually used as dwellings. 471 (Inaddition, *714 a short-lived wartime statute adopted in 1815 authorized customs officers to make warrantless searches of vehicles, pack animals, or even packages carried by a person. Although that provision was something of an aberration, it appears to have been aimed at the transport of commercial goods. 472 ) In sum, although the evidence on this point is less than definitive, the available linguistic and statutory evidence suggests that “persons, houses, papers, and effects” was understood to provide clear protection for houses, personal papers, the sorts of domestic and personal items associated with houses, and even commercial products or goods that might be stored in houses--while leaving commercial premises and interests otherwise subject to congressional discretion.

*715 2. The Committee's Acceptance of the Substance and Format of Madison's Proposal The Committee's report of the search and seizure provision differed from Madison's proposal in one other significant respect-it omitted Madison's “against all unreasonable searches and seizures.” That omission was described as a “mistake,” however, when the language was reinserted by motion during the House debate. Hence, it appears to be only a transcription error that does not reflect any substantive consideration (but “all” was lost in the process). 473 The only other changes the Committee made to Madison's proposal were small stylistic alterations. 474 The most significant feature of the Committee's report is what it did not change. It endorsed Madison's one-clause format as well as his proposal to insert the search and seizure provision into the description of legislative power in Article I. (The decision to use a supplementary Bill of Rights was not made until shortly after the final floor debate in the House regarding the content of the search and seizure provision. *716 Moreover, it does not appear to have reflected any disagreement as to the content of the rights amendments. 475 ) Thus, the Committee members must have also understood the proposed search and seizure language as a ban solely against legislative approval of general warrants. 476

D. Gerry's Motion to Make Madison's Text More Imperative Unfortunately, previous commentaries have rushed past the particulars of Madison's proposal and the Committee's approval. Instead, they have focused on the subsequent change that produced the final *717 two-clause format. Specifically, a motion was made during the House debate to alter the Committee's statement that “[the right shall not be violated] by warrants issuing without [probable cause or particularity]” to “[the right shall not be violated], and no warrants shall issue but upon [probable cause and particularity].” 477 The most complete record of the motion is as follows: Mr. BENSON Objected to the words “by warrants issuing.” This declaratory provision was good as far as it went, but he thought it was not sufficient; he therefore proposed to alter it so as to read “and no warrant shall issue.” The question was put on this motion, and lost by a considerable majority. 478


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Regrettably, the record is not entirely accurate. 479 The available evidence indicates that it was most likely Elbridge Gerry of Massachusetts, not Egbert Benson of New York, who made this motion. The record of the House debate quoted above had attributed the earlier motion to correct a “mistake” and reinsert “against unreasonable searches and seizures” to Gerry, while it attributed the motion to substitute “and no Warrants shall issue” to Egbert Benson. However, other records show the opposite. 480 Moreover, the latter attributions make more sense in the context. To begin with, Benson was a member of the Committee of Eleven, but Gerry was *718 not; hence, Benson was in the better position to describe the omission of “against unreasonable searches and seizures” as a transcription “mistake.” 481 In addition, the motion to substitute “and no Warrants shall issue” sounds like Gerry; he was a frequent and combative participant in the House debate and offered several motions to make the language of proposed rights amendments more explicit or precise. 482 In contrast, because Benson did not dissent from his Committee's proposal, it seems unlikely he would have moved to alter it on the House floor. Thus, the evidence strongly suggests that Gerry made the crucial motion. 483 The record showing that this motion “failed” has provoked some consternation. In fact, the combination of this report and the fact that the substitute language nevertheless appeared in later versions of the amendment led prior commentators to formulate a conspiracy theory in which a committee of style surreptitiously inserted the voted-down language in the proposals the House sent to the Senate. 484 However, *719 the documentary evidence on this point also is inconsistent; Amar has noted that other House records show the change having been made prior to the appointment of the Style Committee. 485 In addition, a third motion made immediately after the vote on the motion to substitute “and no Warrants shall issue” strongly suggests that the motion must have passed. 486 Thus, in all likelihood the report is also erroneous on this point--the motion passed. Of course, the crucial question is why the substitution of “and no warrant shall issue” was made. Lasson paraphrased the record quoted above by stating that “although [the proposed language] was good as far as it went, it was not sufficient.” 487 Thus, he interpreted the change to add a broad reasonableness principle distinct from the warrant standards themselves. 488 Later commentators almost uniformly have accepted Lasson's assertion that the change was intended to create a reasonableness standard for warrantless intrusions, 489 and several Supreme Court opinions have endorsed it. 490 *720 Although the conventional interpretation makes the text seem to fit modern doctrine, it does not rest on any historical evidence. As noted above, the historical records of the framing era show a dearth of concern about warrantless intrusions, 491 nor was any expressed during the House debate. 492 Moreover, Lasson's paraphrase of the record was incomplete. The movant did not make a diffuse complaint that the content of the provision was substantively inadequate. Rather, the record quoted above shows that he objected to “the words ‘by warrants issuing,” ’ that he complained that the Committee's “declaratory provision . . . was not sufficient,” and that he proposed substituting imperative language, “and no warrant shall issue but . . . .” In other words, the proposed language was not sufficiently imperative. 493 The source of the movant's complaint is obvious if one compares the Committee's proposed text to the earlier state provisions and anti-Federalist proposals for a federal protection. Each and every one of those earlier search and seizure texts had contained an explicit command that noncomplying warrants “ought [or shall] not be granted.” 494 *721 In contrast, although the Committee's language implied that general warrants should not be issued, it did not explicitly command that no unspecific warrant be issued; in fact, it referred to general warrants “issuing.” All the motion did was to clearly forbid even the issuance of a general warrant, and it did so simply by injecting language that had been uniformly used for that prohibition in prior constitutional bans against general warrants.


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The likelihood that Gerry made the motion reinforces this interpretation because historical evidence suggests he would have found the “declaratory” tone of the Committee's provision inadequate. Gerry was a zealous advocate for a federal bill of rights: he had made the unsuccessful motion to add a bill of rights to the Constitution at the end of the 1787 Constitutional Convention; he had been one of three delegates who had refused to sign the Constitution, in part because it lacked a bill of rights; and he “remained suspicious lest the central government trespass on the liberties of citizens” during the First Congress. 495 Most significantly, Gerry represented a Massachusetts anti-Federalist circle that held a near-paranoid fear that general warrants would be used to enforce federal tax collections. His close friend Mercy Otis Warren (James Otis's sister) had written the following in 1788 shortly after discussing with him the shortcomings of the proposed constitution: There is no provision by a bill of rights to guard against the dangerous encroachments of power in too many instances to be named: but I cannot pass over in silence the insecurity in which we are left with regard to warrants unsupported by evidence--the daring experiment of granting writs of assistance in a former arbitrary administration is not yet forgotten in the Massachusetts; nor can we be so ungrateful to the memory of the patriots who counteracted their operation, as so soon after their manly exertions to save us from such a detestable instrument of arbitrary power, to subject ourselves to the insolence of any petty revenue officer to enter our houses, search, insult, and seize at pleasure. . . . The rights of individuals ought to be the primary object of all government, and cannot *722 be too securely guarded by the most explicit declarations in their favor. . . . 496 Gerry undoubtedly shared Warren's view that the rights of citizens “cannot be too securely guarded by the most explicit declarations in their favor.” Thus, he would have insisted on a prohibition against general warrants that left no need for implication nor room for interpretation. 497 Gerry's being from Massachusetts also reveals the likely source of the substitute language he proposed--and why he did not connect the two clauses with the usual “therefore.” He probably borrowed “and no warrant ought to be issued, but . . .” from the beginning of the unique third statement in John Adams's Massachusetts provision, 498 changed Adams's more traditional “ought” to Madison's “shall,” and moved to substitute “and no warrant shall issue but . . .” for the middle phrase of the Committee's text. The final two-clause format of the Fourth Amendment, and the fact that the resulting first clause ended by stating that the right “shall not be violated,” are mere by-products of a change that was only intended to make the ban against issuance of general warrants explicit. There is no reason to think that the insertion of “and no warrant shall issue but . . .” was meant to broaden or alter the content of the provision. 499

E. Adoption and Ratification of the Text Madison's draft for a search and seizure amendment banned general warrants by setting out standards for arrest or search warrants. The report of the Committee of Eleven did not alter that content. Neither did the modification on the House floor that produced the final *723 two-clause format. 500 The proposed amendment still had the same content when it emerged from the Senate, without any apparent controversy; 501 and it still had the same content when it was ratified by the state legislatures, again without any apparent controversy. 502 When the first two of the twelve amendments Congress submitted to the states were not ratified (they did not deal with rights), the federal search and seizure provision that had been submitted to the states as the Sixth Article of Amendment became known as the Fourth Article of Amendment, or simply as the Fourth Amendment. 503


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F. Summary: The Original Meaning of the Fourth Amendment The evidence set out in this Article shows that the Fourth Amendment had a specific historical meaning. As understood by its Framers, the two-clause text was neither mysterious nor incomplete. Likewise, there is no historical basis to think that its Framers understood it to be “vague” or “comprehensive.” 504 To the contrary, they adopted the text as a specific response to a specific grievance that had arisen in a specific historical context and had been shaped by a specific vulnerability in the protections afforded by common-law arrest and search authority. 505 *724 The Framers aimed the Fourth Amendment precisely at banning Congress from authorizing use of general warrants; they did not mean to create any broad reasonableness standard for assessing warrantless searches and arrests. Likewise, they did not intend it to guide officers in the exercise of discretionary arrest or search authority; instead, the Amendment's ban on too-loose warrants served to reaffirm the common law's general resistance to conferring discretionary authority on ordinary officers. The silences of the text regarding warrantless intrusions and when warrants were required or excused were not oversights or defects of drafting. Rather, in the common-law context the Framers had no reason to expect that those topics could become unsettled or controversial. The Framers were content to state the standards for valid warrant authority because they believed that would suffice to curb discretionary search and seizure. They wrote what they meant and meant what they wrote; they simply did not perceive the problem of search and seizure the same way that we do.

VIII. The Transformation to Modern Doctrine That the original meaning of the Fourth Amendment sounds so strange to modern ears demonstrates the degree and depth of change that has occurred in constitutional search and seizure doctrine since the framing. The story of the post-framing changes is complex and can be understood only in the context of larger institutional and doctrinal developments that have shaped American constitutional law. This Part briefly sketches those changes to show how the original meaning was lost in the transformation to modern doctrine. Commentators have usually described the post-framing course of the Fourth Amendment as a smooth and continuous development from the original meaning. For example, they have described the 1886 decision in Boyd as though it connects modern doctrine to the original meaning, and likewise have described current doctrine as though it evolved from Boyd. 506 The conventional account is inaccurate, however, because it fails to confront the discontinuities evident in the post-framing development of search and seizure doctrine.

A. The Loss of Common-Law Restraints Against Discretionary Authority As argued above, the Framers adopted the Fourth Amendment and the other criminal procedure provisions of the Bill of Rights to *725 reinforce those aspects of common-law criminal procedure that they perceived to be (or that have been) threatened. They did not attempt to adopt a full statement of common-law rights because they assumed that the common law would continue as it had in the past, particularly if they addressed certain vulnerable points such as the threat of legislatively authorized general warrants. Their assumption was not borne out by actual developments. During the early nineteenth century, the turn to legislative codes undermined the notion of a permanent common law, 507 thereby blurring the common-law foundation for the Bill of Rights. In addition, the transformation of criminal justice institutions further destabilized the original understanding of search and seizure doctrine. New concerns about crime and social disorder during the nineteenth century gave rise to a perception that the common-law structure of law enforcement was inadequate to meet


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the needs of an increasingly complex and urban society. Contemporaneously with the advent of police departments and career officers, courts and legislatures drastically expanded the ex officio authority of the warrantless officer. 508 These developments pushed warrant authority toward the margins of law enforcement procedure and thus destroyed the common-law premises that had grounded the Framers' belief that a ban against general warrants would suffice to ensure the right to be secure in person and house. Likewise, these developments undermined trespass actions against individual officers as a means of enforcing legal limits on search and arrest authority. 509 By the end of the nineteenth century, the warrantless officer posed a far more potent threat to the security of person and house than the Framers had ever anticipated. 510 *726 During most of the nineteenth century, the courts worried little over the creation of discretionary police authority. The late nineteenth century, however, witnessed a turn toward due process concerns. Although that turn likely was stimulated by a number of factors, it was at least in part an elite reaction to the emergence of the regulatory state.

B. The Supreme Court's Stretching of the Original Understanding in Boyd The 1886 decision in Boyd is a clear example of judicial resistance to the emergence of heightened government regulation. Indeed, the Justices adopted a novel and sweeping protection of even ordinary business records in that case that surpassed anything anticipated by the Framers. 511 In the course of striking down the statutory authority *727 for a court order compelling production of an invoice, Justice Bradley erroneously invoked Lord Camden's statements from the later version of Entick, the version of which the Framers were probably unaware, as though they demonstrated that the Framers would have equated a search or seizure of papers for use as evidence with a violation of the right against compelled self-accusation 512 (thus inventing what became known as the “mere evidence” doctrine). 513 He also declared that any *728 compelled production of documents that constituted self-incrimination also constituted a “seizure” that was “unreasonable” under the Fourth Amendment. That use of “unreasonable” as a constitutional search standard distinct from the warrant standards was novel, though Bradley still used it in a Cokean rather than relativistic sense. 514 After concluding the statute was unconstitutional, Bradley employed exclusion to remedy the production of the invoice under the unconstitutional statutory authority. 515 Notwithstanding the novelty of Bradley's specific claims, he articulated the rationale for the expanded protection of papers within the analytic framework of the original understanding of the Fourth Amendment--as a limitation on congressional power to create search authority. He said nothing about extending the Fourth Amendment to egulate searches by warrantless officers. Thus, Boyd *729 should probably be understood as a late expression of the original understanding--albeit with novel twists-rather than as the beginning of modern doctrine. Boyd opened the way for later court decisions to create modern doctrine, but it did not actually do so itself.

C. The Supreme Court's Extension of the Fourth Amendment to Warrantless Intrusions in Weeks The genesis of modern doctrine appears rooted in the awakening of judicial concern over the newly powerful warrantless officer. By the early twentieth century, it had become clear that Boyd had not solved the problem of protecting business records because it failed to address the seizure of such records by officers acting on their own initiative. 516 In addition, at roughly the same time, the Court's redefinition of misconduct by officers acting “under color of law” provided a new doctrinal basis for applying constitutional standards directly to officers' warrantless intrusions. 517 The Justices responded to the confluence of those developments by adjusting constitutional search and seizure doctrine to modern realities in the 1914 decision Weeks v. United States. 518


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The Weeks opinion made several innovations: it used the new understanding that officer misconduct “under color of” office was a form *730 of government illegality, to extend the Fourth Amendment to the conduct of a warrantless officer; 519 it explicitly constitutionalized the common-law requirement of a warrant for a house search; 520 and it then used those innovations as premises for announcing a broad exclusionary rule as the legal consequence of an unconstitutional government search. 521 Put simply, Weeks initiated the development of modern doctrine by reading the Fourth Amendment as a broad protection of a right to be secure in one's house and papers rather than as a simple ban against general warrants. The warrant requirement articulated in Weeks restored a strong content to the right to be secure with regard to houses and papers. In addition, the adoption of the exclusionary rule enforced the requirement by making compliance with that standard a matter of consequence. 522

D. The Supreme Court's Articulation of a Relativistic “Reasonableness” Standard in Carroll A decade after Weeks, however, the Supreme Court in its 1925 decision in Carroll v. United States relaxed the new constitutional warrant requirement in order to facilitate the enforcement of Prohibition. 523 Chief Justice Taft's majority opinion upheld a warrantless police search of an automobile because the officers had probable cause to believe it was transporting contraband (albeit employing a loose notion of “probable cause” 524 ) and the mobility of the automobile created an exigency. The Court's holding was novel because probable cause would not have sufficed to justify a warrantless arrest and search incident to arrest for the misdemeanor offense involved. 525 To justify the warrantless search, Taft declared that the Fourth Amendment prohibited only those searches that were “unreasonable,” and that it was “not unreasonable” for the police to conduct a warrantless search of a car for contraband in the circumstances. 526 Thus, *732 Taft effectively rewrote the Fourth Amendment in Carroll by imposing a modern, relativistic meaning on the word “unreasonable.” 527 Of course, it is not surprising to find a twentieth-century Court opinion assessing the constitutionality of a policy according to its “reasonableness.” During the course of the late nineteenth and early twentieth centuries, the Supreme Court had made the flexible notion of “reasonableness” the central criterion of constitutional law (and thereby vastly increased the importance of judicial review of legislation). 528 Thus, it was a short step to announce that the scope of the warrant requirement would be determined according to “reasonableness.” However, Taft's Carroll opinion did not simply invoke reasonableness as the criterion for arriving at appropriate specific standards for regulating police conduct. Rather, when Taft suggested that the Fourth Amendment only forbade those police intrusions that were “unreasonable,” he opened the way for replacing specific standards of police conduct with the open-ended notion of “reasonableness” itself. Thus, Carroll set search and seizure doctrine on a course away from the rules model and toward the generalized-reasonableness construction *733 Justice Minton would later announce in his 1950 opinion in Rabinowitz. 529 Carroll also blurred the intended scope of the Fourth Amendment's protections. As noted above, Taft rationalized his conclusion that warrantless searches of automobiles were “reasonable” under the Fourth Amendment by pointing to the fact that the Framers had approved of warrantless ship searches in the 1789 Collections Act 530 --even though there is no historical evidence that the Framers would have viewed ships as enjoying the common-law right to be secure afforded “persons, houses, papers, and effects.” That rationalization has contributed to doctrinal developments that broadened the scope of the Fourth Amendment's protection to commercial as well as personal and domestic interests. 531 Current search and seizure doctrine reflects the working out of the doctrinal elements announced in Weeks and Carroll. It lacks coherence because the elements announced in those decisions do not mesh very well. Indeed, Weeks and Carroll moved in


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opposite directions; the former sought to revive personal and domestic privacy by revitalizing the warrant, while the latter undertook to expand the ex officio authority of the police to facilitate social control, and thus marginalized the warrant process. The lack of theoretical coherence, however, has not prevented a clear trend from emerging. Despite the interlude of the Warren Court, search and seizure doctrine since Carroll has evolved increasingly to favor police power over the security of the citizen. Indeed, the Burger and Rehnquist Courts have rather consistently *734 expanded discretionary police authority under the modern rubric of “reasonableness.” 532

IX. The Implications of the Authentic Original Meaning The idea of a constitution implies permanence and continuity. Even though there is little consensus as to precisely how or how much the intended meaning of a constitutional text should matter in contemporary constitutional analysis, there is a widely shared sense that the Framers' meaning should carry some weight, or matter in some way. Thus, discussion of the historical meaning of a constitutional provision almost inevitably leads to consideration of its implications for modern doctrinal issues. A general caveat should be borne in mind in any such discussion: inaccurate statements of historical doctrine pose a serious threat to constitutional interpretation because there is no conceivable basis for giving normative weight to false statements about the original meaning of a constitutional text. Thus, it is crucial to complete the historical inquiry before seeking any implications. The normative importance attached to the original meaning has had both an upside and downside for constitutional history. It has assured that scholars and the Court would examine the historical meaning to some extent; but the historical accounts have sometimes been conducted with one eye on the implications, rather than both eyes on the evidence. In particular, the concern with fitting the historical meaning to modern doctrine has tainted prior accounts with prochronistic concerns and ideological slants that were foreign to the authentic history. 533 The *735 authentic history can be recovered only by respecting the foreignness of the past and by immersing oneself in its records. 534 The primary purpose of this Article has been to lay out the historical evidence, make sense of it, and correct prior misinterpretations. The evidence reveals a striking coherence, so much so that it leaves little room for doubt as to the original meaning. Because the history is rather clear, it provides a fairly firm platform for exploring the implications of the original meaning of the Fourth Amendment. 535 That said, it is likely that the normative implications of the historical original meaning will be seen differently by different readers. Unlike the historical meaning, which is ultimately a matter of evidence, the normative implications one draws depend on the approach to constitutional analysis that one adopts. There is such wide variation in the approaches taken by commentators, and even by Supreme Court Justices, that it will not be surprising if different readers, with different understandings of constitutional methodology and different ideological agendas, express contrasting views regarding the implications of the authentic original meaning. This final Part initiates discussion of the implications by offering some thoughts about various ways that the historical meaning might be brought to bear on modern doctrine. The recovery of the authentic history exposes the falsehood of originalist claims that are currently espoused. It also provides a broad perspective for assessing where *736 search and seizure doctrine currently is, and how it got there. I am skeptical, however, whether even clear history can provide much positive guidance for shaping specific responses to modern search and seizure issues.

A. The Inauthenticity of the Generalized-Reasonableness Construction


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The original meaning does not fully endorse either the warrant-preference or generalized-reasonableness construction; in fact, it shows that neither is really equivalent to the Framers' understanding. The generalized-reasonableness construction, however, is especially distant from the Framers' meaning. Adherents of the generalized-reasonableness construction, including a number of Justices, have insisted that the Fourth Amendment should not be understood to reflect any preference for the use of warrants, but rather to posit a global requirement that government officers act “reasonably” when making searches or seizures. The authentic history reveals that the historical assertions this construction rests on are plainly false. The Framers never meant to create a relativistic notion of “reasonableness” as a global standard for assessing warrantless intrusions by officers. 536 Rather, they banned general warrants in order to prevent the officer from exercising discretionary authority. In the context of banning general warrants, they used “unreasonable” as a formal Cokean synonym for inherent illegality. There is no reason to think they meant for “reasonableness” to be understood as a flexible, relativistic standard for the exercise of discretionary authority. Along the same vein, it is decidedly not true that the Framers preferred warrantless searches made under a reasonableness standard to searches made under specific warrants, or that they thought warrantless searches provided as much protection from abuse as specific warrants. 537 Rather, they believed that specific warrants provided significant protections against arbitrary intrusions. 538 Thus, it is decidedly not true that the modern notion of a “reasonableness” standard “affords the protection that the common law afforded.” 539 Rather, framing-era common law resisted the sort of discretionary authority *737 that “reasonableness” analysis confers on modern officers. 540 The modern notion of “reasonableness” would have been distinctly ill suited to the Framers' concerns; it is such a soft, subjective, contentless notion that it fosters and enhances, rather than curbs, discretionary authority. 541 The mantra of generalized-reasonableness advocates--that “the Fourth Amendment prohibits only those searches and seizures that are unreasonable” 542 -- accords the modern police officer far greater authority to arrest or search than the Framers ever intended or anticipated. It also inclines decisions toward a constant expansion of discretionary authority. 543 The generalizedreasonableness construction reflects an endorsement of government power over citizens that is *738 fundamentally at odds with the Framers' more libertarian view of the inherent rights of “freemen.” 544

B. The Limited Authenticity of the Warrant-Preference Construction The warrant-preference construction comes closer to the original meaning insofar as it values the specific warrant. The Framers did view the specific warrant as the most appropriate means for providing the arrest and search authority necessary for law enforcement. In particular, they valued the specific warrant because it did not confer discretionary search authority on officers. But the current warrant-preference construction differs from the original meaning in significant ways. As summarized in Katz v. United States, the central tenet of the warrant-preference construction is that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions.” 545 (Of course, the Katz acrossthe-board warrant “requirement” is not as strong in practice as in theory. As a number of commentators have noted, the Court has recognized more than a “few” exceptions to the warrant requirement, and those exceptions often apply to the settings in which police searches are most common. 546 )


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A number of features of the Katz statement depart from the original meaning. To begin with, the warrant-preference construction also reflects a false understanding of the historic meaning of “unreasonable” as an overarching standard in the Fourth Amendment. Indeed, any construction of “Fourth Amendment reasonableness” is only modern. In addition, the Katz formulation that warrantless searches are “per se unreasonable” posits a theoretical across-the-board warrant requirement that ignores the differentiation among interests that was prominent in framing-era common law. The Framers anticipated that warrants would be the principal (though not exclusive) mode for *739 arrests and that specific warrant authority would virtually always be necessary to justify searches of houses and their personal and domestic contents. 547 Their concern, however, was primarily with that sphere of personal and domestic security. They viewed general search authority as appropriate for ships, and it appears unlikely that they meant to prohibit legislators from conferring general search authority on officers regarding commercial premises. 548 The current view that the right to be secure extends to commercial interests reflects the pro-business activism of the late nineteenth- and early twentieth-century Supreme Court--not the original understanding of the Amendment. 549 At first blush, the broadening of the scope of interests protected by the Fourth Amendment may appear to strengthen the right to be secure; however, it has had the opposite effect. It is difficult to insist on rigorous standards for house searches if ships, commercial vehicles, and warehouses are entitled to an equal measure of protection. In particular, the blurring of the distinction between personal and commercial interests has warped the treatment of automobile searches, starting with Carroll. 550 Thus, the exaggerated scope of the theoretical warrant requirement has actually tended to undermine the protection of personal and domestic security. 551 *740 The modern warrant-preference construction also endorses a warrant process that is different from, and weaker than, its framing-era counterpart. For example, the modern practice of allowing probable cause for warrants to be established by an officer's account of hearsay information supposedly provided by a confidential informant gives the officer far more control over the process than the Framers expected. 552 Thus, while the theoretical warrant “requirement” posits a broader scope for use of specific warrants than the Framers expected, the looser process for issuing warrants has weakened the protection that the specific warrant actually provides. In sum, neither of the usual modern constructions is equivalent to the original meaning. Is there any other approach that would be truer to the historical Fourth Amendment?

C. The Undesirability of “Returning” to the Literal Original Meaning It might seem that we could decide to return to the literal original meaning of the Fourth Amendment, reading it merely as a ban on too-loose general warrants, while leaving the regulation of warrantless intrusions to legislation or judicial decisionmaking. This position is not without adherents. Professor Taylor hinted at it when he previously asserted that the Framers were “unconcerned with” warrantless intrusions. 553 More recently Professor Gerard Bradley explicitly called for such an interpretation. 554 Indeed, this approach might even be seen as the logical destination of Justice Scalia's insistence, in recent commentary, that only the original meaning of the language of a constitutional text, but not the Framers' intention, should matter in constitutional analysis. 555 The difficulty is obvious. Applying the original meaning of the language of the Fourth Amendment in a completely changed social *741 and institutional context would subvert the purpose the Framers had in mind when they adopted the text. They focused on banning general warrants because they perceived the general warrant as the only means by which discretionary search authority might be conferred. 556 They did not mean to approve of, nor facilitate the development of, warrantless discretionary


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authority; rather, they did not conceive of the possibility that future generations would confer discretionary authority on ordinary officers by means other than general warrants. In a very real sense, the modern mystery associated with the two-clause text of the Fourth Amendment is the product of the Framers' inability to gauge how criminal justice institutions would actually evolve. Modern statutes and court rulings that confer substantial ex officio authority on police officers (for example, by permitting arrests on mere probable cause of felony 557 ) provide a level of discretionary authority that the Framers would not have expected a warrantless officer could exercise unless general warrants had been made legal. Choosing to read the text to forbid only the use of general warrants while ignoring the unanticipated post-framing conferral of discretionary authority on officers would effectively evade the Framers' concern. Returning to the literal original meaning in the face of the deeply changed context would reduce the constitutional text to a Catch-22. The text of the Fourth Amendment clearly anticipated that there would be a “right to be secure” in one's person, house, papers, and effects. If there is any term in the text that might be described as the core or essence of the provision, “right to be secure” is the leading candidate. Thus, one should not advocate a modern meaning for the Fourth Amendment that would render the right to be secure a practical nullity. Hence, I think that the Court's extension of the amendment to warrantless intrusions in Weeks was appropriate because it was necessary to preserve a meaningful “right to be secure” in the modern context. 558

*742 D. The Nonoriginalism of Selective Originalism It might seem that there is an alternative to a complete return to the original meaning--we could select specific aspects of historical doctrine as guides to decisions. Indeed, in a series of recent cases, Justices Scalia and Thomas have asserted that framing-era common-law doctrine should be consulted as the starting point for analyzing constitutional search and seizure issues. For example, Justice Scalia recently began a Fourth Amendment analysis by first quoting the first clause of the text and then writing: In determining whether a particular government action violates this provision, we inquire first whether the action was regarded as an unlawful search or seizure under the common law when the Amendment was framed. Where that inquiry yields no answer, we must evaluate the search or seizure under traditional standards of reasonableness . . . . 559 This approach is not helpful for two reasons. One problem is that modern judges have not been particularly successful in recounting the content of framing-era law. In fact, immediately after the passage cited above, Justice Scalia repeated Chief Justice Taft's historically false claim that the allowance of warrantless ship searches in the 1789 Collections Act revealed the Framers' understanding of the Fourth Amendment's “reasonableness” standard. 560 Likewise, Justice Thomas has recently mischaracterized a statement by Blackstone as though it were relevant to the knock-and-announce rule for serving warrants. 561 Similar examples of erroneous claims regarding historical standards in Supreme Court opinions are numerous. 562 *743 Getting the common-law doctrine wrong is not the only problem with this approach. No Justice or commentator is likely to endorse a wholesale return to common-law doctrine. For example, the common law did not authorize warrantless arrests for felony on probable cause, but insisted on proof of “felony in fact.” I doubt that anyone will advocate returning to a commonlaw doctrine that was later judged inadequate for effective policing. Yet, if common law is not embraced entirely, the choice of which pieces to embrace may come down to little more than personal preference. Singling out and applying a specific common-law doctrine in a modern--that is, changed and foreign--context will often produce results that are different from, or even inconsistent with, the purpose the rule served in its historical milieu. For example,


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consider the common-law doctrine that a warrantless constable could break into a house to arrest a felon, perhaps even to arrest “on suspicion.” 563 Should that doctrine be viewed as a basis for giving a modern police officer broad authority to make a warrantless entry of a house to make a felony arrest? The situations are not nearly as comparable as they may initially appear to be. The modern police officer is far more protected from forcible resistance or trespass liability than was a framing-era constable, so he is much more likely to exploit such authority than a constable would have been. Likewise, the modern officer can justify a felony arrest by a probable cause standard that is looser than the common law “on suspicion” standard (which required “felony in fact”). And the modern category of “felonies” encompasses a much wider array of offenses than did common-law felonies (the common law did not permit breaking into a house for a misdemeanor arrest, even with a warrant). Allowing a modern officer to make a warrantless entry of a house to effect a felony arrest would leave houses far more vulnerable to invasion than the superficially comparable common-law rule did at the time of the framing. 564 *744 In a changed context, specific common-law statements will rarely produce the same effect they were meant to produce. Hence, piecemeal originalism usually produces only an illusion of continuity. It fails to come to grips with, or even acknowledge, the full range and depth of post-framing changes. Piecemeal originalism is not originalism at all.

E. The Infeasability of “Translating” the Original Meaning for the Modern Context Another approach frequently advocated as a viable form of originalism, even by some commentators loosely or popularly identified as “strict constructionists,” is to retreat to a “higher level of abstraction.” Some commentators describe this as extracting the “first principle(s)” of the constitutional provision. 565 Others describe it as “translating” the text to apply to the modern context. 566 Whatever the label, I doubt this approach can provide valid answers to specific modern questions. I do not deny that the Fourth Amendment can be restated at higher levels of abstraction. For example, it is certainly the case that the Framers intended to preserve a personal and domestic sphere that *745 would be meaningfully protected against undue intrusions by government officers. Likewise, it is even possible to draw some more specific insights from the text and its history. For example, as Justice O'Connor has observed, the Framers would not have approved of searches that were not based on individualized assessments of cause. 567 Nevertheless, the retreat to a higher level of abstraction also encounters several obstinate difficulties. Reading the provisions of the Bill of Rights as statements of broad principles is itself dubious as a historical matter. The historical record of the framing indicates that the Framers saw the Fourth Amendment as a specific constitutional barricade against the unique threat which legislative approval of general warrants posed for the structure of common-law authority--not as a general statement of an abstract principle. Indeed, because they perceived that the common law--“the law of the land”--provided the structure of liberty and security, they saw no need to formulate a comprehensive statement of constitutional rights. Likewise, they saw no need to spell out the principles and values that underlay the common law. Thus, except for the cryptic invocation of a “right” to be secure in person and house, the text of the Fourth Amendment does not explicate the principles and values that it serves. Those principles and values can be located only by going outside the text and examining the larger historical context. The fact that we now face issues the Framers never anticipated may leave us little choice but to treat the constitutional texts as expressions of broad principles, rather than as specific solutions to specific historical threats. Indeed, the expansive treatment now accorded the Bill of Rights can be justified as a replacement for the Framers' unfulfilled expectation of a permanent structure of common-law rights. However, we should not confuse our predicament with the historical character of the texts. At least as far as the procedural protections of the Bill of Rights are concerned, the retreat to principles is only a modern response to changed circumstances; it is not the Framers' understanding of the text.


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Furthermore, extracting any “principle” from a text that was written within the larger structure of common-law concepts and doctrines is inherently reductionist--and the act of reduction introduces room for the interpreter to define the “essence” of the text in a way that furthers his or her own ideological agenda. “Translation” sounds objective *746 because, in other contexts, it connotes a fairly rigorous notion of equivalence. Unlike translating a passage from English to French, however, there are no dictionaries or grammars available to structure the translation of a constitutional text from one historical context to another. Likewise, the language of “first principles” implies a clear hierarchy of values or principles, with some being more foundational than others. But the texts of the Amendments do not identify any such hierarchy--the interpreter does. 568 The distorting potential of “first principle(s)” reductionism is demonstrated by the way the supposed “first principle” of “reasonableness” has been employed to downgrade the warrant standards in the second clause of the Fourth Amendment. Yet, the historical sources show that those warrant standards were central to the Framers' understanding of the text and its purpose. Indeed, the distorting potential of “translation” and “first principle(s)” is magnified in constitutional discourse because asserted principles are likely to have been drawn from historical descriptions that were themselves inauthentic. The very fact that law draws upon precedent and continuity as sources of legitimation for rulings means that lawyers and judges will attempt to couch even novel arguments or rulings as though they are continuous with the original meanings of constitutional provisions. The result is that commonly accepted understandings of constitutional history are likely to include more than a few mythical elements. Indeed, the now commonly accepted understanding of the historical Fourth Amendment is composed largely of an accretion of false historical claims. In the final analysis, moving to a higher level of abstraction does not solve the difficulties that inhere in any attempt to apply a text written for one historical context to another, different context. Abstractions that are valid are usually too general to answer specific issues, while the “principles” that seem to provide answers to specific issues are usually reductionist. In the end, the move to higher levels of abstraction *747 only papers over the range and depth of contextual and doctrinal changes that have occurred since the framing. 569

F. Confronting the Inescapability of Doctrinal Change The recovery of the authentic original meaning of the Fourth Amendment and the explication of the post-framing transformation of the meaning assigned to that text demonstrate that even constitutional standards cannot remain static when everything to which they relate undergoes change. Even constitutional law is not autonomous from larger social, institutional, and political changes. The reality of deep change since the framing means that the original meaning generally cannot directly speak to modern issues. At one level, the discontinuity between the original meaning and modern doctrine creates an intellectual crisis for constitutional law--at least for any positive notion of constitutional law. If one thinks that constitutional law should represent something more than the personal judgment of the fifth Justice, the usual bromides about the “living constitution” are not particularly soothing. The current quest in constitutional commentary is to locate some criterion of validity, and the recent “turn to history” is at least partly a response to that quest. 570 However, the mere desire to have a firm criterion does not assure that there is one to be found. Viewed pragmatically, the central issue in modern Fourth Amendment doctrine is the degree to which it is possible and/or desirable to constrain discretionary police authority by a regime of rules, or at least partial rules. That issue must be addressed with a realistic understanding that the law enforcement institutions of the framing era were not adequate to meet the needs of a more populous, heterogeneous, and urbanized society. Although the expansion of modern law enforcement authority undoubtedly reflects a degree of institutional self-aggrandizement, it also reflects a sustained judgment that some degree of


58


discretionary authority is necessary for effective policing. The issue is not whether we will allow any discretionary police authority, but *748 how much discretionary authority will be conferred and in what circumstances. 571 In that regard, the history most relevant to modern issues is not the history of the framing, but the history of the changes made to the original meaning-- for example, by Weeks and Carroll. A critical examination of the entire course of the evolution of constitutional search and seizure doctrine, viewed in the context of changing social needs and of the evolution of related institutions and doctrines, would give us a better understanding of how search and seizure doctrine has come to take its present shape. A complete history, starting from the authentic original meaning, would reveal what choices were made, and might even shed light on whether those choices were appropriate. 572 In the final analysis, however, the value of recovering the authentic history of search and seizure doctrine lies largely in the broader perspective it provides. Commentators who have made recent claims that the generalized-reasonableness construction affords the protection intended by the Framers have often also suggested that constitutional doctrine had integrity and continuity until the Warren Court departed from the true path by imposing unprecedented constraints on police authority. 573 That combination of claims smoothes the way for further *749 expansions of police power. However, the authentic history prompts a different outlook. The authentic history shows that framing-era doctrine provided a much stronger notion of a “right to be secure” in person and house than does modern doctrine. The trajectory of doctrinal evolution has been away from a sense of the individual's right to be secure from government intrusions and toward an ever-enlarging notion of government authority to intrude. 574 (In the larger picture, the Warren Court was just a brief, moderately libertarian interlude in the longer-range statist trend.) The larger story suggests that we should not have any particular confidence that current doctrine has reached the right balance (especially because reasonableness rulings have often been *750 justified by false history). The authentic history suggests that the burden of justification for further expansions of police power--or even for maintaining recent expansions--should fall squarely on the proponents of police power. The recognition that we accord far greater authority to the officer than the Framers intended or anticipated will not provide answers to specific issues. There is no panacea for that. But the authentic history of Fourth Amendment doctrine can at least displace fictional originalist distractions and allow us to refocus attention on the critical question of what a “right to be secure” should mean. That is the idea that animated the Framers. That, and not question-evading platitudes about “reasonableness,” is the proper concern of modern search and seizure doctrine.

Footnotes a1 Associate Professor, University of Tennessee College of Law. B.A. 1969, Delaware; J.D. 1975, M.A. 1975, Ph.D. 1980, Northwestern.--Ed. The author wishes to thank the following for commenting on one or more of the drafts that became this Article: Albert W. Alschuler (who provided an exceptionally detailed and useful critique of a draft), Joseph G. Cook, Judy M. Cornett, Kermit L. Hall, Joel B. Grossman, Yale Kamisar, Milton M. Klein, Susan R. Klein, Wayne R. LaFave, Don A. Leatherman, Tracey Maclin, Colleen E. Medill, Jerry J. Phillips, Thomas E. Plank, Lawrence M. Solan, Otis H. Stephens, Gregory M. Stein, and George C. Thomas III. The author also benefited from comments received at a faculty legal history colloquium at Cumberland Law School, Samford University. The author also thanks Jean Moore for cheerfully tracking down obscure sources. Most of all, the author thanks his wife Susan M. Davies, not only for reading numerous drafts and tolerating monologues on arcane historical points, but for her support throughout the years this research has consumed.

aa1

L.P. Hartley, The Go-Between 1 (1953).


59


1

U.S. Const. amend. IV. The full text reads: 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.

2

For example, Justice Antonin Scalia has asserted that “reasonableness” is the “first principle” of the Fourth Amendment, and has interpreted “reasonableness” to create a balancing standard based on the totality of the circumstances. See California v. Acevedo, 500 U.S. 565, 583 (1991) (Scalia, J., concurring) (asserting “the first principle that the ‘reasonableness' requirement of the Fourth Amendment affords the protection that the common law afforded”); Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 652 (1995) (majority opinion by Scalia, J.) (“As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a government search is ‘reasonableness.” ’); Whren v. United States, 517 U.S. 806, 817 (1996) (majority opinion by Scalia, J.) (“It is of course true that in principle every Fourth Amendment case, since it turns upon a ‘reasonableness' determination, involves a balancing of all relevant factors.”); see also Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1186 (1989) [hereinafter Scalia, The Rule of Law] (claiming that assessments of reasonableness are factual, and thus the law of searches and seizures should be an exception to the usual principle that the law should be stated as rules). Justice Scalia is a leading proponent of “originalism.” See, e.g., Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (1997) [[[hereinafter Scalia, A Matter of Interpretation]; Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849 (1989). See also Edwin Meese III, Address to the D.C. Chapter of the Federalist Society Lawyers Division (Nov. 15, 1985), in The Great Debate: Interpreting Our Written Constitution 33 (Federalist Society ed., 1986); Robert H. Bork, The Constitution, Original Intent, and Economic Rights, 23 San Diego L. Rev. 823, 825, 826 (1986) (referring to “unreasonable searches and seizures” in a discussion of the “core values” evident from the Constitution's text, structure, and history).

3

I previously presented some aspects of my historical research in Congressional testimony. See The Jury and the Search for the Truth: Hearing on S. 3 Before the Senate Comm. on the Judiciary, 104th Cong. 121, 123-33 (1995) [[[hereinafter Hearings]. My discussion of Fourth Amendment history appears in id. [hereinafter Davies's Testimony]. My historical research was still incomplete on that occasion; for example, I was still unaware of how the Framers understood “unreasonable,” a crucial aspect of the authentic history. See also infra notes 62, 308.

4

The framing-era constable could not justify a felony arrest by showing “probable cause,” but could usually justify an arrest only if there was “felony in fact” (a point that has been widely misstated in court opinions and commentaries). See infra notes 227-228.

5

In 1610, Coke had asserted in Dr. Bonham's Case, 8 Coke Rep. 113, 77 Eng. Rep. 646 (C.P. 1610), that a statute was unconstitutional and void if it was “against common right and reason”--that is, if it violated basic principles of the common law. 8 Coke Rep. at 118a, 77 Eng. Rep. at 652-53. Adams's mentor, James Otis, invoked Coke's dictum when he condemned British legislative authority for general writs of assistance as being “against reason” in the 1761 Writs of Assistance Case--the initial American controversy over general warrants. Adams took notes of Otis's argument. (There is no case report; the sources on the case are discussed infra note 20.) Adams would also have been aware of similar invocations of Coke's “against reason”--often converted to “unreasonable”--in other legal and political writings of the time. Thus, Adams understood “unreasonable” to mean inherently illegal or unconstitutional, and he used “unreasonable searches and seizures” as the perfect pejorative label for a search or seizure under a general warrant--a search or seizure that would have been so violative of the law of the land that it could not have been authorized even by legislation. This argument is presented in detail infra notes 382-421 and accompanying text.

6

232 U.S. 383 (1914).

7

267 U.S. 132 (1925).

8

U.S. Const. amend. IV.

9

The basic meanings assigned to the two clauses of the text and the difficulties that arise when one tries to mesh the two clauses have been discussed in numerous commentaries. See, e.g., Roger B. Dworkin, Fact Style Adjudication and the Fourth Amendment: The Limits of Lawyering, 48 Ind. L.J. 329 (1973); Luis G. Stelzner, The Fourth Amendment: The Reasonableness and Warrant Clauses, 10 N.M. L. Rev. 33 (1979-80); Richard A. Posner, Rethinking the Fourth Amendment, 1981 Sup. Ct. Rev. 49, 72; Craig M. Bradley,


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RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 Two Models of the Fourth Amendment, 83 Mich. L. Rev. 1468 (1985); Ronald Bacigal, Dodging a Bullet, but Opening Old Wounds in Fourth Amendment Jurisprudence, 16 Seton Hall L. Rev. 597 (1986); Silas J. Wasserstrom & Louis Michael Seidman, The Fourth Amendment as Constitutional Theory, 77 Geo. L.J. 19 (1988); Scott E. Sundby, A Return to Fourth Amendment Basics: Undoing the Mischief of Camara and Terry, 72 Minn. L. Rev. 383 (1988); Jacob W. Landynski, Comments on H. Richard Uviller's Reasonability and the Fourth Amendment, 25 Crim. L. Bull. 51 (1989); H. Richard Uviller, Reasonability and the Fourth Amendment: A (Belated) Farewell to Justice Potter Stewart, 25 Crim. L. Bull. 29, 33 (1989); Silas J. Wasserstrom, The Fourth Amendment's Two Clauses, 26 Am. Crim. L. Rev. 1389 (1989) [hereinafter Wasserstrom, Two Clauses]; Lloyd L. Weinreb, The Fourth Amendment Today, in The Bill of Rights: Original Meaning and Current Understanding 184 (Eugene W. Hickok, Jr. ed., 1990); Tracey Maclin, The Central Meaning of the Fourth Amendment, 35 Wm. & Mary L. Rev. 197, 207-28 (1993) [hereinafter Maclin, Central Meaning]; 1 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment 5-7 (3d ed. 1996). I previously discussed the two clauses of the text in Thomas Y. Davies, Denying a Right by Disregarding Doctrine: How Illinois v. Rodriquez Contorts Consent, Trivializes Fourth Amendment Reasonableness, and Exaggerates the Excusability of Police Error, 59 Tenn. L. Rev. 1, 45-59 (1991). My discontent regarding the uncertain relationship between the two clauses was one reason I undertook this historical research.

10

Delaware v. Prouse, 440 U.S. 648, 653-54 (1979).

11

See, e.g., Terry v. Ohio, 392 U.S. 1, 8 (1968) (opinion of the Court by Warren, C.J.); Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 389 (1971) (opinion of the Court by Brennan, J.); United States v. Mendenhall, 446 U.S. 544, 550 (1980) (opinion of the Court by Stewart, J.); Skinner v. Railway Labor Executives Ass'n, 489 U.S. 602, 613 (1989) (opinion of the Court by Kennedy, J.); Wyoming v. Houghton, 119 S. Ct. 1297, 1300 (1999) (opinion of the Court by Scalia, J.). Other opinions simply assert “the constitutional guarantee against ‘unreasonable searches and seizures” ’ without quoting the text of the amendment at all. E.g., Illinois v. Rodriguez, 497 U.S. 177, 183 (1990) (opinion of the Court by Scalia, J.); California v. Acevedo, 500 U.S. 565, 583 (1991) (Scalia, J., concurring).

12

The most common meaning of “general warrant” was a warrant that lacked specificity as to whom to arrest or where to search; for example, a warrant directing arrests of “suspected persons” or a search of “suspicious places.” In addition, because the lack of specificity often reflected a lack of information, “general warrant” was also often used to denote a warrant that lacked an adequate showing of justification for a search or arrest. See the contrasting uses of “general warrant” in the 1776 Virginia provision set out infra text accompanying note 347 (using “general warrants” in the wider sense), and in the 1776 Maryland provision set out infra note 351 (using “general warrants” only in the more specific sense of unparticularized warrants). “General warrant” could also carry an entirely innocent meaning--a warrant that was directed to and executable by any of the constables in a county and/or was made returnable to any justice of the peace in the county. See, for example, the form for a particularized arrest warrant for assault denoted “a general warrant” in Conductor Generalis 445 (James Parker ed., New York 1788) (This was a justice of the peace manual composed by a former Justice of the Peace of Middlesex County, New Jersey, which was published in numerous versions. The version cited here was “Printed by John Patterson, for Robert Hodge, No. 237 Queen-Street” in New York). Warrants of this latter type were not meant to be prohibited by the Fourth Amendment. This innocent usage of “general warrant” persisted into the early nineteenth century. See United States v. Bollman, 24 Fed. Cas. 1189, 1196 (C.C.D.C. 1807) (No. 14,622) (“In all general warrants for arresting a supposed offender, the direction to the officer is, to bring the party before the person issuing the warrant, or some other justice of peace, &c.”). Note that this innocent usage of “general warrants” may explain why that term was not used in several of the state provisions and not included in the language of the Fourth Amendment. This Article uses “general warrant” only to refer to illegal warrants that lack adequate cause or particularity.

13

As then Justice Rehnquist once observed, “The Framers of the Fourth Amendment have given us only the general standard of ‘unreasonableness' as a guide in determining whether searches and seizures meet the standard of that Amendment in those cases where a warrant is not required.” Cady v. Dombrowski, 413 U.S. 433, 448 (1973).

14

See, e.g., Trupiano v. United States, 334 U.S. 699 (1948); United States v. Rabinowitz, 339 U.S. 56, 70 (1950) (Frankfurter, J., dissenting); Katz v. United States, 389 U.S. 347 (1967). In the Katz formulation, any warrantless arrest or search is presumptively “unreasonable” unless it falls within one of the recognized and well delineated “exceptions” to the warrant process.


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15

The first full statement of the generalized-reasonableness approach appeared in Justice Minton's majority opinion in United States v. Rabinowitz, 339 U.S. 56, 66 (1950) (“The relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable.”). More recently, a generalized-reasonableness approach was reasserted in Justice Rehnquist's majority opinions in Cady v. Dombrowski, 413 U.S. at 448, see quotation supra note 13, and United States v. Robinson, 414 U.S. 218 (1973) (treating the common-law rule authorizing search incident to arrest as deriving from a “reasonableness” principle). In recent terms, the Justices of the Rehnquist Court have broadly assessed compliance with the Fourth Amendment according to “objective reasonableness.” See, e.g., Illinois v. Rodriguez, 497 U.S. 177 (1990) (concluding that it was “reasonable” for police to enter an apartment on the basis of a nonresident's apparent consent to their entry); Wilson v. Arkansas, 514 U.S. 927 (1995) (replacing the common-law knock-and-announce rule for executing warrants with a “reasonableness” standard).

16

See Nelson B. Lasson, The History and Development of the Fourth Amendment to the United States Constitution (1937). Of course, Lasson was not the first to write about the Fourth Amendment. One earlier commentary that probably influenced his analysis was Osmond K. Fraenkel, Concerning Searches and Seizures, 34 Harv. L. Rev. 361 (1921). Other constitutional commentators had also referred to the history of the Fourth Amendment within broader discussions of constitutional history. See, e.g., Charles Warren, The Making of the Constitution 508-09 (1928).

17

Lasson's orientation may reflect the period during which he wrote-- that is, after the Court had already asserted in Carroll that “reasonableness” was the essence of the historical Fourth Amendment, see infra notes 525-530 and accompanying text, but prior to the emergence of the skeptical academic attitude toward judicial pronouncements associated with legal realism.

18

The writ of assistance attested to the authority of the bearer to search places in which the bearer suspected uncustomed goods were hidden. It took its name from its command that all peace officers and any other persons who were present “be assisting” in the performance of the search. It was initially issued only to commissioned customs officials (though it was used by their subordinates as well) but was later issued to naval officers as well. The statutory authority for the writ made it applicable to searches of “houses” as well as of ships, warehouses, and shops. See generally Joseph Raphael Frese, Early Parliamentary Legislation on Writs of Assistance, 38 Publications Colonial Soc'y Mass. 318 (1959) [hereinafter Frese, Article].

19

See, e.g., William Henry Drayton's complaint quoted infra note 83; Mercy Otis Warren's statement quoted infra text accompanying note 496. See generally John Phillip Reid, Constitutional History of the American Revolution: The Authority of Rights 194-98 (1986) (discussing the general warrant and general writ of assistance grievance). Unfortunately, Professor Akhil Amar has recently muddied this point by asserting that the Framers sought to ban only general warrants but not general writs of assistance. See Akhil Reed Amar, The Fourth Amendment, Boston, and the Writs of Assistance, 30 Suffolk U. L. Rev. 53, 77-80 (1996) [ [ [hereinafter Amar, Boston]. Amar relied primarily on a statement by Lord Mansfield in a 1785 English case. Id. at 79-80 (discussing Cooper v. Boot, 4 Doug. 339, 99 Eng. Rep. 911 (K.B. 1785)). Americans would not have paid Cooper much heed, however, because it construed an English excise statute never in effect in the American colonies. Moreover, it is unlikely they ever heard of Cooper prior to 1789 because the earliest published report was Cooper v. Booth, 3 Esp. 135, 170 Eng. Rep. 564 (K.B. 1785). Publication of Espinasse's reports began with the first volume in 1796. See 1 A Legal Bibliography of the British Commonwealth of Nations 335, entry 5 (W. Harold Maxwell & Leslie F. Maxwell eds., 2d ed. 1955) [hereinafter Legal Bibliography] (showing the volumes of the first edition were published “1796-1811”). Although I cannot determine the precise year in which the third volume was published, it reported cases tried in 1799 through 1801, see 170 Eng. Rep. 517 (1927) (reprinting title of 3 Esp. (1819 ed.)); thus, the third volume was published no earlier than 1801. The reason the 1785 decision in Cooper was included among the later cases was that an 1800 case included in the reports referred to Cooper, but Cooper had not previously been published. See 3 Esp. 127, 170 Eng. Rep. 562 (note on inclusion of cases). The report that Amar cites, 4 Doug. 339, 99 Eng. Rep. 911, was not published until 1831. See 1 Legal Bibliography, supra, at 299, entry 44.

20

There is no case report. I style the case the Writs of Assistance Case because it is the most descriptive title, although it is sometimes called “Paxton's Case” or “Petition of Lechmere” (after the names of customs officials). The record consists of notes taken at the two hearings. John Adams took notes at the first hearing. See Petition of Lechmere, in 2 Legal Papers of John Adams 123-34 (L. Kinvin Wroth & Hiller B. Zobel eds., 1965). Josiah Quincy took notes at the second hearing. See Paxton's Case, Mass. (Quincy) 51 (1761). The most important aspect of the case is James Otis's argument, during the first hearing, that such writs were illegal. See discussion infra notes 405-412 and accompanying text. The Massachusetts court was presided over by Lieutenant Governor Thomas Hutchinson,


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RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 however, and it ultimately upheld the writs. For a brief treatment of the case, see Lasson, supra note 16, at 55-63. For more detailed treatments, see Maurice H. Smith, The Writs of Assistance Case (1978); 2 William J. Cuddihy, The Fourth Amendment: Origins and Original Meaning 757-825 (1990) (unpublished Ph.D. dissertation, Claremont Graduate School). It is difficult to assess how widely news of Otis's argument may have spread within the colonies, or exactly when it might have spread. It is evident that Otis's argument was widely known in Boston because many members of the bar and merchant community actually heard the argument and also because Otis published part of it in a newspaper column in 1762. See Boston Gazette & Country Journal, Jan. 4, 1762 (article) [hereinafter Otis's 1762 Article] (probably authored by James Otis), reprinted in Smith, supra, at 563-66. Moreover, general warrants once again became an issue in Massachusetts in 1762 when the colonial legislature, in which Otis was a leader, passed a statute banning the use of general warrants; however, it was vetoed by the governor. See Mass. Writs of Assistance Bill (1762), reprinted in Smith, supra, at 567-68. In addition, Adams's abstract of Otis's argument was circulated to some degree and was published in a Boston paper in 1773. See John Adams, Abstract, Mass. Spy, Apr. 29, 1773, reprinted in Smith, supra, at 548, 551-55 . We do not know whether news of the case reached other colonies because there are substantial gaps in the surviving copies of important colonial papers. It seems likely, however, that some information about Otis's argument spread during the latter 1760s because Otis was a delegate to the Stamp Act Congress in 1765, see infra note 400, and became acquainted with other colonial leaders at that time. For example, he met John Dickinson of Pennsylvania, with whom he later corresponded regarding the general writ of assistance. See infra note 138. Amar has asserted that Otis's argument exerted less influence than the Wilkesite cases on the framing of the Fourth Amendment because Otis's argument was invoked only once during the debates over a federal Bill of Rights in 1787-88. See Amar, Boston, supra note 19, at 53, 66, 76. The absence of specific references in 1787-88 is not significant, however, because the illegality of general warrants was so settled at that time that writers rarely cited any authorities for that point. It is noteworthy that Amar has not provided any evidence that the Wilkesite cases were widely discussed in 1787-88.

21

I use “Wilkesite cases” as a collective label for the English trespass cases brought by Wilkes and his supporters. The first set of cases were brought by victims of a “nameless” general warrant (issued by the Secretary of State, Lord Halifax) that had directed king's messengers to identify the persons responsible for publishing The North Briton No. 45, which had carried a satirical account of a speech by the King. See George Nobbe, The North Briton: A Study in Political Propaganda (reissued 1966) (1939). The messengers arrested upwards of forty men and also searched houses and seized private papers. The victims then brought trespass cases in the Court of Common Pleas presided over by Charles Pratt (later Lord Camden), Chief Justice of that court. Pratt instructed the London juries that the general warrant was illegal, and the juries awarded trespass damages to the plaintiff victims. The more prominent cases in this first set were Huckle v. Money (C.P. 1763), Lindsay v. Money (C.P. 1763), Wilkes v. Wood (C.P. 1763), and Leach v. Money (C.P. 1763). The Court of King's Bench reviewed and upheld the judgment in Leach in 1765. Thereafter, a number of other cases were settled. A second set of cases related to an earlier round of arrests and searches involving publication of The Monitor. Those warrants named the persons to be arrested, but were general as to the papers to be seized. These later trespass cases followed the same scenario as the earlier cases. The main case was Entick v. Carrington (C.P. 1765), in which Lord Camden (Pratt) ruled that the papers search warrant was illegal because there was no existing authority in common law or statute for any magistrate to issue a search warrant to seize papers for use as evidence. Following these cases, Parliament in 1766 passed resolutions condemning general warrants as illegal, at least for certain uses, unless Parliament itself authorized them. The final development came in the 1769 trial of Wilkes v. Halifax, in which John Wilkes won a judgment of 4000 pounds against Halifax for having issued the “nameless” general warrant. See infra note 222. Citations to the case reports for the Wilkesite cases are provided infra note 25. For a brief account of the Wilkesite cases, see Lasson, supra note 16, at 42-50. For more detailed accounts, see 2 Cuddihy, supra note 20, at 884-927, and Nobbe, supra.

22

The following examples typify the press reports that shaped American perceptions of the Wilkesite cases. A Boston newspaper account of the initial Wilkesite trials in Huckle and Lindsay reported the 200 pound verdicts against the officers, noted that the verdicts condemned “the dangerous practice of issuing general and unconstitutional warrants,” and exclaimed that “no age has produced a determination of more general and extensive consequence to every free born ENGLISHMAN.” Boston Gazette & Country Journal, Sept. 19, 1763 (no. 441), at 2, cols. 2-3.


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RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 A London press report of the December 1763 trial of Wilkes v. Wood listed all of the attorneys and jurors involved and declared that the case involved “a Cause, that, in the highest degree, affected the most sacred and inviolate Rights and Liberties of Englishmen.” It also exclaimed: By this important decision, every Englishman has the satisfaction of seeing, that his house is his castle, and is not liable to be searched, nor his papers pried into, by the malignant curiosity of King's Messengers, and an utter end is put to this unconstitutional practice; and it may be truly said, that no question was ever agitated in a Court of Judicature of more interesting consequences to Society. London Chron., Dec. 6-8, 1763 (No. 1082), at 550, cols. 1-2. This entire report was reprinted virtually verbatim in some colonial papers. See, e.g., Boston Gazette & Country Journal, Feb. 20, 1764 (no. 464), at 4, col. 1. A London press report of the trial of Leach, held a week after that in Wood, carried a quotation of Chief Justice Pratt's speech from the case: This warrant is unconstitutional, illegal, and absolutely void: It is a general warrant, directed to four Messengers, to take up any persons, without naming or describing them with any certainty, and to bring them together with their papers. If it be good, a Secretary of State can delegate and depute any one of the Messengers, or any even from the lowest of the people, to take examinations, to commit or release, and in fine to do every act which the highest judicial officers the law knows can do or order. There is no authority in our law books that mention these kinds of warrants, but in express terms condemn them. I do venture to pronounce this warrant illegal .... London Chron., Dec. 10-13, 1763 (no. 1084), at 562, col. 2. (This account does not identify Pratt as the speaker, but his identity was evident from the context.) This account was also reprinted verbatim in some colonial papers. See, e.g., Boston Gazette & Country Journal, Mar. 26, 1764 (no. 469), at 2, cols. 2-3; see also the report discussed infra note 24 (attributing this statement to Pratt). The 1765 Court of King's Bench review of the verdict against the messengers in Leach prompted only a brief report in the London press that the verdict “was affirmed by the unanimous opinion of the Court of King's Bench.” London Chron., Nov. 7-9, 1765 (no. 1387), at 452, col. 3. Nothing was reported regarding the content of the legal arguments. I have not located any account of this ruling in an American paper--possibly colonial attention was fixated on the Stamp Act crisis at that date. London press coverage of Entick was also more limited than that of the earlier cases. Beyond the personages and verdict, the report simply noted that Lord Camden, in a very learned and eloquent speech, which lasted two hours and a half, declared it was the unanimous opinion of the whole court, that Secretaries of State had no manner of right to grant warrants to enter any persons houses, in order to seize their papers, &c. By this noble determination, Englishmens houses may be now again considered as their castles, and not so liable to be exposed to the wanton sport or resentment of the iron hand of arbitrary power. London Chron., Nov. 26-28, 1765 (no. 1395), at 516, col. 2. I have not located any report of Entick in a Boston paper. However, a very brief report appeared in the Williamsburg paper: Lord Camden gave his opinion upon the granting of warrants by Secretaries of State. After enlarging on and explaining numbers of cases, which lasted two hours and twenty minutes, his Lordship declared such warrants (except in cases of high treason) to be illegal, oppressive, and unwarrantable. Va. Gazette (Purdie), Mar. 7, 1766 (no. 772), at 2, col. 1. (This is virtually the entire report and does not refer to Entick by name; however, the date implied for Camden's speech, Nov. 27, 1765, matches the decision in Entick.) Finally, the facts of the 1769 verdict of 4,000 pounds (against the Secretary of State who issued the general warrant) in Wilkes v. Halifax was widely reported (along with the disappointment of Wilkes's supporters at the amount of the damages). Those accounts were devoid of the rhetorical flourishes of the earlier accounts, however, probably because the illegality of the general warrant was by then old news. See, e.g., London Chron., Nov. 9-11, 1769 (no. 2014), at 450, cols. 2-3; Boston Gazette & Country Journal, Feb. 5, 1770 (no. 774), at 1, col. 1. The colonial press accounts discussed in this note are among those identified in 3 Cuddihy, supra note 20, at 1631-34.

23

The most important pamphlet was probably Father of Candor, An Enquiry into the Doctrine Lately Propagated Concerning Libels, Warrants, and the Seizure of Papers (1764, reprinted 1970) (criticizing Parliament for not condemning general warrants and paper searches in stronger terms). See also infra note 78. “Father of Candor” may have been a pseudonym of Pratt's. See Leonard W. Levy, Origins of the Fifth Amendment: The Right Against Self-Incrimination 391 (1968).

24

For example, a London publication, the Annual Register, provided a yearly survey of important events. The survey of 1763, first published in 1764, carried an account of the general warrant issued for the North Briton No. 45, Wilkes's arrest and the search of his papers, his release under a writ of habeas corpus, and the proceedings in Wilkes v. Wood. The Annual Register for 1763, Appendix to


64

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 Chronicle 135-47. The account of Wood reports a portion of Chief Justice Pratt's charge to the jury in which he declared that “[t]his warrant is unconstitutional, illegal, and absolutely void....” Id. at 145. (However, the quoted passage appears to be a somewhat more elaborate version of the statement reported in the press accounts of Leach. See supra note 22. No similar statement appears in Lofft's later report of Wood. See infra note 25.)

25

The case reports of the Wilksite cases were not published contemporaneously with the trials. In fact, the report of Wilkes v. Wood and the longer report of Entick v. Carrington--the two case reports that are most heavily cited and quoted by modern commentators-did not appear until after the American controversies over general writs of assistance had largely run their course. (As I explain in the text infra, the widespread colonial controversies over the general writ ran from the enactment of the Townshend Duties Act in 1767 to about 1774, at which time they were displaced by more dire developments such as the military occupation of Boston.) Only three case reports from the Wilksite cases reached the colonies during the period of legal controversies over general writs. The first two Wilksite case reports were published in London in 1770 in Wilson's Reports: Huckle v. Money, 2 Wils. 205, 95 Eng. Rep. 807 (C.P. 1763) (denying the messengers' motion for a reduction of damages); Entick v. Carrington, 2 Wils. 275, 95 Eng. Rep. 807 (C.P. 1765) (a short report of Lord Camden's ruling that a search warrant could not be legally issued for a search of papers because no such warrant was authorized by common law or statute). Although the conventional citations for these cases are to the second volume of Wilson's Reports, that citation is actually to the three-volume format of the third London edition published in 1799 and subsequently reprinted in 95 English Reports. Wilson's Reports were originally published in “3 p[ar]ts in 2 vol [ume]s”--volume one in 1770 and volume two in 1775. See 1 Legal Bibliography, supra note 19, at 310, entry 131. A second edition was also printed in that format. See id. I have been unable to locate a surviving copy of either of those three-parts-in-two-volumes editions, but it is reasonably certain that parts one and two comprised volume one of the first edition, while part three comprised volume two of the first edition. Thus, notwithstanding the conventional citations to the second volume, the Huckle and Entick reports were originally published in volume one of the first edition in 1770. The only other case report published during the period of intense colonial controversy over general writs was a report of the King's Bench proceeding in Leach published in 1771: Leach v. Money, 3 Burr. 1692, 1742, 11 St. Tr. 307 (Francis Hargrave's 4th ed.), 19 Howell St. Tr. 1001, 97 Eng. Rep. 1050, 1075 (K.B. 1765). See 1 Legal Bibliography, supra note 19, at 294, entry 20 (showing that 3 Burr. was published in 1771). The report of the 1763 trial in Wilkes v. Wood appeared in 1776. Lofft 1, 19 Howell St. Tr. 1153, 98 Eng. Rep. 489 (C.P. 1763). See 1 Legal Bibliography, supra note 19, at 304, entry 83 (showing that Lofft Rep. was published in 1776). The more elaborate version of Camden's statements in Entick, which is virtually always quoted in modern judicial opinions and commentaries, was not published until 1781: Entick v. Carrington, 11 St. Tr. 313 (Francis Hargrave's 4th ed.), reprinted in 19 Howell St. Tr. 1029 (C.P. 1765) (not reprinted in Eng. Rep.). See 1 Legal Bibliography, supra note 19, at 369, entry 8 (showing that the final, eleventh, volume was published in 1781). It does not seem likely that Hargrave's edition of State Trials, an eleven-volume set of reports of treason, sedition, and prominent criminal cases from the time of Henry IV through the 1760s, would have been widely obtained by American lawyers during the 1780s. References to this reporter in American sources are rare; the earliest I have found is in the 1794 justice manual by William Waller Hening. See William Waller Hening, New Virginia Justice 415 (entered for publication 1794; the version cited was printed in Richmond by “Aug: Davis” in 1799) (citing “11 State Trials 321”). Moreover, as I describe below, virtually all of the language in the Fourth Amendment, including “unreasonable searches and seizures,” had appeared as of the 1780 Massachusetts provision; hence, it is unlikely that Camden's statements in the longer version of Entick influenced the Framers' views. See also infra notes 212, 508. No formal case report was ever published of the 1769 trial in Wilkes v. Halifax, but it was described in newspapers and magazine articles. See infra note 222.

26

In 1766, the authorities in London concluded that the statutory authority for the use of the writ in the American colonies was inadequate, so Parliament reauthorized use of the writ in the Townshend Act of 1767, 7 Geo. III, ch. 46, § 10 (Eng.). Other sections of the act imposed increased customs taxes on a wide range of imported products. Thereafter, legal controversies erupted in most of the colonies when customs officers petitioned the colonial courts to issue general writs. After some initial uncertainty, the colonial courts refused to issue the writs in a general (unparticularized) form. See infra note 82. Both Virginia and Pennsylvania witnessed several rounds of controversy in which customs officers repetitioned for a general writ after the judges of those courts had refused to issue it. In fact, the judges persisted in their refusal even after the English Attorney General weighed in with an opinion that the general writ was legal. In Connecticut, the judges simply refused to rule on the customs officers' petitions. In South Carolina, the judges initially refused to issue the writ until the judges were replaced by Tory appointees. See infra note 83. There was no legal controversy


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RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 over the Townshend writ in Massachusetts and New Hampshire, however, because the 1761 ruling in the Writs of Assistance Case was taken to have settled the legality of the writ in those colonies. Even so, public opposition in Boston to the use of the writ was intense during this period. See infra note 139. The first substantial historical account of the Townshend Act writ controversies was Oliver M. Dickerson, Writs of Assistance as a Cause of the Revolution, in The Era of the American Revolution 40 (Richard B. Morris ed., 1939) [hereinafter Dickerson, Writs of Assistance]. That account is still the most useful for an overview, although it has been superseded on some details. See also Joseph R. Frese, S.J., Writs of Assistance in the American Colonies: 1660-1776, at 225-300 (1951) (unpublished Ph.D. dissertation, Harvard University) [hereinafter, Frese, Dissertation]; 2 Cuddihy, supra note 20, at 1017-84.

27

A series of developments probably reignited American interest in the condemnation of general warrants in the Wilkesite cases concurrently with the colonial legal controversies over the Townshend Act writ. One was that John Wilkes became embroiled in a second controversy when he was denied a seat in the House of Commons despite his electoral victory in 1768. Because that controversy dovetailed with American complaints about lack of representation in Parliament, “Wilkes and Liberty” became a Whig slogan on both sides of the Atlantic, and a number of American Whigs endorsed and corresponded with Wilkes at that time. That controversy renewed American interest in Wilkes's earlier legal battle against general warrants. See Peter D.G. Thomas, John Wilkes: A Friend to Liberty 159-75 (1996). Moreover, in early 1770, colonial papers carried reports of the verdict for Wilkes in Wilkes v. Halifax. See supra note 22; infra note 222. In addition, Americans undoubtedly heeded Blackstone's 1769 condemnation of general warrants, which was based on the Court of King's Bench proceedings in Leach. See 4 William Blackstone, Commentaries on the Laws of England 288 n.i (1769, reprinted facsimile The University of Chicago Press, 1979), quoted infra note 78. The case reports of three Wilkesite cases-- Huckle, Entick (the shorter version), and Leach--also became available during the early 1770s. See supra note 25.

28

See infra notes 139, 142.

29

Lasson did not emphasize the Townshend Act writ controversies, but he wrote before Dickerson's seminal account of those legal controversies was available. See supra note 26. I think the memory of Parliament's 1767 reauthorization of general warrants for customs searches of houses was the principal stimulus for the adoption of bans against general warrants in the state declarations of rights adopted between 1776 and 1784, and for the anti-Federalist calls for a federal ban against general warrants during the constitutional ratification debates of 1787-88. As I explain below, the concerns about search authority raised by anti-Federalists during the ratification debates of 1787-88 were primarily about revenue searches of houses. See infra notes 164-166; cf. Dickerson, Writs of Assistance, supra note 26, at 48 (asserting that the controversy over the Townshend Act writ “became an issue throughout the colonies, involving nearly every judge and prominent lawyer in America outside of Massachusetts and New Hampshire”); Frese, Dissertation, supra note 26, at 300 (concluding that “with such a widespread legal discussion [regarding the reauthorization of the writ of assistance in the Townshend Act] it is hardly to be wondered if a fourth amendment was proposed for the American Constitution”). Commentators who have relied primarily on case reports have tended to omit or understate the significance of the Townshend Act writ controversies, probably because those controversies were never formally reported. See infra note 62.

30

Lasson, supra note 16, at 81.

31

See id. at 100-03. Lasson was not the first commentator to assert this construction. See the earlier statement by Fraenkel discussed infra note 527. Madison's focus on banning general warrants is discussed infra notes 430-439 and accompanying text. The subsequent language change is discussed infra notes 477-499 and accompanying text.

32

See id. at 106-07.

33

116 U.S. 616 (1886).

34

See Lasson, supra note 16, at 107-10. Lasson accepted at face value the originalist claims Justice Bradley made about the original meaning of the Fourth Amendment in Boyd, but those claims were actually groundless. See infra notes 512-513.

35

232 U.S. 383 (1914).

36

See Lasson, supra note 16, at 111-12.


66


37

Because Lasson assumed the presence of a broad reasonableness standard, he did not identify Carroll's use of a reasonableness-inthe-circumstances standard as a significant development. See id. at 125-26, 130 n.84, 131 n.90. However, Carroll, which approved of a warrantless search of an automobile for illegal liquor, in part because of the exigency presented by the mobility of the vehicle, was the first Supreme Court case to treat “unreasonable” in the Fourth Amendment as a relativistic reasonableness-in-the-circumstances standard. See infra notes 523-529 and accompanying text.

38

Numerous commentaries draw on Lasson's commentary to describe Fourth Amendment history; those that address the subject in some detail include (in chronological order): Jacob W. Landynski, Search and Seizure and the Supreme Court: A Study in Constitutional Interpretation (1966); Joseph J. Stengel, Background of the Fourth Amendment to the Constitution of the United States (pts. 1 & 2), 3 U. Rich. L. Rev. 278 (1969), 4 U. Rich L. Rev. 60 (1969); Anthony Amsterdam, Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349, 395-99 (1974); Luis G. Stelzner, The Fourth Amendment: The Reasonableness and Warrant Clauses, 10 N.M. L. Rev. 33, 35-41 (1979-80); Polyvios G. Polyviou, Search & Seizure: Constitutional and Common Law 1-19 (1982); Joseph D. Grano, Rethinking the Fourth Amendment Warrant Requirement, 19 Am. Crim. L. Rev. 603 (1982); Yale Kamisar, Does (Did) (Should) the Exclusionary Rule Rest on a ‘Principled Basis' Rather than an ‘Empirical Proposition’?, 16 Creighton L. Rev. 565, 571-79 (1983); Potter Stewart, The Road to Mapp v. Ohio and Beyond: The Origins, Development, and Future of the Exclusionary Rule in Search and Seizure Cases, 83 Colum. L. Rev. 1365, 1372-80 (1983); Silas J. Wasserstrom, The Incredible Shrinking Fourth Amendment, 21 Am. Crim. L. Rev. 257, 281-95 (1984); Martin Grayson, The Warrant Clause in Historical Context, 14 Am. J. Crim. L. 107 (1987); John M.A. DiPippa, Is the Fourth Amendment Obsolete?--Restating the Fourth Amendment in Functional Terms, 22 Gonz. L. Rev. 483, 503-14 (1987-88); and Clark D. Cunningham, A Linguistic Analysis of the Meanings of ‘Search’ in the Fourth Amendment: A Search for Common Sense, 73 Iowa L. Rev. 541, 550-59 (1988). See also 1 LaFave, supra note 9, at 3-11.

39

Supreme Court opinions have frequently cited Lasson's commentary (as well as that by Landynski, supra note 38) as a general authority on Fourth Amendment history. Citations to Lasson that relate to key aspects of the history addressed in this Article include (in chronological order): Lopez v. United States, 373 U.S. 427, 454-55 (1963) (Brennan, J., dissenting) (citing Lasson for the proposition that the first clause sets out a “more encompassing principle” than the warrant standards); Warden v. Hayden, 387 U.S. 294, 303, 317 (1967) (Douglas, J., dissenting) (citing Lasson regarding the enlargement of the text to include a broad reasonableness principle); United States v. United States Dist. Court, 407 U.S. 297, 328-29 (1972) (Douglas, J., concurring) (citing Lasson for the proposition that the Amendment was aimed at curbing abusive warrants); United States v. Matlock, 415 U.S. 164, 183 (1974) (Douglas, J., dissenting) (citing Lasson regarding the enlargement of the text to include a broad reasonableness principle); United States v. Watson, 423 U.S. 411, 429 (1976) (Powell, J., concurring) (citing Lasson for the proposition that the Framers were unconcerned with warrantless intrusions); Arkansas v. Sanders, 442 U.S. 753, 759 (1979) (opinion of the Court by Powell, J.) (citing Lasson for the proposition that the Framers believed a specific warrant was needed for a search of premises); Payton v. New York, 445 U.S. 573, 585 (1980) (opinion of the Court by Stevens, J.) (citing Lasson regarding the enlargement of the text to include a broad reasonableness principle); id. at 611 (White, J., dissenting) (same); Oliver v. United States, 466 U.S. 170, 177 (1984) (opinion of the Court by Powell, J.) (same); and United States v. Leon, 468 U.S. 897, 971 (1984) (Stevens, J., concurring in part, dissenting in part) (citing Lasson for the proposition that the Amendment was aimed at curbing abusive warrants).

40

See Cuddihy, supra note 20. Cuddihy's study examines search and seizure from the mists of time to 1791 but does not address the understanding of the Fourth Amendment during the nineteenth century. See also William J. Cuddihy & B. Carmon Hardy, A Man's House Was Not His Castle: Origins of the Fourth Amendment, 37 Wm. & Mary Q. 371 (1980). I have found Cuddihy's thorough research to be of immense value in identifying relevant historical sources; the citations in this Article do not adequately reflect how much I have learned from his work. However, I disagree with a number of Cuddihy's interpretations of the historical sources. See infra notes 107, 145, 163-166, 206, 297, 299, 349, 350, 377, 434, 473.

41

Cuddihy described the reference to “unreasonable searches and seizures” in the first clause of the Fourth Amendment as a general principle in the same way Lasson did: The most significant element of the amendment was... the generic concept of [ [ [unreasonable search and seizure]. The amendment's first clause, which explicitly renounces all unreasonable searches and seizures, overshadows the second clause, which implicitly renounced only a single category, the general warrant. The Framers of the amendment were less concerned with a right against general warrants than with the broader rights those warrants infringed. 2 Cuddihy, supra note 20, at 1545. Similarly,


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RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 [t]he history that preceded the Fourth Amendment... reveals a depth and complexity that transcends language. To think of the amendment as a right against general warrants disparages its intricacy. The amendment expressed not a single idea but a family of ideas whose identity and dimensions developed in historical context. Id. at 1555.

42

But see the favorable review of Cuddihy's dissertation in Morgan Cloud, Searching Through History: Searching for History, 63 U. Chi. L. Rev. 1707 (1996) (book review).

43

See Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 669 (1995) (O'Connor, J., dissenting) (citing 3 Cuddihy, supra note 20, at 1402, 1499, 1555, for the proposition that the Framers intended that searches be based on individualized suspicion). I agree with Cuddihy's conclusions in that regard.

44

See Tracey Maclin, The Complexity of the Fourth Amendment: A Historical Review, 77 B.U. L. Rev. 925 (1997) [hereinafter Maclin, Complexity]; Tracey Maclin, When the Cure for the Fourth Amendment Is Worse than the Disease, 68 S. Cal. L. Rev. 1 (1994) [hereinafter Maclin, Cure].

45

See Leonard W. Levy, Original Meaning and the Framers' Constitution, ch. 11 (1988) [hereinafter Levy, Original Meaning]. That chapter has been twice reproduced. See Leonard W. Levy, Origins of the Fourth Amendment, 114 Pol. Sci. Q. 79 (1999) (reprinting the 1988 chapter but deleting a number of footnotes showing reliance on Cuddihy's dissertation); Leonard W. Levy, Origins of the Bill of Rights, ch. 7 (1999) (reprinting the text of the 1988 chapter but deleting all footnotes). I do not cite either of the redundant publications. Although Levy's account largely tracks that of Lasson and Cuddihy, he has stressed the supposedly open-ended and undefined character of the supposed “reasonableness” principle. For example, he has asserted that “[the Fourth Amendment] contained principles that were as vague as they might be comprehensive,” referring to the open-endedness of the “reasonableness” standard. Levy, Original Meaning, supra, at 245.

46

See commentaries cited supra note 9.

47

See, e.g., Grano, supra note 38, at 621 (“[H]istory indicates that warrantless felony arrests did not cause consternation [among the Framers].”). See also the discussion of the common-law of arrest authority infra notes 217-230 and accompanying text.

48

See infra notes 146-159 and accompanying text.

49

See Telford Taylor, Two Studies in Constitutional Interpretation: Search, Seizure and Surveillance and Fair Trial and Free Press 19-46 (1969) (printing 1967 lecture).

50

See id. at 41-42.

51

Id. at 41 (asserting also that the Framers did not see “the warrant as a protection against unreasonable searches” but “as an authority for unreasonable and oppressive searches, and sought to confine its issuance and execution...”).

52

Id. at 23-24.

53

Id. at 39. Note, however, that Taylor expressed some agnosticism regarding the intended meaning of “unreasonable.” See id. at 43 (“Nothing in the legislative or other history of the fourth amendment sheds much light on the purpose of the first clause. Quite possibly it was to cover shortcomings in warrants other than those specified in the second clause; quite possibly it was to cover other unforeseeable contingencies.”).

54

Supreme Court opinions have cited Taylor's commentary as authority for a variety of historical points; those that relate to the historical meaning of the Fourth Amendment include (in chronological order): Coolidge v. New Hampshire, 403 U.S. 443, 492 (1971) (Harlan, J., concurring) (citing Taylor's claim that a warrant requirement “st[ands] the amendment on its head”); United States v. Robinson, 414 U.S. 218, 233 (1973) (opinion of the Court by Rehnquist, J.) (citing Taylor's treatment of the historical basis for warrantless searches incident to arrest); Gerstein v. Pugh, 420 U.S. 103, 116 (1975) (opinion of the Court by Powell, J.) (citing Taylor for proposition that the stolen goods search warrant was the Framers' model for a “reasonable” search); Marshall v. Barlow's, Inc., 436 U.S. 307,


68

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 327-28 (1978) (Stevens, J., dissenting) (citing Taylor as authority that the Framers were concerned with “circumscrib[ing] the warrant power” rather than controlling warrantless searches); Payton v. New York, 445 U.S. 573, 621 (1980) (Rehnquist, J., dissenting) (citing Taylor's claim that the Framers did not intend to require or encourage use of warrants); Steagald v. United States, 451 U.S. 204, 228 (1981) (Rehnquist, J., dissenting) (citing Taylor's claim that warrantless searches of houses could be made incident to arrest at time of framing); Robbins v. California, 453 U.S. 420, 438 (1981) (Rehnquist, J., dissenting) (citing Taylor's claim that a warrant requirement “st[ands] the amendment on its head”); United States v. Leon, 468 U.S. 897, 972 (1984) (Stevens, J., concurring in part, dissenting in part) (citing Taylor's claim that the Framers were more concerned with controlling warrants than with controlling the warrantless officer); and California v. Acevedo, 500 U.S. 565, 582 (1991) (Scalia, J., concurring) (citing Taylor as supporting the view that the Fourth Amendment was meant to restrict the issuance of warrants so as to preserve the jury's role in regulating searches and seizures). See also United States v. Brown, 64 F.3d 1083, 1085 (7th Cir. 1995) (opinion by Easterbrook, J., joined by Posner, J.) (reciting Taylor's claim that the warrant requirement “st[ands] the amendment on its head”).

55

See, e.g., Posner, supra note 9, at 52 n.9, 72 n.56. Although this commentary was primarily an economic argument for replacing the exclusionary rule with a tort remedy, Posner did follow Taylor in asserting that the Fourth Amendment was inspired by “English cases.” Id. at 52 & n.9. He also followed Taylor in asserting that the Framers did not want to encourage use of warrants but “to discourage their use by imposing stringent requirements on their issuance,” and that the Fourth Amendment was not aimed at warrantless searches, but at the possibility “that magistrates might issue unreasonably broad warrants.” Id. at 72 n.56. Finally, Posner followed Taylor in expressing skepticism as to “what exactly [the Framers] meant by the term ‘unreasonable’ in the first clause of the Fourth Amendment.” Id. at 74; see also Taylor's statement supra note 53.

56

Professor Gerald Bradley has argued that the Framers only meant to ban general warrants and that the reference to “unreasonable searches and seizures” was mere rhetoric. On that basis, he has asserted that the Fourth Amendment should not be understood to imply any limit on the conduct of officers who do not use a warrant. See Gerard V. Bradley, The Constitutional Theory of the Fourth Amendment, 38 DePaul L. Rev. 817, 833-55 (1989). In a narrow sense, Bradley's conclusion that the text addressed only warrant standards is correct. He arrived at that conclusion, however, only on the basis of a mistaken understanding of the drafting of the Fourth Amendment. See infra note 485. Moreover, his claim that the Framers did not mean to restrict warrantless officers ignores the reason that the Framers banned the general warrant--they opposed giving discretionary authority to officers, as discussed below.

57

Professor William Stuntz has argued that the Framers sought to ban general warrants only to protect against persecution of political dissidents, as in the English Wilkesite cases, but that they did not mean for the Fourth Amendment to reach criminal justice. See William Stuntz, The Substantive Origins of Criminal Procedure, 105 Yale L.J. 393, 396-403 (1995). That treatment of the Framers' concerns, however, is based largely on the usual “three cases.” Id. at 396-97; see also infra note 62. In addition, Stuntz's analysis rests on a number of faulty premises. For example, Stuntz stated that “[s]earch warrants in ordinary criminal cases were apparently unknown [at the time of the framing].” Stuntz, supra, at 411 n.66 (citing Julius Goebel, Jr. & T. Raymond Naughton, Law Enforcement in Colonial New York: A Study in Criminal Procedure, 1664-1776, at 428-29 (1944)). Goebel and Naughton actually concluded, however, that arrests and searches for stolen property were usually made by warrant. On the pages cited by Stuntz, Goebel and Naughton wrote that “[p]recepts ordering an officer to search must certainly have been in general use considering the great number of larcenies, robberies, and burglaries....” Goebel & Naughton, supra, at 428. (“Precept” was one of several generic terms used to refer to warrants. See infra note 201.) Likewise, they identified several references to search warrants for stolen goods that had been preserved in the colonial records. They also concluded that “the normal rule of no search [of a house] without a warrant was settled law.” Goebel & Naughton, supra, at 394. Stuntz also uncritically accepted Taylor's incorrect claim that warrantless searches could be made of houses. See Stuntz, supra, at 401 n.35; see also infra note 276. He likewise uncritically repeated Amar's incorrect claim that the Framers were motivated by opposition to the “immunizing” effect of a warrant. Stuntz, supra, at 409-411; see also infra notes 95-98 and accompanying text; infra note 222.

58

Professor Amar initially addressed the Fourth Amendment in Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1175-81 (1991) [hereinafter Amar, Bill of Rights]. He addressed the text and history at more length in Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757 (1994) [hereinafter Amar, Fourth Amendment]. Amar cited these articles in his testimony, see Hearings, supra note 3, at 12-15, and the latter has also been reprinted without significant changes as Chapter One of Akhil Reed Amar, The Constitution and Criminal Procedure: First Principles (1997). However, I cite only the article. Amar has also reiterated his claims about the Fourth Amendment in three additional publications: Amar, Boston, supra note 19 (1996); Akhil Reed Amar, The Bill of Rights: Creation and Reconstruction 64-77 (1998) [hereinafter, Amar, Bill of Rights Book] (this


69

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 discussion appears to be a brief overview of some of the arguments Amar made in prior commentaries; it does not set out new claims to any significant degree); and Akhil Reed Amar, Terry and Fourth Amendment First Principles, 72 St. John's L. Rev. 1097 (1998) [hereinafter Amar, Terry].

59

See, e.g., Amar, Bill of Rights, supra note 58, at 1178-80 (asserting that the ban against “unreasonable searches and seizures” was meant to be distinct from the warrant standards); Amar, Fourth Amendment, supra note 58, at 758 (commenting on the Amendment's “global command that all government searches and seizures be reasonable”); id. at 759 (claiming that the Amendment does not require warrants but does require that all searches and seizures be reasonable); id. at 801 (“The core of the Fourth Amendment... is neither a warrant nor probable cause, but reasonableness.”); id. at 807 (referring to the first clause of the Amendment as “the Reasonableness Clause”).

60

See Amar, Bill of Rights Book, supra note 58, at 69-71; Amar, Boston, supra note 19, at 60; Amar, Bill of Rights, supra note 58, at 1178-80; Amar, Fourth Amendment, supra note 58, at 771-74; Amar, Terry, supra note 58, at 1111. Amar also claims that the Framers' concern for jury assessments of searches was shaped largely by the case reports of Wood and, to a lesser extent, Entick. See, e.g., Amar, Bill of Rights, supra note 58, at 1176 n.208. (Like Taylor's earlier account, Amar's account of the origins of the amendment places heavy emphasis on the Wilkesite case reports. See infra note 62.) The specific claim that the Framers feared the immunizing effect of “warrants” may have been suggested by a previous comment by Posner, supra note 9, at 72 n.56 (stating that police might seek a warrant, even if they had grounds for warrantless intrusion, “in order to have a more secure defense of legal process if sued for torts committed in the course of the search”). Amar's assertions on this point are discussed in more detail and criticized infra notes 63-104 and accompanying text.

61

See California v. Acevedo, 500 U.S. 565, 581-82 (Scalia, J., concurring) (stating that “[b]y restricting the issuance of warrants, the Framers endeavored to preserve the jury's role in regulating searches and seizures,” and citing Amar, Bill of Rights, supra note 58, at 1178-90, and Posner, supra note 9, at 72-73); see also infra note 62.

62

Taylor's discussion of the general warrant controversies was superficial insofar as it was based almost entirely on the case reports of two Wilkesite cases, Wood and Entick (without noting the late publication dates of those reports, see supra note 25), and on Otis's speech in the 1761 Writs of Assistance Case, but virtually ignored the important colonial controversies over the Townshend Act writ. See Taylor, supra note 49, at 29-38; cf. Grano, supra note 38, at 616 (describing Taylor's historical account as “cursory” and noting that it failed to support the broad claim that the Framers were hostile to warrants). The reduction of the historical search controversies to reported “cases,” without attention to publication dates, is a common failing. See, for example, the commentaries by Amar discussed supra note 58, and by Stuntz discussed supra note 57. See also Eric Schnapper, Unreasonable Searches and Seizures of Papers, 71 Va. L. Rev. 869 (1985). This oversimplification also appears in judicial opinions. See, e.g., City of West Covina v. Perkins, 119 S. Ct. 678, 684 n.2 (1999) (opinion of the Court by Thomas, J.) (citing commentaries by Taylor, Amar, and Stuntz as authority for the proposition that the case reports in Wood and Entick “profoundly influenced the Founders' view of what a ‘reasonable’ search entailed”). I was previously guilty of the same oversimplification. See Davies's Testimony, supra note 3, at 127.

63

Amar is an engaging writer, but his treatment of text and history is often loose and uninformed. Criticisms of his claims appear throughout the text and footnotes to this Article. See supra notes 19-20; infra note 62; infra notes 65-104, 109-115 and accompanying text; infra notes 117, 119, 129, 132, 143, 153, 171, 187, 252, 273, 276, 278, 318, 320, 322, 363, 382, 450, 467, 470, 489, 533. But see note 485. For other criticisms of Amar's Fourth Amendment claims, see, for example, Susan Bandes, We the People and Our Enduring Values, 96 Mich. L. Rev. 1376 (1998) (book review); Cloud, supra note 42; Donald Dripps, Akhil Amar on Criminal Procedure and Constitutional Law: “Here I Go Down that Wrong Road Again,” 74 N.C. L. Rev. 1559 (1996); Susan R. Klein, Enduring Principles and Current Crises in Constitutional Criminal Procedure, 24 Law & Soc. Inquiry 533 (1999) (book review); Maclin, Complexity, supra note 44; Maclin, Cure, supra note 44; Carol S. Steiker, “First Principles” of Constitutional Criminal Procedure: A Mistake?, 112 Harv. L. Rev. 680 (1999) [hereinafter Steiker, Mistake] (book review); Carol S. Steiker, Second Thoughts About First Principles, 107 Harv. L. Rev. 820 (1994) [hereinafter Steiker, Second Thoughts]; George C. Thomas III, Remapping the Criminal Procedure Universe, 83 Va. L. Rev. 1819 (1997) (book review). But see Michael Stokes Paulsen, Dirty Harry and the Real Constitution, 64 U. Chi. L. Rev. 1457 (1997) (book review) (giving a positive review of Amar's criminal procedure book).


70


64

See Taylor, supra note 49, at 27-30. The deficiencies in those sources are discussed in some detail infra notes 276-277.

65

See Amar, Fourth Amendment, supra note 58, at 764, n.13 (citing generally to common-law treatises).

66

See infra notes 104, 136-142 and accompanying text.

67

The Framers' concern with preventing breaches of the privacy of the house is evident from their determination to prevent issuance of general warrants. As I explain below, all of the state constitutional provisions and anti-Federalist proposals for a federal provision stated that too-loose warrants “ought not be granted” or “shall not be issued.” See infra note 494 and accompanying text. Indeed, the final motion to amend Madison's draft language for the Fourth Amendment was aimed precisely at inserting this imperative language to make it clear that non-specific warrants “shall [not be] issue[d].” See infra notes 478-497 and accompanying text.

68

There is a discrepancy between Amar's historical and policy arguments on this point. In his historical discussion, Amar wrote as though the Framers sought only to preserve the availability of suits for trespass for “unreasonable” searches that could be brought after such searches had been made. However, when he discussed current policy, he endorsed the value of having a judge assess the grounds for a search before privacy is violated in what he calls “judicial preclearance” of searches. See Amar, Fourth Amendment, supra note 58, at 810. The value of “judicial preclearance” (that is, a specific warrant process) as a means of preventing violations of house and person was as evident to the Framers as it now is to Amar.

69

For example, Blackstone commented, while discussing the office of constable, that “considering what manner of men are for the most part put upon these offices, it is perhaps very well that they are generally kept in ignorance [of the full extent of the authority of their office].” 1 Blackstone, supra note 27, at 344. Likewise, the press accounts of chief justice Pratt's jury instruction in Leach indicated that he complained that a general warrant allowed the decision to search, properly left to the judges, to be delegated to king's messengers or “even... the lowest of the people.” Cuddihy has observed that complaints about delegation of authority to lower class officers, coupled with derogatory descriptions of such officers, was a consistent theme in the prerevolutionary grievance against the general writ of assistance. See 2 Cuddihy, supra note 20, at 1126-27 (noting descriptions of officers employing writs as “odius harpies,” “servants,” “villains,” “dreggs,” “most despicable wretches,” and “ruffians”). Similar expressions of contempt for ordinary officers are commonplace in the fears anti-Federalists expressed regarding customs searches by federal revenue officers.

70

2 Legal Papers of John Adams, supra note 20, at 142 (reprinting John Adams's abstract of Otis's argument in the Writs of Assistance Case that shows Otis complaining that the use of a general writ of assistance was not even limited to commissioned customs collectors but could also be used by “not only deputies, &c. but even THEIR MENIAL SERVANTS ARE ALLOWED TO LORD IT OVER US-- What is this but to have the curse of Canaan with a witness on us, to be the servant of servants, the most despicable of God's creation”).

71

See infra notes 217-230, 260-275 and accompanying text.

72

Although Amar's writings convey the impression that “reasonableness” was a common-law standard, he has not identified a single framing-era legal authority that actually employed “reasonableness” as a standard for assessing the lawfulness of a warrantless intrusion. See infra notes 109-115 and accompanying text.

73


74

See infra note 397. Coke had such a constrained view of arrest authority that he even disputed the authority of justices of the peace to issue arrest warrants before an indictment. See Sir Edward Coke, Fourth Part of the Institutes of the Laws of England 176-77 (1817, reprinted by Professional Books Ltd. 1986) (originally published in 1644, s ee 1 Legal Bibliography, supra note 19, at 258, entry 6).

75

See 2 Sir Matthew Hale, History of the Pleas of the Crown 150 (Solemn Emlyn ed., 1736). Hale wrote his two-volume treatise prior to 1676 (the year of his death), but it was not published until 1736 (after the appearance of the treatise by Hawkins, discussed in the following note). See 1 Legal Bibliography, supra note 19, at 362, entry 36.

76

2 Serjeant William Hawkins, Pleas of the Crown 82 (1721). Hawkins's treatise was the most complete and “current” treatment of criminal procedure available to the Framers. Volume one, published in 1716, dealt largely with crimes; volume two, which dealt largely with procedure, was published in 1721. See 1 Legal Bibliography, supra note 19, at 362, entry 37. The importance of Hawkins's


71

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 treatise is discussed in 12 William Holdsworth, A History of English Law 361-62 (1938). Further editions of Hawkins's treatise were published throughout the eighteenth century. The sixth edition, edited by Thomas Leach [[[hereinafter Leach's Hawkins] is especially useful as evidence of English common-law procedure at the time of the framing as Leach had updated the text and notes to reflect current rulings. The sixth edition of the second volume was published in London in 1787. See 1 Legal Bibliography, supra note 19, at 362-63, entry 37. However, the copy I have used is a 1788 Dublin printing which may be the version most commonly purchased by Americans.

77

Mansfield said: It is not fit, that the receiving or judging of the information [regarding cause to arrest or search] should be left to the discretion of the officer. The magistrate ought to judge; and should give certain directions to the officer. This is so, upon reason and convenience. ... [T]he [common law] authorities--Hale and all others hold such an uncertain warrant void: and there is no case or book to the contrary. Leach v. Money, 3 Burr. 1742, 1766, 19 Howell St. Tr. 1001, 1027, 97 Eng. Rep. 1075, 1088 (K.B. 1765). The other judges of the King's Bench also condemned the general warrant in the same way. See 3 Burr. at 1767, 19 Howell St. Tr. at 1027, 97 Eng. Rep. at 1088. This case report was published in 1771. See supra note 25. The Supreme Court has recognized the relevance of Mansfield's statement for the meaning of the Fourth Amendment. See United States v. United States District Court, 497 U.S. 297 (1972). Justice Powell's opinion for the Court noted that “[o]ver two centuries ago, Lord Mansfield held that common-law principles prohibited warrants that ordered the arrest of unnamed individuals who the officer might conclude were guilty of seditious libel” and then quoted the passage from Leach quoted immediately above. Id. at 316 (emphasis in original).

78

Blackstone wrote: A general warrant to apprehend all persons suspected, without naming or particularly describing any person in special, is illegal and void for its uncertainty [citing Hale and Hawkins]; for it is the duty of the magistrate, and ought not be left to the officer, to judge of the grounds of suspicion. 4 Blackstone, supra note 27, at 288 (note that I have not followed the common practice of citing to the “star” page numbering of Blackstone, because those numbers are not to the first edition). As authority for the illegality of a general warrant, Blackstone cited “Money v. Leach, Trin. 5 Geo III B.R. ... (Com. Journ. 22 Apr 1766).” Id. at n.i. He did not cite any formal case report because none had been published in 1769. See supra note 77. Blackstone's reiteration of Coke's condemnation of unspecific criminal warrants appeared in the first volume of his commentaries. See 1 Blackstone, supra note 27, at 133. For a discussion, see infra note 418 and accompanying text. Blackstone's Commentaries became very popular in the American colonies on the eve of the Revolutionary War. Volume one, which addressed the inherent rights of English subjects, was published in 1765; however, volume four, which dealt with criminal law and procedure, was not published until 1769. See Legal Bibliography, supra note 19, at 27, entry 8 (showing “1st ed., vol. 1” published 1765; “1st ed., vol. 4” published 1769). Because Blackstone aimed at providing a broad overview of English law, his treatment of criminal procedure topics was considerably less detailed than that in the treatises by Hawkins and Hale. For example, Blackstone discussed only arrest warrants, not search warrants.

79

In Huckle, Pratt assailed the use of a “nameless” general warrant as a violation of Magna Carta and “worse than the Spanish Inquisition.” Huckle v. Money, 2 Wils. 206, 207, 95 Eng. Rep. 768, 769 (C.P. 1763). (This case report was published in 1770. See supra note 25.) In Wood, Pratt condemned the general warrant because “a discretionary power given to [officers] to search wherever their suspicions may chance to fall... is totally subversive to the liberty of the subject.” Wilkes v. Wood, Lofft 18, 18, 19 Howell St. Tr. 1153, 1167, 98 Eng. Rep. 489, 498 (C.P. 1763). (This case report was published in 1776. See supra note 25.) In Leach, Pratt condemned the general warrant because it delegated decisions that were properly reserved to judicial authority to mere messengers. See the press accounts of Leach, set out supra note 22.

80

Father of Candor, supra note 23, at 57.

81

2 Legal Papers of John Adams, supra note 20, at 140-43. John Dickinson later echoed Otis's complaint that no return was required with a general writ. See discussion infra note 94.


72


82

Dickerson, Writs of Assistance, supra note 26, at 60-61 (Pennsylvania judges), 69 (Virginia judges), 64 (East Florida judge). Similarly, the Connecticut judges unofficially indicated they would issue particular writs but not “a general writ to be used at... discretion.” 2 Cuddihy, supra note 20, at 1082.

83

Drayton complained that American rights were injured [b]y Judges now-a-days granting to the Customs to lie dormant in their possession, writs of assistance in the nature of general warrants, by which, without any crime charged and without any suspicion, a petty officer has power to cause the doors and locks of any man to be broke open, to enter his most private cabinet, and thence to take and carry away, whatever he shall in his pleasure deem uncustomed goods. William Henry Drayton, A Letter from Freeman, Aug. 10, 1774, reprinted in I Documentary History of the American Revolution 11, 15 (R.W. Gibbes ed., 1855, reprinted 1972). Although Drayton at one point called the general writ “of a more pernicious nature than general warrants,” he also condemned “the general writ, or rather the general warrant.” Id. at 21. (The reference to “Judges nowdays” refers to the fact that the court in Charleston had refused to issue general writs until the judges were removed and replaced by more compliant judges. See id. at 21-22.) Drayton also proposed that the Congress declare that only warrants “in the nature of... warrants to search for stolen goods”-- that is, specific warrants--be allowed. See quotation infra note 94.

84

See 3 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 587-88 (Jonathan Elliot ed., 2d ed. 1838, reprinted in facsimile 1937) [hereinafter Elliot's Debates]. Henry stated that: general warrants, by which an officer may search suspected places, without evidence of the commission of a fact, or seize any person, without evidence of his crime, ought to be prohibited. As these are admitted, any man may be seized, any property may be taken, in the most arbitrary manner, without any evidence or reason. Every thing the most sacred may be searched and ransacked by the strong hand of power. Id. at 588.

85

This is hardly a novel insight on my part. See, e.g., Kamisar, supra note 38, at 575 (asking, in connection with the colonial protests against the Townshend Act writ, “[c]an there be any doubt that the colonists would have vigorously opposed warrantless searches exhibiting the same characteristics as general warrants and writs and thus impairing privacy and freedom to the same degree?”); Maclin, Complexity, supra note 44, at 970-71 (“The purpose of [the condemnation of overbroad warrants in a constitutional search and seizure provision] was to restrain the discretion of officers and executive officials. With this in mind, one can read [the warrant standards in the text of a constitutional search and seizure provision] and properly conclude that promiscuous warrantless intrusions exhibiting the same traits as general warrants also violate the principle embodied in [the constitutional text].”).

86

Taylor and Amar each discussed other aspects of Mansfield's statements in Leach, but neither mentioned his statement that it was “not fit” for the officer to exercise discretionary authority. See Taylor, supra note 49, at 31-32; Amar, Fourth Amendment, supra note 58, at 776. Likewise, Amar selectively recited from Blackstone's condemnation of general warrants (quoted supra note 78) without noting that Blackstone also wrote that it ought not be left to the officer to decide whom to arrest. See id. at 779 (quoting 4 Blackstone, supra note 27, at *286-90). And Amar referred to Wood at numerous points without mentioning Pratt's salient condemnation of discretionary authority (quoted supra note 79). See, e.g., id. at 775-76.

87

See, e.g., Amar, Bill of Rights Book, supra note 58, at 70; Amar, Bill of Rights, supra note 58, at 1179; see also Amar, Fourth Amendment, supra note 58, at 774 (“Warrants then, were friends of the searcher, not the searched.”); id. (quoting Taylor, supra note 49, at 41, in claiming that the Framers viewed “a warrant” as an “enemy”); Amar, Bill of Rights, supra note 58, at 1178-80 (“A warrant issued by a judge or magistrate... had the effect of taking a later trespass action away from a jury of ordinary citizens.”); Amar, Boston, supra note 19, at 60 (“Warrants... were the friends of the officer, not the citizen; and so warrants had to be strictly limited.”).

88

Amar, Fourth Amendment, supra note 58, at 778 (emphasis in original). Amar made this assertion with regard to several post-framing statements, see infra note 92, but his text does not lead the reader to understand that its import should be limited to that setting. Moreover, the cited sources do not actually show hostility to specific search warrants. See infra note 92.

89

Some readers of drafts of this Article indicated they interpreted Amar as claiming only that the purpose of the second clause of the Fourth Amendment consisted solely of banning general warrants, and that the Framers were indifferent to whether specific warrants should be used. In that regard, it may also be relevant that when I previously criticized Amar for making generic-sounding claims


73

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 that the Framers were opposed to “warrants,” he responded that I had misstated his position (but did not explain the nature of my error). See Davies's Testimony, supra note 3, at 135 n. 31; Amar, Boston, supra note 19, at 80 n. 122. I readily concede that Amar's commentary need not be read to claim that the Framers were as opposed to specific as they were to general warrants. Nevertheless, I think that Amar's generic-sounding claim that the Framers viewed “judges and warrants” as “heavies” will often be understood as a claim that the Framers disliked specific as well as general warrants. In addition, I do not see how his claim that historical statements show disapproval of “all search warrants,” see text supra, can be read as anything other than a claim of broad hostility toward specific as well as general warrants. Moreover, only that reading of his generic-sounding claims lends much support to the generalizedreasonableness construction that he favors. Amar's commentary does not make much of an attack on the warrant preference unless it is read as a claim that the Framers disapproved of specific warrants to some degree.

90

This point has also been noted by Maclin, Complexity, supra note 44, at 967-70.

91

See the third statement of the 1780 Massachusetts provision, discussed infra notes 379-381 and accompanying text.

92

See Amar, Fourth Amendment, supra note 58, at 778 (citing Reed v. Rice, 25 Ky. (2 J.J. Marsh) 44, 46 (1829), and Robinson v. Richardson, 79 Mass. (13 Gray) 454, 457 (1859)); see also Thomas Cooley, A Treatise on the Constitutional Limitations Which Rest upon the Legislative Power of the States of the American Union 303 (1st ed. 1868). None of those sources indicated a preference for warrantless searches over searches by warrant; all they showed was hesitation to allow certain searches even with the protections associated with a specific warrant. Reed complained that “the execution” of a search warrant for a house search was distressing; the warrant was drawn into that complaint only because it was understood that a house search could be justified only by a search warrant. See 25 Ky. (2 J.J. Marsh) at 46. Similarly, Cooley argued that, because a search warrant could authorize a search of a house, legislators should resist recognizing new purposes for which search warrants could be issued; however, he said nothing that would imply that warrantless searches should be permitted as an alternative to searches under search warrants. See Cooley, supra, at 303-07. (Cooley's understanding of the Fourth Amendment and the need for a warrant for a house search is discussed infra note 191.) Robinson involved a different context: it refused to allow a search warrant to be used to authorize private persons to search for concealed property in a civil proceeding to settle an estate; it did not express hostility to the traditional uses of search warrants by the government in criminal or revenue matters; and it did not suggest allowing a warrantless search instead of use of a search warrant. See 79 Mass. (13 Gray) at 457.

93

Some commentators have interpreted the fact that the common law recognized a search warrant only for stolen property as though it placed a limit only on the use of warrants for searches but not on warrantless searches. See, e.g., Amar, Fourth Amendment, supra note 58, at 765-66 & n.26. That treatment overlooks the fact that a warrant was usually the only justification for a house search; warrantless searches of houses were not available as an alternative. See infra notes 271-74 and accompanying text. When the common law limited the purposes for which search warrants could be issued, it limited the purposes for which houses could be searched. See infra notes 203, 273.

94

See, e.g., 2 Legal Papers of John Adams, supra note 20, at 141 (quoting Adams's abstract of Otis's argument: “special [that is, specific] warrants only are legal”); see also Smith, supra note 20, at 334-36. There is other evidence of the approval of specific warrants. The colonial judges who refused to issue general writs of assistance under the Townshend Act were willing to issue specific writs based on specific sworn allegations of customs violations. See, e.g., Dickerson, Writs of Assistance, supra note 26, at 60-61 (Pennsylvania), 68-72 (Virginia). Likewise, John Dickinson echoed Otis's contrasting of the general writ to the specific warrant when he attacked the Townshend Act writ for lacking a requirement of a “return” to the issuing court. See John Dickinson, Letters from a Farmer in Pennsylvania to the Inhabitants of the British Colonies (1768), reprinted in Tracts of the American Revolution: 1763-1776, at 127, 150-151 (Merrill Jensen ed., 1967) [hereinafter Jensen]. William Henry Drayton also explicitly approved of specific writs of assistance. See Drayton, supra note 83, at 17 (proposing that the Continental Congress should declare “[t]hat no writs of assistance ought to be issued to the customs but in the nature of writs or warrants to search for stolen goods-- general writs or warrants being illegal”). The approval of specific warrants was implicit throughout the condemnations of general warrants. Oddly, Taylor recognized that Camden and Otis “contrasted [the general writ] with the common-law warrant for stolen goods” but seems to have overlooked the implications of that contrasting treatment when he announced the overbroad conclusion that the Framers viewed “a warrant” as “an enemy.” See Taylor, supra note 49, at 36-37, 41.


74

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 Levy has also muddied this point by asserting that “[i]n all the American rhetoric [against general warrants, William Henry Drayton was the only writer who] seems to have urged special warrants in place of warrantless searches and general warrants.” Levy, Original Meaning, supra note 45, at 235 n.54 (citing the statement by Drayton quoted supra). Levy has even asserted that “[John] Dickinson did not recommend specific warrants in [place of general writs] or condemn any warrantless searches.” Id. at 234. Levy's is a rather crabbed reading of the colonial attitudes regarding search authority. The colonists complained only about general writs because they understood specific warrants were appropriate and legal at common law; and they did not explicitly condemn warrantless customs searches of houses because it was generally understood that only a valid warrant could justify a search of a house.

95

See Amar, Boston, supra note 19, at 63 (referring to “the guarantee of immunity provided by a warrant”); see also supra note 87; infra note 97.

96

The Framers certainly did perceive some judges as heavies; for example, they vilified Thomas Hutchinson, who presided over the Writs of Assistance Case while he also was lieutenant governor of the colony of Massachusetts. That and similar experiences no doubt contributed to the Framers' views on the importance of an independent judiciary. However, judges generally emerged as the heroes of the struggle against general writs and warrants. For example, Charles Pratt (Lord Camden), the judge in the Wilkesite cases that Amar relies upon so heavily, instructed the juries that general warrants were illegal and void and could not provide justification for the searches and arrests. See statements by Pratt quoted supra notes 22, 79. (As Amar has often noted, Lord Camden was such a hero to Americans that they named towns and counties after him. See, e.g., Amar, Boston, supra note 19, at 65-66. It should be clarified, however, that Camden's fame probably was based at least as much on his championing of the colonial position in the House of Lords as on his judicial rulings; for example, Camden was instrumental in the repeal of the hated Stamp Act.) Likewise, the colonial judges blocked the use of general writs for customs searches of houses when they almost uniformly refused to issue general writs under the Townshend Act. See supra note 26. If anything, the judges who refused to issue statutorily authorized general writs because such writs were contrary to basic principles of common law provided an example that contributed to the American tradition of judicial review. Cf. Cloud, supra note 42, at 1732-37; Maclin, Cure, supra note 44, at 22 (quoting Frese, supra note 26, at 300, and Dickerson, Writs of Assistance, supra note 26, at 74) .

97

The principal historical support Amar offers for the emphasis he places on the immunizing effect of a legal warrant is a statement by Lord Mansfield. In Amar's words: “Indeed, the immunity conferred [by a warrant] was part of its very purpose, its definition; as Lord Mansfield put it in 1785, it would be a ‘solecism’ if ‘the regular execution of a legal warrant shall be a trespass.” ’ Amar, Fourth Amendment, supra note 58, at 778 (quoting “Cooper v. Boot, 99 Eng. Rep. 911, 916 (K.B. 1785)”). However, this statement by Mansfield was unknown to the Framers, because the earliest case report of Cooper was published in the third volume of Espinasse's Reports sometime after 1801. See the discussion of the publication history of Cooper, supra note 19. In addition, this statement was made in support of a departure from the common-law rule that an officer was liable for a fruitless search made under even a legal warrant if the officer had initiated the warrant. See infra note 294.

98

Amar claimed that there was a “Fourth-Seventh Amendment linkage.” Amar, Fourth Amendment, supra note 58, at 777-78. As evidence of that purported linkage, Amar discussed ten historical sources that mentioned both search and seizure and jury trial concerns, along with other concerns. (I pass over the question of whether that constitutes a “linkage.”) The significant point is that none of them expressed any concern about the immunizing effect of a specific warrant; rather, they usually condemned only “general warrants.” Amar discussed four sources in his text: (1) Essay by a Farmer (I), Md. Gazette, Feb. 15, 1788, reprinted in 5 The Complete AntiFederalist 5, 14-15 (5.1.13) (Herbert J. Storing ed., 1981) (expressing fear of loss of jury trial and specifically posing the question “are general warrants illegal by the constitution of the United States?” but not expressing any complaint about specific warrants); (2) Mr. Martin's Information to the General Assembly of the State of Maryland, reprinted in 2 The Complete Anti-Federalist, supra, at 27, 70-71 (expressing dismay at the failure of the constitution to protect jury trials in civil and criminal actions involving the government and government officers, but not expressing any specific concern about search and seizure authority); (3) Samuel Chase Notes of Speeches Delivered to the Maryland Ratifying Convention (IIA), reprinted in 5 The Complete Anti-Federalist, supra, at 81, 82 (miscited by Amar as IIB) (quoting section 3 of the Maryland declaration of rights, a broad provision endorsing trial by jury, and quoting section 23 of that declaration which condemned too-loose and “general” warrants, but saying nothing against specific warrants); and (4) Address of a Minority of the Maryland Ratifying Convention, reprinted in 2 Bernard Schwartz, The Bill of Rights: A Documentary History 733-34 (1971) (also reprinted in 2 The Complete Anti-Federalist, supra, at 92, 95 (5.4.6)) (calling for jury


75

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 trial in “all cases of trespasses” and for prohibiting magistrates to issue “general warrants,” but saying nothing about the immunizing effects of specific warrants). In footnote 79 to his discussion, Amar identified six additional sources that supposedly provided “further, more subtle, linkages between what would become the Fourth and Seventh Amendments.” Amar, Fourth Amendment, supra note 58, at 778 n.79. These six sources again complain about “general warrants” but are devoid of concern regarding the immunizing effect of a specific warrant: (1) Letter from James Madison to George Eve (Jan. 2, 1789), reprinted in 2 Schwartz, supra, at 997 (also reprinted in 11 The Papers of James Madison 404, 405 (Robert A. Rutland et al. eds., 1977)) (explicitly referring to the need to ban “general warrants” and to preserve jury trial, but not mentioning the immunizing effect of specific warrants); (2) Letters of Centinel, No. 1, reprinted in 2 The Complete Anti-Federalist, supra, at 136 (expressing fear of the loss of protections against “general warrants” and of the right to jury trial, but saying nothing about the immunizing effect of a specific warrant); (3) Letter from the Federal Farmer (IV), reprinted in 2 The Complete Anti-Federalist, supra, at 245, 249 (expressing fear of “hasty and unreasonable search warrants, warrants not founded on oath, and not issued with due caution” (that is, general warrants) and fear of loss of jury trial, but saying nothing about the immunizing effect of a specific warrant); (4) Brutus, To the Citizens of the State of New York, No. II, N.Y.J., Nov. 1, 1787, reprinted in 2 The Complete Anti-Federalist, supra, at 372, 375 (quoting the provisions of the Maryland declaration of rights forbidding tooloose and “general” warrants and preserving the right of trial by juries, but saying nothing about the immunizing effect of a specific warrant); (5) An Old Whig (V), reprinted in 3 The Complete Anti-Federalist, supra, at 34, 37 (expressing the need for jury trials and for protections against searches and arrests “upon general suspicion or general warrants,” but saying nothing about the immunizing effect of specific warrants); and (6) Objections by a Son of Liberty, reprinted in 6 The Complete Anti-Federalist, supra, at 34, 34-35 (discussing the loss of jury trials, searches of papers under “general warrants,” and revenue searches of houses under pretense as “curses” of the new Constitution, but saying nothing about the immunizing effect of specific warrants (emphasis in the original)). Although Amar invoked ten sources, none of them expressed any complaint about the indemnifying effect of a specific warrant. That simply was not a concern that troubled the Framers.

99

The trespass liability that attached to an officer's execution of a general warrant was evident in the press accounts of the early Wilkesite cases, Huckle, Leach, and Wood. (Each imposed trespass liability on officers for arresting and searching under a general warrant. See supra note 21.) Likewise, the press accounts of Halifax showed a magistrate's liability for issuing a general warrant. See supra note 21. These doctrines were understood by early American judges. See, e.g., Grumon v. Raymond, 1 Conn. 39, 47 (1814) (holding magistrate liable for issuing irregular search warrant and officer liable for searching house under an unparticularized warrant); Sanford v. Nichols, 13 Mass. (1 Tyng) 287, 288-89 (1816) (same); see also Hening, supra note 25, at 415-16 (recounting the trespass liability of officers who executed illegal warrants in Wood and Entick), 462 (observing that “false imprisonment lies against him that issues [a general arrest] warrant”). Unfortunately, Amar has recently muddied this point by asserting that “an overbroad warrant lacking probable cause or specificity-in other words, a general warrant--was per se unreasonable, in part because it unjustifiably displaced the proper role of the jury.” Amar, Bill of Rights Book, supra note 58, at 71. The claim that a general warrant “displaced” the jury implies that the general warrant immunized the officer--but that was not the understanding at the time of framing. A general warrant was a legal nullity that had no effect on trespass liability--that is the basic rule that was consistently affirmed in the Wilkesite cases.

100

See Blackstone, supra note 27, at 288 (stating that a valid warrant will “indemnify the officer who executes the same ministerially”). However, it is unlikely that the Framers thought that a valid specific warrant provided the officer with an absolute defense against trespass liability if the officer acted maliciously. Amar quoted part of a statement from a 1787 essay by a Pennsylvania anti-Federalist to demonstrate how “Americans enthusiastically embraced” trespass actions as remedies for excessive searches. As Amar related it, the essay stated that “[if a federal constable searching] for stolen goods, pulled down the clothes of a bed in which there was a woman” during the search, he would face trespass damages. Amar, Fourth Amendment, supra note 58, at 776 (quoting Essay of a Democratic Federalist, 3 The Complete Anti-Federalist, supra note 98, at 58, 61); Amar, Bill of Rights Book, supra note 58, at 74 (same). The bracketed language was provided by Amar. The quoted passage actually began: “Suppose... that a constable, having a warrant to search for stolen goods, pulled down the clothes....” Id. (emphasis added). Thus, the actual passage indicated that even an officer searching under a specific warrant (the warrant to search for stolen goods was the model for the specific warrant) was subject to suit for outrageous conduct during a search. Amar's alteration of the context addressed in the passage obscured the implication that even a valid warrant would not provide absolute protection to an officer.


76


101

See, e.g., Amar, Fourth Amendment, supra note 58, at 771-72 (“The Framers did not exalt warrants[,] for a warrant... had the purpose and effect of precluding any common law trespass suit the aggrieved target might try to bring before a local jury.”).

102

I discuss this aspect of framing-era law infra notes 293-295 and accompanying text. In his search and seizure writings, Amar has never mentioned the common-law accountability of complainants who swore out warrants.

103

Some commentators have asserted that framing-era magistrates could not refuse to issue warrants. However, that is not what the common-law authorities say. See infra notes 296-297 and accompanying text.

104

Otis addressed the inadequacy of a post-search damage remedy in the 1762 Boston newspaper column in which he repeated his arguments from the Writs of Assistance Case: [If a search of a house has occurred under a writ without genuine information of a specific customs violation,] is it enough to say, that damages may be recover'd against [the searching officer] in the law? I hope indeed this will always be the case;--but are we perpetually to be expos'd to outrages of this kind, & to be told for our only consolation, that we must be perpetually seeking to the courts of law for redress? Is not this vexation itself to a man of a well disposed mind? Otis's 1762 Article, supra note 20, at 562, 563-64 (emphases in original). (Otis's reference to an action for damages may refer to the liability of an officer who conducted a fruitless revenue search, based only on his personal suspicion, pursuant to a writ of assistance. See infra note 294.)

105

People rarely write down what they do not think; hence, unexpected silences in historical statements indicate aspects of contemporary thought without analogs in historical thought. One can learn a good deal about what the Framers did not think about search and seizure by tracing modern concepts backwards in time--and finding they sometimes disappear from the historical record. Of course, the classic statement on significant silences comes from Sherlock Holmes, who perceived that the theft of a horse must have been an “inside job” because the stable watchdog had not barked the night the horse was taken. See Arthur Conan Doyle, Silver Blaze, in Memoirs of Sherlock Holmes 1, 27 (1930). Dogs that do not bark in the night are essential guides to the past.

106

Lasson, supra note 16, at 34; see also id. at 42-43 (describing the Wilkesite cases as “the final establishment of the principle of reasonable search and seizure”).

107

Cuddihy also finessed the absence of evidence of a historical reasonableness standard by describing the entire development of AngloAmerican search and seizure law leading up to the framing as though it constituted a development of an overarching “concept” of unreasonable searches and seizures. Thus, he repeatedly referred to a concept of “unreasonable search and seizure,” even though he sometimes acknowledged that historical sources did not use that terminology. See, e.g., 1 Cuddihy, supra note 20, at 3 (stating that Englishmen by 1642 had come to believe earlier methods of search “were fundamentally unreasonable and illegal”); id. at 48 (referring to “the concept of unreasonable search and seizure” in England circa 1600). There are numerous similar examples. Notwithstanding Cuddihy's occasional acknowledgments that the historical sources do not actually employ the concept of “unreasonable search and seizure,” the constant use of that terminology lulls the reader into thinking that it must reflect historical thought, even though no direct evidence of any such concept is ever offered.

108

See Taylor, supra note 49, at 43.

109

Amar, Terry, supra note 58, at 1125; see also Amar, Fourth Amendment, supra note 58, at 774 (noting that illegality depended on “[i]f the jury deemed the search or seizure unreasonable--and reasonableness was a classic jury question”); statements cited supra note 63.

110

Amar, Fourth Amendment, supra note 58, at 776 (quoting Leach v. Money, 3 Burr. 1742, 1765, 19 Howell St. Tr. 1001, 1026, 97 Eng. Rep. 1075, 1087 (K.B. 1765) (emphasis and second bracketing by Amar)). This passage is the only framing-era legal source Amar has ever identified as evidence of a historical reasonableness standard. For his most recent treatment, see Amar, Terry, supra note 58, at 1126.

111

Here is a fuller quotation of Mansfield's language in Leach; the asterisk indicates the start of Amar's quotation, the double asterisk indicates the end: [Lord Mansfield:] A bill of exceptions [filed by the messengers] supposes the evidence true; and questions the competency or propriety of it.


77

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 *” Whether there was a probable cause or ground of suspicion,” was a matter for the jury to determine: that is not now before the Court. So--“whether the defendants detained the plaintiff an unreasonable time.” ** But if it had been found to have been a reasonable time; yet it would be no justification to the defendants; because it is stated “that this man was neither author, printer, or publisher:” and if he was not, then they have taken up a man who was not the subject of the warrant. Money v. Leach, 3 Burr. 1742, 1765, 19 Howell St. Tr. 1001, 1026, 97 Eng. Rep. 1075, 1087 (K.B. 1765). To put this statement in context, it is apparent from the report of the case that the Messengers did not attempt to justify the arrest on their own authority. (Note that the offense of seditious libel was a misdemeanor, so even Leach's actual guilt would not have provided a justification for the arrest. See infra note 222.) Rather, they pleaded “the general issue, ‘not guilty” ’ (meaning they had not done what was alleged) and, alternatively, a “special justification” (that is, a legal defense). The special justification asserted was that the Messengers had acted pursuant to the warrant issued by Halifax and thus were within the terms of a statute (24 Geo. II, ch. 44) that protected an officer who acted in obedience to the terms of a warrant. See Leach, 3 Burr. at 1742, 1745, 1749, 19 Howell St. Tr. at 1003, 1006, 1010, 97 Eng. Rep. at 1075, 1077, 1079. When understood in the context of the actual legal issues, the phrase “whether the defendants detained the plaintiff an unreasonable time” was not part of an argument that there were legal grounds to arrest Leach other than the general warrant (as Amar implies). Rather, it appears that the Messengers' not-unreasonable-time claim was part of the “not guilty” argument; namely, that there had not really been an actionable arrest or that Leach had not suffered any actionable harm upon which damages could be predicated. In that context, Mansfield responded to the not-unreasonable-time argument by declaring that, if any such factual evaluations had been relevant, they would have been for the jury, but that they were not germane to the review by the King's Bench of the legal issues of the applicability of the statutory protection or, potentially, of the validity of the general warrant. Because the King's Bench judges concluded that Leach was not within the description of the persons to be arrested in the general warrant, they concluded that the Messengers' conduct could not come within the terms of the statute (thus, the King's Bench ruling did not formally reach the lurking constitutional question of whether the statute could protect officers who acted within the terms of a general warrant illegal at common law).

112

See statement quoted supra note 77.

113

I previously noted that Amar's treatment of Mansfield's statement did not show a historical reasonableness standard for arrests or searches. See Davies's Testimony, supra note 3, at 119, 129 n.17. Amar has responded that Blackstone's later report of Leach and an 1827 English case “confirm [his] initial reading [of Leach].” Amar, Boston, supra note 19, at 61 n.36 (citing Money v. Leach, 1 Black. W. 555, 560, 96 Eng. Rep. 320, 323 (K.B. 1765), and Beckwith v. Philby, 6 B. & C. 635, 638, 108 Eng. Rep. 585, 586 (K.B. 1827)). Blackstone's report only confirms that Mansfield repeated but rejected the Messengers' counsel's “reasonable time” argument. Amar is correct that the 1827 Beckwith opinion did construe the passage in Leach in the same way he treated it. However, Beckwith must be read in context; it initiated a radical relaxation of the common-law standard for justifying a warrantless arrest and cited Leach as part of an exercise of pretending that the novel rule it announced (the modern probable cause standard for warrantless arrests) was consistent with earlier common law. It was not a sound exposition of Leach. I discuss Beckwith infra notes 241-242, 248-251 and accompanying text.

114

The purported evidence Amar has offered of a historical reasonableness standard consists of the Leach passage, see supra notes 110-113 and accompanying text, and three calls for a federal protection from “unreasonable searches and seizures” made during the ratification debates of 1787 and 1788, see discussion infra notes 120-132 and accompanying text. The only other evidence Amar has offered is what he terms “a smattering” of mid- to late nineteenth-century legal statements that used the word “reasonable.” Amar, Fourth Amendment, supra note 58, at 818 n.228. This “smattering” is far too little and a hundred years too late to constitute evidence of the intended meaning of the search and seizure texts.

115

It is difficult to document a negative, but Professor Taylor illuminated the sort of searches that were actually conducted and litigated when he noted that “[m]ost of the court decisions [assessing the lawfulness of searches] during the nineteenth century relate to stolen goods warrants, and the requirements for their valid issuance and execution.” Taylor, supra note 49, at 44 & n.71 (citing the following eight cases [brackets show corrected citations]: Sandford v. Nichols, 13 Mass. 286 (1816); Gardner v. Neil, 4 N. Car. 104 (1814); Beaty v. Perkins, 6 Wend. 382 (N.Y. Sup. Ct. 1831); Reed v. Rice, 2 J.J. Marsh 4[4] (Ky. 1829); Halsted v. Brice, 13 Mo. [[[171] (1850); Larthet v. Forgay, 2 La. Ann. 524 (18[4]7); Chipman v. Bates, 15 Vt. 51 (1843); and Humes v. Taber, 1 R.I. 464 (1850)). Oddly, Amar cited the cases collected by Taylor as evidence that “the civil trespass action tried to a jury flourished as the obvious remedy against haughty customs officers, tax collectors, constables, marshals, and the like.” Amar, Fourth Amendment, supra note


78

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 58, at 786 & n.105. Putting aside the question of whether eight appellate cases can show a “flourishing” remedy (especially when the defendant searchers won several of them), Amar's characterization of these cases omitted the salient fact that each arose from a warrant search and involved issues regarding the validity and scope of the warrant. Taylor's cases undercut Amar's claims regarding use of a reasonableness standard because they show (1) that officers who attempted to search houses used warrants, and (2) the principal issues that arose with regard to the legality of searches concerned whether the search warrant was valid and whether the officer's search conformed to the command of the search warrant. None of these cases employed a broad “reasonableness” standard.

116

See infra note 326.

117

The full text of the 1780 Massachusetts provision is set out infra text accompanying note 379, and is discussed in detail infra notes 379-387 and accompanying text. For commentary recognizing that this was the first appearance of “unreasonable,” see, for example, Lasson, supra note 16, at 82; Levy, Original Meaning, supra note 45, at 239; and 3 Cuddihy, supra note 20, at 1240-41. Cf. Taylor, supra note 49, at 42 (noting that the Massachusetts provision was the clearest ancestor of Fourth Amendment). Unlike the other commentators, Amar has omitted any direct discussion of the initial appearance of “unreasonable searches and seizures”--even when he discussed the Massachusetts provision. See, e.g., Amar, Boston, supra note 19, at 66-68 (discussing the Massachusetts provision without mentioning it was the first to use “unreasonable searches and seizures”). In fact, Amar has obscured the initial appearance of “unreasonable” by including the earlier Pennsylvania provision along with the Massachusetts provision among the state provisions that “most closely anticipated the eventual language of the federal Fourth Amendment”--without noting the absence of “unreasonable” in the former. Amar, Fourth Amendment, supra note 58, at 763 n.10; see also infra note 119.

118

Pa. Const. art. X (1776) (Decl. of Rights). The Pennsylvania provision is discussed infra notes 352-378 and accompanying text.

119

See Lasson, supra note 16, at 81-82 n.11 (stating that “[t]he word ‘unreasonable’ is imputed” in the Pennsylvania provision). Cuddihy repeated that finesse. See Cuddihy, supra note 20, at 1244 (“Although the Pennsylvania constitution renounced all searches and seizures, it assumed that only unreasonable ones were prohibited.”); see also id. at 1239-40, 1251-52. Levy initially described the Pennsylvania provision without imputing “unreasonable,” but later wrote as though both the Pennsylvania and Massachusetts provisions had employed a reasonableness standard. See Levy, Original Meaning, supra note 45, at 237-38, 243. Amar has also adopted a low-key version of Lasson's finesse by treating the Pennsylvania provision as one of the state provisions that “most closely anticipated the eventual language of the Fourth Amendment.” See Amar, Fourth Amendment, supra note 58, at 763 n. 10; discussion supra note 117. In contrast, Taylor recognized that the Pennsylvania provision did not include a broad reasonableness standard. See Taylor, supra note 49, at 41 (describing the initial state provisions except for Massachusetts and New Hampshire as being aimed only at warrant authority).

120

Letter from Richard Henry Lee to Edmund Randolph, Governor of Virginia, (Oct. 16, 1787) (postscript), in 5 The Complete AntiFederalist, supra note 98, at 117 (5.6.5). Immediately after the Constitutional Convention ended in 1787 without adopting a bill of rights, Lee called on the Continental Congress (which was still sitting under the Articles of Confederation) to adopt a bill of rights to be submitted to the states along with the proposed Constitution. His proposal was defeated. Lee then included this call for a federal bill of rights in correspondence: That the new constitution proposed for the government of the United States be bottomed upon a declaration or bill of rights, clearly and precisely stating the principles upon which this social compact is founded, to wit: That the rights of conscience in matters of religion ought not to be violated...--That the right of the people to assemble peaceably for the purpose of petitioning the legislature shall not be prevented--That the citizens shall not be exposed to unreasonable searches, seizures of their persons, houses, papers or property; and it is necessary for the good of society, that the administration of government be conducted with all possible maturity of judgment, for which reason it hath been the practice of civilized nations and so determined by every state in the Union.--That a council of state or privy council should be appointed to advise and assist in the arduous business assigned to the executive power. Id. at 116-17 (5.6.5). Note that it appears that Lee meant only to list subjects to be addressed in a bill of rights, not to propose constitutional language. Contrast the more fully developed anti-Federalist proposals for a federal search and seizure provision set out infra notes 128, 426, 429.

121

The authorship of the Letters was earlier attributed to Lee, but that attribution is now uncertain. See 2 The Complete Anti-Federalist, supra note 98, at 214-16.


79


122

The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins 240-41 (6.2.4.7) (Neil H. Cogan ed., 1997) [hereinafter Cogan] (excerpting Letters from the Federal Farmer (VI) (Dec. 25, 1787), reprinted in 2 The Complete Anti-Federalist, supra note 98, at 262 (2.8.86)). This reference to “unreasonable searches and seizures” appears in a listing of topics to be included in a bill of rights: The following, I think, will be allowed to be unalienable or fundamental rights in the United States: -No man, demeaning himself peaceably, shall be molested on account of his religion or mode of worship--The people have a right to hold and enjoy their property according to known standing laws, and which cannot be taken from them without their consent, or the consent of their representatives; and whenever taken in the pressing urgencies of government, they are to receive a reasonable compensation for it--Individual security consists in having free recourse to the laws...--They have a right, when charged, to a speedy trial in the vicinage; to be heard by themselves or counsel, not to be compelled to furnish evidence against themselves, to have witnesses face to face, and to confront their adversaries before the judge--No man is held to answer a crime charged upon him till it be substantially described to him; and he is subject to no unreasonable searches or seizures of his person, papers, or effects-- The people have a right to assemble in an orderly manner, and petition the government for a redress of wrongs--The freedom of the press ought not to be restrained--No emoluments, except for actual service.... Id. Note that this brief reference to a protection against “unreasonable searches and seizures” appears simply to identify a subject to be addressed in a bill of rights, rather than to propose constitutional language. Contrast the more fully developed proposal set out infra note 128; see also the anti-Federalist proposals set out infra notes 426, 429.

123

Debates and Proceedings in the Convention of The Commonwealth of Massachusetts Held in the Year 1788, at 86-87 (Boston, William White, Printer to the Commonwealth 1856). The motion is also quoted in Cogan, supra note 122, at 232-33 (6.1.2.2). This motion appears to have been a listing of subjects to be addressed in amendments rather than a proposal for actual language for such amendments: [T]hat the said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms; or to raise standing armies, unless when necessary for the defence of the United States, or of some one or more of them; or to prevent the people from petitioning, in a peaceable and orderly manner, the federal legislature, for a redress of grievances; or to subject the people to unreasonable searches and seizures of their persons, papers or possessions. Id. The motion was voted down. For a discussion of the politics involved, see 3 Cuddihy, supra note 20, at 1421-23.

124

Lasson described Lee's call for a federal search protection as an endorsement of the “general principle” of freedom from unreasonable searches and seizures. See Lasson, supra note 16, at 87 n.82. Cuddihy also asserted that Lee's language did “more than abrogate general warrants, for it took in the full range of searches and seizures that had become unreasonable....” 3 Cuddihy, supra note 20, at 1365. Cuddihy also characterized the sixth of the Letters from the Federal Farmer (which he described as probably being written by Lee) as “defining unreasonable searches to include more than general warrants.” Id. at 1373. He also described Samuel Adams's motion as “a modification of Lee's [proposal].” Id. at 1384. And he concluded that “Lee and Samuel Adams desired a right against unreasonable search and seizure but did not say that general warrants were unreasonable or ask their abolition.” Id. at 1471. Levy has invoked Lee's call and the sixth of the Letters as evidence of a broad reasonableness standard. See Levy, Original Meaning, supra note 45, at 241. Amar did not mention any of these three statements in his principal discussion of Fourth Amendment history, see Amar, Fourth Amendment, supra note 58, but he invoked the three statements described in the text as “vivid evidence” of a “standalone reasonableness requirement” in Amar, Boston, supra note 19, at 67 n.54. See also Amar, Terry, supra note 58, at 1108.

125

See the fuller texts quoted supra notes 120, 122, 123.

126

The link between Samuel Adams and the Massachusetts provision is obvious. It is also evident that the author of the Letters from the Federal Farmer borrowed from the Massachusetts text. See infra note 128. Finally, Lee was well acquainted with both John Adams and Samuel Adams and corresponded often with the latter during the ratification debates.

127

Letters from the Federal Farmer (IV) (Oct. 12, 1787) (emphasis added), reprinted in 2 The Complete Anti-Federalist, supra note 98, at 249 (2.8.53) (calling for “freedom from hasty and unreasonable search warrants, warrants not founded on oath, and not issued with due caution, for searching and seizing men's papers, property, and persons”).


80


128

Letters from the Federal Farmer (XVI) (Jan. 20, 1788), reprinted in 2 The Complete Anti-Federalist, supra note 98, at 328 (2.8.200) (emphasis added). The proposed provision read: [T]hat all persons shall have a right to be secure from all unreasonable searches and seizures of their persons, houses, papers, or possessions; and that all warrants shall be deemed contrary to this right, if the foundation of them be not previously supported by oath, and there be not in them a special designation of persons or objects of search, arrest, or seizure.... Id. A few lines later, the letter repeated the call for a federal protection but phrased it as a protection “to be secure against unreasonable search warrants.” Id. Note that the language of the proposed provision is composed from the italicized parts of the 1780 Massachusetts provision: Art. XIV. Every subject has a right to be secure from all unreasonable searches and seizures of his person, his house, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation, and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the person or objects of search, arrest, or seizure; and no warrant ought to be issued, but in cases, and with the formalities prescribed by the laws. See Mass. Const. of 1780, pt. 1, art. XIV, reprinted in Cogan, supra note 122, at 234 (6.1.3.3) (emphasis added). The Massachusetts provision is discussed in detail infra, beginning with text accompanying note 379.

129

Lasson wrote at a time when it was believed that Lee was the author of the Letters; even so, he separated the presentation of Lee's initial call for a ban against “unreasonable” searches and seizures, see Lasson, supra note 16, at 87 n.32 (referring to the statement discussed supra note 120 and accompanying text), from the later call for a protection from “hasty and unreasonable search warrants” in the fourth Letter, see id. at 88 n.37 (referring to the statement discussed supra note 127 and accompanying text). Lasson did not refer to the sixteenth Letter. Cuddihy reported the references to “unreasonable search warrants” in the fourth and sixteenth Letters, but did not call attention to the interchangeable use of that term and “unreasonable searches and seizures.” See 3 Cuddihy, supra note 20, at 1373. Levy referred to all three of the Letters: he noted that the fourth letter mentioned a right against unreasonable warrants (but did not quote that language); he mentioned another aspect of the sixth letter; and he quoted the fuller proposal for a protection in the sixteenth letter but did not mention that it also characterized that protection as one against “unreasonable search warrants.” See Levy, Original Meaning, supra note 45, at 241. Amar mentioned the fourth letter as evidence of a “Fourth-Seventh Amendment linkage,” see supra note 98; however, he did not mention that it referred to the protection as one against “unreasonable search warrants.” He did not mention the sixteenth letter.

130

See supra note 98; infra notes 164-166.

131

See the anti-Federalist proposals advanced in the Pennsylvania and Maryland ratification conventions, discussed infra note 426.

132

Lasson omitted the Pennsylvania and Maryland anti-Federalist proposals; so did Levy. Cuddihy did discuss the Pennsylvania and Maryland anti-Federalist proposals, but did not quote them and did not draw attention to the fact that they omitted any use of “unreasonable searches and seizures.” See 3 Cuddihy, supra note 20, at 1382-85. Amar lumped all of the ratification convention proposals together as “proto Fourth Amendments”--without quoting them or noting that two of those proposals did not include “unreasonable.” See Amar, Fourth Amendment, supra note 58, at 775 n.65.

133

See, e.g., Thomas Y. Davies, A Hard Look at What We Know (And Still Need to Learn) About the “Costs” of the Exclusionary Rule: The NIJ Study and Other Studies of “Lost” Arrests, 1983 Am. B. Found. Res. J. (now L. & Soc. Inquiry) 611, 665.

134

For example, in 1626 the Virginia Council and General Court forbade use of “generall warrants” because of “divers inconveniencies w'ch appeare to have happened.” See 27 Va. Mag. Hist. & Biog. 142, 145 (1919, reprinted 1968). Virginia also enacted a ban against “blank warrants” in 1643. See 1 Hening, Statutes at Large 257-58, cited in Lasson, supra note 16, at 33 n.73. Likewise, the Massachusetts colonial legislature (the General Court) enacted bans against certain uses of general warrants in 1756, apparently in response to fears of searches (or at least entries of houses) created by the Massachusetts excise act of 1754. See Maclin, Complexity, supra note 44, at 943-44.

135

Cf. 3 Cuddihy, supra note 20, at 1514 (noting that there is little mention of arrest authority in the Framers' discussions of search and seizure issues, and that arrest authority was not addressed in American legislation prior to 1791); see also supra note 47.


81


136

John Adams's notes from the Writs of Assistance Case of Otis's opening statement regarding the “Privilege of House” are quoted infra text accompanying note 262. Otis's stress on the violation of the house is also evident in the newspaper column he published in Boston in 1762, in which he complained of the violation of “a DWELLING HOUSE,” of a “freeholder's house,” and of a “freeman's house”--but again did not complain of searches of ships, shops, or warehouses. See Otis's 1762 Article, supra note 20, at 562-66 (capitalization in original).

137

For example, both London and colonial press accounts of the trial and verdict in Wilkes v. Wood summed up the significance of the case by stating that “every Englishman has the satisfaction of seeing that his house is his castle, and is not liable to be searched, nor his papers pried into by the malignant curiosity of King's Messengers.” The London Chron., Dec. 6-8, 1763 (No. 1082), at 550, cols. 1-2; see also the London and Boston press accounts of the Wilkesite cases set out supra note 22.

138

When Dickinson criticized the general writ of assistance authorized in the Townshend Act, he initially recited the scope of the authority granted by the writ but emphasized that the writ authorized entry into the house: “the officers of the customs are ‘impowered to enter any HOUSE, warehouse, shop, cellar, or other place....” ’ John Dickinson, Letters from a Farmer in Pennsylvania, in Jensen, supra note 94, at 150-51 (capitalization in original). Dickinson then went on to complain specifically of the violation of a man's “castle.” Id. Dickinson corresponded with Otis about the general writ. See 2 Cuddihy, supra note 20, at 1123-24.

139

A State of the Rights of the Colonists (likely authored by Samuel Adams), in Jensen, supra note 94, at 243. This report to a Boston town meeting in November 1772, which is usually attributed to Samuel Adams, contains a complaint about searches under writs of assistance. After reciting the language of the writ of assistance authorizing searches of ships and warehouses as well as houses, the report expressed emphatic complaints regarding the violation of the house: [O]ur homes and even our bedchambers, 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 etc. 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 cut off from that domestick security which renders the lives of the most unhappy in some measure agreable. 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. Id. at 243-44 (emphasis in original).

140

See Drayton, supra note 83, at 15, 21.

141

The castle doctrine and the common-law justifications for breaking a house are discussed infra notes 259-274 and accompanying text.

142

As previous commentators have noted, there is abundant evidence that the prerevolutionary grievance was directed at the use of general writs of assistance for house searches. Cuddihy has collected American complaints about writs of assistance; many were specifically addressed to violations of the house. See 2 Cuddihy, supra note 20, at 1026-27 (reporting that Daniel Malcolm justified his defiance of a writ of assistance as a defense of his house); id. at 1095-96 (quoting William S. Johnson that the writ permitted officers “at their own discretion to enter Houses”); id. at 1113-14 (reciting complaints by a meeting of Delawarians and by a committee of Virginians that writs of assistance violated houses); id. at 1125-27 (quoting Arthur Lee that the writ “laid open every man's house”; quoting Hyperion that the writ destroyed the house's status as a “castle”; quoting Reverend Sherwood that the writ exposed “private apartments”; quoting Americanus that the writ destroyed the privacy of houses; quoting Freeman that the writ destroyed “domestic enjoyment”; quoting Regulus that the writ empowered “wretches” to “break up our houses”). Although Cuddihy sometimes writes as though the Fourth Amendment was meant to apply to all government searches and seizures, he notes at other points that the Framers were primarily concerned with searches of houses. See, e.g., 1 Cuddihy, supra note 20, at cix (the Framers “focused their attention on searches of their houses”); 3 id. at 1545 (Framers denounced general warrants because they “abridged the security that houses afforded”); 3 id. at 1556 (“[T]he framers fixated on the single technique that most affected personal dwellings, the search warrant.”). Unfortunately, he did not consistently recognize the full import of that focus, and paid no attention to the meaning of “houses, papers, and effects” in the language of the Fourth Amendment. Cf. Levy, Original Meaning, supra note 45, at 222 (“The Fourth Amendment... was a constitutional embodiment of the extraordinary coupling of Magna Carta to the appealing fiction that a man's home is his castle.”).


82


143

In the 1750s, customs officers in Boston had asserted that they possessed ex officio authority to search for uncustomed goods. However, that claim was questioned, and the customs officers then obtained warrants from the governor. That appears to have been the end of any custom officer claims of ex officio search authority. Likewise, when the validity of the governor's warrant was questioned in 1755, the customs officers began to obtain writs of assistance from the Massachusetts courts. That appears to have ended any claim by customs officers that an executive “warrant” was sufficient. Thus, by the time of the 1761 Writs of Assistance Case, the issue was framed solely in terms of the validity of judicially issued general writs of assistance. Professor Amar has written as though the Framers feared issuance of “executive” warrants. See Amar, Fourth Amendment, supra note 58, at 773, 780. However, he offers no specific evidence beyond alluding to the issuance of the Wilkes general warrant by the English Secretary of State, Lord Halifax. Because executive warrants were rejected in Massachusetts in 1755, and because Halifax's authority to issue warrants was rejected in the 1765 Entick ruling, see supra notes 21-25, I do not think that the Framers perceived any threat from “executive” warrants.

144

Memorial to the Inhabitants of the British Colonies, Oct. 21, 1774, reprinted in 1 Am. Archives 921, 925 (series 4, 1837). The same complaint was repeated in The Address to the King, Oct. 26, 1774, reprinted in 1 Am. Archives, supra, at 934-35.

145

Cuddihy has interpreted this complaint to be about warrantless “promiscuous” searches--and it is virtually the only evidence he offers of a legal grievance about warrantless searches during the prerevolutionary controversies. See 3 Cuddihy, supra note 20, at 1499-1501. However, it does not seem likely that a complaint about warrantless searches would refer to a lack of “legal information”--that is, a complaint under oath before a judicial magistrate. Compare William Henry Drayton's call for the Continental Congress to declare the illegality of general warrants and his complaint, shortly before the resolutions, that general writs were not based on “any crime charged”--that is, not on a legal complaint. See supra note 83. The absence of any direct mention of the writ in the language of the congressional resolutions probably reflects the view, widespread among American Whigs by 1774, that Parliament had no authority to legislate for the colonies. It would have been inconsistent to complain about use of writs authorized only by statute at the same time Congress denied the jurisdiction of Parliament to legislate for the colonies. Hence, the authors of the 1774 complaint showed their disdain for Parliament's pretended legislative authority by declining to refer directly to the writs authorized by the Townshend Act.

146

See, e.g., Lasson, supra note 16, at 72 (including ship seizure controversies with the general search warrant controversy); 2 Cuddihy, supra note 20, at 1200-19 (same).

147

The two most visible ship seizure controversies involved Henry Laurens's legal battles with customs officers in Charleston and the seizure of John Hancock's sloop Liberty in Boston. The former involved hypertechnical interpretations of customs rules regarding bonding and clearance. See David D. Wallace, The Life of Henry Laurens 137-49 (Russell & Russell 1967) (1915). The latter involved perjured testimony by an informer which, taken at face value, provided specific cause for the seizure. See 2 Legal Papers of John Adams, supra note 20, at 173-210. The most comprehensive treatment of customs racketeering is Oliver M. Dickerson, The Navigation Acts and the American Revolution 208-66 (1951). Although Dickerson had previously authored an account of the controversies over the Townshend Act writ of assistance, see Dickerson, Writs of Assistance, supra note 26, he made only a passing reference to the writs of assistance in his treatment of ship controversies, see Dickerson, supra, at 250-51, and did not include general search authority as a significant feature of the controversies over ship seizures.

148

See Dickerson, supra note 147, at 296-97 (arguing that colonial resistance was to excessive taxation of trade, not to the regulation of trade itself).

149

See, e.g., 4 Coke, supra note 74, at 134-47 (discussing jurisdiction and law applied by Court of Admiralty); 1 Matthew Bacon, New Abridgment of the Law 629 (T. Cunningham ed., 6th ed. 1793) (“All Maritime Affairs are regulated chiefly by the Civil Law....”); Address and Reasons of Dissent of the Minority of the Pennsylvania Convention (Dec. 12, 1787), reprinted in Cogan, supra note 122, at 430-31 (12.2.2.4.d) (recognizing that proceedings against ships under revenue laws “will be at the civil law”); see also Oliver Wendell Holmes, The Common Law 25-26 (1881) (“A ship is the most living of inanimate things.... It is only by supposing the ship to have been treated as if endowed with personality, that the arbitrary seeming peculiarities of the maritime law can be made intelligible.”); Moragne v. States Marine Lines, 398 U.S. 375, 386-87 (1970) (recognizing that “[m]aritime law had always, in this country as in England, been a thing apart from the common law”).


83

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 Although Cuddihy conflated ship seizures with the general search warrant grievance, he noted that ships were entitled to less protection than houses in framing-era law. See 3 Cuddihy, supra note 20, at 1508, 1548-50.

150

Shortly after adopting the Bill of Rights and the 1789 Collections Act, the First Congress included a provision in the 1789 Judiciary Act that treated seizures of ships under “laws of impost” (customs) as matters within federal admiralty jurisdiction: [T]he District courts... shall also have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost, navigation, or trade of the United States, where the seizures are made, on waters which are navigable from the sea by vessels of ten or more tons burthen, within their respective districts as well as upon the high seas; saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it.... Act of Sep. 24, 1789, ch. 20, § 9, 1 Stat. 73, 76-77 (emphasis added). Note that the “savings clause” at the end of the quoted passage also demonstrates that the members of the First Congress understood that admiralty law matters were distinct from common law. The history of federal admiralty jurisdiction is discussed in detail in David W. Robertson, Admiralty and Federalism (1970). Although Robertson did not discuss directly the Framers' understanding of a ship, his analysis indicates that there was no significant controversy over the treatment of in rem actions involving ships (such as seizures of ships) as admiralty matters; rather, the controversial aspects of admiralty jurisdiction involved the extent to which it reached in personam actions connected to ships, which might alternatively be viewed as common-law matters (for example, contracts, insurance, seamen's wages, torts, etc.).

151

Several readers of the manuscript for this Article asked if the seizure of a ship would not have constituted a “seizure” of the people on it, or if a search of a ship would not have constituted a “search” of the possessions or effects of the people on it. The answer seems to be that the people and possessions on ships were usually viewed as being subject to maritime rather than common law, so that the issue was only whether there were grounds for seizing the ship. See 5 Nathaniel Dane, A General Abridgment and Digest of American Law 587, ch. 172, art. 9, § 9 (1824) (“Trespass for false imprisonment will not lie at common law, where the imprisonment is merely in consequence of taking a ship as prize, though the ship has been acquitted.”).

152

Carroll v. United States, 267 U.S. 132, 150-51 (1924). Taft also cited later customs statutes providing for warrantless customs searches of “any vehicle, beast, or person” suspected of transporting goods. Id. at 151-52. These provisions are discussed infra note 470. (Carroll is discussed in more detail infra notes 523-531 and accompanying text.)

153

See, e.g., Lasson, supra note 16, at 125; Levy, Original Meaning, supra note 45, at 245; Amar, Fourth Amendment, supra note 58, at 766-67; Cloud, supra note 42, at 1740; 3 Cuddihy, supra note 20, at 1487-94. Commentators have also assumed, presumably because of Carroll, that other statements in ship seizure cases can be taken to reflect the meaning of the Fourth Amendment. See, e.g., Amar, Terry, supra note 58, at 1104 (asserting that a 1790 statutory provision permitting warrantless searches of ships lying within four leagues of the coast shows that the Framers intended for Fourth Amendment “reasonableness” to permit suspicionless searches); Daniel M. Harris, Back to Basics: An Examination of the Exclusionary Rule in Light of Common Sense and the Supreme Court's Original Search and Seizure Jurisprudence, 37 Ark. L. Rev. 646, 656-65 (1983). See also the commentaries misinterpreting an 1821 opinion by Justice Story in a ship seizure case as though it addressed exclusion under the Fourth Amendment discussed infra note 320. The persistent misunderstanding of the Framers' attitude toward ship searches may well result, at least in part, from an unfortunate gap in the historical record regarding the debates over the 1789 Collection Act. See infra note 470.

154

Post- Carroll judicial opinions have made the prochronistic error of assuming that the Fourth Amendment was always understood to apply to ships, and thus have erroneously cited ship seizure cases as though such cases shed light on the Fourth Amendment-even though the cited cases never mentioned it. See, e.g., California v. Acevedo, 500 U.S. 561, 583-84 (1991) (Scalia, J., concurring) (citing Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804), and Gelston v. Hoyt, 16 U.S. (3 Wheat.) 246 (1818)); United States v. Verdugo-Urguidez, 494 U.S. 259, 267, 289 n.10 (1990) (citing Little).

155

For example, in the seminal statement of the generalized-reasonableness construction in Rabinowitz, Justice Minton invoked Taft's claim regarding warrantless ship seizures as historical support for the claim that the Framers only meant to require that government intrusions be reasonable in the circumstances. See United States v. Rabinowitz, 339 U.S. 56, 60 (1949). Justice Scalia has recently repeated Taft's claim that the provision for warrantless ship searches in early customs statutes demonstrates that the Framers intended to allow broad warrantless search authority “where probable cause exists.” Wyoming v. Houghton, 119 S. Ct. 1297, 1300 (1999). Justice Thomas has done likewise in Florida v. White, 119 S. Ct. 1555, 1558-59 (1999).


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156

Under admiralty prize court procedure, the seizing party did not have to prove the ship committed a violation; rather the owners of a ship had the burden of proving it had not violated the law. A few years before Carroll, the Court applied the forfeiture procedures applicable to ships to automobiles that had been used to transport illegal liquor. See Goldsmith-Grant Co. v. United States, 254 U.S. 505 (1921). In the decades since Prohibition, legislation has greatly expanded the grounds for forfeiture. Under a 1984 statute, all real property, including a house, which has been used to facilitate a violation of federal drug laws is subject to forfeiture. See Comprehensive Crime Control Act of 1984, 21 U.S.C. § 881(a)(7) (1988). The court proceeding to determine the validity of a seizure of a house follows admiralty prize court forfeiture procedures. See 18 U.S.C. § 981(b) (1988 & Supp. IV 1992) (providing that “Supplemental Federal Rules for Certain Admiralty and Maritime Claims” shall govern procedures regarding forfeiture of assets in federal district courts). The notion that an interest as important as a house could be subjected to the slanted procedures employed by prize courts would have amazed a framing-era lawyer. Indeed, chapter 29 of Magna Carta had explicitly decreed that no freeman would “be disseised of his freehold” except in accordance with “the law of the land”--that is, in accordance with common-law procedure. See infra note 332. The constitutional amnesia evident in the modern forfeiture statutory provisions appears to stem from Carroll's conflation of personal possessions, and even houses, with ships.

157

See, e.g., Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804); Gelston v. Hoyt, 16 U.S. (3 Wheat.) 246 (1818); The Appollon, 22 U.S. (9 Wheat.) 362 (1824). See also Justice Story's opinion in the Circuit Court decision in United States v. La Jeune Eugenie, 26 F. Cas. 832 (C.C.D. Mass. 1822) (No. 15,551), discussed infra note 320. The early federal ship seizure cases are summarized in 7 Dane, supra note 151, at 463-97.

158

In Crowell v. McFadon, 12 U.S. (8 Cranch) 94, 98 (1814), the Justices unanimously upheld a federal collector's seizure of a ship and cargo under the Embargo Act of 1808 on the ground that all that was required by the Act was the collector's honest opinion that the ship intended to violate the embargo. A year later, in Otis v. Watkins, 13 U.S. (9 Cranch) 339, 355-56 (1815), the Justices ruled that a jury instruction that “it was the collector's duty to have used reasonable care in ascertaining the facts on which to form an opinion” as to the ship's intention was an incorrect statement of the authority created by the Embargo Act, because the Act required only that the officer “honestly entertained the opinion under which he acted.” None of the Justices or lawyers suggested that the Fourth Amendment was involved in any way.

159

The Court began to apply the Fourth Amendment to ships shortly after Carroll. See Maul v. United States, 274 U.S. 501 (1927); United States v. Lee, 274 U.S. 559 (1927).

160

See supra notes 136-139 and accompanying text.

161

See, e.g., James W. Ely, The Guardian of Every Other Right: A Constitutional History of Property Rights 19-20 (1992). For examples of early statutory authority for searches and inspections regarding ships and commerce, see the statutes collected in Gerard V. Bradley, Present at the Creation? A Critical Guide to Weeks v. United States and Its Progeny, 30 St. Louis U. L.J. 1031, 1041 n. 64 (1986). Bradley assumed that the Fourth Amendment and the state provisions were meant to apply to ships and commerce, and presented these statutes as proof there was no historical warrant requirement. I think they actually show that “houses, papers, and effects [or possessions]” was not understood to mean ships or commerce. None of the statutes Bradley cited provided for a warrantless search of a house.

162

For example, when Patrick Henry addressed the possibility of abusive arrests during the Virginia ratification convention in 1788, he referred only to the possibility of the use of a general arrest warrant, not to a warrantless arrest. See 3 Elliot's Debates, supra note 84, at 588, quoted in part in Cogan, supra note 122, at 238 (6.2.2.3). A similar focus on general arrest warrants, but not warrantless arrests, appeared in the statement by Abraham Holmes during the 1788 Massachusetts ratification convention. See infra note 302.

163

See 3 Cuddihy, supra note 20, at 1375-79.

164

These fears were based on the provision in the Constitution allowing Congress to levy “Taxes, Duties, Imposts and Excises....” U.S. Const. art I, § 8. Excise taxes were aimed at the sale of internally produced merchandise, usually liquor, rather than at imports. Fears that excise taxes might lead to house searches were based partly on earlier colonial controversies, such as that over the Massachusetts excise of 1754, see supra note 134, and partly on reports of oppressive enforcement of excises in England, including a tax on domestic


85

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 production of cider for household consumption. Those excises were enforced by requiring oaths regarding the amount that had been produced. The English cider tax became a political issue contemporaneously with the Wilkesite cases. See 2 Cuddihy, supra note 20, at 943-50. Even the Toryish Blackstone decried excises as oppressive and voiced concern regarding the potential for excise searches. See 1 Blackstone, supra note 27, at 308-10. However, notwithstanding the fulsome terms in which excise searches were predicted, it appears that there existed a broadly shared understanding that an excise search of a house would have to be authorized by a warrant or writ. For example, the anti-Federalist minority at the Maryland ratification convention expressed fears of excise searches but then proposed a federal search protection that only banned too-loose warrants as a remedy for those fears. See Address of a Minority of the Maryland Ratifying Convention, reprinted in 5 The Complete Anti-Federalist, supra note 98, at 92, 96 (reciting a proposed federal provision banning too-loose warrants and then explaining that “[t]his amendment” was thought necessary to deal with “excises, the horror of a free people, by which our dwelling-houses... will be laid open”). Thus, it appears that the concern with excise searches of houses collapsed into the concern with searches of houses under general warrants.

165

See, e.g., Address of Cato Uticensis, reprinted in 5 The Complete Anti-Federalist, supra note 98, at 123-24 (5.7.9) (warning the reader that if you approve of the new Constitution “you subject yourselves to see the doors of your houses, them impenetrable Castles of freemen, fly open before the magic wand of the exciseman”); Essay by a Farmer and Planter, reprinted in 5 The Complete AntiFederalist, supra note 98, at 75 (5.2.2), excerpted in Cogan, supra note 122, at 241-42 (6.2.4.9) (expressing fears of excise searches); Objections by a Son of Liberty, reprinted in 6 The Complete Anti-Federalist, supra note 98, at 35 (6.2.2), excerpted in Cogan, supra note 122, at 240 (6.2.4.6) (expressing fears of house searches under general warrants and of excise searches of bed chambers); Luther Martin, The Genuine Information Delivered to the Legislature of the State of Maryland Relative to the Proceedings of the General Convention Lately Held in Philadelphia, reprinted in 2 The Complete Anti-Federalist, supra note 98, at 54-55 (2.4.55-56) (expressing fears of excise searches).

166

See, e.g., Brutus, supra note 98, at 375 (2.9.28) (calling for a federal protection against general warrants); Letters of Centinel, No. 1, supra note 98, at 136 (2.7.1) (expressing fear of loss of the Pennsylvania state protection against general warrants); Observations on the New Constitution, and on the Federal and State Conventions, by a Columbian Patriot, reprinted in 4 The Complete AntiFederalist, supra note 98, at 270 [hereinafter Columbian Patriot] (relevant portions quoted infra text accompanying note 496). See also the calls for a protection against general warrants in the Letters from the Federal Farmer, discussed supra notes 127-128; in the statements by Patrick Henry during the Virginia ratification convention, discussed supra note 162, infra note 439; in the statement by Abraham Holmes during the Massachusetts convention, quoted infra note 302; and in the statement by Robert Whitehill during the Pennsylvania convention, Pennsylvania and the Federal Constitution, 1787-1788, at 781-82 (John Bach McMaster & Frederick D. Stone eds., 1888), discussed in 3 Cuddihy, supra note 20, at 1382 (expressing concern that federal officers could enter houses under general warrants). Some anti-Federalists who did not explicitly propose a constitutional protection nevertheless expressed fears about federal searches only in terms of general warrants. See, e.g., Essay by a [Maryland] Farmer, Md. Gazette, Feb. 15, 1788 (likely authored by John F. Mercer), reprinted in 5 The Complete Anti-Federalist, supra note 98, at 14 (5.1.13) (expressing doubts that federal courts would treat searches of houses under general warrants as illegal); John Dewitt, To the Free Citizens of the Commonwealth of Massachusetts, No. IV, (Boston) Am. Herald, Oct.-Dec. 1787, reprinted in 4 The Complete Anti-Federalist, supra note 98, at 33-34 (4.3.21-22) (expressing fears of federal searches and contrasting the Massachusetts protection against general warrants). See also the address of the Maryland anti-Federalists, discussed supra note 164. Calls for a constitutional protection broader than a prohibition of general warrants were infrequent. But see Old Whig, No. 5, (Phil.) Indep. Gazetteer, Nov. 1, 1787, excerpted in Cogan, supra note 122, at 240 (6.2.4.5) (calling for a protection of persons, houses, and papers “from seizure and search upon general suspicion or general warrants”).

167

Boyd declared that a federal statute that authorized court orders requiring the production of invoices in customs disputes was unconstitutional as a violation of both the Fifth Amendment's self-incrimination clause and the Fourth Amendment. On the way to that ruling it articulated the basis for what became known as the “mere evidence doctrine.” It also anticipated the modern exclusionary rule by ordering that the information obtained from the unconstitutionally seized invoice could not be used in any further proceeding. I discuss Boyd and criticize its historical claims regarding the Fourth Amendment infra notes 511-515 and accompanying text.


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168

See, e.g., Landynski, supra note 38, at 49; Lasson, supra note 16, at 106-07 (covering the period from the framing to Boyd in a page and a half). Cuddihy's account essentially stopped with the framing; so did Levy's.

169

Judiciary Act of 1789, ch. 20, § 33, 1 Stat. 73, 91 (providing authority for any judge or justice of the peace to order arrest of violators of federal law “agreeably to the usual mode of process”).

170

See id. § 27, 1 Stat. at 87 (creating the office of federal marshal and charging that officer with the duty of executing writs and warrants issued by federal judges). The marshal's duty to execute writs and warrants has been continuously in effect with only minor changes in phrasing; it now appears in 28 U.S.C. § 566(c) (1994). The likely explanation for the First Congress's failure to enact legislative warrantless arrest authority is that the general understanding in 1789 was that any officer possessed the same common-law arrest authority as that inherently possessed by any person--but no more. See infra note 218.

171

A 1792 statute titled “An Act to provide for calling forth the Militia to execute the laws of the Union, suppress insurrections, and repel invasions” conferred additional authority on the federal marshal: That the marshals of the several districts, and their deputies, shall have the same powers in executing the laws of the United States, as sheriffs and their deputies, in the several states, have by law, in executing the laws of the respective states. Act of May 2, 1792, ch. 18, § 9, 1 Stat. 265. This provision was reenacted several times: Act of Feb. 28, 1795, ch. 36, § 9, 1 Stat. 424, 425 (act with similar title); Act of July 29, 1861, ch. 25, § 7, 12 Stat. 281, 282 (act with similar title); Rev. Stat. § 788 (1874); and Judicial Code of 1948, ch. 646, § 549, 62 Stat. 910, 912. This provision is currently 28 U.S.C. § 564 (1994). Judicial opinions and commentaries have asserted that the 1792 provision was intended to confer broad warrantless arrest authority on federal marshals and thus demonstrates the early Congress's approval of wide use of warrantless arrest authority. See, e.g., United States v. Watson, 423 U.S. 411, 418, 420 n.2 (1976); Amar, Fourth Amendment, supra note 58, at 764. However, the title of the statute--referring to the calling out of the militia to suppress insurrections--indicates that Congress had in mind the sheriff's commonlaw “power of the county” to call out the posse comitatus to suppress riots or civil disorders. See, e.g., 1 Blackstone, supra note 27, at 343; Note, Baltimore City's Liability for Riot Damage: The Mayor as Conservator of the Peace, 33 Md. L. Rev. 73, 76-79, 84-91 (1973) (discussing sheriff's authority to call out posse comitatus to suppress riots). The federal legislation may have been prompted by the agitation against the 1791 federal excise on liquor that ultimately erupted in the 1794 Whiskey Rebellion. Unfortunately, there is no record of any debate in the Senate regarding this Act. The record of the debate on this statute in the House of Representatives is limited but nevertheless supports the interpretation offered. The bill was treated as part of the “Militia Bill” and the debate was mostly about what sort of federal authority should exist to call out a state militia to respond to an insurrection. See 3 Annals of Cong. 557, 574-80 (Gales & Seaton, 1849) (page numbers cited are to the edition with the running head “History of Congress,” see infra note 475). However, the record indicates that there was some discussion of the potential for popular resistance to the excise and of marshals' authority to call out the posse comitatus. Representative Clark referred to “call[ing] forth the military in case of any opposition to the excise law.” 3 Annals of Cong., supra, at 575. Representative Mercer observed that “the marshals of the several states have a power to call forth the posse comittatus; and additional marshals should be appointed, and only in the last extremity they may call forth the military power.” Id. (Because states did not use the office of “marshal,” the reference to “the marshals of the several states” must be to the federal marshals serving in the various states.) In contrast, the record does not disclose any discussion of marshals' warrantless arrest authority as such.

172

In 1935, Congress added to the authority of federal marshals the power to “make arrests without warrant” for any federal offenses “committed in their presence” or “in cases where such felony has in fact been or is being committed and they have reasonable grounds to believe that the person to be arrested has committed or is committing it.” Act of June 15, 1935, ch. 259, § 2, 49 Stat. 377, 378. The language of this provision did not authorize arrests on probable cause of felony, but only when there was an actual felony. In 1948, Congress expanded the marshal's warrantless arrest authority by providing for warrantless arrests based on “reasonable grounds to believe that the person to be arrested has committed or is committing” a federal felony. At that time, Congress also moved this provision from the duties of judicial officers to the criminal title of the federal code. See Act of June 25, 1948, ch. 203, § 3053, 62 Stat. 817 (codified at 18 U.S.C. § 3053 (1994)) (providing authority for warrantless arrests based on “reasonable grounds”). In 1988, Congress reinserted a similar (and apparently redundant) statement of warrantless arrest authority in the judiciary provisions regarding the authority of the marshal. See Pub. L. No. 100-690, § 7608(a), 102 Stat. 4181, 4514 (codified at 28 U.S.C. § 566(d) (1994)).


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173

This is not to say that search issues could be raised as readily then as now; for example, federal appellate review of criminal convictions was very limited until the late nineteenth century. See Lester Bernhardt Orfield, Criminal Appeals in America 244-45 (1939).

174

For Supreme Court decisions that referred to the Fourth Amendment, see: Ex parte Burford, 7 U.S. (3 Cranch) 447, 450-51 (1806), in which the Marshall Court ordered the release of a man in a habeas corpus proceeding who had been imprisoned by the justices of the peace of the District of Columbia for being “an evil doer and disturber of the peace” (the Court quoted the warrant clause of the sixth Article to the Constitution (the Fourth Amendment) while reminding the justices of the peace that a warrant of commitment to prison could be issued only upon a conviction for a recognized crime); Ex parte Bollman and Swartwout, 8 U.S. (4 Cranch) 75, 110 (1807), in which the Marshall Court in a habeas corpus proceeding, during which counsel for a petitioner recited the Fourth Amendment and emphasized the warrant clause, ruled that an arrest warrant issued to commit two men to trial for treason was invalid because it lacked an adequate showing of probable cause as to the offense (In an earlier proceeding of the Circuit Court for the District of Columbia in the latter case, Chief Judge Cranch had opined that the issuance of an arrest warrant against the men was inconsistent with the Fourth Amendment (denoted “sixth article of the amendments”). See United States v. Bollman, 24 F. Cas. 1189, 1190, 1192-93 (C.C.D.C. 1807) (No. 14,622)); Smith v. Maryland, 59 U.S. (18 How.) 71, 76 (1855), in which the Justices turned away a challenge brought by Maryland oystermen against a Maryland state statute that authorized search warrants for the regulation of oystering on the grounds that the Fourth Amendment “restrains the issue of warrants only under the law of the United States, and has no application to state process”; Murray's Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272 (1855), in which the Court rejected a challenge to a “warrant” used for execution of a civil judgment because the Fourth Amendment did not apply to writs or process issued in a private civil action, but only to warrants issued in causes to which the United States is a party; Ex parte Jackson, 96 U.S. 727, 733 (1877), in which the Court, while discussing statutory postal authority, noted in dicta that letters and packages in the mail could not be opened without a search warrant; Boyd v. United States, 116 U.S. 616 (1886); and West v. Cabell, 153 U.S. 78, 86-87 (1894), in which the Court held that an arrest warrant that was mistakenly made out in a name other than that of the intended person contravened constitutional standards. Reported decisions by lower federal courts rarely referred to the Fourth Amendment. One did manifest an understanding that the provision addressed warrant standards. See In re Meador, 16 F. Cas. 1294, 1298 (D.C.N.D. Ga. 1869) (No. 9375) (discussing the history of the Fourth Amendment and asserting that the Fourth Amendment is a “provision[ ] in regard to search warrants” and that it applies only to criminal proceedings because search warrants were never recognized at common law for use in civil proceedings).

175

The statute at issue in Boyd provided for a court order to compel production of invoices in customs disputes. That statute replaced an earlier Civil War-era statute that had provided for use of search warrants to obtain such documents. See 116 U.S. at 620-21. By ruling that the statutory authority for the court-ordered production of an invoice was an unconstitutional “seizure,” Boyd effectively precluded reauthorization of search warrants to obtain such documents. Cf. Carroll v. United States, 267 U.S. 132, 147 (1925) (observing that Boyd's ruling prohibited “unreasonable search even where made upon a search warrant”). Boyd is discussed in more detail infra notes 511-515 and accompanying text.

176

The Supreme Court discussed the standards for a federal warrantless arrest in some detail without mentioning the Fourth Amendment in its 1900 decision Bad Elk v. United States, 177 U.S. 529 (1900). Several lower federal court opinions also assessed warrantless arrests made by federal officers without mentioning the Fourth Amendment. See, e.g., In re Engle, 8 F. Cas. 716 (C.C.D. Md. 1877) (No. 4488); Ex parte Geissler, 4 F. 188 (C.C.N.D. Ill. 1880); In re Deputy Marshals, 22 F. 153 (C.C.E.D. Mo. 1884). The exception-that-proves-the-rule cases include: Johnson v. Tompkins, 13 F. Cas. 840, 849 (C.C.E.D. Pa. 1833) (No. 7416) (discussing the Fourth Amendment only in connection with a judge's oral order to arrest, but not when assessing a constable's warrantless actions; discussed infra note 184); and United States v. Tureaud, 20 F. 621, 622-23 (C.C.E.D. La. 1884) (condemning a barebones misdemeanor charge as failing the Fourth Amendment's probable cause standard, but applying the Fourth Amendment by declaring that all misdemeanor prosecutions necessarily involved the use of “warrants” in the form of sworn complaints). A more ambiguous treatment appears in Ex parte Morrill, 35 F. 261, 266-67 (C.C.D. Or. 1888) (stating that the Fourth Amendment was never understood to prohibit an officer from making warrantless arrest for offense committed in his presence, and an officer's observations are analogous to sworn-to allegation of probable cause).

177

See Ohio Const. of 1802, art. VIII, § 5, reprinted in 7 Sources and Documents of United States Constitutions 547, 554 (William F. Swindler ed., 1973) [hereinafter Swindler].


88

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 That the people shall be secure in their persons, houses, papers, and possessions from all unwarrantable searches and seizures; and that general warrants, whereby an officer may be commanded to search suspected places, without probable evidence of a fact committed, or to seize any person or persons not named, whose offences are not particularly described, and without oath or affirmation, are dangerous to liberty, and shall not be granted. Id. “Unwarrantable” meant “[n]ot defensible; not to be justified; not allowed.” See Samuel Johnson, A Dictionary of the English Language (1755) (unpaginated) [hereinafter Johnson's Dictionary]. Note that “unwarrantable” is nearly a synonym for the Cokean meaning of “unreasonable,” discussed infra notes 391-397 and accompanying text. See also infra note 417 and accompanying text.

178

See, e.g., Commonwealth v. Dana, 43 Mass. (2 Met.) 329 (1841) (upholding the constitutionality of a state statute authorizing search warrants for unlawful lottery materials as complying with the state search and seizure provision); Fisher v. McGirr, 67 Mass. (1 Gray) 1 (1854) (holding that a statutory provision authorizing search warrants for liquor did not satisfy the requirements of the state search and seizure provision). For a more detailed discussion of Dana, see discussion infra note 318.

179

In addition to the state arrest cases discussed in the text, there is another set of exception-that-proves-the-rule cases. During the late nineteenth century, several state courts invoked the constitutional search and seizure provisions in striking down state statutes that purported to authorize warrantless arrests for misdemeanors based on probable cause, even though, at common law, an arrest for a misdemeanor could have been justified only by an arrest warrant if the arresting person had not actually witnessed the commission of the offense. (This common-law rule is discussed infra notes 216, 220-222 and accompanying text.) Some state courts reasoned that statutes authorizing officers to make misdemeanor arrests were the functional equivalent of “general warrants” for misdemeanor arrests, and ruled the statutes unconstitutional. See, e.g., In re Kellam, 55 Kan. 700, 41 P. 960, 961 (1895) (statute permitting arrests for unwitnessed misdemeanor is “in effect, a revival of the odious general warrants”).

180

6 Binn. 315 (Pa. 1814).

181

Although Pennsylvania had not used “unreasonable” in its 1776 state constitutional search and seizure provision, see discussion infra notes 353-366 and accompanying text, it later added the term in 1790 when the provision was amended to read: Sect. VIII. That the people shall be secure in their persons, houses, papers and possessions, from unreasonable searches and seizures: And that no warrant to search any place, or to seize any person or things, shall issue, without describing them as nearly as may be, nor without probable cause supported by oath or affirmation. Pa. Const. of 1790, art. IX, § 8, reprinted in Cogan, supra note 122, at 235 (6.1.3.6.b).

182

Wakely's argument was strained because common law allowed for warrantless arrests for felony “on suspicion” if there had been “felony in fact.” (The common-law “on suspicion” standard is discussed infra notes 226-228 and accompanying text.) I speculate that Wakely's claim was prompted by an out-of-context reading of a statement the Pennsylvania court had earlier made in Conner v. Commonwealth, 3 Binn. 38, 44 (1810), to the effect that “a man... should not be arrested, unless [on the basis of a sworn complaint].” Because the only issue in Conner was whether a constable was obligated to execute a warrant that lacked a sworn allegation of cause, that statement was undoubtedly meant to relate to arrests that were made by warrant. However, if taken out of context, the statement may have appeared to make warrantless arrests impermissible.

183

6 Binn. at 318 (emphasis in original).

184

The treatment of the Pennsylvania provision in Wakely was followed i n Johnson v. Tompkins, 13 F. Cas. 840 (C.C.E.D. Pa. 1833) (No. 7416). The plaintiff, a slave owner who was hit and injured in an attempt to recapture a fugitive slave, brought a successful trespass action in federal court against Tompkins (a justice of the peace) and others (including a constable) who had resisted his efforts. In the course of a lengthy opinion, Judge Baldwin described the law of warrantless arrest, citing Wakely (“6 Binn. 318, 319”) without any reference to either the Pennsylvania search and seizure provision or the Fourth Amendment. See id. at 844-45. However, when Judge Baldwin later addressed an oral arrest order that had been given, during the events at issue, by a state judge named M'Neil, he quoted both the 1790 Pennsylvania provision and the Fourth Amendment and declared that the oral arrest order by a state judge was “in direct violation of both constitutions” and “void” because it was “utterly wanting every requiste prescribed.” Id. at 849. Thus, he concluded that the oral judicial order to arrest could not justify any act by the defendants. The specific application of constitutional provisions in this case also reflects a view that the constitutional search and seizure provisions reached judicial acts, but not the conduct of constables acting without warrant.


89


185

59 Mass. (5 Cush.) 281, 284-85 (1850) (emphasis added). Defendant constable had made a warrantless arrest of plaintiff for theft, but no charge was prosecuted. Plaintiff brought a trespass action for false arrest. The trial judge gave the unusual instruction that “reasonable and probable ground to suspect” theft was not a justification for a warrantless arrest unless there was a danger the suspected person would flee. The jury returned a verdict for the plaintiff. The Massachusetts Supreme Court reversed, and declared that “[p]eace officers without warrant may arrest suspected felons.” Id. at 284. Although this ruling dropped the framing-era “felony in fact” requirement for a warrantless arrest, Justice Dewey's opinion did not acknowledge the change. See infra note 244. In the course of justifying conferral of broad arrest authority on officers, Dewey asserted that constitutional search and seizure provisions did not limit warrantless arrest authority, as quoted in the text.

186

See also Mayo v. Wilson, 1 N.H. 53, 59-60 (1817). The New Hampshire Supreme Court upheld a warrantless arrest under a state statute making Sabbath-breaking an offense. The court concluded that the statutory authorization for a warrantless arrest did not violate the state “law of the land” provision. The court also briefly noted, with regard to the state search and seizure provision (which was identical to the Massachusetts provision, see infra note 380), that a warrantless arrest on “open and manifest guilt” was “no more unreasonable” than an arrest by valid warrant, and that the search and seizure provision “does not seem intended to restrain the legislature from authorizing arrests without warrant, but to guard against abuse of warrants issued by magistrates.” Id. The latter part of that statement reflects the usual understanding that the constitutional provisions only regulated warrant authority. The earlier statement that a warrantless arrest was not “more unreasonable” than an arrest under a valid warrant may appear to be an early treatment of “unreasonable searches and seizures” as a relativistic standard, but can also be understood simply as saying that a warrantless arrest on “strong evidence” was no more inherently illegal than an arrest under a valid warrant would have been--that is, that a warrantless arrest on strong evidence was perfectly lawful.

187

See California v. Acevedo, 500 U.S. 561, 581 (1991) (Scalia, J., concurring) (citing Wakely shortly after referring to “unreasonable” in the Fourth Amendment without mentioning that Wakely stated that the constitutional ban against “unreasonable searches and seizures” did not apply to warrantless arrests); see also Amar, Fourth Amendment, supra note 58, at 763 (describing Wakely, Rohan, and Mayo, see preceding note, as “briskly dismissing” a warrant requirement for arrests, without mentioning that those courts treated warrantless arrests as falling outside of the constitutional protection against “unreasonable searches and seizures”).

188

38 Mass. (21 Pick.) 156 (1838); see also infra note 284.

189

Banks, 38 Mass. at 159.

190

St. George Tucker described the Fourth Amendment as affording a test “for trying the legality of any warrant.” St. George Tucker, Annotations to Blackstone's Commentaries app. at 301 (1803). He included annotations to the Fourth Amendment and the Virginia search and seizure provision at Blackstone's condemnation of general warrants, see id. at 291 n.4 (annotating the Blackstone passage discussed supra note 78), and at Blackstone's statement that imprisonment under an unspecific warrant was “unreasonable,” see id. at 137 n.22 (annotating the Blackstone passage discussed infra note 418). However, he did not mention either provision in connection with Blackstone's discussion of the standard for a warrantless arrest. Similarly, William Rawle discussed the Fourth Amendment as pertaining only to warrant authority. See William Rawle, A View of the Constitution of the United States of America 127 (Philip Nicklin Law Bookstore 2d ed. 1829). Justice Joseph Story treated the Fourth Amendment similarly, writing that it was “little more than the affirmance of a great constitutional doctrine of the common law” and that its inclusion in the Bill of Rights reflected the controversies “upon the subject of general warrants almost upon the eve of the American revolution.” He did not discuss standards for warrantless intrusions but only the ban against general warrants--hence, it is clear that the “great constitutional doctrine” he referred to was the illegality of general warrants. See 3 Joseph Story, Commentaries § 1895, 748 (1st ed. 1833).

191

See Cooley, supra note 92, at 299-308. Cooley still stressed the protection of the house as the focus of the Amendment--the second sentence in his commentary on the Fourth Amendment invoked the doctrine that a man's house is his castle. See id. at 299-300. He then discussed the condemnation of general warrants in the Wilkesite cases and in the American colonial opposition to general writs of assistance, and commented that, although those matters were in the past, “it has not been deemed unwise to repeat in the State constitutions, as well as in the national, the principles already settled in the common law upon this vital point in civil liberty.” Id. at 301-03. In the remainder of his discussion, he described the requisites for valid issuance and execution of “criminal process” and “search-warrants” and discussed constitutional limits on legislative power to authorize novel uses of search warrants. Id. at 303-07.


90

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 In particular, he opined that legislative power to authorize “process” for entering houses to search books and papers “can properly be exercised only in extreme cases.” Id. at 306. In the context of that discussion of legislative authorization of warrants, he also asserted that “it would generally be safe for the legislature to regard all those searches and seizures ‘unreasonable’ which have hitherto been unknown to the law, and on that account abstain from authorizing them.” Id. at 307. The implicit premise underlying Cooley's discussion of warrant authority is that the use of warrants should be carefully regulated because warrants could provide authority for intrusions, including even searches of houses, that would not otherwise exist. Thus, he concluded by noting that except for instances in which search warrants may be legal, “the law favors the complete and undisturbed dominion of every man in his own premises, and [jealously] protects him in it....” Id. at 308. Cooley also addressed the meaning of “unreasonable searches and seizures” as a Justice of the Michigan Supreme Court in Weimer v. Bunbury, 30 Mich. 200, 208 (1874), a challenge to the constitutionality of a state statute authorizing a “warrant” to levy against the property of a delinquent tax collector for undelivered tax receipts. The Michigan search and seizure provision declared that “[t]he person, houses, papers and possessions of every person shall be secure from unreasonable searches and seizures” and forbade issuance of too-loose warrants. Mich. Const. of 1850, art. VI, § 26. Upholding the statute, Cooley observed that the “main purpose [of the constitutional provision] was to make sacred the privacy of the citizen's dwelling and person against everything but process issued upon a showing of legal cause for invading it.” 30 Mich. at 208 (emphasis added).

192

See, for example, the following description of criminal justice in Boston: Through the eighteenth century the use of legal force was ordinarily a direct response to the demands of private citizens for help. The victim of robbery or assault called a watchman, if available, and afterward applied to a justice for a warrant and a constable to make or aid in the arrest. The business of detection was largely a private matter, with initiative encouraged through a system of rewards and fines paid to informers. Neither state nor town made any provision for the identification or pursuit of the unknown offender, except through the coroner's inquest. Roger Lane, Policing the City: Boston 1822-1885, at 7 (1967).

193

Although there were some local variations, the sheriff and his deputies were primarily concerned with the service and execution of writs regarding civil litigation and made arrests primarily in connection with bringing defendants in civil litigation before the courts. The sheriff also had the “power of the county” to quell riots and civil disturbances, but he and his deputies were otherwise uninvolved in criminal law enforcement. See Hening, supra note 25, at 153 (stating that arrest warrants were most commonly issued to constables rather than to sheriffs). Hening was a compiler of Virginia statutes. His justice of the peace manual is especially useful as a source on the content of American law at the date of the framing of the Fourth Amendment, especially because it is one of the few such publications that sometimes commented on actual practices as well as doctrines.

194

Cf. Douglas Greenberg, Crime and Law Enforcement in the Colony of New York, 1691-1776, at 156-58 (1974) (describing the nightwatch and constables in New York City). Greenberg notes that “there appears to have been great difficulty in keeping a sufficient number of constables in office,” that “[m]en of questionable integrity and scruples were sometimes the only people willing to serve” as constables, and that “there can be no doubt that the first link in the chain of criminal justice in colonial New York--the exercise of police powers by constables and sheriffs--was a very weak one indeed.” Id. at 163, 165, 167; see also Lawrence M. Friedman, Crime and Punishment in American History 27-30, 67-68 (1993).

195

See 1 Hale, supra note 75, at 588. Blackstone's successor in the Vinerian chair of law at Oxford commented that: The right of quelling an affray or apprehending a felon upon view every other man partakes with the constable, but the constable as a public person has what others have not, the right of requiring any of the king's subjects to assist him in executing the king's laws; and he that refuses to obey him becomes liable to fine and imprisonment. 1 Robert Chambers, A Course of Lectures on the English Law: 1767-1773, at 245 (Thomas M. Curley ed., 1986). Note, however, that Chambers's lectures were not published at the time of the framing. See id. at xi; see also Hening, supra note 25, at 20, 37 (stating that a private person is bound to assist an officer if asked and risks punishment if he refuses); id. at 39 (stating that a private person could not command assistance to arrest); William E. Nelson, Americanization of the Common Law 34 (1975) (“In [the Anglo-American] tradition, government did not have vast bureaucratic armies of officials to enforce its laws, but instead relied on its subjects to aid the few officials who did exist in their task of law enforcement.”). Nelson also notes that this meant that community sentiment could blunt law enforcement efforts. See id. at 34-35.


91


196

The constable had a variety of order maintenance roles. For example, he policed taverns. In England, statutes that created misdemeanor offences (for example, vagrancy) sometimes also provided authority for constables to arrest on view of a violation. A number of colonies and states also enacted a variety of misdemeanor-level offenses for which only constables, but not private persons, could make arrests. In addition to vagrancy laws, Sabbath violation offenses were often enforceable only by constables or similar officers. See, e.g., Mayo v. Wilson, 1 N.H. 53, 59-60 (1817) (concerning the New Hampshire statute providing authority for “selectmen” and “tythingmen” (local officers) to arrest persons traveling on Sunday that was the basis for the arrest); see also discussion supra note 186. Hale and Blackstone based much of their descriptions of the power of constables on these statutes. See 2 Hale, supra note 75, at 88-89; 1 Blackstone, supra note 27, at 344-45. Some American states adopted similar statutes. See The Works of James Wilson 568-69 (Robert G. McCloskey ed., 1967) (reprinting the 1790-91 law lectures given by Wilson, one of the American Framers). Note, however, that Hening remarked in 1794 that there had been “few instances” in Virginia where a constable had attempted to exercise “the same latitude of power as exercised in England.” Hening, supra note 25, at 20. See also Bradley, supra note 161, at 1041-45 n.64 (setting forth examples of such statutes). A few early American statutes describe the duties and authority of constables. See The Laws and Liberties of Massachusetts 13 (1929, reprinting the 1648 edition); The First Laws of the State of Connecticut 23-24 (1984, reprinting the 1784 edition); see also Bradley Chapin, Criminal Justice in Colonial America: 1606-1660, at 96-97 (1983).

197

A number of common-law statements reflect an expectation that warrantless arrests would be resorted to primarily when an offense was observed and there was pursuit of fresh crime. For example, Hening's 1794 discussion observed that arrests may “frequently” be made without warrant as well as by warrant, but then mentioned only instances in which the commission of a crime was directly observed--by any person who viewed the commission of a felony, dangerous wounding, or breach of the peace, and by watchmen who came across “nightwalkers.” He then concluded “[s]o much concerning an arrest without a warrant,” and moved on to arrest by warrant. Hening, supra note 25, at 37-38 (emphasis in original). Similarly, the Pennsylvania court emphasized “pursued” when it remarked in 1814 that, “[t]he felon who is seen to commit murder or robbery, must be arrested on the spot or suffered to escape. So although not seen, yet if known to have committed a felony, and pursued with or without warrant, he may be arrested by any person.” Wakely v. Hart, 6 Binn. 315, 318-19 (Pa. 1814) (emphasis in original); cf. Grano, supra note 38, at 639 (“The common law, which was preoccupied with the danger of escape, contemplated that [a warrantless] arrest would be made shortly after the felony occurred.”).

198

The hue and cry emerged during an early period in which a village or hundred could be “amerced” (fined) if a felony occurred within it and the felon was not caught. For descriptions of the legal authority for arrests on hue and cry, see 2 Hale, supra note 75, at 104; 2 Hawkins, supra note 76, at 75-77; and 4 Blackstone, supra note 27, at 290-91. Blackstone described an arrest under a hue and cry as carrying equivalent protections as an arrest under warrant, but noted that a person who “wantonly or maliciously” raised a cry would be guilty of disturbing the peace. Id. at 291; see also 3 Bacon, supra note 149, at 62-65. Early American statutes provided that constables could “put forth Pursuits or Hue-and-cries after Murderers, Peacebreakers, Thieves, Robbers, Burglarians and other Capital Offenders where no Magistrate or Justice of the Peace is near at hand.” First Laws of the State of Connecticut, supra note 196, at 23-24. A similar provision appears in the 1648 Massachusetts statute. See The Laws and Liberties of Massachusetts, supra note 196, at 13. The traditional hue and cry appears to have fallen into disuse in late eighteenth-century America. In his 1794 manual, Hening stated that the hue and cry was “seldom used” in Virginia. See Hening, supra note 25, at 247. He also concluded his discussion of hue and cry arrest authority by noting that the “safest” way to use it was to procure a hue and cry warrant from a magistrate. Id. at 251. To the extent that the hue and cry persisted in framing-era America, it may have been used primarily to convey information about wanted felons to adjoining counties, thus avoiding the cumbersome procedure of “backing” warrants (i.e., having an arrest warrant issued in another county endorsed by a justice of the peace of the local county before it could be executed). Thus, the hue and cry may have been transformed into the nineteenth-century “wanted” poster.

199

See, e.g., Conductor Generalis, supra note 12, at 109, 117 (reprinting essay by Saunders Welch, former high constable of Middlesex, England) (noting “that the suspicion of one man cannot properly be transferred to another without the circumstance of an oath, which the constable has no power to administer”); 1 Robert Burn, The Justice of the Peace and Parish Officer 393 (15th ed. 1785) (noting that a constable “cannot take any man's oath... because he is not a judge of record”).


92


200

James Wilson, one of the Framers and an early law teacher, described the constable, in his law lectures of 1790-91, as the lowest officer of the “judicial department,” not of the executive branch. See 2 The Works of James Wilson, supra note 196, at 568-69; see also Hening, supra note 25, at 142 (“[T]he constable is the proper officer to a justice of the peace, and bound to execute his warrants.”).

201

Warrants were a specific form of the larger category of written judicial orders. For example, 2 Giles Jacob, The Law-Dictionary: Explaining the Rise, Progress, and Present State, of the English Law (T.E. Tomlins ed., London, Andrew Strahan 1797) [hereinafter Jacob's Law Dictionary] (pages unnumbered), defined “WARRANT” as “[a] precept under hand and seal of some Officer, to take up any offender, to be dealt with according to due course of Law.” One of the definitions the source gives for “PRECEPT” is “a command in writing, by a Justice of the Peace, or other officer, for bringing a person or records before him.” 2 id. “MANDATE” is similarly defined as “[a] commandment judicial of the King or his Justices to have any thing done for dispatch of justice.” 2 id. (These definitions remained unchanged in the first American edition of Jacob's Law Dictionary published in 1811. See Jacob's LawDictionary (T.E. Tomlins ed., 1st American ed., Philadelphia, P. Byrne 1811).) The use of the terms “process” or “writ” to refer broadly to written orders issued by a judicial officer was a looser usage, but was quite common in common-law writings. Hence, the appearance of any of these terms in common-law writings on search and arrest should be understood as a reference to warrant authority. See, e.g., An Act for apprehending and securing for Trial Persons charged with having committed Crimes in some States; and to authorize the Officers of Justice of the other States to continue the Execution of their Precepts within this State, when Necessary (Mass. 1782), reprinted in The First Laws of the Commonwealth of Massachusetts 131-32 (John D. Cushing ed., 1981) (“Precepts” in the title refers to provisions in the act dealing with “writs, warrants, or other process.”); the quotation from Bacon's Abridgment set out infra note 209 (referring to a “Warrant” as a “Writ”).

202

See, e.g., 2 Hale, supra note 75, at 86 (“[I]f the felony or other breach of the peace be done in [the justice's] absence, then he must issue his warrant in writing under his seal to apprehend the malefactor.”). The only exception to the requirement that a justice's command to a peace officer be in a written warrant was that a justice could orally (“parol”) command an officer to make an arrest if the justice was at the scene and witnessed the commission of the offense. See id; see also 2 Hawkins, supra note 76, at 83; Hening, supra note 25, at 21. Massachusetts and Connecticut both adopted statutory provisions requiring that any warrant be in writing. See the statutes regarding constables cited supra note 196. A constable who refused to execute a lawful warrant was subject to prosecution. See Conner v. Commonwealth 3 Binn. 38, 44 (Pa. 1810).

203

Lord Camden stressed the rigid requirement of positive legal authority to justify intrusions by officers--the mirror image of the complaint against discretionary authority--in the short report of Entick: In the case of Wilkes, a member of the Commons House, all his books and papers were seized and taken away; we were told by one of these messengers that he was obliged by his oath to sweep away all papers whatsoever; if this was law it would be found in our books, but no such law ever existed in this country; our law holds the property of every man so sacred, that no man can set his foot upon his neighbour's close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbor's ground, he must justify it by law. Entick v. Carrington, 2 Wils. 275, 291, 95 Eng. Rep. 807, 817 (C.P. 1765) (case report published in 1770, see supra note 25). Blackstone also stressed the requirement of positive legal justification “either by common law or act of parliament,” in his discussion of false imprisonment: Every confinement of the person is an imprisonment, whether it be in a common prison, or in a private house, or in the stocks, or even by forcibly detaining one in the public streets. Unlawful, or false, imprisonment consists in such confinement or detention without sufficient authority: which authority may arise either from some process from the courts of justice; or from some warrant from a legal officer having power to commit, under his hand and seal, and expressing the cause of such commitment; or from some other special cause warranted, for the necessity of the thing, either by common law, or act of parliament; such as the arresting of a felon by a private person without warrant, the impressing of mariners for the public service, or the apprehending of waggoners for misbehavior in the public highways. 3 Blackstone, supra note 27, at 127 (citations to Coke and to a statute omitted).

204

Use of force necessary to prevent an officer from making an unlawful arrest was not a crime unless the officer was killed or seriously injured. See, e.g., Commonwealth v. Kennard, 25 Mass. (8 Pick.) 133, 134, 135-36 (1829); Commonwealth v. Crotty, 92 Mass (10 Allen) 403 (1865) (reversing a conviction for assaulting and battering a deputy sheriff, described as a “ministerial officer,” who had attempted to arrest pursuant to an unparticularized illegal “John Doe” warrant because the officer was a “trespasser” who stood “on


93

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 the same footing” as a person doing the same act who was not an officer). Forcible resistance to constables was not uncommon. See Greenberg, supra note 194, at 158-62. However, some common-law authorities gave a more restrictive description of the right to resist an unlawful arrest. See, e.g., Hening, supra note 25, at 42-43 (stating that the target of an arrest might lawfully resist an attempted arrest by a private person because “an innocent person is not bound to take notice of a private persons suspicions,” but that a person should submit to an arrest by a “commonly known” officer or pursuant to a warrant). Killing a constable who attempted an unlawful arrest was an offense at common law, but it was manslaughter, not murder. See, e.g., 1 Legal Papers of John Adams, supra note 20, at 102 n.75 (quoting Law of Arrests 71-72, § 9, that it was “[n]ot Murder to slay an officer executing bad Warrant” (stating the holding of Rex v. Cook, Cro. Car. 537, 79 Eng. Rep. 1063 (K.B. 1640))). This was still the law at the end of the nineteenth century. See, e.g., Bad Elk v. United States, 177 U.S. 529, 534 (1900). The right to resist forcibly unlawful arrests has effectively been revoked by modern arrest statutes, which limit resistance to police officers making arrests to self-defense against excessive force. See generally Paul G. Chevigny, The Right to Resist an Unlawful Arrest, 78 Yale L.J. 1128 (1969).

205

Judicially defined official immunity has only recently been extended to ordinary law enforcement officers. During the framing era, there were some English statutes that provided various protections for magistrates and peace officers against trespass liability. See, for example, the statute protecting officers who executed a warrant that was at issue in the Wilkesite cases, 24 Geo. II, ch. 44, discussed supra note 111. Except for customs statutes, however, English statutes protecting officers did not apply in the American colonies. The American states began to adopt such statutes in the early nineteenth century. See Nelson, supra note 195, at 92-93 (describing statutes protecting officers that were enacted in the early nineteenth century).

206

Famous trespass cases such as the Wilkesite cases demonstrate that some trespass actions were based on unlawful searches or arrests, but they shed little light on the frequency of such cases in the civil trial courts. Likewise, the few early American reported appellate decisions, see supra note 115, do not provide a basis for assessing the incidence of trespass claims in the trial courts. A comment by Chief Justice Wilmot in an English case suggests that there may have been a fair number of such cases in the trial courts. See Bruce v. Rawlins, 3 Wils. 63, 95 Eng. Rep. 934 (K.B. 1770) (commenting that he could not conceive what customs officers meant by searching a house unlawfully because “this matter has been so often tried in Westminster Hall”). A caveat is in order on this point--there were numerous actions brought against sheriffs and their deputies for misfeasance or nonfeasance as well as malfeasance in the execution of writs in civil cases, often by the plaintiff creditors in civil actions, sometimes by debtors who were wrongfully arrested or whose goods were wrongfully seized. Indeed, the Chief Justice of Massachusetts remarked that such claims against officers “are among the most common actions in our courts.” Commonwealth v. Kennard, 25 Mass. (8 Pick.) 133, 135 (1829). Although the trespass actions relating to misconduct by officers in civil matters sometimes reflected similar issues and standards to those arising from criminal arrests or searches, the two sets of cases should be distinguished when one attempts to assess the frequency with which successful trespass actions were brought. For example, civil cases in which plaintiff-creditors complained that an officer allowed a debtor to escape are quite unlike cases alleging wrongful searches or arrests. In addition, it seems that the parties to civil actions would have been more likely to have sufficient funds to pursue such actions, and juries may have responded differently to trespass actions involving civil rather than criminal matters. Thus, it is likely that successful trespass actions against officers regarding civil matters would have been more frequent than such actions involving criminal matters. However, some commentaries regarding the frequency of trespass actions against officers have mixed the two categories of cases. See, e.g., 3 Cuddihy, supra note 20, at 1535-39.

207

Alexander Hamilton implied that criminal sanctions would keep officers in check when he asserted that trial by jury in criminal cases would provide security against abuses by federal revenue officers. See The Federalist No. 83 (1788) (Alexander Hamilton).

208

The term “ministerial” was commonly used to describe the character of the peace officer's authority. For example, Hawkins referred to “a Constable, or other such like ministerial Officer.” 2 Hawkins, supra note 76, at 82. Johnson's Dictionary, supra note 177, gave three potentially relevant definitions of “Ministerial,” including: “Attendant; acting at command”; “Acting under superior authority”; and “Pertaining to... persons in subordinate authority.” See also South v. State of Maryland, Use of Pottle, 59 U.S. (18 How.) 396, 402 (1855) (describing the “ministerial” aspects of the office of sheriff as a duty “to execute all processes issuing from the courts of justice”). Constables, sheriffs, and related officers were routinely described as “ministerial” officers well into the nineteenth century. See generally William L. Murfree Sr., A Treatise on the Law of Sheriffs and Other Ministerial Officers (1884).


94


209

See 4 Blackstone, supra note 27, at 288 (commenting that a constable was indemnified so long as he executed a warrant “ministerially”). However, the officer was not allowed any leeway for mistakes in the execution of a warrant; for example, if he arrested the wrong person under an arrest warrant, the arrest was unjustified. See, e.g. 5 Bacon, supra note 149, at 170 (“34.... if A. tell an Officer, who has a Warrant to arrest B. that his Name is B. and thereupon the Officer arrest A. this is a false Imprisonment; for that the Officer is at his Peril to take Care, that he do not arrest any other Person than him against whom the Writ issued.”).

210

The lawfulness of the use of force to make an arrest was also clearest when the arrest was by warrant. See, e.g., Hening, supra note 25, at 42.

211

See, e.g., Wakely v. Hart, 6 Binn. 315, 317-18 (Pa. 1814).

212

Discussions of evidence in common-law sources usually dealt with sworn testimony by witnesses and certain types of formal documents, but not with physical items. See, for example, the discussion of “Evidence” in 1 Jacob's Law Dictionary, supra note 201; Hening, supra note 25, at 175-88.

213

See, e.g., Conductor Generalis, supra note 12, at 109, 117 (reprinting essay by Saunders Welch, former high constable of Middlesex, England, advising constables that “a thorough search of the [arrested] felon is of the utmost consequence to your own safety, and... by this means he will be deprived of instruments of mischief, and evidence may probably be found on him sufficient to convict him”). However, the doctrine of search incident to arrest is not uniformly accorded importance in the framing-era materials; for example, there is no mention of that doctrine in Hening, supra note 25.

214

After reconstructing the post-framing expansion of the peace officer's warrantless arrest authority, as described in the text and notes that follow, I discovered that Professor Jerome Hall had previously described the expansion of the officer's warrantless arrest authority in English law in even more detail. See Jerome Hall, Legal and Social Aspects of Arrest Without a Warrant, 49 Harv. L. Rev. 566 (1936). Unfortunately, Hall's account has rarely been cited (never by the Supreme Court). One reason may be that its title does not convey that it is a historical account.

215

177 U.S. 529, 535-36 n.1 (1900). The five arrest standards are from the Compiled Laws of the Territory of Dakota (E.W. Caldwell & Charles H. Price eds., 1887). The first four justifications appear in § 7148; the fifth justification (the probable cause justification, which the South Dakota statute limited to arrests at night) was set out in § 7150.

216

Framing-era common law did not recognize any broad power of peace officers to detain short of arrest. See supra note 203. There were, however, three specific circumstances in which officers could temporarily detain persons. First, some common-law sources indicate that an officer could detain a person to prevent an incipient “affray” (for example, when he observed an argument becoming violent). See, e.g., 2 The Works of James Wilson, supra note 196, at 468 (discussing the authority of a “conservator of the peace”--a term sometimes used to describe peace officers generally). Second, an officer could detain a person who had inflicted a grave wound to determine whether the victim would live or die because, although homicide was a felony and thus subject to warrantless arrest, an attack short of homicide was usually only a misdemeanor, and thus limited to arrests on view. See infra note 220. Third, commonlaw sources recite that constables and nightwatchmen were empowered to detain any “nightwalkers” for examination by a justice of the peace the next morning--an authority that reflected the special fear of nighttime crime. See 4 Blackstone, supra note 27, at 289; see also The Laws and Liberties of Massachusetts, supra note 196, at 13 (Massachusetts statute regarding constables); The First Laws of the State of Connecticut, supra note 196, at 23-24 (Connecticut statute). It appears that there were so few legitimate reasons to be out and about at night that nightwalking was viewed almost as an offense in its own right. Except for these specific situations, however, the common-law sources did not recognize any broad authority for officers to detain “suspicious” persons; thus, there is no historical precedent for the general authority of police officers to detain persons based on “reasonable suspicion” as authorized by Terry v. Ohio, 392 U.S. 1, 30 (1968).

217

For example, the justifications for arrest by a private person in the South Dakota statutes match the first three justifications for arrests by an officer. (Compare the three subsections of § 7154 to the first three subsections of § 7148 quoted in Bad Elk, 177 U.S. at 536 n.1.)

218

2 Hawkins, supra note 76, at 80-81. This statement was unchanged as late as 1788. See 2 Leach's Hawkins, supra note 76, at 130. The 1814 Pennsylvania decision in Wakely discussed the warrantless arrest authority of the high constable of Philadelphia in terms of the justifications available to any person, not in terms of any distinctive authority derived from the constable's office. See Wakely


95

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 v. Hart, 6 Binn. 315, 318 (Pa. 1814); see also Hall, supra note 14, at 567-70 (discussing the equivalent warrantless arrest authority possessed by private persons and officers in late eighteenth-century common law). Acceptance of the equivalence between an officer's warrantless arrest authority and the warrantless arrest authority inherently possessed by any person probably explains why the First Congress did not confer any warrantless arrest authority on federal marshals in the 1789 Judiciary Act, see supra note 170; there was no need explicitly to confer that level of warrantless arrest authority on a marshal.

219

See, e.g., Hening, supra note 25, at 21 (“[A] constable hath no power to arrest a man for an affray done out of his own view, without a warrant from a justice, unless a felony were done or likely to be done.”).

220

For example, all attempt crimes were only misdemeanors at common law, as were assaults, batteries, woundings, and even kidnappings. See 4 Blackstone, supra note 27, at 216. The treatment of what we now call “aggravated assault” or “assault with a deadly weapon” as a misdemeanor at common law created a procedural difficulty when a person was found holding a knife over a stabbing victim who was not yet dead. Homicide was a felony and thus subject to a warrantless arrest; but if the victim did not die, there was only a misdemeanor, so an arrest had to be by warrant (unless the arresting person had actually observed the stabbing). The common-law sources permitted a sort of conditional warrantless arrest of the attacker until it became clear whether the victim would live or die. See, e.g., Mayo v. Wilson, 1 N.H. 53, 56 (1817) (“If one man dangerously wound another, any person may arrest him, that he be safely kept, till it be known whether the person shall die or not.”); 4 Blackstone, supra note 27, at 289.

221

See, e.g., Commonwealth v. Crotty, 92 Mass. (10 Allen) 403, 405 (1865).

222

Wilkes v. Halifax demonstrates the point. Wilkes's 1769 trespass verdict against Lord Halifax for issuing the general warrant under which Wilkes had been arrested in 1763 was obtained while Wilkes was in prison serving consecutive misdemeanor sentences for publication of a seditious libel and for publication of an obscene poem. The complex events that preceded the verdict in Wilkes v. Halifax were as follows. In late 1763, Wilkes won a verdict in Wilkes v. Wood, a trespass action against Halifax's subordinate who had directed the Messengers who arrested Wilkes, searched his house, and seized his papers under the general warrant. See supra notes 21-25. Wood was unusual because Wilkes managed to bring that trespass action to trial before there had been a trial on the misdemeanor charges he faced for seditious libel for publishing The North Briton, No. 45 (the publication named in the general warrant). Shortly after he won the trespass verdict against Wood, Wilkes went (or fled) to France. In 1764, during his absence, Wilkes was tried and convicted of publishing a seditious libel for The North Briton, No. 45, as well as of publishing an obscene poem. When he returned to England in 1768, his convictions were affirmed by the Court of King's Bench and the House of Lords, he was denied the seat in the House of Commons to which he was elected, and he began serving 10 months for publishing The North Briton, No. 45, and an additional 14 months for publishing the obscene poem. See Rex v. Wilkes, 4 Burr. 2527, 2574, 98 Eng. Rep. 327, 353-54 (K.B. 1770) (reporting proceedings in the criminal case in the Court of King's Bench from the filing of charges and trial in 1764, through the sentencing in 1768, to his release from custody in 1770); see also Wilkes v. The King, Wilm. 322, 340, 97 Eng. Rep. 123, 130 (H.L. 1768) (affirming the sentencing in 1768). A useful summary of the sequence of the civil and criminal proceedings involving Wilkes appears in Nobbe, supra note 21, at 225-65. There is no case report of Wilkes v. Halifax. However, a brief account of the judge's instructions to the jury in an “Addenda” to the Wilkesite cases, 19 Howell St. Tr. 1381, 1408-15 (some pages misnumbered) (reprinting a magazine account of the trial), indicates that the trial was little more than an exercise in assessing damages: the judge instructed the jury that “this proceeding [i.e., the arrest and search pursuant to the general warrant]... was certainly illegal; you must therefore find a verdict for [Wilkes].” Id. at 1415. Thus, Halifax confirms that even a convicted misdemeanant could bring a trespass action for an arrest not meeting the “on view” justification. (Both Wilkes's 1768 sentencing proceeding as well as his successful trespass suit against Halifax were covered by the American colonial press. See 3 Cuddihy, supra note 20, at 1632-33 (identifying 1770 colonial press reports about the trial and verdict in Halifax).) There is a puzzling statement in the case report of the 1763 trial in Wood that may seem inconsistent. During that trial, Chief Justice Pratt instructed the jury that “[i]f upon the whole, they should esteem Mr. Wilkes to be the author and publisher [of The North Briton, No. 45], [then Wood's] justification would be fully proved.” Wilkes v. Wood, Lofft 1, 18, 19 Howell St. Tr. 1153, 1166, 98 Eng. Rep. 489, 498 (C.P. 1763). Pratt's statement may appear to be an application of the “actual guilt” justification for an arrest, discussed infra note 223 and accompanying text. (Professor Stuntz has read it that way. See Stuntz, supra note 57, at 400 n.33.) The actual guilt justification did not apply to a misdemeanor arrest, however, and seditious libel was a misdemeanor. Moreover, the presentation of the legal arguments in Lofft's case report of Wood was grossly incomplete--the legal arguments made by the Solicitor General on


96

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 Wood's behalf are virtually omitted. All one learns is that Wood “maintained a plea of not guilty” (that is, he contested his role as a factual matter), and he “secondly, relied on the special justification.” Wood, Lofft at 8, 98 Eng. Rep. at 493. The reports of the other Wilkesite cases reveal that “the special justification” would have been the protection of “the statute of 24 G [eorge] 2, c. 44.” See, e.g., Leach v. Money, 3 Burr. 1742, 1742, 1745, 19 Howell St. Tr. 1001, 1003, 1006, 97 Eng. Rep. 1075, 1075, 1077 (K.B. 1765). That statute gave protection to an officer who acted “in obedience to” a warrant. 3 Burr. at 1767, 19 Howell St. Tr. at 1026, 97 Eng. Rep. at 1088. In Leach the King's Bench ruled that the Messengers could not raise the statute as a defense because the general warrant directed the arrest of the author, publisher, or printer of No. 45, but Leach did not fit any of those descriptions. See supra note 111. It seems likely that Wood also raised this statutory defense, and that Pratt's reference to whether “[Wood's] justification would be fully proved” meant that if the jury found that Wilkes was the author of No. 45, then Wood's conduct would be within the terms of the warrant and the “special justification” provided by 24 Geo. 2, c. 44. Interestingly, because none of the juries ever found the “special justification” applicable, the English courts never reached the question of whether conduct in obedience to an illegal general warrant fell within the statutory protection.

223

See, e.g., 2 Hawkins, supra note 76, at 77 (“And where a man arrests another, who is actually guilty of the Crime for which he was arrested, it seems, That he needs not in justifying it, set forth any special Cause of his Suspicion, but may say, in general, that the Party feloniously did such a Fact, for which he arrested him.”). The felony conviction would bar trespass liability for the arrest and would also justify any force used to accomplish the arrest. Likewise, a conviction meant that any forcible resistance by the arrestee, or by anyone attempting to rescue the arrestee, would be unlawful and constitute an offense.

224

The common-law actual guilt justification appears to have been a holdover of the religious epistemology of certain truth that prevailed during the Middle Ages; notions of “probable” truth and ex ante assessments of legality emerged later, but still had not been fully absorbed by the late eighteenth century. See generally Barbara J. Shapiro, Beyond Reasonable Doubt and Probable Cause: Historical Perspectives on the Anglo-American Law of Evidence (1991).

225

Cf. Amar, Fourth Amendment, supra note 58, at 767 (“[If the constable] merely played a hunch and proved right--if the suspect was a felon, or the goods were stolen or contraband--this ex post success apparently was a complete defense.”). Amar's statement is true as to felony arrests, but not as to searches for stolen goods or contraband. See infra notes 278-285.

226

Hawkins asserted that “sufficient causes of suspicion” could be based on “[t]he common Fame of the Country” provided such fame was based on probable ground, as well as on a variety of observations suggesting guilt. 2 Hawkins, supra note 76, at 76; see also Hening, supra note 25, at 35. Professor Alschuler has noted that this prong may trace back as far as Bracton's writing in the midthirteenth century. See Albert W. Alshuler, Bright Line Fever and the Fourth Amendment, 45 U. Pitt. L. Rev. 227, 253 (1984). Alschuler also noted that the prerevolutionary legal literature indicated that “so long as an offense had been committed, the common opinion of the public that a particular person had committed it would justify his arrest.” Id. at 254.

227

The framing-era sources make it clear that a warrantless felony arrest could not be justified unless there was proof of felony-in-fact. See, for example, James Wilson's statement in his law lectures of 1790-91: It is a general rule, that, at any time, and in any place, every private person is justified in arresting a traitor or a felon [this is the ex post guilt-in-fact justification]; and, if a treason or felony has been committed, he is justified in arresting even an innocent person, upon his reasonable suspicion that by such person it has been committed. 2 The Works of James Wilson, supra note 196, at 685 (emphasis added); see also Conductor Generalis, supra note 12, at 109, 116-17 (reprinting essay by Saunders Welch, a former English high constable in Middlesex, England) (advising constables that it is “absolutely necessary” to justify an arrest that a felony has been really committed; that a mistake on that point is “fatal”); 2 Hale, supra note 75, at 92 (stating that for justification of a felony arrest made “on suspicion,” “there must be a felony in fact and the constable must be ascertained of that, and aver it in his plea and it is issuable” (emphasis in original)); Hening, supra note 25, at 36 (“But generally, no... cause of suspicion... will justify an arrest, where in truth no such crime hath been committed; unless it be in the case of hue and cry.”). A crime “in fact” was still a requirement for an arrest in early nineteenth-century American law. See Wakely v. Hart, 6 Binn. 315, 318 (Pa. 1814) (“And even when there is only probable cause of suspicion, a private person may without warrant at his peril make an arrest. I say at his peril, for nothing short of proving the felony will justify the arrest.”); 2 Dane, supra note 151, at 224, ch. 217,


97

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 art. 2. (volume 2 published 1823) (“But ‘without a fact suspicion is no cause of arrest’; that is, there must be a felony or offence, in fact, committed, and suspicion is only to the person.”); see also Hall, supra note 14, at 567-70.

228

For example, assume that a modern police officer has discovered that a person is in possession of a white powder, and the officer has substantial reason from the context to think that the powder may well be heroin. Today, that would be enough for “probable cause” to arrest for possession of heroin, and that arrest would be valid, even if subsequent testing showed that the white powder was not a drug at all. However, under the framing-era “on suspicion” standard, the arrest would be unlawful because, if there were no heroin, there would be no felony-in-fact.

229

For example, Hawkins wrote: As to... [b]y whom the [arrested] Person must be suspected, upon such an Arrest for Suspicion; it seems to be agreed, That the Law hath so tender a Regard to the Liberty and Reputation of every Person, that no Causes of Suspicion whatsoever, let the Number and Probability of them be never so great, will justify the Arrest of an innocent Man, by one who is not himself induced by them to suspect him to be guilty.... 2 Hawkins, supra note 76, at 76, sec. 15. Hawkins then went on to state that the same rules applied to warrantless arrests by an officer. See id. at 80-81, sec. 7. Likewise, Hawkins wrote that the rule that “no one can justify an Arrest upon a Suspicion of Felony, unless he himself suspect the Party” applied except in the case of an officer executing an arrest warrant. Id. at 82, sec. 11; see also 5 Bacon, supra note 149, at 171 (“50. But if A. arrest B. without an express Warrant, because C. has just Cause to suspect that B. has committed a Felony, A. is guilty of a false Imprisonment; for the Power of arresting without an express Warrant is confined to the Party suspecting.”).

230

The risk an officer took if he made a felony arrest on the basis of information provided by another was illustrated by the initial trial verdict in the English case Samuel v. Payne, 1 Doug. 359, 360, 99 Eng. Rep. 230, 231 (K.B. 1780). See also Conductor Generalis, supra note 12, at 109, 116-17 (reprinting essay by Saunders Welch, a former English high constable in Middlesex, England) (advising constables that if they arrest on the report of a felony by another person, based on the other person's own knowledge, they should require the other person to attend the arrest; and that “in all cases of [arrest on] suspicion, not from your own knowledge [that is, not ‘on view’], the safest way is to refer the parties to a justice of the peace, and act on his warrant”). There were two exceptions. A constable did not incur risk simply by receiving custody of a person already arrested by someone else; a private person who made an arrest was supposed to turn the arrestee over to a constable for presentation to a justice of the peace. In that instance, the constable did not arrest but simply provided safekeeping following the arrest made by the other person. The other exception was that the constable could-- like anyone else--arrest without personal liability under the hue and cry. See supra note 198.

231

1 Doug. 359, 99 Eng. Rep. 230 (K.B. 1780).

232

See Samuel, 1 Doug. at 359-60, 99 Eng. Rep. at 230-31.

233

1 Doug. at 359-60, 99 Eng. Rep. at 230-31. Five years later, Mansfield summed up the post- Samuel law of warrantless felony arrest as follows: “When a felony has been committed, any person may arrest on reasonable suspicion. When no felony has been committed, an officer may arrest on a charge.” Cooper v. Boot, 4 Douglas 339, 342, 99 Eng. Rep. 911, 913 (K.B. 1785). Note, however, that this statement was not available to the Framers. See supra note 19.

234

Despite its novelty, Samuel preserved trespass accountability by confining the justification to the officer, while still holding the person who made the unproven charge of felony (or any other private person who assisted) accountable for damages for false arrest. See 1 Doug. at 360, 99 Eng. Rep. at 231 (“He that makes the charge should alone be answerable.”). On retrial, constable Payne was found not liable, but Hall, the accuser, was again found liable for trespass. See 1 Doug. at 360 n.8, 99 Eng. Rep. at 231 n.8.

235

As Professor Hall previously observed: “We are able to trace definitely in the cases the origin of the rule which augmented [the officer's warrantless arrest authority]. Samuel v. Payne is the pivot upon which the legal cycle turns.” Hall, supra note 14, at 570 (citation omitted).

236

See 1 Legal Bibliography, supra note 19, at 299, entry 44 (1 Douglas published 1782).


98


237

The descriptions of Samuel that were available by 1789 explicitly portrayed the King's Bench ruling as novel. The initial report of Samuel in Douglas's Reports described it as “the first determination of the point.” 1 Doug. at 360 n.7, 99 Eng. Rep. at 231 n.7. A note on Samuel in Leach's 1787 edition of Hawkins's widely used treatise also made it clear that the ruling was novel. See Leach's Hawkins, supra note 76, 120 n.(a) (describing Samuel as “the first determination of the point” that a constable could arrest “on charge” even in the absence of an actual felony). Likewise, descriptions of Samuel in justice of the peace manuals also demonstrated its novelty. For example, a discussion in a 1785 edition of Burn's manual described both the initial imposition of liability on the constable at the trial presided over by Mansfield and the new rule adopted by the Court of King's Bench. See 1 Burn, supra note 199, at 102-03 (noting the different rules applied by Mansfield at trial and by the King's Bench on motion for new trial). Descriptions of Samuel during the 1790s still noted the novelty of the ruling. The difference between the trial and appellate rulings was still recognized in a 1793 edition of Burn. See Robert Burn, The Justice of the Peace and Parish Officer *403 (London, 1793) (title page reciting published in London in 1793 and sold in shops in America). For a virtually identical description of the two proceedings in Samuel, see also Hening, supra note 25, at 36-37.

238

Wakely still analyzed the arrest authority of a high constable of Philadelphia in terms of the inherent arrest authority possessed by any person rather than in terms of ex officio arrest authority, see supra note 218; it also still emphasized the traditional requirement of felony-in-fact for a warrantless arrest, see supra note 227.

239

3 Wend. 350, 353 (N.Y. 1829) (citing Samuel). The slowness of the American adoption of Samuel is also evident in the fact that Nathaniel Dane still described it as an innovative case in 1824: “[i]f this case be law, it settles the long agitated point, and proves a peace officer may arrest on reasonable suspicion of felony without warrant, though no felony has been committed.” 3 Dane, supra note 151, at 72, ch. 75, art. 6, § 4 (volume published 1824).

240

See, for example, the inclusion of the “on charge” justification in the 1887 South Dakota arrest statute quoted supra text accompanying note 215.

241

6 B. & C. 635, 638-39, 108 Eng. Rep. 585, 586 (1827). Philby, a high constable, had been told that Beckwith was acting suspiciously and suspected, from various circumstances, that Beckwith had stolen a horse. Philby arrested Beckwith on that basis. However, no horse had been stolen. Beckwith sued for trespass, but Lord Tenterden, C.J., ruled that an officer could arrest upon reasonable ground to suspect a felony. A similar ruling was announced in Davis v. Russell, 5 Bing. 354, 130 Eng. Rep. 1098 (C.C. 1829). The timing of the Beckwith decision is notable because it came just two years prior to the creation of the London Metropolitan Police in 1829. The expansion of a peace officer's discretionary arrest authority in Beckwith may well have been a crucial step in making a police force feasible.

242

Samuel destabilized the law regarding warrantless arrests by officers, and a number of English decisions issued after Samuel contained language that anticipated the even broader reasonable (or probable) ground to suspect commission of a felony standard announced in Beckwith. See Hall, supra note 14, at 571-75. Nevertheless, Beckwith appears to be the first case that actually upheld the lawfulness of an officer's warrantless arrest in circumstances in which no felony had been committed. See id. at 575 (assessing that Beckwith was the first case “closely representing the ultimate doctrine” that an officer can arrest on reasonable (that is, probable) grounds to suspect a felony has been committed).

243

8 Watts & Serg. 308, 309 (Pa. 1844). Defendants Russell and Downer (apparently constables, though the report does not say so explicitly) had arrested Shuster, on the ground that Shuster's trunk, which he permitted to be examined, contained burglar's tools and thus showed that he “was addicted to burglary.” Id. at 308. When no charges were brought, Shuster sued for trespass. At trial, the defendants were not permitted to admit evidence regarding Shuster's trunk, and the verdict was for Shuster. The Supreme Court reversed and ruled that the evidence regarding the trunk should have been permitted because the issue was “probable cause.” Id. at 310. Chief Justice Gibson recited that “[a] constable may justify an arrest for reasonable cause of suspicion alone; and in this respect he stands on more favourable ground than a private person, who must show, in addition to such cause, that a felony was actually committed.” Id. at 309. Gibson cited no authorities. However, counsel for the defendant officers cited Wakely (“6 Binn. 316”), Samuel (“Dougl. 359”), and Beckwith (“6 Barn. & Cres. 635”). Id. Nothing in the opinion acknowledges the departure from the explicit requirement of felony-in-fact in the Pennsylvania court's earlier ruling in Wakely (discussed supra note 227).


99


244

59 Mass. (5 Cush.) 281, 284 (1850) (reciting that “[p]eace-officers may arrest suspected felons,” citing Samuel and Beckwith, and incorrectly asserting that the 1814 Pennsylvania ruling in Wakely “is to the same effect”). The facts in Rohan are described supra note 185.

245

In some instances state legislatures endorsed the reasonable cause standard for warrantless felony arrests by officers. In other cases, state courts read that standard into statutes that did not include it. See, e.g., State v. Hum Quock, 300 P. 220, 221 (Mont. 1931) (upholding an arrest by a prosecutor's special investigator as being justified by probable cause, even though the state arrest statute provided equal authority to officers and private persons and still required observation of the offense, actual guilt of a felony, or reasonable cause “when a felony has in fact been committed”).

246

For example, a North Carolina judge dissented from an 1856 decision adopting Samuel and Beckwith because those cases “go very far in the justification of officers, who apprehend suspected persons without warrants... farther than is compatible with that personal liberty, of which English jurists are so fond of boasting.” Brockway v. Crawford, 48 N.C. (3 Jones) 433, 439-40 (1856) (Battle, J., dissenting). The less-than-uniform adoption of the probable cause standard is also evident in legislative arrest standards. The 1887 South Dakota statute discussed in Bad Elk allowed the probable cause justification to be used only for arrests made at night. See supra note 215. Indeed, Congress still employed the felony-in-fact standard, not the probable cause of felony standard, when it initially addressed the warrantless arrest authority of federal marshals in 1935. See supra note 172. Likewise, a New York decision rejected probable cause of felony as a justification for a warrantless arrest by an officer as late as 1939. See Morgan v. New York Cent. R. Co., 9 N.Y.S. 2d 339, 341 (N.Y. App. Div. 1939) (interpreting state statute to permit felony arrest by officer without warrant only when a felony has in fact been committed). The Tennessee arrest statute has never been amended to recognize the probable cause standard; it ends with the “on charge” justification. See Tenn. Code Ann. § 40-7-103 (1997) (grounds for arrest by officer without warrant).

247

The notion that probable cause was uniformly accepted as the American standard for warrantless felony arrests may stem from Chief Justice Taft's assertion to that effect in his 1925 opinion in Carroll. See Carroll v. United States, 267 U.S. 132, 156 (1925) (“The usual rule is that a police officer may arrest without warrant one believed by the officer upon reasonable cause to have been guilty of a felony....”). Taft also cited Rohan as reflecting “the common law.” Id. at 157.

248

A large proportion of “felony arrests” made today are disposed of without any felony complaint being filed. See, e.g., Davies, supra note 133, at 643 n.172.

249

Because the federal marshal statute in effect during the nineteenth century linked the authority of federal officers to that of a state sheriff in the state in which the federal marshal served, these changes in state law were probably understood to automatically expand the arrest authority of many federal officers without any federal legislation or federal court decisions. See supra note 171.

250

Reported decisions regarding the allowable scope of searches incident to arrest first became evident in court records during the late nineteenth century. Taylor reported that he found only three cases raising issues as to the lawfulness of searches incident to arrest “prior to 1920” and cited state cases from 1866, 1887, and 1897. See Taylor, supra note 49, at 188 n.77. Taylor interpreted that fact to mean that courts were beginning to question the authority for warrantless searches made incident to arrest at that time. See id. at 45. It seems more likely that the issue appeared in reported cases at that time because officers were increasingly testing the limits of their expanded authority to make warrantless arrests and warrantless searches incident to them.

251

The common-law right to resist an unlawful arrest or search was fairly robust (though not without ambiguity) at the time of the framing. See supra note 204. However, that right was undercut when the officer was given greater leeway for error; a person who was the target of an attempted arrest could usually apprise whether he was guilty of a crime, but he could not readily assess whether the officer had information that made it reasonable to suspect he might be guilty of a crime. Thus, the shift to probable cause made it riskier to resist arrest. Moreover, the appearance of police departments, the presence of multiple officers, and eventually of armed officers also made resistance less feasible. It is difficult to pinpoint exactly when the right to resist unlawful arrest collapsed--but it clearly did.

252

The virtual erasure of memory of the historical “felony in fact” requirement and the substitution of a mythical long-standing or even “ancient” probable cause standard presents a case study in how legal institutions reconstruct historical doctrine to legitimate current rulings. Although the King's Bench ruling in Samuel clearly changed the trial court ruling, the judges who later decided Beckwith


100

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 simply cited Samuel without noting that it was novel in itself and without noting that their announcement of the probable cause of felony standard actually went well beyond the innovation made in Samuel. Nineteenth-century English commentaries subsequently reinforced the false notion that the new probable cause standard was long-standing. See, e.g., 1 James Fitzjames Stephen, History of the Criminal Law of England 193 (1883) (attributing the reasonable cause standard to Hale, but not giving any page citation for that claim). But see Hall, supra note 14, at 567 (criticizing Stephen). The false notion of a historical probable cause standard was implanted in American law by the judicial opinions that imported the Samuel and Beckwith innovations. Neither Holly, Russell, nor Rohan acknowledged that they were adopting a change from earlier American law. Thereafter, these cases--which departed from the framing-era standards--were cited as if they articulated historical common-law standards. This presentation was facilitated by the dual meanings of “common law”--sometimes referring to the content of the law inherited from England in 1776, but sometimes referring simply to judge-made law. In the 1900 Bad Elk decision, Justice Peckham described the 1887 South Dakota statute that included the “on charge” and “probable cause” justifications as a codification of “common law.” Bad Elk v. United States, 177 U.S. 529, 535-36 (1900). A widely cited 1924 article, Horace L. Wilgus, Arrest Without A Warrant, 22 Mich. L. Rev. 541 (1924), further reinforced the notion that the common law of arrest had not changed greatly; Wilgus commingled sources ranging from Coke and Hale to early twentiethcentury American decisions and presented the whole as though there was an analytically coherent treatment of “common law” arrest authority. (Wilgus did not omit the cases that made important historical changes, but he did not say they changed the law; for example, he wrote as though Beckwith “settled” an uncertainty--a treatment that did not adequately recognize the earlier stability of the felonyin-fact requirement. See, e.g., id. at 689.) In the 1925 Carroll decision, Chief Justice Taft (who could have read Wilgus) cited Rohan for a seemingly historical assertion (in the context of discussing the original meaning of the Fourth Amendment) that “at common law” a warrantless arrest could be made “on a reliable report of a felony,” 267 U.S. at 157, 161, and also asserted that “[t]he usual rule is that a police officer may arrest without warrant one believed by the officer upon reasonable cause to have been guilty of a felony”--but did not mention the felony-in-fact requirement, id. at 156. Recent decisions have reinforced the myth of a long-standing probable cause standard. In Gerstein v. Pugh, 420 U.S. 103, 111 (1975), Justice Powell blurred together historical and modern citations and erroneously implied that the “probable cause” standard for warrantless arrests was in keeping with “the common-law antecedents” of the Fourth Amendment. A year later, Justice White asserted in Watson v. United States, 423 U.S. 411, 418 (1976)--the leading contemporary decision regarding warrantless arrest authority-that the “ancient common law rule” permitted an officer to make a warrantless arrest “if there was reasonable ground for making the arrest.” As authority for that claim, he cited Hale and Blackstone (statements which, if examined, clearly stated the felony-infact requirement) and then Samuel, Beckwith, and Rohan--as though the sources endorsed a consistent standard. See id. at 418-19. White concluded that “[t]he balance struck by the common law in generally authorizing felony arrests on probable cause, but without a warrant, has survived substantially intact.” Id. at 421. Decisions since Watson have reiterated the claim that probable cause was the framing-era standard for warrantless arrests. See, e.g., Payton v. New York, 445 U.S. 573, 607, 609 (1980) (White, J., dissenting) (citing Samuel and Rohan as reflecting the standard for warrantless arrests in framing-era common law); California v. Acevedo, 500 U.S. 565, 584 (1991) (Scalia, J., concurring) (citing Watson and Rohan in stating “[u] nder our precedents (as at common law), a person may be arrested... on the basis of probable cause, without an arrest warrant”). Likewise, modern commentary has almost uniformly succumbed to the myth of a historical probable cause arrest standard. Lasson did not discuss the historical standard for warrantless arrests; however, Landynski asserted that at common law “[a] felon could be apprehended on probable cause alone,” but gave no authority for that statement. Landynski, supra note 38, at 45; see also Amar, Boston, supra note 19, at 61, 70 (describing Samuel and Beckwith as though they reflect framing-era common law and the Framers' expectations); Jack K. Weber, The Birth of Probable Cause, 11 Anglo-Am. L. Rev. 155, (1982) (treating the probable cause of suspicion prong of the “on suspicion” standard as though it were the same as the modern probable cause standard, without addressing the historical felony-in-fact requirement).

253

Johnson v. United States, 333 U.S. 10, 13-14 (1948).

254

The classic description of the occupational subculture of modern policing is Jerome H. Skolnick, Justice Without Trial: Law Enforcement in a Democratic Society (1966). The historical development of the police department is well documented. See, e.g., David R. Johnson, Policing the Urban Underworld: The Impact of Crime on the Development of the American Police, 1800-1887 (1979); Lane, supra note 192; Wilbur R. Miller, Cops and Boobies: Police Authority in New York and London, 1830-1870 (1973); Eric Monkkonen, Police in Urban America, 1860-1920


101

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 (1981); James F. Richardson, The New York Police: Colonial Times to 1901 (1970); Allen Steinberg, The Transformation of Criminal Justice, Philadelphia, 1800-1880 (1989); see also Steiker, Second Thoughts, supra note 63, at 832-39.

255

See, e.g., Friedman, supra note 194, at 68. The common-law sources sometimes provided forms for indictments for refusing to serve as constable. See, e.g., 1 Burn, supra note 199, at 391-92, 397-98.

256

2 The Works of James Wilson, supra note 196, at 684; see also 1 Burn, supra note 199, at 390 (stating that constables are chosen by justices of the peace because their office consists largely of executing the justices' precepts); 5 Bacon, supra note 149, at 171, §§ 46-49 (“It is in the general true, that an Arrest for a criminal Cause, without an express Warrant, is a false Imprisonment.... And wherever an express Warrant is necessary to authorise an Arrest for a criminal Cause, an Arrest without an express Warrant can never be justified under one granted after the Arrest.... But in some Cases an Arrest may be made for a criminal Cause without an express Warrant. If a Felony have been committed, and A. have just Cause to suspect it was committed by B. A. may arrest B. without an express Warrant.”). Modern historians have also emphasized the importance of warrant authority. See, e.g., Chapin, supra note 196, at 31, 96-97 (“The larger part of [the constables'] duty consisted of executing the orders of the justices of the peace.”); Goebel & Naughton, supra note 57, at 337-38 (warrants usually used for arrest in colonial New York); Nelson, supra note 195, at 17 (stating, somewhat overbroadly, “[a] fundamental rule was that an arrest, a search, or a seizure of goods following a search was an actionable wrong unless made pursuant to a lawful warrant”); Arthur P. Scott, Criminal Law in Colonial Virginia 52-53 (1930) (stating that warrants were usually used for arrest in colonial Virginia). There is also indirect evidence of the expectation that arrest warrants were the usual basis for arrest; when arrest powers were discussed during the ratification debates of 1787-88 it was in the context of arrest warrants. See, for example, the remarks of Holmes in the Massachusetts convention, quoted infra note 302, and the remarks of Patrick Henry in the Virginia convention discussed supra note 162. It is also significant that the First Congress did not create any ex officio arrest authority when it created the office of federal marshal shortly after adopting the Fourth Amendment. See supra note 170.

257

Unfortunately, historical records cannot be used to quantify how often warrants were used during the framing era because executed warrants were not filed, but retained by the constables who executed them. See Hening, supra note 25, at 44. Thus, issued warrants have not been preserved even in surviving court records. Contemporary empirical researchers still report severe difficulties working with records of search warrants, because they are usually not filed with case files. See Richard Van Duizend et al., The Warrant Process 2, 8 (1985).

258

The most quoted passage to this effect is in United States v. United States Dist. Court, 407 U.S. 297, 316 (1972) (“[P]hysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed....”).

259

The most famous statement of this doctrine is a 1763 speech by William Pitt. See Lasson, supra note 16, at 49-50. However, the doctrine was recognized a century and half earlier by Coke in Semayne's Case, 5 Coke Rep. 91a, 91b, 77 Eng. Rep. 194, 195 (K.B. 1604) (“[T]he house of every one is to him as his castle....”), and traces back at least to the early sixteenth century. See Levy, Original Meaning, supra note 45, at 222, 441 n.2; 1 Cuddihy, supra note 20, at xciv-xcvii. The importance attached to the house is evident in numerous ways. For example, being a “freeholder”--that is, owning a house--was the general standard for membership in the English political community. Similarly, the Third Amendment to the Federal Constitution, which was based directly on a provision in the English Bill of Rights, and reflects a pre-revolutionary grievance as well, forbade quartering soldiers in “a house.” U.S. Const. amend. III. The common-law felony of burglary also demonstrated the unique status of the house. As a general rule, attempt offenses (conduct committed “with intent” to inflict a harm) were only misdemeanors at common law; however, breaking into a house at night with intent to commit a felony was a felony. See 4 Blackstone, supra note 27, at 223-26 (stating the castle doctrine and noting that outbuildings within the curtilage are within the meaning of a house but not a “distant barn, warehouse, or the like”). However, there was a limitation: a householder could not give sanctuary to a person who was not a resident of the household and was pursued by officers who had grounds to arrest him. See, e.g., Hening, supra note 25, at 41.

260

Adams described the status of the house: An Englishmans dwelling House is his Castle. The Law has erected a Fortification round it--and as every Man is Party to the Law, i.e. the Law is a Covenant of every Member of society with every other Member, therefore every Member of Society has entered


102

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 into a solemn Covenant with every other that he shall enjoy in his own dwelling House as compleat a security, safety and Peace and Tranquility as if it was surrounded with Walls of Brass, with Ramparts and Palisadoes and defended with a Garrison and Artillery.... Every English[man] values himself exceedingly, he takes a Pride and he glories justly in that strong Protection, that sweet Security, that delightfull Tranquillity which the Laws have thus secured to him in his own House, especially in the Night. Now to deprive a Man of this Protection, this quiet and Security in the dead of Night, when himself and Family confiding in it are asleep, is treat[ing] him not like an Englishman not like a Freeman but like a Slave.... 1 Legal Papers of John Adams, supra note 20, at 137 (quoting Adams's notes of his argument in the 1774 case King v. Stewart).

261

See 4 Blackstone, supra note 27, at 226 (discussing burglary, Blackstone wrote that “lifting up the latch” of an outer door would constitute “breaking” a house).

262

2 Legal Papers of John Adams, supra note 20, at 125-26. (Note that, because “Prossess” was a generic term for writs and warrants, the statement that “an officer may break [a house] upon Prossesses” reflects an understanding that a valid warrant was usually needed to justify breaking a house.) Otis also referred to the need to “get a special [i.e., specific] Warrant... to infringe the Priviledge of House,” complained that the general writ was a “Commission to break Houses,” and specifically noted an instance in which “Justice Walley searched House” under a writ. 2 id. at 126-29; see also 2 id. at 142-43 (discussing the portion of Adams's abstract of Otis's argument dealing with “the freedom of one's house,” described as “one of the most essential branches of English liberty”).

263

Semayne's Case, 5 Coke Rep. at 91b, 77 Eng. Rep. at 195 (stating that, although a homicide committed in self-defense or by accident was still a felony, a killing in defense of one's house was not).

264

See 4 Coke, supra note 74, at 176-77. Coke had earlier made a statement that “the K[ing]'s officer” could break into a house to arrest for felony or suspicion of felony in his ruling in Semayne's Case, 5 Coke Rep. at 92a-92b, 77 Eng. Rep. at 196-97 (K.B. 1604). This is sometimes read as though Coke meant that an officer had broad authority to break into a house to make a felony arrest. See, e.g., Levy, Original Meaning, supra note 45, at 223. However, the only justification for a warrantless breaking recognized in that case report is for an arrest made upon “hue and cry” where the criminal “retreats into the house” and is “pursue[d].” Semayne's Case, 5 Coke Rep. at 91b-92a, 77 Eng. Rep. at 196. The seemingly broad statement regarding the authority of the King's officer actually referred to the execution of a “writ”--that is, a warrant: [Y]et forasmuch as the K[ing] is a party, the writ of itself is non omittas propt' aliquam libertat'.... for felony or suspicion of felony, the K[ing]'s officer may break the house to apprend the felon, and that for two reasons: 1. For the commonwealth, for it is for the commonwealth to apprehend felons. 2. In every felony the King has interest, and where the King has interest the writ is non omittas propter aliquam libertatem; and so the liberty or privilege of the house doth not hold against the King. 5 Coke Rep. at 92 a, 77 Eng. Rep. at 196-97 (emphasis added). (“[N]on omittas propter aliquam libertatem” directed the officer not to omit to execute the writ because of any “liberty”--that is, any special district or jurisdiction. See Black's Law Dictionary 917, 1056, 1220 (6th ed. 1990).) Thus, the only justification for a warrantless breaking of a house Coke recognized was on fresh pursuit under the hue and cry. The crucial distinction drawn in Semayne's Case was that a house could never be forcibly entered, even on the basis of a writ or other process, in a civil matter to which the King was not a party, but could be forcibly entered to execute judicial process (writs or warrants) in a matter in which the King was a party. See, e.g., Hening, supra note 25, at 41.

265

Hale twice discussed breaking doors to arrest. In his first volume, he discussed breaking doors to execute an arrest warrant at 1 Hale, supra note 75, at 582-83; he discussed breaking doors for warrantless arrests at 1 id. at 588-89. Note that his statements regarding breaking to make a warrantless arrest are usually qualified by something like “and the offender is in the house.” Hale also discussed arrest authority in his second volume where he stated that a private person could not justify breaking a house to arrest on suspicion, but only to arrest on actual guilt, see 2 id. at 82; that an officer could justify breaking a house for a warrantless arrest on suspicion “if the supposed offender fly and take house,” 2 id. at 92; that a constable can break into a house to suppress an affray “whereby there is likely to be manslaughter or bloodshed committed” or to suppress disorder, 2 id. at 95; that an arrest by hue and cry will justify the breaking of doors only if the person sought is present, 2 id. at 103; and that an arrest warrant will justify the breaking of doors, 2 id. at 116-17.

266

1 id. at 589.

267

2 Hawkins, supra note 76, at 86-87; see also 2 Leach's Hawkins, supra note 76, at 138-39.


103


268

See 2 Leach's Hawkins, supra note 76, at 139, § 8 (stating one limitation as “[w]here an affray is made in a house in the view or hearing of a constable”).

269

Hawkins recognized two situations in which a warrantless breaking of a house was permitted in a pursuit. “Sect. 8. [The breaking of doors of a house may be justified w]here those who have made an Affray in [the arresting person's] Presence fly to a House, and are immediately pursued by him, and he is not suffered to enter... to apprehend the Affrayers....” 2 Hawkins, supra note 76, at 87; see also 2 Leach's Hawkins, supra note 76, at 139. Sect. 7.[The breaking of doors of a house may be justified w]here one known to have committed a Treason or Felony, or to have given another a dangerous Wound, is pursued either with or without a Warrant, by a Constable or private Person: But where one lies under a probable Suspicion only, and is not indicted, it seems the better Opinion at this Day, That no one can justify the breaking open Doors in Order to apprehend him.... 2 Hawkins, supra note 76, at 86-87; 2 Leach's Hawkins, supra note 76, at 139. Hawkins's reference to a “known” felon is to one actually guilty, rather than only suspected of being guilty. Note that Hawkins's view that even an officer could not break into a house to arrest on suspicion without a warrant was contrary to Hale's earlier view. See supra note 265. This difference was noted in a number of framing-era sources. See, e.g., 1 Burn, supra note 199, at 106-07.

270

See John Adams, Minutes of the Referee's Hearing, reprinted in 1 Legal Papers of John Adams, supra note 20, at 87, 99 n.59 (quoting 1 Joseph Shaw, The Practical Justice of Peace 85 (6th ed. 1756)) (“‘[A] Justice of Peace his Warrant will not justify a Constable in breaking into a House to apprehend any Person for a less Crime than Felony or Misprision of Felony.” ’).

271

The common-law search warrant for stolen goods seems to have been created as a response to the special protection of the house recognized in Semayne's Case, 5 Coke Rep. 91a, 77 Eng. Rep. 194 (K.B. 1604), see discussion supra note 264, which held that a house could not be broken to serve a civil writ unless the King was a party to the suit. The search warrant for stolen goods provided a means for recovering property while avoiding that limit because the allegation that goods had been stolen gave the King an interest in the proceeding. Lord Camden described search warrants for stolen goods as having “crept into the law by imperceptible practice” in the longer report of Entick v. Carrington, 11 St. Tr. 313, 321 (Francis Hargrave's 4th ed.), 19 Howell St. Tr. 1029, 1067 (C.P 1765) (first published 1781, see supra note 25). This passage was paraphrased in 2 Leach's Hawkins, supra note 76, at 135 n.6 (1788 edition).

272

The strong protection afforded the house is evident in the fact that Hale was apparently uncertain whether a search warrant for stolen goods could justify breaking the door of a house, or merely allowed entry through an already open door. In Hale's first discussion, he wrote that “[t]here can be no breaking open of doors to make the search, but [the searchers] must enter per ostia aperta [by an open outer door] or upon voluntary opening of the door by the house-keeper or his servants,” 2 Hale, supra note 75, at 114, and also that “[u]pon a warrant to search for stolen goods the doors cannot be broken open,” id. at 116. In his second discussion of the execution of a warrant to search for stolen goods, however, Hale states that [i]f the door be shut, and upon demand it be refused to be opened by them within, if the stolen goods be in the house, the officer may break open the door, and neither the officer nor the [complainant] are punishable for it, but may justify it upon the general issue... so that in eventu it is justifiable by both.... Id. at 151 (emphasis added). Note that the breaking of the door pursuant to a legal search warrant was justifiable only if the stolen goods were actually found in the house--otherwise it was a trespass. See also the discussion of the liability of the complainant for an unsuccessful search pursuant to a warrant infra notes 293-294.

273

As noted above, common-law sources tended to define lawful authority positively and to catalog the forms of authority that existed; as a general matter, the absence of an affirmative statement of authority was understood to mean there was no authority. See, for example, Lord Camden's statement in Entick v. Carrington, 2 Wils. 275, 291, 95 Eng. Rep. 807, 817 (C.P. 1765) (“[I]f this is law, it would be found in our books....”). For the full quotation, see supra note 203. Professor Amar has implied that warrantless searches of houses were permitted because scholars have yet to identify framing-era statements that warrants were required for all searches. See, e.g., Amar, Fourth Amendment, supra note 58, at 763. That argument is a strawman. Not all interests were as protected as houses; thus, specific warrants were not needed to justify ship searches. See supra notes 149-159 and accompanying text. Moreover, Amar posed the question backwards--a framing-era lawyer would have assumed there was no justification for a search of a house unless such authority was positively recognized. The important fact is the absence of statements approving of warrantless house searches. See also supra notes 93, 203; infra note 543.


104


274

Parliament conferred customs revenues on Charles II at the Restoration in 1660; shortly thereafter, Parliament created a customs search warrant. See An Act to Prevent Frauds, 12 Car. 2, ch. 19 (1660) (Eng.). That legislation was prompted by a situation in which a merchant had barred the door to his house to block officers attempting to search for uncustomed goods; the officers did not make the search because they dared not break into the house on their own ex officio authority. See Frese, Article, supra note 18, at 321-22. Smith described the same incident but failed to mention the important fact that the door barred was to the merchant's house. See Smith, supra note 20, at 41. In 1662, when customs collections were “farmed” to commissioned collectors, the customs search warrant was replaced by the writ of assistance. See infra note 306.

275

Sanford v. Nichols, 13 Mass. (1 Tyng) 286, 289 (1816). The statement was made in the context of a ruling recognizing the trespass liability of revenue officers who searched a house without a valid warrant.

276

Taylor offered only three pieces of historical evidence on that point, and none of them lends any support to his claim. He first quoted a description of the early law of arrests as “rude.” Taylor, supra note 49, at 28 (quoting 1 Sir Frederick Pollock & Frederic William Maitland, The History of English Law Before the Time of Edward I 582-83 (2d ed. 1903)). That, however, was a description of the English law of arrest circa the thirteenth century. See 1 Pollock & Maitland, supra, at 579. Second, Taylor cited a single mid-seventeenth-century pamphlet on the constable for the proposition that a constable could make a warrantless search of a house incident to making an arrest there. Taylor, supra note 49, at 28-29 (quoting William Sheppard, The Offices of the Constables, ChurchWardens, Overseers of the Poor, Supravisors of the High-Wayes, Treasurers of the County Stock; and Some Other Lesser Country Officers, Plainly and Lively Set Forth ch. 8, § 2, no. 4 (London, c. 1650)). The pamphlet was of dubious authority, however; at a number of points it appears to be more an assertion of what the law should be than a description of what the courts had declared the law was. Moreover, it predated the full development of the liberty of the house that attended the Restoration of 1660 and the Glorious Revolution of 1688. Taylor's third citation was a “see also” cite to a 1754 work, but it does not contain any statement on the subject. See Taylor, supra note 49, at 183 n.27 (citing Saunders Welch, Observations on the Office of Constable 12, 14 (1754)). On the basis of that scanty, parachronistic evidence, Taylor asserted that searches of houses incident to arrest “had the full approval of bench and bar, in the time of George III....” Taylor, supra note 49, at 29. Notwithstanding Taylor's minimal documentation, a number of commentators have uncritically accepted his assertion on this point. See, e.g., Amar, Fourth Amendment, supra note 58, at 764; Stuntz, supra note 57, at 401 n.35.

277

Cuddihy has summarized the common-law literature on this point: “[t]he legal authors of 1761-1776 agreed that houses could be broken into to consummate the arrest process,” but “they did not also say that houses could be searched during that process.” 2 Cuddihy, supra note 20, at 1183. Cuddihy also reports a memorandum Charles Pratt (the judge in the Wilkesite cases) sent to William Pitt in 1763, just prior to the Wilkes trials, which stated that, even though the law allowed an officer to break into a house to arrest “in Felony & the flagrant Cases,” the arresting officer could “apprehend nothing but the Person.” Id. at 989, 1184 n.3 (quoting memorandum from Pratt to Pitt). The most likely reason that little was said in the common-law sources about the scope of searches incident to arrest is that such searches were conducted primarily in connection with arrests made in fresh pursuit. Except in that setting, officers would not usually have made arrests for theft until after the property was discovered with a search warrant for stolen goods; without the recovered property, it would usually have been difficult to justify the arrest. See supra note 227 (discussing the requirement of “felony in fact” for a warrantless arrests “on suspicion”); see also discussion supra notes 231-235 and accompanying text (noting that the victimcomplainant in Samuel obtained a search warrant for stolen goods, but not an arrest warrant); supra note 115 (discussing Taylor's own observation that trespass cases involving searches for stolen property arose from warrant searches).

278

In addition to correctly noting that there was an “ex post success defense” to trespass for felony arrests, Amar asserted that discovery and seizure of “stolen goods” or “contraband” would also be self-justifying, citing as authority a statement by Justice Story in Gelston v. Hoyt, 16 U.S. (3 Wheat.) 246, 310 (1818). See Amar, Fourth Amendment, supra note 58, at 767 n.30; quotation of Amar's statement supra note 225. (Stuntz has uncritically repeated Amar's assertion on this point. See Stuntz, supra note 57, at 400 n.32.) However, Gelston involved an in rem seizure of a ship based on information that it was about to violate the 1794 Neutrality Act; it did not involve any search, let alone a warrantless entry and search of a house. Hence, Gelston does not provide authority for justifying a search of a house; it merely illustrates that ships did not enjoy the same protection as houses.


105


279

An English judge described a verdict of trespass against revenue officers who had found uncustomed goods during a search of a house under a writ of assistance but who had failed to comply with the terms of the writ, because they had searched without bringing the local constable with them, as called for in the writ. Thus, the successful seizure of uncustomed goods was not enough to justify the house search; the justification for the house search depended on compliance with the writ of assistance. See the statement by Justice Gould in Bruce v. Rawlins, 3 Wils. 61, 62, 95 Eng. Rep. 934, 935 (C.P. 1770). (Although Bruce is conventionally cited to the third volume of Wilson's Reports, it was initially published in 1775 in the third “part” which comprised the second volume of the first edition. In later editions, the volume numbers were changed when the three parts were published as three volumes. See the discussion of publication dates of Wilson's Reports, supra note 25.)

280

10 Johns. Cas. 263 (N.Y. Sup. Ct. 1813). Officers had searched a house and found and removed barrels of stolen flour under the authority of a search warrant for stolen property; the owner of the premises sued for trespass, but the court held that the warrant provided justification for the search. The significant point, for present purposes, is that the officers do not seem to have attempted to justify the successful search other than by the warrant. Why would the arguments have been entirely about the validity of the search warrant if the success of the search could constitute a justification? Although barrels of stolen flour were recovered, there is no mention of any criminal prosecution. A search warrant for stolen property did not rest on an allegation that the theft was committed by anyone in particular, only that that there had been a theft and that there was probable cause as to where the property was located. The warrant commanded the constable to bring anyone who was found to have control of the premises to the justice of the peace for examination if the allegedly stolen property was found during the search. It does not appear, however, that a successful search for stolen property necessarily led to a criminal prosecution. At least when there was no subsequent prosecution, the search warrant for stolen property was the only justification for a search of a house.

281

13 Mass. (1 Tyng) 256, 289-90 (1816).

282

The defendant officers had won at a trial, in which the too-loose search warrant had been admitted into evidence as their justification. On appeal, the court ruled that the warrant should not have been admitted, and ordered a retrial. In that context, the court noted that the plaintiff might wish to consider whether a retrial would be worthwhile because, since only forfeit goods had actually been seized, damages might not be large (apparently there was no damage to the house itself). The court's comment on the amount of damages shows that the defendant officers could not justify the house search simply by showing that forfeit items had been found. See generally id.

283

11 Johns Cas. 500 (N.Y. Sup. Ct. 1814). The decision upheld a state customs officer's warrantless search and seizure of a commercial sled that was located in a shed open to the public. The seizure was made under a state “trading with the enemy” statute enacted during the War of 1812. The court's opinion noted that the statute also purported to authorize warrantless searches of dwelling-houses, and commented that authority for a warrantless search of a house would be “an extensive and highly important authority... if it does exist,” and that the “more correct course” for searching a house would be for the officer to obtain a search warrant. Id. at 502-03. This opinion has to be read in light of the fact that New York had not adopted any constitutional search and seizure provision; thus, the judges could not invoke a constitutional provision to invalidate the statute. In that light, the reluctance they expressed regarding warrantless house searches reflected a strong sense that the statute conflicted with the common-law protection usually accorded the house. The discussion also refutes any notion that warrantless house searches were permissible in the absence of specific statutory authority.

284

38 Mass. (21 Pick.) 156 (1838). Farwell had sworn out a complaint and arrest warrant for Banks for theft of a pump-nose. A constable arrested Banks pursuant to the warrant, and during a justice of the peace's examination Banks said that the pump-nose was in his shop. Over Banks's objections, the justice told the constable and Farwell to get it. To do so, they broke into Banks's shop and seized the pump-nose. Banks subsequently sued Farwell and the constable for trespass. The trial judge instructed the jury that the facts did not constitute a justification for the breaking and search of the shop, and the jury returned a verdict for Banks. On the officer's appeal, the Massachusetts Supreme Court reversed the trespass verdict. Although the result in the case weakened the need for a search warrant (and is best understood as reflecting the nineteenth-century expansion of the officer's ex officio authority), the court based its ruling on the premise that the retrieval of the stolen item from the shop had not constituted a “search.” In that regard, the judges recited that “[h]ad [the constable and the complainant] attempted to break into the plaintiff's house or shop for the purpose of searching for stolen property, they would have gone aside from their authority and would have acted at their peril.” Id. at 159. Thus, the court seems to


106

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 have upheld the warrantless entry on the narrow ground that because the arrestee had confessed the location of the pump-nose, its location was known with certainty--not because a successful search was self-justifying.

285

See also Goebel & Naughton, supra note 57, at 428, quoted supra note 57; Nelson, supra note 195, at 34, quoted supra note 195.

286

Justice Jackson correctly perceived the Framers' sense of the centrality of warrant authority. After quoting the Fourth Amendment, he wrote “[h]ere endeth the command of the forefathers, apparently because they believed that by thus controlling search warrants they had controlled searches.” Harris v. United States, 331 U.S. 145, 196 (1946) (Jackson, J., dissenting). Justice Frankfurter put it this way: When the Fourth Amendment outlawed “unreasonable searches” and then went on to define the very restricted authority that even a search warrant issued by a magistrate could give, the framers said with all the clarity of the gloss of history that a search is “unreasonable” unless a warrant authorizes it, barring only exceptions justified by absolute necessity. United States v. Rabinowitz, 339 U.S. 56, 70 (1950) (Frankfurter, J., dissenting). See also Kamisar, supra note 38, at 571-79 (discussing “why the Framers probably believed that by controlling search warrants they had controlled searches”); Wasserstrom & Seidman, supra note 9, at 83 (“[A]t the time the amendment was adopted, it was assumed that the common law would effectively protect the citizenry from warrantless searches and seizures, and therefore the framers primarily feared search[es] and seizures under warrants.”).

287

The Supreme Court still expressed skepticism regarding the use of hearsay information to establish probable cause for a search warrant as late as Grau v. United States, 287 U.S. 124, 128 (1932) (“A search warrant may issue only upon evidence which would be competent in the trial of the offense before a jury.”). However, the restrictive use of hearsay to establish probable cause for warrants was in tension with the permissive allowance of the use of hearsay information to provide probable cause for warrantless arrests, as permitted in Beckwith and its progeny. The Supreme Court resolved that tension by rejecting the general proposition that probable cause for a warrantless arrest must be based on evidence that would be admissible at trial in Draper v. United States, 358 U.S. 307, 311-12 & n.4 (1959) (disapproving the standard stated in Grau and asserting that allowance of hearsay evidence to establish probable cause is consistent with the treatment of probable cause in Brinegar v. United States, 338 U.S. 160, 172-74 (1949)). The Court also ruled that an affidavit for a search warrant is not to be deemed invalid because “it sets out not the affiant's observations but those of another” because it would be “incongruous” to apply different standards for probable cause for warrantless arrests and search warrants. Jones v. United States, 362 U.S. 257, 269, 270 (1960). The Supreme Court's allowance of hearsay to show probable cause was anticipated in earlier lower federal court and state court rulings. However, the earlier cases that permitted probable cause for an arrest or search to be based on hearsay information from an informant tended to require that the informant be identified, notwithstanding the general “informant's privilege” recognized in the law of evidence. See 8 John Henry Wigmore, Evidence in Trials at Common Law 769 n. 9 (John T. McNaughton rev. 1961) (citing cases). However, the Supreme Court also effectively rejected a rule of disclosure of the identity of an informant who provided the information constituting probable cause for an arrest or search warrant in 1960 in Jones, 362 U.S. at 272 (although defendant objected that warrant affidavit did not name informants, the Court ruled that informants need not be produced before commissioner authorized to issue search warrant). The Court subsequently directly rejected a claim that a defendant was entitled to know, for purposes of challenging the validity of an arrest and search, the identity of the person who allegedly provided the information that constituted probable cause. See McCray v. Illinois, 386 U.S. 300 (1967). Although McCray involved a warrantless arrest, it has been understood--in light of the Court's earlier statement in Jones that it would be “incongruous” if the standard for probable cause for a warrant were higher than for a warrantless intrusion--to also mean that the identity of an informant need not be disclosed in a warrant application based on hearsay information, or in subsequent suppression proceedings.

288

See, e.g., Myron W. Orfield, Jr., Deterrence, Perjury, and the Heater Factor: An Exclusionary Rule in the Chicago Criminal Courts, 63 U. Colo. L. Rev. 75, 102-07 (1992). The Burger Court made it virtually impossible for defendants to attack perjurious allegations in warrant affidavits. See Franks v. Delaware, 438 U.S. 154, 155-56 (1978) (requiring defendant to make a prima facie showing that police deliberately or recklessly made a false allegation regarding information provided by informant). The affidavit in Franks was aberrant insofar as it named the supposed informants; however, when the informants are not identified, as is the typical practice, there is no possible way for a defendant to challenge the veracity of the claims police officers swear to in affidavits.


107


289

See, e.g., 2 Hale, supra note 75, at 150 (stating that a search warrant for stolen property is not to be granted without oath of a felony (that is, a theft) committed and “that the party complaining hath probable cause to suspect” that the stolen property is in a particular place).

290

Hale wrote: “it is fit in all cases of warrants for arresting for felony, much more for suspicion of felony, [for the justice of the peace] to examine upon oath the party requiring the warrant, as well whether a felony were done, as also the causes of his suspicion....” 2 Hale, supra note 75, at 110. See also the passage from Blackstone quoted infra note 297. The elements for an arrest were still stated the same way in early nineteenth-century works. See, e.g., 7 Dane, supra note 151, at 244, 248.

291

See citation to Hale supra note 289. Lord Camden described the elements for a search warrant the same way: “the justice and the informer must proceed with great caution; there must be an oath that the party has had his goods stolen, and a strong reason to believe they are concealed in such a place....” Entick v. Carrington, 2 Wils. 275, 291-92, 95 Eng. Rep. 807, 818 (C.P. 1765) (version published 1770, see supra note 25). The same description of the elements needed for a search warrant still appeared in post-framing American works. See, e.g., 7 Dane, supra note 151, at 244-45 & n.*; Hening, supra note 25, at 413-15.

292


293

See, e.g., 2 Hale, supra note 75, at 151 (stating that an officer executing a warrant was not liable for a fruitless search of a house “but it seems the party that made the suggestion [to search] is punishable in such case, for as to him the breaking of the door is in eventu lawful or unlawful, viz. lawful if the goods are there; unlawful, if not there”). Lord Camden also asserted that the complainant was liable for a fruitless search for stolen goods: “if the goods are not found there [as the complainant swore], he is a trespasser; the officer in that case is a witness.” Entick, 2 Wils. at 291-92, 95 Eng. Rep. at 818; see also 2 Wils. at 283, 95 Eng. Rep. at 812 (case report published in 1770, see supra note 25). In addition, the original statutory authority for a customs search warrant explicitly provided for liability of the complainant for a fruitless search under such a warrant. See 12 Car. 2, ch. 19 (1660) (Eng.) (“[I]f the Information whereupon any House shall come to be searched shall prove to be false, that then and in such case the party injured shall recover his full damages and costs against the Informer by Action of Trespasse to be therefore brought against such Informer.”). In American law, the rule of complainant liability for a fruitless search made pursuant to a warrant persisted into the nineteenth century. See, e.g., Daniel Davis, A Practical Treatise upon the Authority and Duty of Justices of the Peace 75-76 (1824); Hening, supra note 25, at 40, 414, 415.

294

At common law, the general rule, that the person who initiated a fruitless search by procuring a search warrant was liable for trespass, applied to officers who initiated searches. For example, an officer who made a fruitless search under a writ of assistance was liable for trespass if he initiated the search on the basis of his own suspicion; however, he was not liable for trespass if he acted on the basis of information provided by another person. See Bruce v. Rawlins, 3 Wils. 61, 95 Eng. Rep. 934 (C.P. 1770) (imposing trespass liability on a customs officer for a fruitless search under a writ of assistance initiated on the basis of the officer's own suspicion rather than on information provided by another person). Framing-era American lawyers were probably familiar with Bruce, because the case reports conventionally cited to the third volume of Wilson's Reports were published in the second volume of the first edition in 1775. See supra notes 25, 279. (However, it is unclear how the potential liability of an officer who searched under a writ of assistance was understood by Massachusetts lawyers at the time of the 1761 Writs of Assistance Case. See Smith, supra note 20, at 511-15.) Similarly, at common law, an officer who acted as complainant and procured a revenue search warrant was liable for trespass if the search proved fruitless. See Bostock v. Saunders, 3 Wils. 434, 95 Eng. Rep. 1141 (K.B. 1773) (distinguishing between the protection afforded an officer who only executed a fruitless search under a lawful search warrant and the liability of an officer who also initiated a fruitless search by acting as complainant and obtaining an excise search warrant); also reported as 2 Black. W. 912, 96 Eng. Rep. 539 (first published 1781, see 1 Legal Bibliography, supra note 19, at 239, entry 11). Framing-era American lawyers were probably familiar with Bostock because it was published in 1775 in the same volume of Wilson's Reports as Bruce. Bostock was reversed in English law when Lord Mansfield and the other judges of the Court of King's Bench ruled in 1785 that an officer should not be liable for a fruitless search conducted under an excise search warrant even if he had procured the warrant (though acknowledging that this treatment contrasted with the well established liability of an officer who initiated a fruitless search under a writ of assistance on the basis of his own suspicion). Cooper v. Booth, 3 Esp. 138, 170 Eng. Rep. 564 (K.B. 1785), also reported as Cooper v. Boot, 4 Doug. 339, 99 Eng. Rep. 911. However, it is highly unlikely that framing-era American lawyers were familiar with this change in English law because the case report by Espinasse was published no earlier than 1801 while that by Douglas was not published until 1831. See supra note 19.


108

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 Indeed, Nathaniel Dane treated Bostock as the American doctrine in his 1824 commentary (without mentioning Cooper) and suggested that, under Bostock, a federal customs officer who procured a search warrant under the 1789 Collections Act should be liable if the revenue search made pursuant to it was unsuccessful. See 7 Dane, supra note 151, at 244-46 (volume published 1824). The 1789 Collections Act anticipated suits against officers in connection with searches and seizures but did not state any standards as to when liability would be incurred regarding search warrants. See 1789 Collections Act, Act of July 21, 1789, ch. 5, § 27, 1 Stat. 29, 43-44.

295

English statutes in effect during the late colonial period provided that customs officers were immune against trespass suits if they seized goods or ships that were subsequently ruled not forfeit or “acquitted” provided that the judge who heard the forfeiture proceeding determined that the officer had acted with “probable cause” when he made the seizure. See, e.g., The Sugar Act, 4 Geo. 3, ch. 15, § 46 (1764) (Eng.). American legislators also provided customs officers with a comparable protection in the event a ship or goods seized by customs officers was ruled not forfeit. The 1789 Collections Act enacted by the First Congress provided that the court that decided a revenue seizure was invalid could issue a certificate that would bar any legal action against the customs officer who made the seizure, provided the court found “there was a reasonable cause of seizure.” See Act of July 31, 1789, ch. 5, § 36, 1 Stat. 29, 47-48.

296

In colonial America, the office of justice of the peace was reserved for “men of means and standing.” David F. Forte, Marbury's Travail: Federalist Politics and William Marbury's Appointment as Justice of the Peace, 45 Cath. U. L. Rev. 349, 354 (1996). Forte notes that in Maryland, “appointment as justice of the peace was an essential emblem of a man's membership in the political and financial elite.” Id. at 351.

297

See, e.g., 4 Blackstone, supra note 27, at 287 (emphasis in original): [I]t is fitting [for the magistrate who hears a warrant application] to examine upon oath the party requiring a warrant [i.e., the complainant], as well to ascertain that there is a felony or other crime actually committed, without which no warrant should be granted; as also to prove the cause and probability of suspecting the party, against whom the warrant is prayed. This statement comports with other descriptions of the magistrate's role. See, e.g., 1 Hale, supra note 75, at 582; 2 id. at 110-11 (stating that a justice of the peace is “a competent judge of those circumstances that may induce the granting of a warrant” and “[t]he party that demands it ought to be examined upon his oath touching the whole matter, whereupon the warrant is demanded, and that examination put into writing”); 2 Hawkins, supra note 76, at 84-85 (advising that “a Justice of Peace cannot well be too tender in [issuing arrest warrants prior to indictment], and seems to be punishable not only at the Suit of the King, but also of the Party grieved; if he grant any such Warrant groundlessly and maliciously, without such probable Cause, as might induce a candid and impartial Man to suspect the Party to be guilty”); 2 Leach's Hawkins, supra note 76, at 135 (repeating previous passage). See also Mansfield's statement in Leach quoted supra note 77 (recognizing that it is for a magistrate to assess cause for arrest), and Camden's statement from Entick (case report published in 1770) quoted supra note 291 (reflecting need for magistrate to exercise care in granting warrant). This view of the magistrate's role also appears in early American sources. See, e.g., 7 Dane, supra note 151, at 243 (volume published 1824). Some commentaries have asserted that magistrates did not, indeed could not, assess the grounds for a warrant. Levy has written, without offering any documentation, that magistrates “made no independent determination” whether there was a basis for a warrant. Levy, Original Meaning, supra note 45, at 224-25. His statement is presumably based on Cuddihy's similar statements. See, e.g., 2 Cuddihy, supra note 20, at 687 (stating that a magistrate had no discretion as to the issuance of a warrant under certain Massachusetts laws circa 1756-64) (This was also relied upon by Maclin, Complexity, supra note 44, at 944 n.112.) I do not think these claims reflect the general understanding of the magistrate's role in the warrant process at the time of the framing.

298

See Michael Dalton, The Country Justice 462-64, 469 (1690 ed.) (first published in London, 1618 with seventeen subsequent editions to 1742, see 1 Legal Bibliography, supra note 19, at 227, entry 24), discussed in 1 Cuddihy, supra note 20, at 95-96.

299

When exactly the condemnation of general warrants occurred is a contested subject. I think American lawyers understood general warrants to be condemned as a matter of doctrine by the late 1760s. That is not to say that some ignorant justices of the peace did not continue to issue general warrants for arrests or searches of houses after that date (there are still some ignorant magistrates who do so); however, the cumulative effect of the condemnations of general warrants by Hale, see supra note 75, and Hawkins, see supra note 76 and accompanying text, the press reports of the Wilkesite cases, see supra note 137, the politicization of the complaint against the general warrant during the Townshend Act controversies, see supra note 26, and Blackstone's 1769 condemnation of general warrants, see supra note 78, would have dispelled any lingering approval of general warrants for arrests of person or searches of houses.


109

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 In contrast, Cuddihy has argued that the general warrant was common in colonial practice and was still widely used and approved of in some states until the mid-1780s--virtually the eve of the Fourth Amendment's adoption. (Cuddihy's argument on this point is set out primarily in his Chapter 23, 3 Cuddihy, supra note 20, at 1231-1358; it has also been summarized in Cloud, supra note 42, at 1725-31, and Maclin, Complexity, supra note 44, at 939-50. See also Levy, Original Meaning, supra note 45, at 240, 242; Cuddihy & Hardy, supra note 40, at 398.) However, Cuddihy is not entirely consistent in his own treatment of the subject. Compare 2 Cuddihy, supra note 20, at 1229 (stating that the specific warrant triumphed over the general warrant by 1776), with 3 id. at 1277 (stating that general warrants were still common in the states in the 1780s). Cuddihy offered four sorts of evidence to support his claim that Americans did not fully reject the general warrant until the eve of the framing of the Fourth Amendment; however, I do not think that they support his conclusion. First, he argued that some state governments used general warrants during the Revolution to authorize searches to apprehend deserters or escaped enemy soldiers, to seize weapons, supplies, or the papers and possessions of Tories, to enforce bans against trading with the enemy, or to discover hoarding of vital supplies. See 3 Cuddihy, supra note 20, at 1256-76. In addition, he noted that a form of general warrant was used in 1777 to round up and detain prominent Quakers in Philadelphia, who were feared to be loyalists, shortly before the British army occupied that city. See 3 id. at 1267-70, 1283-84, 1297-98, 1313-16. (This episode was also discussed in Lasson, supra note 16, at 76-78.) However, at least some of the “general warrants” to arrest persons that Cuddihy refers to were of the innocent variety discussed supra note 12-- warrants to arrest particular persons that were designated “general” only in the sense that they were returnable before any magistrate in the county. Moreover, the use of general warrants during the military emergency of the Revolutionary War-which amounted to a civil war--is not valid evidence of the Framers' view of the legality of such warrants in normal times. There is considerable evidence that the Framers concluded that legal rights could be suspended in the face of military emergency. For example, Cuddihy notes that Henry Laurens observed in 1777 that the mass arrest of Quakers, while absolutely necessary in the circumstances, would be “dangerous” in peacetime. 3 id. at 1297-98; cf., Blackstone's statement regarding “first principles,” quoted infra note 568; Lasson, supra note 16, at 77-78. Likewise, the Framers' outlook is evident in the provision of the Constitution that provides for the suspension of the writ of habeas corpus “when in Cases of Rebellion or Invasion the public Safety may require it,” U.S. Const. art. I, § 9, and also in the Third Amendment which qualifies the protection of the house by permitting the billeting of troops “in time of war.” Moreover, Cuddihy also reports that even during the revolutionary war “[o]n land... general warrants of all descriptions were far less common than specific search warrants and warrants to apprehend particular persons.” 3 id. at 1261-62. Thus, even during the period of military action, the Founders usually used specific warrants. The second sort of evidence Cuddihy pointed to as showing the persistence of general warrants consisted of search warrant provisions in a number of early state statutes, especially state impost (customs) statutes. Cuddihy asserted that many of these statutes provided for “general warrants.” Specifically, he asserted that “general warrants” were provided for in the 1781 Virginia impost statute, see 3 id. at 1284; in the 1784 New York impost statute, see 3 id. at 1325-26; in the 1783 Maryland impost statute, see 3 id. at 1332-33; in the 1786 Georgia impost statute, see 3 id. at 1332 n.195; in the 1784 North Carolina impost statute, see 3 id. at 1333; and in the 1783 South Carolina impost statute, see 3 id. at 1334-35. He also asserted that the 1780 Pennsylvania impost statute permitted warrantless searches of houses as well as ships, but required the officer to obtain a writ of assistance to justify forcible entry if entry was resisted. See 3 id. at 1284. I do not read these statutes the way Cuddihy did. Some of his statements are plainly erroneous. For example, his initial statements about the 1780 Pennsylvania statute are inconsistent with a later passage in which he correctly noted that that statute actually contained a provision that required use of a specific warrant for a search of a house. See 3 id. at 1314-15. (I discuss this statute infra note 370 and accompanying text.) In addition, Cuddihy never explained the basis for his conclusion that the other state impost statutes provided for general warrants except for noting, at the beginning of that discussion, that the 1781 Virginia statute employed “general warrants” that “allowed searching ‘any house.” ’ Because similar “any house” language appeared in the other state customs acts cited by Cuddihy (except for the Pennsylvania statute), I presume that this language is what led Cuddihy to describe the statutes as providing for “general warrants.” However, I think Cuddihy miscomprehended the point of the “any house” language. That phrase appeared in the following search warrant provision of the Virginia statute (and in comparable provisions in the other statutes cited): [I]t shall be lawful to and for all and every [customs] Collector and Collectors..., by warrant under the hand of a Justice of the Peace (which warrant shall not be granted but upon an information made to him upon oath, and accompanied with a Constable) to break open, in the day time, any house, warehouse, or storehouse, to search for, seize, and carry away any [ [ [uncustomed goods].


110

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 An Act for ascertaining certain Taxes and Duties, and for establishing a permanent Revenue, Va. Acts, ch. 90, §§ 10-11 (1782), reprinted in Virginia: The Statutes at Large 501 (William Waller Hening ed., 1822). Cuddihy apparently read the statute as permitting issuance of a warrant that recited authority to search “any house.” I think that is a misreading: the reference to “information made to him upon oath” indicated that the warrant had to be based on specific information. In that context, the “any house” language only indicated that there was no limitation on the kind of building that the specific warrant could be issued for--that it could be issued for a dwelling house just as validly as for a warehouse or storehouse. This is evident if one examines the style of the provision. Note the reference to “all and every Collector and Collectors” at the outset of the provision; that language indicated that the authority to obtain a warrant was not limited to a particular collector, but was shared by all collectors. Note, too, the clearly plural meaning of “all and every” collectors and the contrasting singular implication of “any” building--not “all and every' buildings--in this context. And note that the statute used the singular “any house,” not the plural “any houses.” Although the statute could have been more precisely drafted (for example, by saying “any particular house”), Cuddihy's reading reflects a hypercritical attitude toward the Framers' draftsmanship rather than an effort to recover the meaning they expected their language would convey. See also infra note 349. (The Virginia, Maryland, and North Carolina impost statutes are also discussed infra note 374.) The third sort of evidence Cuddihy pointed to as showing the persistence of general warrants consisted of the fact that forms for “hue and cry” warrants continued to be set out in several American practice manuals published between 1776 and 1788, and that those warrant forms commanded that “diligent search” be made for known felons. There were also some proclamations issued by governors of a similar import. See 3 id. at 1279-82. These “warrants,” however, were derived from the common-law institution of the “hue and cry” and were issued only for pursuit of fresh crime or escape, sometimes by constables when no justice of the peace was available, and without the usual requirements of a sworn complaint. It is unlikely the Framers would have perceived hue and cry warrants as being in the same category as judicially issued arrest or search warrants. Moreover, it is not clear whether hue and cry was much used by the framing era. (See the discussion of hue and cry arrests, supra note 198.) Finally, Cuddihy pointed to the use of slave patrol statutes in several Southern states (mostly carried over from the colonial period). See 3 id. at 1280-82, 1327, 1340-41. Those statutes certainly demonstrate the inherent incompatibility between the institution of slavery and enforceable legal rights (it is no coincidence that Georgia and South Carolina, which had slave patrol statutes, did not adopt declarations of rights). However, those statutes do not shed much light on the Framers' general understanding of the commonlaw status of a freeman's house. In sum, I do not think the evidence supports Cuddihy's claim that Americans did not generally perceive general warrants as inherently illegal until the eve of the framing of the Fourth Amendment. Rather, the illegality of general warrants was well settled prior to the first round of state search and seizure provisions adopted in 1776 and 1777.

300

See the condemnations of the discretionary character of general warrant authority discussed supra notes 74-84 and accompanying text.

301

See Lord Camden's 1765 remarks in Entick v. Carrington, 2 Wils. 275, 292, 95 Eng. Rep. 807, 818 (C.P. 1765) (version first published 1770, see supra note 25) (stating that “if the Legislature be of that opinion they will make [warrants to search for papers] lawful”). Camden seems to have earlier made a contrary assertion, however, during the 1763 trial in Wilkes v. Wood, Lofft 1, 3, 19 Howell St. Tr. 1153, 1155, 98 Eng. Rep. 489, 490 (C.P. 1763) (first published in 1776, see supra note 25) (“No legal authority, in the present case, to justify the action. No precedents, no legal determinations, not an Act of Parliament itself, is sufficient to warrant any proceeding contrary to the spirit of the constitution.”).

302

When the American Framers described the reason for declarations of rights, they typically stated that the declarations were meant to curb legislative power. For example, during the 1788 Virginia ratifying convention, George Mason described the Virginia declaration, which he had primarily authored, as declaring rights “to be paramount to the power of the legislature.” 3 Elliot's Debates, supra note 84, at 444. The same is true of statements regarding the need for a federal Bill of Rights. For example, during the 1788 Massachusetts ratification convention, Abraham Holmes said the following about the need for a protection against general arrest warrants: The framers of our state constitutions took particular care to prevent the General Court [the Massachusetts state legislature] from authorizing the judicial authority to issue a[n arrest] warrant against a man for a crime, unless his being guilty of the crime was supported by oath or affirmation, prior to the warrant being granted; why it should be esteemed so much more safe to intrust Congress with the power of enacting laws, which it was deemed unsafe to intrust our state legislature with, I am unable to conceive. Abraham Holmes, Statement at the Massachusetts State Convention (Jan. 30, 1788), quoted in Cogan, supra note 122, at 284, 285-86 (7.2.2.1.a). Madison also presented his proposals for rights amendments as a check on Congress. See infra notes 435-439 and accompanying text.


111

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 The focus on legislation explains historical silences that would otherwise be inexplicable. Hening's 1794 justice manual discussed the standards for warrants and the illegality of general warrants (briefly mentioning the Wilkesite cases), yet never mentioned the ban against general warrants in the Virginia Declaration of Rights. See Hening, supra note 25, at 413-16, 459-64. Likewise, he presented the provisions of the federal customs and excise statutes relating to search warrants, but never mentioned the Fourth Amendment. See id. app. II, at 4, 30. These silences would be inexplicable if he had understood constitutional search and search provisions to apply to the day-to-day operation of criminal justice. However, his omission of the constitutional provisions from a justice of the peace manual would make sense if the provisions were understood primarily as checks on legislative authority.

303

Cf. Kamisar, supra note 38, at 571 (arguing that the Framers were preoccupied with general warrants and “seem to have had tax collectors and customs officials more in mind than the police”). See also discussion of Madison's concern with customs searches infra notes 443-450 and accompanying text.

304

In colonial America, a customs position was denoted an “office of profit.” It was called that because the value of ships or goods seized and condemned as forfeit under customs statutes was divided into three moieties: one-third went to the crown, one-third to the provincial governor, and one-third to the customs official who made the seizure. See Smith, supra note 20, at 13. This same approach was continued by the First Congress in the 1789 Collections Act. See Act of July 31, 1789, ch. 5, 1 Stat. 29, § 38 (providing that the value of ships or goods seized and ruled forfeit under the act should be divided into two “moieties,” one-half going to the United States and the other half to be divided among the various customs officials (and informers) responsible for the seizure).

305

See, e.g., Essay by a Farmer (I), supra note 98, at 14 (referring to the threat of revenue searches of houses under general warrants and noting that “general warrants have been used” only in “those cases which may strongly interest the passions of government”).

306

Parliament provided that the crown would have revenue from customs collections at the Restoration in 1660. In that same year, Parliament enacted statutory authority for a customs search warrant. See An Act to Prevent Frauds, 12 Car. 2, ch. 19 (1660) (Eng.). (For a discussion of the incident that motivated that measure, see supra note 74.) In 1662, when customs collections were “farmed” to commissioned collectors, Parliament created a writ of assistance to facilitate customs searches. See An Act to Prevent Frauds, 14 Car. 2, ch. 11, § 5 (1662) (Eng.). By another statute adopted in 1696, the provisions for customs collections in England were extended to the North American colonies. See An Act for Preventing Frauds, 7 & 8 Will. 3, ch. 22, § 6 (Eng.). The 1696 act was the only authority for use of the customs writ of assistance in the American colonies until the writ was reauthorized in the Townshend Act of 1767, 7 Geo. III, ch. 46, § 10 (Eng.). See discussion supra note 26. For a fuller treatment of the English statutory provisions regarding customs searches, see Smith, supra note 20, at 41-50, and Frese, Article, supra note 18. Customs search authority was also defined by statute in the American states. See infra notes 370-374 and accompanying text.

307

This is hardly the first commentary to recognize that the Framers' concern was aimed at general warrants. See, e.g., Amsterdam, supra note 38, at 397-98; Grano, supra note 38, at 617; Kamisar, supra note 38, at 571; Wasserstrom, Two Clauses, supra note 9, at 1393. However, because those previous commentaries continued to assume that the first clause created a broad reasonableness standard for warrantless intrusions, they did not recognize that the constitutional texts were focused solely on banning general warrants.

308

I still misunderstood the status of the warrantless officer when I gave my 1995 testimony. At that time, I thought that the warrantless officer was always viewed as being a private actor. See Davies's Testimony, supra note 3, at 127. In fact, only unlawful conduct by an officer was perceived as merely personal.

309

See discussion of Coke's opinion in Dr. Bonham's Case, infra notes 391-399 and accompanying text; see also discussion of the Framers' views of judicial review of statutes infra notes 440-441.

310

For example, colonial press accounts of the Wilkesite cases condemned the general warrant as “unconstitutional, illegal, and absolutely void.” See press accounts supra note 22. See also infra note 313.

311

Because writers rarely explicitly disavow notions they do not conceive of, this is a point on which silences of the dog-that-did-notbark-in-the-night variety provide salient evidence. The framing-era sources simply do not treat wrongful intrusions by warrantless officers as “unconstitutional” in the way they treat general warrants. However, the understanding that an officer's misconduct was not viewed as official action is reflected in a number of framing-era statements. For example, during the 1765 arguments in Leach, the plaintiff's attorney described the Messengers who had executed


112

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 the illegal general warrant as having acted “of their own wrong.” Money v. Leach, 3 Burr. 1741, 1745, 19 Howell St. Tr. 1001, 1006, 97 Eng. Rep. 1075, 1077 (K.B. 1765). Similarly, Chief Justice Marshall wrote the following, quoting Blackstone: After stating that personal injury from the king to a subject is presumed to be impossible, Blackstone, vol. 3, p. 255, says, “but injuries to the rights of property can scarcely be committed by the crown without the intervention of its officers; for whom, the law, in matters of right, entertains no respect or delicacy; but furnishes various methods of detecting the errors and misconduct of those agents, by whom the king has been deceived and induced to do a temporary injustice.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 165 (1803). This notion that misconduct by an officer amounts to “deception” of the King (who can do no wrong) contrasts with the usual rule of respondeat superior applicable to master and servant. See 1 Blackstone, supra note 27, at 417-20.

312

The understanding that unlawful acts by an ordinary officer were not official persisted well into the nineteenth century. See, e.g., Johnson v. Tompkins, 13 F. Cas. 840, 854 (C.C.E.D. Pa. 1833) (No. 7416) (employing the traditional distinction between actions by an official “merely under the colour or pretense of his office, and not by virtue of it,” and addressing constitutional search and seizure provisions only when discussing the validity of a state judge's orders, but not when discussing a state constable's conduct (see discussion supra note 184)); Commonwealth v. Crotty, 92 Mass (10 Allen) 403 (1865) (holding that officer attempting an unlawful arrest is as susceptible to lawful resistance as any private person attempting the same act); Ex parte Young, 209 U.S. 123, 160 (1908) (state attorney general attempting to enforce invalid state statute is “stripped of his official or representative character”); Merrick v. Lewis, 22 Penn. Dist. Rep. 55, 56 (1913) (ruling that a jailer who compelled an inmate to attend religious service did not violate the inmate's state constitutional right to freedom of conscience because the constitutional provision was “directed to legislative action or its results [and] does not apply to compulsion exercised by one person over another, except so far as that compulsion may claim to be authorized by law”). Woodrow Wilson summed up the historical understanding of officer misconduct as follows in 1908 (about the time when this understanding was collapsing): “The theory of our law... is that an officer is an officer only as long as he acts within his powers; that when he transcends his authority he ceases to be an officer and is only a private individual, subject to be sued and punished for his offense.” Woodrow Wilson, Constitutional Government in the United States 19 (1908), quoted in Landynski, supra note 38, at 184.

313

Although valid warrants were often denoted “lawful,” see, e.g., 3 Blackstone, supra note 27, at 127 (“a lawful warrant”); 4 id. at 288 (“a lawful warrant”), general warrants were almost uniformly condemned as “illegal.” See, for example, Chief Justice Pratt's speech from Leach, quoted supra note 22 (“This [general] warrant is... illegal.”); 4 Blackstone, supra note 27, at 288 (general warrant “illegal and void” (for fuller quotation of passage, see supra note 78)); Frisbie v. Butler, Kirby 213, 214, 215 (Conn. 1787) (asserting search warrant was general and thus was “illegal and void” and “clearly illegal”); Ex Parte Burford, 7 U.S. (3 Cranch) 448, 453 (1806) (unspecific warrant of commitment “was illegal”); and 1 Noah Webster, First Edition of an American Dictionary of the English Language (1828, reprinted in facsimile 1967) (pages unnumbered) [hereinafter Webster's Dictionary] (entry for “WARRANT”) (“A general warrant to seize suspected persons, is illegal.”). But see infra note 417 and accompanying text (quoting Serjeant Glynn's reference to an “unreasonable or unlawful warrant”). In contrast, invalid warrantless intrusions were usually denoted “unlawful.” See, e.g., 3 Blackstone, supra note 27, at 127 (referring to “[t]he unlawfulness of a detention” and to “[u]nlawful, or false, imprisonment”). For an exception, see Ex Parte Bollman & Swartwout, 8 U.S. (4 Cranch) 75, 111 (1807) (argument of counsel referring to an invalid warrantless arrest under military authority as an “illegal seizure”). My impression is that this specific difference may reflect a broader pattern of framing-era usage in which “unlawful” was used to refer to private wrongdoing while “illegal” tended to be reserved as a label for official or institutional wrongdoing and often was linked to “void.” I do not mean to suggest that there was a clear difference in the definitions of the terms; there was not. Rather, I suggest there was a perceptible difference in usages. Cf. 7 The Oxford English Dictionary 652 (2d ed. 1989) (pre-1800 usages of “illegal,” “illegality,” and “illegally” refer to elections, acts of Princes of England, official judgments, and a warrant obtained without oath); 14 id. at 98 (pre-1800 usages of “unlawful,” “unlawfully,” and “unlawfulness” tend to refer to personal wrongdoing).

314

Eighteenth-century English statutes had begun to provide officers and magistrates with a degree of protection from trespass actions for unjustified acts committed in connection with their office. For example, magistrates who issued warrants and officers who made arrests in obedience to warrants were generally protected against trespass liability by statute. See discussion of the protections afforded by 24 Geo. 2, ch. 44, supra note 111. (Some states began to adopt similar protections in the early nineteenth century. See supra note


113

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 205.) English statutes also permitted courts that ruled that seized goods were not forfeit under revenue statutes to issue certificates of probable cause which protected the revenue officer who made the invalid seizure from trespass liability. See supra note 295.

315

The 1789 Collections Act enacted immediately before the adoption of the Fourth Amendment provided that federal courts could protect federal revenue officers against trespass suits by issuing certificates of reasonable cause in cases in which seized ships or goods were ruled not forfeit. See discussion supra note 295; Act of July 31, 1789, ch. 5, § 27, 1 Stat. 29, 43-44. In addition, Congress later provided for removal of suits against federal revenue officers from state to federal court as a response to New England opposition to shipping restrictions imposed during the War of 1812. See Act of Feb. 4, 1815, ch. 31, § 8, 3 Stat. 195, 198. That statute was extended briefly, see Act of Mar. 3, 1815, ch. 94, §§ 6, 8, 3 Stat. 231, 233-34, 235; Act of April 27, 1816, ch. 110, § 3, 3 Stat. 315, but went out of effect in 1822, see Act of March 3, 1817, ch. 109, §§ 2, 6, 3 Stat. 396, 397. The relevant provision read as follows: That if any suit or prosecution be commenced in any state court, against any collector, naval officer, surveyor, inspector, or any other officer, civil or military..., for any thing done, or omitted to be done, as an officer of the customs, or for anything done by virtue of this act or under color thereof, [ [ [the defendant may remove to federal court]. Act of Feb. 4, 1815, ch. 31, § 8, 3 Stat. at 198-99. The reference to conduct “as an officer of the customs” may appear to reach unlawful acts committed in connection with customs enforcement, and there was a clear attempt to extend the removal power to some wrongful conduct in the language “anything done... under color [of this act].” A subsequent removal provision was included in the “Force Bill” of 1833 as a response to South Carolina's espousal of the nullification doctrine. See Act of March 2, 1833, ch. 57, § 3, 4 Stat. 632, 633. That act defined removal as applying to any officer of the United States, or other person, for or on account of any act done under the revenue laws of the United States, or under colour thereof, or for or on account of any right, authority, or title, set up or claimed by such officer, or other person under any such law of the United States. Id. Note that this statute tied removability closely to conduct that was at least colorably within statutory authority, rather than to any broad notion of conduct in connection with an office. The broad term “under color of his office” was not used in any federal removal statutes until 1866. See Act of July 13, 1866, ch. 184, § 67, 14 Stat. 98, 171.

316

See Burdeau v. McDowell, 256 U.S. 465 (1921) (holding that items or information obtained by private wrongs are not subject to exclusion under the Fourth Amendment).

317

For further discussion of this point, see infra notes 440-442 and accompanying text.

318

The constitutional argument for exclusion was first made (unsuccessfully) in Commonwealth v. Dana, 43 Mass. (2 Met.) 329 (1841). That case involved a challenge to the constitutionality of a state statute that authorized a novel use of a search warrant to obtain evidence of a lottery violation. Of course, the statute clearly involved a government action; that is why the argument for exclusion as a necessary consequence of an unconstitutional and therefore void government act could be made in that context. The court initially upheld the statute, but then added dicta to the effect that the means by which evidence was acquired could not be challenged during a criminal trial. See id. at 337. The fact that the argument for exclusion was first made in Dana is confirmed by the appearance of the discussion of that issue in Greenleaf's Evidence Treatise. Amar has noted that “as late as 1883” that treatise recited Dana's dicta prohibiting litigation during a criminal trial of the means by which evidence was obtained. See Amar, Fourth Amendment, supra note 58, at 787 n.108 (citing 1 Simon Greenleaf, A Treatise on the Law of Evidence § 254a (14th ed. 1883)). The more significant fact is that there is no mention of that topic in the 1842 first edition--§ 254a was inserted into the 1844 second edition on the basis of Dana. Compare 1 Greenleaf, supra, §§ 254-255 (1st ed. 1842) (lacking § 254a), with 1 id. at 302 (2d ed. 1844) (inserting § 254a). Dana and Greenleaf cited two English cases as earlier authority for this point: Legatt v. Tollervey, 14 East 302, 104 Eng. Rep. 617 (K.B. 1811), and Jordan v. Lewis, 14 East 306 n.a, 104 Eng. Rep. 618 (K.B. 1740). However, neither of the English cases were germane to an alleged violation of a constitutional standard; they each involved an attempt by a defendant officer to prevent a plaintiffvictim in a false prosecution case from admitting unofficially obtained court records as evidence of the false prosecution--the reverse of the setting involved in the constitutional argument for exclusion.

319

116 U.S. 616, 638 (1886). In Boyd, the first Supreme Court case to recognize exclusion under the Fourth Amendment, the Court ruled that the statute that authorized a court order to compel production of an invoice in a customs proceeding was unconstitutional


114

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 and the order to produce therefore “void.” On that basis, the Court ruled that admission into evidence of the invoice obtained under the order was “erroneous.” For a more complete discussion of Boyd, see infra notes 512-515.

320

There is a widespread misperception that Justice Story addressed and rejected exclusion under the Fourth Amendment in dicta in his 1822 circuit court opinion in United States v. La Jeune Eugenie, 26 F. Cas. 832 (C.C.D. Mass.). See, e.g., Hearings, supra note 3, at 17 (statement of William Gangi); Bradford P. Wilson, Enforcing the Fourth Amendment 45-47 (1986); Amar, Fourth Amendment, supra note 58, at 786-87. The facts are otherwise. To begin with, La Jeune Eugenie arose when an American naval ship captured a French ship for violating international law by preparing to engage in slave-trading off the West coast of Africa. (The reference to “United States” in the case caption is somewhat misleading; the value of the seized ship was to go entirely to the captain and crew of the naval ship, not to the government.) In a trial conducted under admiralty prize court procedure, Story decided the seizure was valid under the law of nations. There is no mention of the Fourth Amendment anywhere in his opinion or in the record of the case (available through the National Archives). The only argument touching on any notion of exclusion was made by the French ship owners, who claimed, under admiralty law, that there could be no right to seize if there was no “right of search” (an admiralty term referring to a warship's authority to search ships entering its national waters or during wartime, neither of which was involved). After rejecting that claim as incorrect under English admiralty cases, Story added, in dictum, that incriminating items might be used as evidence “in the ordinary administration of municipal law” even if the items had been obtained from a suspect during a dubious arrest. La Jeune Eugenie, 26 F. Cas. at 843-44. Story did not refer to a government arrest, however--in fact, he did not even place any officer in the hypothetical arrest and search scenario. Moreover, it is not likely he would have prefaced his dictum as pertaining to “the ordinary administration of municipal law” if he had a constitutional issue in mind. (Indeed, Story viewed the Fourth Amendment as only addressing warrant standards. See supra note 190.) All Story's dictum stands for is the unexceptional proposition that exclusion is not appropriate when evidence has been obtained through an unlawful private arrest and search--a view which has never been seriously challenged. See supra note 316. La Jeune Eugenie did not address exclusion based on a violation of the Fourth Amendment. Amar has also claimed that exclusion was rejected in King v. Warickshall, 1 Leach 263, 264-65, 168 Eng. Rep. 234, 235 (1783), which permitted the admission of testimony regarding recovery of stolen property even when the property was located through an improperly “induced” confession that was itself inadmissible. See Amar, Fourth Amendment, supra note 58, at 789 n.123. (Amar has also claimed that Warickshall sheds light on the intended meaning of the Fifth Amendment right against compelled self-incrimination. See Akhil Reed Amar & Renee B. Lettow, Fifth Amendment First Principles: The Self-Incrimination Clause, 93 Mich. L. Rev. 857, 916-17 (1995) (describing Warickshall as “apparently the leading English case on [ [ [the admissibility of confessions and fruits of confessions] when the U.S. Bill of Rights was adopted in 1791”). The short answer is that Warickshall has nothing to do with the Fourth Amendment because it is highly unlikely the Framers were familiar with it; although the doctrines regarding induced confessions and recovered property that were discussed in Warickshall were briefly noted in the 1787 edition of Hawkins's treatise, see Leach's Hawkins, supra note 76, at 604 n. 2, the case report itself was not published until 1789. See 1 Legal Bibliography, supra note 19, at 303, entry 78 (1 Leach published 1789). In addition, Warickshall dealt with the discovery of evidence through a confession induced by threats or promises made by “the prosecutor”--in all likelihood by the private person whose property was allegedly stolen. It does not appear that Warickshall addressed any misconduct during an official judicial examination of the defendant. For example, Hening's 1794 discussion of the inadmissibility of an induced confession describes it as applying to “the case of a private confession”-presumably in distinction to a judicially received confession. Hening, supra note 25, at 138 (emphasis added). Private misconduct could not have been understood to implicate a constitutional right.

321

The necessity of characterizing an officer's wrongful search as government misconduct as a predicate for a constitutional remedy of exclusion is reflected in the fact that some of the state courts that declined to adopt a state exclusionary rule during the early twentieth century based that refusal on their insistence that the wayward officer had acted only personally, not as the government. See, e.g., Hall v. Commonwealth, 121 S.E. 154, 155 (Va. 1924) (holding that exclusion was not required because “[a] police officer, when acting without a warrant, or under a void warrant, acts without authority or color of authority from the state, and ceases to be its agent and he alone is responsible for his illegal acts”).

322

The notion of a “constitutional tort” developed only after the Supreme Court began to treat unlawful misconduct by an officer as a governmental deprivation of rights. The Supreme Court first recognized the possibility of a constitutional tort action against a federal officer in Bell v. Hood, 327 U.S. 678 (1946), and subsequently endorsed such an action in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Both of those cases employed the modern notion of officer conduct “under color


115

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 of office” as a form of government misconduct. See infra note 323. The flaw in Professor Amar's claim that the Fourth Amendment “sounds... in constitutional tort law,” Amar, Fourth Amendment, supra note 58, at 758, is that there was no such doctrine until the twentieth century.

323

The redefinition of “under color of law” from a term for a pretense of official action to one connoting a form of government illegality is a complex story. The highlights are as follows. When the Reconstruction Congress undertook to protect former slaves from abuse in the Southern states, it encountered a constitutional difficulty--there was no consensus, even after the Civil War, that the federal government should have plenary power over the conduct of individuals. However, a legislative majority sought to prevent Southern states from enforcing discriminatory state laws, such as the notorious “Black Codes.” In section one of the Civil Rights Act of 1866, Congress first recited that all citizens were to enjoy equal benefit of the laws, “any [state] law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.” Act of Apr. 9, 1866, ch. 31, § 1, 14 Stat. 27. In section two, it created criminal liability for “any person who, under color of any [state] law, statute, ordinance, regulation, or custom” deprived any inhabitant of the equal benefit of the laws. Id. § 2. Thus, as written, the statutory language appears to have been aimed at prohibiting state officers from enforcing discriminatory state legislation. The statute did not use the potentially broader term “under color of office,” even though the term “under color of his office” had appeared in an 1866 removal act, see supra note 315. The Fourteenth Amendment, adopted in 1868, prohibited deprivations of rights by a “State.” U.S. Const. amend. XIV (1868). The Congress then reenacted the substance of the 1866 Act in the Enforcement Act of 1870, see Act of May 31, 1870, ch. 114, §§ 16-18, 16 Stat. 140, 144, and added a civil remedy for discrimination committed “under color of” state law in the Ku Klux Klan Act of 1871, see Act of Apr. 20, 1871, ch. 22, § 1, 17 Stat. 13. These provisions again addressed conduct “under color of any [state] law, statute, ordinance, regulation, or custom.” The 1871 statute added the word “usage” after “custom” in the listing of forms of state law. The important point for present purposes is that these statutes did not attempt to treat all forms of misconduct by officers in connection with their office as “state” conduct. Rather, they treated only those sorts of discriminatory misconduct by officers that were within the terms of a discriminatory state statute or some other form of positive state law as government misconduct. See also Eric H. Zagrans, “Under Color of” What Law: A Reconstructed Model of Section 1983 Liability, 71 Va. L. Rev. 499, 540-60 (1985) (arguing that discrimination “under color of” state law was understood during Congressional debates to refer to conduct within the terms of a discriminatory state statute). But see infra note 324. The Supreme Court later incrementally expanded the boundary of “state action” (that is, state government misconduct) by enlarging the understanding of “under color of [state] law.” The justices initially upheld federal civil rights prosecutions against state officials who discriminated in the exercise of authority created by state statutes that were nondiscriminatory on their face. See, e.g., Ex parte Virginia, 100 U.S. 339 (1879) (upholding indictment of state judge for engaging in racial discrimination in the seating of a jury). Subsequently, during the period of economic “substantive due process,” the justices began to treat even conduct by state officials that was allegedly contrary to state law as conduct “under color of” state law and “state action” for purposes of applying the Fourteenth Amendment. See, e.g., Home Tel. & Tel. Co. v. City of Los Angeles, 227 U.S. 278, 287 (1913) (holding that action by city utility regulators that allegedly violated state law constitutes “state action” and is subject to Due Process Clause of Fourteenth Amendment). Under that formulation, any misconduct by an officer that was connected to the exercise of an office came to constitute government misconduct. The Supreme Court then transferred this broadened understanding of government illegality to misconduct by federal officers. It was in the 1914 decision in Weeks, a year after Home Telephone & Telegraph, that the Court first extended the Fourth Amendment to a federal marshal's unlawful warrantless search of a house by deeming that his “unlawful” misconduct was “under color of” office and thus a government violation of the Constitution. See Weeks v. United States 232 U.S. 383 (1914); discussion infra notes 519-523 and accompanying text.

324

Professor Steven L. Winter has argued that conduct “under color of law” always constituted a third category between private and official conduct which referred specifically to the unlawful but nevertheless official actions of public officers, and that the Reconstruction Congress understood the term this way when it enacted the federal civil rights acts. See Steven L. Winter, The Meaning of “Under Color of” Law, 91 Mich. L. Rev. 323 (1992). I do not think Winter's analytic notion that conduct “under color of law” was a “third category” addresses the crucial question, which is whether officer misconduct was understood to be a form of government conduct or illegality. I agree that early efforts to protect officers from trespass liability (for example, in the federal removal statutes discussed supra note 315) show that the traditional notion that officer misconduct was purely private was becoming unstable. However, in framing-era doctrine, misconduct by an ordinary law


116

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 enforcement officer was not understood to carry any consequence for the government, or to be capable of qualifying as a constitutional violation. Likewise, although Winter's critique of Zagrans's analysis of the legislative history of the federal civil rights acts, see Zagrans, supra note 323, may suffice to show that the understanding of “under color of” law was contested and in transition, I do not think that it shows any consensus that “under color of” state law extended to any abuse committed in connection with a state office, regardless of explicit state statutory authority. The significant point, for present purposes, is that the idea of attributing misconduct by an officer to the government that made him an officer was still a relatively novel notion in the latter half of the nineteenth century.

325

My argument on this point is historical, not normative. The modern understanding that misconduct by an officer in connection with an office is a form of government illegality makes eminent sense given the expansive discretionary authority that modern officers now exercise. That, however, is not the sort of officer the Framers anticipated.

326

In chronological order, the states and proto-states that adopted declarations of rights as well as constitutions were Virginia, Pennsylvania, Delaware, Maryland, North Carolina (all in 1776), Vermont (which adopted a constitution and declaration of rights in 1777 but was not admitted to the Union until 1791), Massachusetts (in 1780), New Hampshire (in 1783), and Franklin (the protostate of Tennessee, Franklin adopted a constitution and declaration of rights in 1784, but Tennessee was not admitted to the Union until 1796). New York, New Jersey, South Carolina, and Georgia adopted state constitutions without adopting declarations of rights, but did protect some rights within the body of the constitutional statements. Connecticut adopted a brief constitutional statement requiring the government to comply with the laws, and continuing its charter government (in 1776). Rhode Island did not adopt any constitutional statement but continued its charter government. (The state declarations of rights and constitutions, as well as the statehood statutes for Vermont and Tennessee, may be located in Swindler, supra note 177. Earlier collections include The Federal and State Constitutions (Francis Newton Thorpe ed., 1909), and an earlier edition of the same work edited by Benjamin P. Poore, The Federal and State Constitutions (Benjamin Perley Poore ed., 2d ed. 1878). Note, however, that the Thorpe and Poore collections omitted the Delaware declaration of rights.)

327

It has been noted that the Declaration of Independence does not specifically mention the general writ as one of the colonial grievances, though it does refer to harassment by tax collectors. Part of the explanation is that the general writ ceased to be a major issue after the colonial courts refused to issue them. See supra note 26. The other part of the explanation is that the declaration was aimed at George III, not at Parliament. See, e.g., Edwin S. Corwin, The “Higher Law” Background of American Constitutional Law (pt.2), 42 Harv. L. Rev. 365, 402 (1928) (noting that the Declaration of Independence was “addressed not to Parliament but to the king”). The general writ grievance was against Parliament's reauthorization of the writ in the Townshend Act rather than against the crown as such. In contrast, the king had issued the commissions of the tax collectors, so their appointment was a grievance against the crown.

328

For commentary on the state declarations, see, for example, Willi Paul Adams, The First Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era (1980); The Bill of Rights and the States: The Colonial and Revolutionary Origins of American Liberties (Patrick T. Conley & John P. Kaminski eds., 1992); Mark W. Kruman, Between Authority and Liberty: State Constitution Making in Revolutionary America 35-59 (1997); Donald S. Lutz, Popular Consent and Popular Control: Whig Political Theory in the Early State Constitutions (1980); G. Alan Tarr, Understanding State Constitutions 75-81 (1998); and Jeremy Elkins, Declarations of Rights, 3 U. Chi. L. Sch. Roundtable 243 (1996). A table that identifies the provisions in some of the state declarations that anticipated provisions of the federal Bill of Rights (but that does not report other provisions in the state declarations that were not included in the federal Bill of Rights) appears in Edward Dumbauld, The Bill of Rights and What It Means Today app. at 160-65 (1957).

329

The political rights identified in the declarations were clearly based on social contract notions of natural law. However, the specific protections of individual rights were drawn from common law, which was thought to create a structure of legal rights consistent with the demands of natural law. As Professor Wood observed: [W]hat is truly extraordinary about the Revolution is that few Americans ever felt the need to repudiate their English heritage for the sake of nature or of what ought to be. In their minds natural law and English history were allied. Whatever the universality with which they clothed their rights, those rights remained the common-law rights embedded in the English past, justified not simply by their having existed from time immemorial but by their being as well “the acknowledged rights of human nature.” Gordon S. Wood, The Creation of the American Republic, 1776-1787, at 10 (1969) (quoting a speech by John Dickinson).


117


330

Professor John Phillip Reid has noted that Americans did not establish new constitutional rights; instead, they drew upon “old law, the not yet quite passé law of Magna Carta, the Petition of Right, and the English Bill of Rights.” John Phillip Reid, Constitutional History of the American Revolution: The Authority to Legislate 6 (1991). See generally Bernard Bailyn, The Ideological Origins of the American Revolution (1967); Reid, supra note 19, at 190-202; Wood, supra note 329.

331

For example, Richard Henry Lee summed up the contents of the rights that had been omitted from the federal Constitution as “[a] reservation in favor of the Press, Rights of Conscience, Trial by Jury in Criminal cases, or Common Law securities.” Letter from Richard Henry Lee to Samuel Adams (October 27, 1787), reprinted in 2 The Letters of Richard Henry Lee 456, 457 (James Curtis Ballagh ed., 1914) (emphasis added). Modern arguments over the content of the provisions of the Bill of Rights tend to address those rights as though they are freestanding. Thus, liberals tend to assert that the provisions should be understood expansively as sweeping generalities written in vague language, while conservatives tend to assert that the content of a right should be strictly limited to the actual language of the provision. I think both of these treatments are historically inaccurate because neither takes account of the larger structure of common-law rights that the Framers understood to exist beneath and around the enumerated rights. Similarly, although I would agree with Professor Amar that some of the provisions of the Bill of Rights should be understood to carry implications for one another, the provisions of the Bill of Rights and of the Constitution should not be regarded as the exclusive or even predominant source of such implications. The historical Bill of Rights cannot be understood except in the context of the common law.

332

In the original 1215 version of Magna Carta, this chapter read: No free man shall be taken or imprisoned or disseised of his freehold or outlawed or exiled or in any way ruined, nor will we go or send against him; except by lawful judgment of his peers or by the law of the land.... J.C. Holt, Magna Carta 460-61 (2d ed. 1992) (translated from the Latin). (Although the chapters of the original text were unnumbered, this chapter is conventionally numbered 39 in modern discussions of the original text). Magna Carta was reconfirmed on several later occasions. Sir Edward Coke discussed the 9 H. III (1225) version in which this chapter was numbered 29 and read: No freeman shall be taken, or imprisoned, or be disseised of his freehold, or liberties, or free customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we not pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land. We will sell to no man, we will not deny or defer to any man either justice or right. Sir Edward Coke, Second Part of the Institutes of the Laws of England 45 (1817 edition, reprinted 1986 by Professional Books Ltd.) (originally published 1642, see 1 Legal Bibliography, supra note 19, at 546, entry 4). Because the American Framers learned law largely from Coke, they also knew the provision as chapter 29. See, e.g., Paxton's Case, Mass. (Quincy) 51, 56 n.22 (1761) (quoting James Otis referring to this chapter as “29”); Mass. (Quincy) app. 1 at 483-85 (1762) (editor's collection of quotes) (same).

333

The phrase “due process of law” was substituted for “law of the land” in a 1354 statutory iteration of Magna Carta. See A.E. Dick Howard, Magna Carta: Text and Commentary 15 (1964) (“The Fifth Amendment to the Constitution of the United States is talking about ‘law of the land’ when it says that no person shall be deprived of ‘life, liberty, or property, without due process of law.” ’).

334

For an introduction to Coke's place in Anglo-American law, see Norman F. Cantor, Imagining the Law: Common Law and the Foundations of the American Legal System 301-22 (1997).

335

Although Coke wrote in the early seventeenth century, his Institutes and Reports were still the primary sources from which the American framers learned law. See, e.g., A.E. Dick Howard, The Road from Runnymeade: Magna Carta and Constitutionalism in America 117-25 (1968).

336

See 2 Coke, supra note 332, at 45-56 (discussing the law of arrests under chapter 29 of Magna Carta).

337

The Petition of Right of 1628, which Coke authored, condemned the king's orders for arrests without cause as a violation of the law of the land clause of Magna Carta and of the fundamental principles of common-law procedure. See Cogan, supra note 122, at 355 (10.1.4.2); see also infra note 397. This is the basis for the common-law rule that the king could not order an arrest except by procuring a judicial arrest warrant. See 2 Coke, supra note 332, at 186; 1 Jacob's Law Dictionary, supra note 201 (explanation of the term “arrest”).


118


338

For an example of this understanding of “fixed” law, see Father of Candor, supra note 23, at 64, 90. The celebratory view of the common law as a permanent and perfected law of the land is also evident in statements by American legal writers. For example: Common law is the perfection of reason, arising from the nature of God, of man, and of things, and from their relations, dependencies, and connections: It is universal and extends to all men, and to all combinations of men, in every possible situation; and embraces all cases and questions that can possibly arise; it is in itself perfect, clear and certain; it is immutable, and cannot be changed or altered, without altering the nature and relation of things; it is superior to all other laws and regulations, by it they are corrected and controlled; all positive laws are to be construed by it, and wherein they are opposed to it, they are void. It is immemorial, no memory runneth to the contrary of it; it is coexistent with the nature of man, and commensurate with his being; it is most energetic and coercive; for every one who violates its maxims and precepts are sure of feeling the weight of its sanctions. Jesse Root, Introduction to 1 Root i, ix (Conn. 1798). (Root was a judge of the superior court and a compiler of Connecticut decisions.) (Professor David Langum brought this quote to my attention.) Of course, the great unsettled point was the degree to which legislation could alter long-settled procedural law. On the one hand, there is no doubt that the American Framers viewed the legislature as the preeminent branch of government, and no doubt that they thought legislation could alter procedure to some degree. Indeed, they probably regarded some statutes, such as the English Habeas Corpus Act, as being so settled that they had become part of the law of the land. On the other hand, the American Revolution was a rejection of the British notion of parliamentary sovereignty insofar as Americans asserted the existence of fundamental legal rights that could not be altered even by Parliament; thus, the guarantee of “the law of the land” or of “due process of law” carried substance beyond mere compliance with whatever legislative standard was then in effect. My sense is that the Framers did not think it necessary to define the boundary of what aspects of common-law procedure could or could not be changed by legislation in any definite way. They had no reason to think that a government would be likely to ignore the entire body of common-law procedure. (Recall that the dispute over general writs of assistance had been argued within the shared understanding that houses could not be searched without some form of warrant authority.) Likewise, they had no experience with broad codification of criminal procedure; in their experience, legislation regulated commerce and trade, set taxes, defined new crimes, and created public and commercial institutions--thus, they could not have anticipated the broad shift from common-law procedure to legislation that occurred in the nineteenth century. Instead, they simply expected that common-law procedure would persist. The phrase “due process of law” now seems imprecise because we have lost the common-law tradition the Framers took for granted, and because we address contexts and issues that the common law never anticipated.

339

Cf. Letters from the Federal Farmer (XVI), supra note 128, at 328 (2.8.200) (stating that the law of the land provision “may be said to comprehend the whole end of political society”). (The Letters may have been authored by Richard Henry Lee. See supra note 121.)

340

For example, Chief Justice Pratt (Lord Camden) had referred to the general warrant as a violation of Magna Carta in Huckle. See supra note 79. Father of Candor had proposed a parliamentary resolution recognizing that general warrants were “contrary to Magna Carta.” See Father of Candor, supra note 23, at 105. Likewise, William Henry Drayton had referred to the general writ as “trench[ing] too severely and unnecessarily on the safety of the subject, secured by Magna Carta.” Drayton, supra note 83, at 21. All of these references to Magna Carta would have been understood to be to the “law of the land” chapter. The Supreme Court adopted a narrow understanding of “due process of law” in Hurtado v. California, 110 U.S. 516 (1884), when it ruled that the Due Process Clause of the Fourteenth Amendment did not include the other rights specifically enumerated in the Bill of Rights (in particular, the right not to be prosecuted except upon indictment by a grand jury). Justice Matthews argued that the specific articulation of a right to grand jury indictment in the Fifth Amendment would be redundant if it were also included in the protection of the Due Process Clause of that Amendment. See id. at 534-35. However, that construction did not give adequate attention to the way “law of the land” and “due process of law” were understood in the framing era. Moreover, although constitutional provisions should not be inconsistent, there is no reason they should not overlap. Justice Harlan's dissenting opinion in Hurtado was much closer to the Framers' broad understanding of the content of the due process of law protection. See id. at 539-46.

341

Magna Carta had set out the Crown's assurances to the barons that their grievances against the Crown would not be repeated. See Sources of Our Liberties 1-22 (Richard L. Perry & John C. Cooper eds., 1959). The Petition of Right of 1628 identified certain acts of the Crown as “illegal” and forbade their repetition. See id. at 62-75. The English Bill of Rights of 1689 listed the abuses of James II to assure they would not be repeated. See id. at 222. In short, the enumerated rights were identified by the experience of prior government abuses. See also 1 Blackstone, supra note 27, at 123-25 (describing these constitutional statements).


119


342

See infra note 435.

343

Cf. Wakely v. Hart, 6 Binn. 316 (Pa. 1814) (describing the origin of the Pennsylvania search and seizure provision); see also supra note 183 and accompanying text (quoting Wakely).

344

See supra note 326.

345

See Helen Hill Miller, George Mason: Gentleman Revolutionary 148 (1975).

346

The committee of the legislature proposed the following provision: 12. That warrants unsupported by evidence, whereby any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his or their property, not particularly described, are grievous and oppressive, and ought not to be granted. 1 The Papers of George Mason 284 (Robert A. Rutland ed., 1970). The legislature modified this draft further and adopted the provision quoted in the text infra.

347

Va. Const. of 1776, art. X (Decl. of Rights), quoted in Cogan, supra note 122, at 235 (6.1.3.8). The state provisions and the various drafts and proposals for a federal provision are quoted in numerous works; to simplify the citations, I have referred, whenever possible, to Cogan's reference work. The citations in Cogan will lead the reader to earlier sources. Note, however, that Cogan presents the state provisions broken up according to each of the ten amendments in the federal Bill of Rights. For sources containing the full state declarations of rights, see supra note 326.

348

The legislature added the term “general warrants” and then made the standards for warrants more precise by banning search warrants for “suspected places without evidence of a fact committed.” “[F]act committed” meant that a search warrant had to be based on specific information that an offense actually had been committed (a “fact”), and thus was more rigorous than the committee's language which simply prohibited warrants “unsupported by evidence.” See, e.g., 4 Blackstone, supra note 27, at 301 (noting that the date and township “in which the fact was committed” must be named in an indictment). The legislature dropped the explicit prohibition against warrants that did not particularly describe the property to be seized, but that was probably thought redundant in view of the “fact committed” requirement (for example, if the “fact” was smuggling, then the property to be seized was any uncustomed goods). Similarly, the legislature banned arrest warrants that did not name the person to be arrested, did not particularly describe the offense he had committed, and were not “supported by evidence.” The requirement in arrest warrants that the offense be particularly described and supported by evidence would seem to accomplish the same point as the “fact committed” language used for search warrants.

349

Unfortunately, modern readers sometimes approach historical texts with more hubris than sensitivity; as a result, they sometimes fail to perceive how much the language of those texts actually conveyed. For example, Levy has described the 1776 Virginia provision as exhibiting “egregious deficiencies” because it lacked a requirement of an oath, contained only a “stunted” probable cause standard, merely labeled general warrants as “grievous” rather than “illegal,” and only advised that general warrants “ought” not be issued rather than commanded that they shall not be issued. Levy, Original Meaning, supra note 45, at 236-37; see also 3 Cuddihy, supra note 20, at 1233-55. These criticisms are invalid. Use of the term “evidence” in the provision would have implied a complaint under oath because statements not under oath could not be “evidence”; the requirement of “evidence of a fact committed”-- that is, of a sworn complaint of a crime committed in fact--is actually a stronger standard than probable cause, see infra notes 445-447 and accompanying text; omission of the term “illegal” in a constitutional provision condemning too-loose warrants hardly alters its significance; and “ought” was as imperative as “shall,” see infra note 350.

350

I think that the provisions in the state declarations that used “ought” were understood to limit the legislative power. However, a number of commentators have asserted that the rather consistent use of “ought” rather than “shall” in the state declarations of rights made the declarations merely prescriptive or hortatory rather than legally binding on state legislatures. For example, Levy has asserted that Madison's later use of “shall” in his proposals for federal rights amendments made them more imperative than the statements in the earlier state declarations that had used “ought.” See, e.g., Levy, Original Meaning, supra note 45, at 243. A number of other commentators have repeated that assertion. See, e.g., Tarr, supra note 328, at 76; 3 Cuddihy, supra note 20, at 1472. In particular, Lutz, supra note 328, at 65-68, has noted that the state framers usually used “shall” in the body of state constitutions, but usually


120

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 used “ought” in the state declarations of rights; he concluded that the difference shows that the declarations were understood to be not legally binding. I think the asserted difference is illusory and the different usages were only stylistic, rather than substantive. Many of the statements in the body of the constitutions were descriptive of processes, and, in that context, “shall” fit better than “ought.” Conversely, “ought” was probably thought to convey a more solemn, traditional tone, befitting a statement of fundamental rights. (For example, the English Bill of Rights had used “ought” rather than “shall.” See Sources of Our Liberties, supra note 341, at 245, 246-47 (for example: “10. That excessive bail ought not to be required...”).) In addition, several uses of “ought” in the state constitutions are inconsistent with the notion that “ought” was not imperative. For example, the Delaware constitution ended by stating that “No article of the declaration of rights... nor the first, second,... twentyninth articles of this constitution, ought ever to be violated on any pretence whatever....” Del. Const. of 1776, art. 30. The inclusion of the words “ever” and “any pretense whatsoever” remove any doubt that the prohibition against future amendment was meant to be “legally binding”--however, it uses “ought” rather than “shall.” Similar provisions, also using “ought,” appeared in several of the other early state constitutions. Moreover, framing-era usages do not bear out the notion that “shall” was more imperative than “ought.” Instead the historical dictionary definitions indicate that “ought” was understood to be imperative. Johnson's Dictionary, supra note 177 (pages unnumbered), defined “Ought” as “[t]o be obliged by duty” and also defined “Oblige” as “[t]o bind; to impose obligation; to compel something”--thus it treated “ought” as binding or compelling, which sounds rather imperative. Noah Webster still gave essentially the same definition of “ought” when he published his American dictionary in 1828. See 1 Webster's Dictionary, supra note 313 (defining “Ought” as “[t]o be held or bound in duty or moral obligation”). The dictionaries gave alternative definitions for “shall.” Johnson commented that “Shall” was “originally I owe, or I ought,” but that it subsequently “became a sign of the future tense”; he then gave alternative definitions in which “shall” was defined as command, as permission, and as a description of what will happen in the future. See Johnson's Dictionary, supra note 177 (emphasis in original). Webster commented regarding “Shall” that “it coincides in signification nearly with ought, it is a duty, it is necessary;... [t]he literal sense is to hold or be held, hence to owe, and hence the sense of guilt, a being held, bound or liable to justice and punishment.” Webster's Dictionary, supra note 313 (emphasis in original). Like Johnson, Webster emphasized the alternative meanings that “Shall” could carry. It is important to recognize substantive distinctions in the framers' language, but it is equally important not to impose distinctions that the framers did not intend. The evidence does not support the assertion that the framers understood “ought” to be less binding or imperative than “shall.”

351

North Carolina copied the final Virginia provision in 1776. See N.C. Const. of 1776, art. XI (Decl. of Rights), quoted in Cogan, supra note 122, at 234-35 (6.1.3.5). Maryland adopted a similar provision in 1776: That all warrants, without oath or affirmation, to search suspected places, or to seize any person or property, are grievous and oppressive; and all general warrants to search suspected places, or to apprehend suspected persons without naming or describing the place, or the person in special, are illegal, and ought not to be granted. Md. Const. of 1776, § 23 (Decl. of Rights), quoted in Cogan, supra note 122, at 234 (6.1.3.2). Delaware adopted a provision nearly identical to Maryland's in 1776. See Del. Const. of 1776, § 17 (Decl. of Rights), quoted in Cogan, supra note 122, at 234 (6.1.3.1). The proto-state of Franklin, which became Tennessee, copied the 1776 Virginia search and seizure provision when it adopted a declaration of rights in 1784. See 9 Swindler, supra note 177, at 125, 128.

352

See 1 The Papers of James Madison, supra note 98, at 171 (showing the Virginia committee draft of declaration of rights was carried to the Second Continental Congress and printed in a Philadelphia paper).

353

Pa. Const. of 1776, art. X (Decl. of Rights), quoted in Cogan, supra note 122, at 235 (6.3.1.6.a).

354

The Pennsylvania text spelled out the cause standard in the Virginia committee draft (“unsupported by evidence”) in somewhat more detail, but otherwise tracked the language of the Virginia committee draft, the text of which is quoted supra note 346.

355

Benjamin Franklin presided over the adoption of the Pennsylvania constitution and declaration. A copy of a printed draft of the declaration with his editing appears in 22 The Papers of Benjamin Franklin 528, 532 (William B. Willcox ed., 1982). It shows that the printer had erroneously added the statement of a right against search and seizure to the end of section 9, the “law of the land”


121

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 provision, rather than at the beginning of section 10, the search and seizure provision. See 22 id. The misplacement of the right statement suggests the possibility that it had been inserted into an earlier draft or even that the printer received it separately from the rest of the text and was left to guess (wrongly) where to insert it.

356

The absolutist tone was corrected when Pennsylvania added “unreasonable” in a 1790 amendment. See supra note 346.

357

Cf. Lasson, supra note 16, at 81 n.11; Kamisar, supra note 38, at 573.

358

See supra note 119 and accompanying text.

359


360


361

The Pennsylvania law of the land clause read “nor can any man be justly deprived of his liberty except by the law of the land, or the judgment of his peers.” Pa. Const. of 1776, ch. 1, § 9, reprinted in Cogan, supra note 122, at 353-54 (10.1.3.8.a). This was a virtual copy of the 1776 Virginia law of the land clause. See id. at 355 (10.1.3.12). The 1776 Maryland provision included a bit more of the language of Magna Carta by stating that no man could be “taken” except according to the law of the land. See id. at 350 (10.1.3.2.b). The 1780 Massachusetts provision was even more explicit by prohibiting the government from “arrest[ing]” any person except according to the law of the land. See id. at 350 (10.1.3.3.c) (emphasis added). Compare these to the language of the chapter of Magna Carta quoted supra note 332. Attacks on the illegality of government-ordered arrests were historically connected to the law of the land provision because Coke had explicitly claimed in the Petition of Right that the King had violated the law of the land chapter of Magna Carta when he had ordered arrests without cause. See supra note 337. The Framers' understanding of the connection between the law of the land and arrest authority is also evident in the 1817 New Hampshire decision in Mayo v. Wilson, 1 N.H. 53 (1817), in which the court assessed the constitutionality of an arrest statute primarily in terms of the state due process provision rather than the search and seizure provision. See supra note 186.

362

The Wilkes general warrant commanded the Messengers to identify the culprits responsible for the publication of The North Briton, No. 45, “and them or any of them having been found, to apprehend and seize, together with their papers, and to bring in safe custody....” Money v. Leach, 3 Burr. 1742, 1743, 19 Howell St. Tr. 1001, 1004, 97 Eng. Rep. 1075, 1076 (K.B. 1765) (emphasis added). This warrant was reprinted in colonial newspapers. See 2 Cuddihy, supra note 20, at 1105-10; 3 id. at 1631-33. It also appeared in Father of Candor, supra note 23, at 38. Other linguistic evidence also suggests that “seizure” of a person often connoted an arrest under warrant. Johnson's Dictionary defined “seize” as “To take forcible possession of by law.” Johnson's Dictionary, supra note 177. The first definition it offered for the verb “arrest,” and the only one that used any form of “seize,” was “[t]o seize by a mandate from a court or officer of justice.” Id. The term “mandate” indicates either a writ or a warrant. See supra note 201. Likewise, “officer of justice” refers to a justice of the peace or judge, because only they could issue a “mandate.” See also the definition of “justice” in Johnson's Dictionary, supra note 177. However, there are some instances in which “seize” was used in framing-era sources in the context of warrantless arrests. See, e.g., 1 Chambers, supra note 195, at 245 (stating that if an offense is committed in the constable's view, he “may by virtue of his office seize the offender”). Thus, it appears that the historical relation of seizure and arrest was different from the current usage. Today, “seizure” is treated as a broader category that includes temporary detentions as well as arrests. At the time of the framing, “arrest” was at least as broad a term and included both warrantless arrests and “seizures” (warrant arrests). Of course, the current broad usage of “seizure” dates back only to Terry v. Ohio, 392 U.S. 1 (1968), the first case to apply the Fourth Amendment to a detention less than an arrest.

363

It may initially seem odd that a right regarding search and seizure would be phrased as a right of “the people,” because that connotes a collective right. This phrasing may simply reflect the rhetorical bent of the Pennsylvania framers, who were fond of describing constitutional rights in terms of “the people.” Nine of the sixteen provisions in the Pennsylvania declaration of rights refer to a right or authority of “the People.” See Pa. Const. of 1776 (Decl. of Rights), reprinted in 8 Swindler, supra note 177, at 277-79. This may reflect the fact that the Pennsylvania constitution was the most radically democratic of the initial state constitutions. See generally J. Paul Selsam, The Pennsylvania Constitution of 1776: A Study in Revolutionary Democracy (1971). Moreover, this usage was not unprecedented; Blackstone had described the right of personal security as one of “the rights of the people of England.” 1 Blackstone,


122

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 supra note 27, at 125. In addition, the collective tone of “the people” is appropriate to a provision banning general warrants because such warrants, if allowed, would imperil the security of the entire community. Amar has asserted a different explanation of “the people”--that the use of the term shows that the Framers were primarily concerned with preventing the use of search and arrest authority to suppress free speech, and that the Fourth Amendment really reflects First Amendment concerns. See Amar, Bill of Rights Book, supra note 58, at 65-68; Amar, Bill of Rights, supra note 58, at 1175-77; see also Stuntz, supra note 57, at 403. That interpretation is strained at the least; Amar has not identified any historical evidence for it beyond a general assertion that the Wilkesite cases, which involved political dissidents, were the real catalyst for the Fourth Amendment. See supra note 60. The inclusion of “papers” in the Pennsylvania introductory right statement no doubt does reflect the memory of the Wilkesite cases. However, the predominant concern during the colonial grievances and during the ratification debates of 1787-88 was the use of general warrants or writs for customs searches of houses. See supra notes 136-142 and accompanying text. Commentators should certainly be sensitive to the possibility that there are interrelationships between rights provisions--but they should not pretend relationships which are not supported by evidence.

364

Note that there had been some disagreement on this point in Virginia. See supra notes 345-349 and accompanying text. The Pennsylvania drafters could easily have learned of that disagreement because Virginia delegates were then in Philadelphia for the Continental Congress.

365

See, e.g., 1 Blackstone, supra note 27, at 125 (discussing the “three principal or primary articles [of the rights of the people of England]; the right of personal security, the right of personal liberty; and the right of private property”).

366

The Pennsylvania framers inserted a statement of a right that “therefore” required a constitutional rule in five of the fifteen provisions in their declaration of rights: IV, VIII, X (the search and seizure provision), XII, and XIV. See Pa. Const. of 1776, reprinted in 8 Swindler, supra note 177, at 277, 278-79.

367

As a drafting matter, if one wanted to add a definition of the scope of the ban against general search warrants to the already complex language stating the standards for valid warrants, the easiest way would be to add it in an introductory statement. The text itself is not entirely clear on this point. For example, it still condemns warrants to search “suspected places,” which sounds broader than houses. As described above, however, that language simply repeated a phrase that commonly appeared in general warrants.

368

It is noteworthy that, beginning with the 1776 Pennsylvania provision, “papers” were consistently included in all of the various scope formulas employed in introductory right statements. See the 1780 Massachusetts provision, quoted infra text accompanying note 379; the 1788 Virginia ratification convention proposal, quoted infra note 429; Madison's proposal, quoted infra text accompanying note 432; the various anti-Federalist proposals discussed infra notes 453-459. That treatment attests to the importance that the Framers attached to papers. However, it is also significant that none of the various search and seizure provisions ever indicated that searches and seizures of “papers” were subject to any distinct limitations beyond the standards for valid warrants--a treatment which tends to undercut the historical case for the “mere evidence” doctrine. See infra note 513.

369

The importance of customs collections varied among the states because of the pattern of foreign commerce. Ships from foreign ports tended to enter, and pay customs, at Philadelphia or Boston, or perhaps Charleston. Trade to the other American ports tended to be by smaller coastal vessels that distributed goods from the larger ports. This coastal trade, however, was not subject to further customs collections. Thus, customs was far more important as a source of revenue to Pennsylvania or Massachusetts than to Virginia. This pattern was a source of regional conflict when the Framers debated the early federal customs and excise laws. For example, during the contentious debate over the 1791 Excise Act, Madison disputed another representative's claim that the Southern States did not pay their proportion of the impost by noting that “the trade of the Southern States was carried on by the Eastern and Northern States”-that is, they indirectly paid their share of customs in the prices of the merchandise they purchased through the coastal trade. See 3 Annals of Cong. 1861 (1834) (citing version with running head “History of Congress,” see infra note 475).

370

Section 10 of the Pennsylvania customs act of 1780 gave the customs officers authority to conduct warrantless searches of ships and all other premises “where he shall have reason to suspect” uncustomed goods are concealed; in instances where entry was refused or resisted, the officer was authorized to obtain a writ of assistance from the supreme court or two justices of the peace. See Act of Dec. 21, 1780, ch. 190, § 10 (placing an impost on goods, wares, and merchandise imported into the state), reprinted in The First


123

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 Laws of the Commonwealth of Pennsylvania 422, 424-25 (John D. Cushing ed., 1984). Section 11, however, added the proviso that “no search of any dwelling shall be made in manner aforesaid, until due cause of suspicion hath been shewn to the satisfaction of a [judge or justice of the peace], as in the case of stolen goods.” Id. at 425. The reference to “the case of stolen goods” refers to the common-law specific search warrant for stolen goods.

371

See infra text accompanying note 379.

372

In 1783, Massachusetts adopted revenue search provisions similar to that adopted by Pennsylvania; a specific search warrant was required to search a house, but ships and commercial premises could be searched on a more routine basis. One statute, Excise Act of March 10, 1783 “An Act in Addition to an Act passed the Eighth Day of November [1782], laying an Excise on certain Articles therein mentioned,” required a specific search warrant for a search of a “Dwelling-House,” but provided that customs officials could search ships or commercial premises without a warrant provided they had sworn information in writing constituting “just cause to suspect” that uncustomed goods were hidden on the premises. These provisions were essentially reenacted in Excise Act of July 10, 1783, “An Act laying Dutes of Impost and Excise on certain Goods, Wares and Merchandize therein described, and for repealing the several Laws heretofore made for that Purpose.”

373

See supra text accompanying notes 347, 351.

374

Virginia adopted a state customs statute that required a specific warrant for any search of a premises on land (but still allowed warrantless searches of ships). See An Act for ascertaining certain Taxes and Duties, and for establishing a permanent Revenue, Va. Acts, ch. 40, §§ 10-11 (1782), reprinted in Virginia: The Statutes at Large 501 (William Waller Hening ed., 1822). Chapter 10 provided that the state collectors “shall have full power and authority to go and enter on board any ship or other vessel, and [to seize any articles liable to a duty].” Id. ch. 10. Chapter 11 provided: That it shall be lawful to and for all and every collector... by warrant under the hand of a justice of peace (which warrant shall not be granted but upon an information made to him upon oath, and accompanied with a constable) to break open, in the day time, any house, warehouse or storehouse, to search for, seize and carry away [any customed goods]. Id. ch. 11. The Maryland customs act treated search authority the same way. See An Act to impose duties on certain enumerated articlesimported into and exported out of this state, and on all other goods, wares and merchandise, imported into this state ..., ch. 84, §§ 6 & 7 (1784), reprinted in First Laws of the State of Maryland (John D. Cushing ed., 1981) (unpaginated). The North Carolina customs statute also provided the same search authority as that of Virginia. See An act for laying certain duties therein mentioned on all foreign merchandize imported into this State, in aid of the public finances, and directing the mode of collecting the same, [ch. 4], §§ 5, 7 (1784).

375

Disagreement regarding the scope of the ban against general warrants appears to have persisted until the framing of the Fourth Amendment, and may have led to the adoption of “effects” as a final compromise term in the scope formula. See infra notes 465-472 and accompanying text.

376

See Act of Apr. 5, 1785, ch. 208 (An Act to repeal and alter such parts of the Excise Laws and other Tax Laws of this Commonwealth as empower the Collectors of these taxes to break open dwelling houses, in order to make seizures...), reprinted in 2 Laws of the Commonwealth of Pennsylvania, 1781-1790, at 306 (Alexander James Dallas ed., 1793). The statute does not specifically identify the earlier provisions; however, it appears that when the state of Pennsylvania was initially formed in 1776, the state legislature had continued a variety of the existing colonial statutes on such topics. It seems likely that some of those earlier colonial statutes contained the provisions referred to.

377

Although Cuddihy passed over the possible significance of the persons-houses-papers-possessions language in the Pennsylvania provision, he described one event that may appear inconsistent with the interpretation I have given. Specifically, he asserted that the Pennsylvania court in 1780 “struck down general warrants to search ships.” 3 Cuddihy, supra note 20, at 1507 (citing Letter from McKean to Reed (July 10, 1780), reprinted in 8 Pennsylvania Archives 403-04 (Series 1 1853)). If that were all that were involved, it would call my interpretation into question. However, the rejected general warrant, which had been requested by the French consul, was not simply to search all ships, but to search ships for the purpose of seizing “any person” suspected of being a deserter from French ships. In short, the request was for a general arrest warrant, which is probably why the Pennsylvania judges said the illegality of such a warrant “would have been pretty clear” under the common law even if Pennsylvania had not adopted a constitutional provision.


124


378

See Vt. Const. of 1777, ch. 1 (Right XI), reprinted in Cogan, supra note 122, at 235 (6.1.3.7).

379

Mass. Const. of 1780, pt. 1, art. XIV, reprinted in Cogan, supra note 122, at 234 (6.1.3.3) (emphasis added).

380

See N.H. Const. of 1783, pt. 1, art. XIX, reprinted in Cogan, supra note 122, at 234 (6.1.3.4).

381

2 Wils. 275, 291, 95 Eng. Rep. 807, 817 (C.P. 1765) (This is the shorter report of Entick published in 1770. See supra note 25.) Lord Camden had stated that warrants could be issued only for purposes recognized in the “law books” (i.e., common law or statute) in Entick. Id.; see also quotation supra note 203. Maclin has offered a different explanation for the third statement, that it reflected the earlier Massachusetts legislation prohibiting certain types of general warrants. See Maclin, Complexity, supra note 44, at 968.

382

See 8 Papers of John Adams 228-71 (Gregg L. Lint et al. eds., 1989). The final text was virtually unchanged from Adams's draft except for altering Adams's “man” to “subject.” See id. at 240. Adams's involvement in drafting the Massachusetts constitution and declaration of rights was still unsettled as late as the 1950s. See, e.g., Robert Allen Rutland, The Birth of the Bill of Rights, 1776-1791, at 68-70 (1955). Some recent commentary has still not noted Adams's authorship. See, e.g., Amar, Boston, supra note 19, at 66 (stating that the 1780 Massachusetts search and seizure provision was written by “a convention”). Other commentators have recognized Adams's authorship, and even the significance of Adams's connection to James Otis. See, e.g., Levy, Original Meaning, supra note 45, at 238; Maclin, Complexity, supra note 44, at 968; 3 Cuddihy, supra note 20, at 1247-48, 1296-97. Even these commentators have not made the connection, however, between Otis's use of “against reason” and Adams's “unreasonable.”

383

This is apparent from the texts. See also 8 Papers of John Adams, supra note 382, at 231, 263 n.24.

384

It is not surprising that Adams included an introductory right statement. For one thing, he would have appreciated the rhetorical invocation of a “right” because he was inclined to state the premises for constitutional provisions. See Ronald M. Peters, The Massachusetts Constitution of 1780: A Social Compact 14 (1974). For another, he would have approved of the persons-houses-paperspossessions formula because he was well versed in the special protection afforded the house at common law. See supra note 260.

385

The label “right to be secure” was not innovative. In the common-law tradition, the notion of a right to “security” was as closely connected to the status of a “freeman” as the right to “liberty”; it was often linked to the house. For example, Otis had also asserted that the general writ made householders “less secure.” See Otis's 1762 Article, supra note 20, at 562.

386

Just as there is no basis for imputing a broad “reasonableness” standard into the Pennsylvania provision, there is also no basis for assuming that Adams meant to employ “unreasonable” as a global standard for all government searches or arrests. Adams had already included another provision that prohibited government “arrest[s]” except according to the “law of the land.” See supra note 361.

387


388

See, e.g., Lawrence M. Solan, Learning Our Limits: The Decline of Textualism in Statutory Cases, 1997 Wis. L. Rev. 235 (criticizing acontextual interpretation of statutes based on the “ordinary” meaning of words).

389

The famous example is that in 1675, Charles II described St. Paul's Cathedral as “awful” and “artificial”--by which he meant “aweinspiring” and “artistic.” See Thomas Gibbs Gee, Original Intent: “With Friends Like These...,” 88 Mich. L. Rev. 1335, 1337 (1990) (book review); see also Johnson's Dictionary, supra note 177 (definitions of “awful” and “artificial”).

390

“Unreasonable” was sometimes used in framing-era legal sources to denote an excessive quantity, as in a complaint regarding an act taking “an unreasonable time.” See, for example, the discussion of Leach supra text accompanying note 110. Similarly, Hening, supra note 25, at 421-22, observed that Virginia sheriffs were not to take “unreasonable distresses” for unpaid taxes--i.e., they were not to seize an amount of property that substantially exceeded the value of the tax owed. Likewise, “reasonable cause to suspect” was often used as a synonym for the “probable cause to suspect” prong of the “on suspicion” arrest standard. See, e.g., Hening, supra note 25, at 251. Even so, “reasonable”--and especially “unreasonable”--were not used as frequently in framing-era writing as they are today. My impression is that Blackstone used “reasonable” and even “unreasonable” far more frequently than any of the preceding commonlaw treatises on criminal law and procedure. Blackstone often wrote of the “reason” for a rule, and described the effects of a rule as “reasonable.” However, he seems to have been more restrained in using “unreasonable” in discussing criminal procedure. There, he


125

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 used “unreasonable” to condemn violations of basic rules such as use of an unspecific warrant of commitment to prison, see infra note 418, or ex post facto laws, see 1 Blackstone, supra note 27, at 46.

391

This formal usage of “unreasonable” is evident in Johnson's Dictionary, supra note 177 (the principal dictionary available during the framing era) (pages unnumbered). It offered three definitions of “unreasonable”: “exorbitant”; “[n]ot agreeable to reason”; and “[g]reater than is fit; immoderate.” Three definitions were given for “Exorbitant”: “[g]oing out of the prescribed track” (the literal translation of the Latin root); “deviating from the course appointed or the rule established”; and “[a] nomalous; not comprehended in a settled rule or method.” Thus, both “unreasonable” and “exorbitant” could connote a violation of a settled rule.

392

Common-law writers were too sophisticated to claim that common law was solely the product of natural law; rather, they argued that the common law was a refined and perfected system of rationalized custom that was consistent with natural law. See generally Glenn Burgess, The Politics of the Ancient Constitution 19-78 (1992).

393

8 Coke Rep. 113b, 77 Eng. Rep. 646 (C.P. 1610).

394

Dr. Bonham's Case, 8 Coke Rep. at 118a, 77 Eng. Rep. at 652 (emphasis added). This phrase appears in the following passage: And it appears in our Books, that in many Cases, the Common Law will controul Acts of Parliament, and sometimes adjudge them to be utterly void: For when an Act of Parliament is against Common Right and Reason, or repugnant, or impossible to be performed, the Common Law will controul it, and adjudge such Act to be void.... Id. The stylized character of “against common right and reason” is evident in the fact that Coke repeated it two more times in the lines immediately following the passage. There is a debate among modern scholars as to what Coke actually meant regarding the power of judicial review in Dr. Bonham's Case--especially whether he meant that courts could negate legislation or only that courts could construe legislation to avoid palpably absurd implications. See James R. Stoner, Jr., Common Law and Liberal Theory: Coke, Hobbes, and the Origins of American Constitutionalism, 48-62 (1992). What matters for present purposes, however, is that American Whigs understood Coke to endorse some degree of judicial review of statutes by recourse to common-law principles.

395

[F]or reason is the life of the law, nay the common law itselfe is nothing else but reason; which is to be understood of an artificiall perfection of reason, gotten by long study, observation, and experience, and not of every man's naturall reason; for, Nemo nascitur artifex. This legall reason est summa ratio. And therefore if all the reason that is dispersed into so many severall heads, were united into one, yet could he not make such a law as the law in England is; because by many successions of ages it hath beene fined and refined by an infinite number of grave and learned men, and by long experience growne to such a perfection, for the government of this realme...: no man out of his own private reason ought to be wiser than the law, which is the perfection of reason. Sir Edward Coke, 1 The Institutes of the Laws of England; or a Commentary upon Littleton 97b (19th ed. 1832) (commonly called Coke on Littleton) [hereinafter Coke on Littleton] (originally published 1628, see 1 Legal Bibliography, supra note 19, at 449, entry 7). Coke also based his famous rebuke of James I's claim to be entitled to judge legal cases himself on the King's ignorance of the “artificial reason” of the common law. See Prohibitions del Roy, 12 Coke Rep. 63, 77 Eng. Rep. 1342 (1610). Blackstone also reiterated Coke's discussion: Customs must be reasonable; or rather, taken negatively, they must not be unreasonable. Which is not always, as Sir Edward Coke says, to be understood of every unlearned man's reason, but of artificial and legal reason, warranted by authority of law. 1 Blackstone, supra note 27, at 77 (citations to Coke omitted).

396

For example, Coke wrote “that the surest construction of a statute is by the rule and reason of the common law.” Coke on Littleton, supra note 395, at 272b.

397

Dr. Bonham's Case was not the only occasion on which Coke used “against reason” to denote unconstitutionality. Although James I removed Coke from the bench for “errors” in his reports, possibly including his dictum in Dr. Bonham's Case (the statute voided in that case rested on a royal charter), the elderly Coke returned to the political fray as a member of the House of Commons in 1628 and participated in the parliamentary debates that culminated in the Petition of Right. See supra note 337. Controversy had arisen when Charles I had levied a tax in the form of a “loan” on landholders and merchants without Parliament's approval. Whigs viewed it as an illegal tax. Subsequently, the King's ministers ordered the arrest of persons who refused to pay it. The courts upheld the arrests. See Darnell's Case (also called The Five Knights Case), 3 Howell St. Tr. 1 (1627) (never reprinted in the English Reporter).


126

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 During the subsequent debate in the House of Commons, Coke denounced the illegality of the royal order for arrest that lacked a statement of cause (virtually a general, nonjudicial warrant) by declaring that “[i]t is against reason to send a man to prison and not show the cause.” Stephen D. White, Sir Edward Coke and “The Grievances of the Commonwealth,” 1621-1628, at 231, 240 (1979) (citing 2 Commons Debates, 1628, at 100-14 (Robert C. Johnson et al. eds., 1977)). (Blackstone later paraphrased Coke's statement on that occasion. See infra note 418.) For a fuller treatment of Coke's use of “reason” and “against reason,” see Stoner, supra note 394 (especially pp. 13-26).

398

John Locke, The Second Treatise of Civil Government §§ 12, 13 (Peter Laslett ed., Oxford Univ. Press 1988) (stating “[t]hat it is unreasonable for Men to be Judges in their own Cases, that Self-love will make Men partial to themselves and their Friends”), quoted in Stoner, supra note 394, at 139. Thomas Hobbes also discussed the principle that “no man can be Judge in his own cause.” Thomas Hobbes, Leviathan ch. 23, 292 (C.B. McPherson ed., Penguin Books 1984), quoted in Stoner, supra note 394, at 110.

399

See 1 Blackstone, supra note 27, at 91.

400

The American cry of “no taxation without representation” was not a novel political claim, or a “natural law” claim, but constituted a legal claim based on American colonists' perception of their common-law right against being taxed without “consent,” that is, without the approval of their legislature. See supra note 397. Thus, one of the resolutions adopted by the Stamp Act Congress of 1766 (to which James Otis was a delegate) resonated with Coke's “against reason” dictum by declaring that “it is unreasonable, and inconsistent with the principles and Spirit of the British Constitution, for the People of Great Britain, to Grant to his Majesty, the property of the Colonists.” C.A. Weslager, The Stamp Act Congress: With an Exact Copy of the Complete Journal 201 (1976).

401

This is not a novel observation. See, e.g., I Julius Goebel, Jr., History of the Supreme Court of the United States: Antecedents and Beginnings to 1801, at 89-95 (1971); Bernard Schwartz, A History of the Supreme Court 3-6 (1993).

402

The customs writ of assistance was entirely a creation of statutory law. See supra note 306.

403

See supra text accompanying note 262.

404

Adams's notes show that Otis cited Hawkins's condemnation of general warrants. See 2 Legal Papers of John Adams, supra note 20, at 140; discussion supra note 76. Smith has asserted that Otis relied on Hale's condemnation of general warrants, but his claim appears to be entirely speculative. See Smith, supra note 20, at 334-36.

405

See 2 Legal Papers of John Adams, supra note 20, at 123-34 (Adams's notes), 134-44 (Adams's “Abstract”).

406

2 Legal Papers of John Adams, supra note 20, at 127-28. The “executive courts” were the law courts.

407

See Charles Viner, A General Abridgement of Law and Equity (23 volumes, 1741-53). It appears that Otis referred to the extract from Dr. Bonham's Case in 19 Viner, supra, at 512-13. See 2 Legal Papers of John Adams, supra note 20, at 128 n.73.

408

Lasson and Cuddihy both recognized that Otis invoked Dr. Bonham's Case but did not note the connection between Coke's “against reason” and Adams's “unreasonable.” See Lasson, supra note 16, at 59; see also 2 Cuddihy, supra note 20, at 783-84. Smith quoted the “common right and reason” passage from Dr. Bonham's Case, but passed over it, probably because he was not particularly interested in discussing the Fourth Amendment itself. See Smith, supra note 20, at 358-64.

409

See Smith, supra note 20, at 257-61 (estimating Otis spoke for four or five hours).

410

2 Legal Papers of John Adams, supra note 20, at 128 (emphasis added). During the second hearing, Otis also quoted Coke to the effect that “[t]he surest construction of a statute is by the rule and reason of the common law.” Paxton's Case, Mass. (Quincy) 51, 56 n.21 (1761).

411

See 2 Legal Papers of John Adams, supra note 20, at 144.


127


412

Id. at 143. When Otis wrote a 1762 newspaper column that repeated his legal arguments for a lay audience, he referred to searches under writs of assistance as “unreasonable.” See Otis's 1762 Article, supra note 20, at 562, 563 (describing an officer's assertion of authority to search a house under a writ of assistance as “his unreasonable... demands”).

413

Otis had been Adams's mentor, and Adams often recalled Otis's role in the formative period of the American revolution. Contemporaneously with the Declaration of Independence in 1776, Adams described “the argument concerning the writs of assistance” as the beginning of the struggle with Britain, see Lasson, supra note 16, at 61, and he gave much the same account at the end of his career, see id. at 59, 60 n.39. Writers who dismiss the elderly Adams's statements about Otis overlook the statement he made in 1776. See, e.g., Amar, Fourth Amendment, supra note 58, at 772.

414

“Notes on the Opening of the Courts,” reprinted in 1 Papers of John Adams, supra note 382, at 150, 151 (“Acts of Parliament that are against Reason, or impossible to be performed shall be judged void. 8 Rep. 118.128.129....”). Note that Adams omitted Coke's “common right” and simply wrote that the statute was “against reason.”

415


416

1 Legal Papers of John Adams, supra note 20, at 102 n.74 (quoting The Law of Arrests § 8, at 173-74 (London 1742)) (“And yet there is a Precedent of such general Warrant in Dalton's Justice, notwithstanding the Unreasonableness, and seeming Unwarrantableness of such practice.”). Adams apparently referred to this passage in his legal notes for a 1765 case. See 1 id. at 102 n.74.

417

Glynn's labeling the papers search warrant “unreasonable” as well as his statement that office practices that are “unreasonable, contrary to common right, or purely against law” are “void,” appeared in 2 Wils. at 283, 95 Eng. Rep. at 812 (the shorter version of Entick published in 1770, see supra note 25). Glynn's reference to a warrant as “unlawful,” rather than “illegal,” is unusual; I speculate he may have used “unlawful,” the language of personal misconduct, to underscore the complete lack of legal authority for the Secretary of State to issue any such warrant. Glynn was well known to the Framers because of his representation of Wilkes. For example, Georgia included “Glynn” along with “Wilkes” and “Camden” among the names it adopted for counties.

418

After stating that a warrant of commitment to prison must “express the causes of the commitment,” Blackstone cited Coke for the principle “that it is unreasonable to send a prisoner, and not to signify withal the crimes alleged against him.” 1 Blackstone, supra note 27, at 133 (emphasis added). The reference to Coke appears to be to Coke's argument during the debate over the Petition of Right. See supra note 397. This statement by Blackstone appears in a discussion of the inherent rights of Englishmen at common law in the first volume of his Commentaries--a part that would have been widely read.

419

See supra note 313.

420

There are several reasons why it would not have suited Adams to simply write that there was a right not to have one's person, house, papers or possessions violated by a general warrant. For one thing, the term “general warrant” was not a precise term of art. See supra note 12. For another, that formulation lacked rhetorical punch; use of the term “unreasonable” connoted that the ban against general warrants was of a fundamental character. “Illegal” is another term that may seem to have fit Adams's need; why did he not simply write that there was a right against “illegal” searches and seizures of persons, houses, papers, and possessions? I think the problem with that formulation was that it did not adequately address the issue of legislation. A statute could usually prescribe what was legal (as Adams's third statement implicitly recognized). The main point of the constitutional provision banning general warrants was to prohibit the legislature from enacting a statute that would make loose warrants legal. Thus, simply articulating a right against “illegal” searches and seizures would not have accomplished anything.

421

The label “unreasonable searches and seizures” also captured the second sort of inherently illegal warrant--one issued for a purpose not authorized by positive law and thus violative of the third statement in Adams's text. See Adam's inclusion of the Entick principle in the final statement of the Massachusetts provision discussed supra text accompanying note 381.

422

There is no reason to doubt that the other Framers understood “unreasonable searches and seizures” the same way Adams did. See, for example, discussion of the resolution of the Stamp Act Congress supra note 400. In 1774, Roger Sherman stated in the Continental Congress that “‘[t]he Colonies adopt the common Law, not as the common Law, but as the highest Reason.” ’ Wood, supra note 329,


128

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 at 9 (quoting Roger Sherman). In 1784, Alexander Hamilton cited Coke's opinion in Dr. Bonham's Case as authority when he argued that a New York statute was unconstitutional and void. See Alexander Hamilton, Brief No. 4 from Rutgers v. Waddington (undated), reprinted in I Law Practice of Alexander Hamilton 282, 357 (Julius Goebel, Jr. ed., 1964) (stating that “[a] statute against law and reason especially if a private statute is void,” and citing “8 [Coke Rep.] 118 a & b”). In 1789, a South Carolina court ruled that “[i]t is clear, that statutes passed against the plain and obvious principles of common right, and common reason, are absolutely null and void, as far as they are calculated to operate against those principles.” Ham v. M' Claws, 1 S.C.L. (1 Bay) 38, 40 (1789).

423

The acceptance of the illegality of general warrants is demonstrated by the earliest reported state search and seizure decision, Frisbie v. Butler, 1 Kirby 213 (Conn. 1785) (recognizing that a warrant to search an entire village for a stolen pig was invalid). The fact that this decision was by a Connecticut court--a state that had not adopted a search and seizure provision as such--demonstrates the acceptance of the illegality of general warrants at common law. Kirby's reports were the first set of state court reports published in any American state.

424

These statutes are cited and discussed in 3 Cuddihy, supra note 20, at 1347-51. I disagree with Cuddihy's suggestion, however, that some of these statutes permitted general search warrants; rather, they consistently required specific warrants for house searches. See supra note 299.

425

See supra notes 98, 164, 166. Chief Justice Rehnquist has written that “[t]he Framers originally decided not to include a provision like the Fourth Amendment, because they believed the National Government lacked power to conduct searches and seizures.” United States v. Verdugo-Urquidez, 494 U.S. 259, 266 (1990) (citing Warren, supra note 16, at 508-09). I do not find any comparable statement in Warren. In any event, the statement is historically incorrect. Although Federalists made a general argument that a Bill of Rights was unnecessary in view of the limited powers of the proposed government, it was widely assumed that customs would be the chief revenue source for the new national government and that federal customs collectors would be empowered to make searches and seizures to enforce it; that is evident in the provisions for search authority for federal officers in the state statutes discussed in the preceding note.

426

The Pennsylvania anti-Federalists proposed: 5. That warrants unsupported by evidence, whereby any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his or their property, not particularly described, are grievous and oppressive, and shall not be granted either by the magistrates of the federal government or others. Cogan, supra note 122, at 233 (6.1.2.5). Note that this is basically the 1776 Pennsylvania provision, see quotation supra text accompanying note 353, with the deletion of the introductory right statement and the addition of the final reference to federal magistrates. Because the anti-Federalists tended to take libertarian positions, I speculate that the Pennsylvania anti-Federalists dropped the right statement to enlarge the protection beyond the limited scope of the ban implied by the persons-houses-papers-possessions formula of the state provision. See supra note 370 and accompanying text. The Maryland anti-Federalists advanced a similar proposal for a straightforward ban against too-loose warrants: 8. That all warrants without oath, or affirmation of a person conscientiously scrupulous of taking an oath, to search suspected places, or seize any person or his property, are grievous and oppressive; and all general warrants to search suspected places, or to apprehend any person suspected, without naming or describing the place or person in special, are dangerous, and ought not to be granted. Cogan, supra note 122, at 232 (6.1.2.1). This proposal, however, tracked the 1776 Maryland provision, which also had not included an introductory right statement. See supra note 351; see also supra note 164.

427

See description of the calls for a federal protection in the fourth, sixth, and sixteenth letters discussed supra notes 122, 127, 128 and accompanying text.

428

See Richard Henry Lee's call for a federal protection discussed supra note 120 and accompanying text; authorship of the Letters discussed supra note 121.

429

The Virginia ratification convention proposed: Fourteenth, That every freeman has a right to be secure from all unreasonable searches and siezures of his person, his papers and his property; all warrants, therefore, to search suspected places, or sieze any freeman, his papers or property, without information upon Oath (or affirmation of a person religiously scrupulous of taking an oath) of legal and sufficient cause, are grievous and oppressive;


129

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 and all general Warrants to search suspected places, or to apprehend any suspected person, without specially naming or describing the place or person, are dangerous and ought not to be granted. Cogan, supra note 122, at 233 (6.1.2.6). Lasson asserted that the language of the Virginia ratification convention resolution “was broader than the analogous clause in the [1776] Virginia Bill of Rights which had only concerned itself with general warrants” and that this language “added the principle of security from unreasonable search and seizure.” Lasson, supra note 16, at 95-96. That assertion, however, rests on the unsupported assumption that “unreasonable” was intended to be a standard distinct from the standards for valid warrants. George Wythe moved this proposal in the Virginia convention on behalf of a bipartisan committee that included James Madison. See Proposed Amendments Agreed upon by the Anti-federal Committee of Richmond and Dispatched to New York, June 11, 1788, reprinted in 3 Papers of George Mason, supra note 346, at 1071. The introductory right statement tracks that found in the sixteenth of the Letters from the Federal Farmer and the 1780 Massachusetts provision. See supra note 128; text accompanying note 379. The language banning too-loose warrants appears to be a slightly expanded version of the Maryland anti-Federalist proposal. See supra note 426. For the New York version of the proposal, see Cogan, supra note 122, at 233 (6.1.2.3); for the North Carolina version, see id. (6.1.2.4). Samuel Adams also made a motion that called for a federal protection against “unreasonable searches and seizures” during the Massachusetts convention, which was withdrawn during political maneuvering. See supra note 123 and accompanying text.

430

See 1 The Papers of James Madison, supra note 98, at 170-71. This suggests that Madison participated in the decision to add a ban against general warrants to Mason's initial draft of the Virginia declaration. See supra note 346.

431

See supra note 429.

432

James Madison, Speech to the House of Representatives (June 8, 1789) [hereinafter Speech of James Madison], in 12 The Papers of James Madison, supra note 98, at 197, 201; see also Cogan, supra note 122, at 223 (6.1.1.1.a-c). Madison's proposal obviously included borrowings from the language of the Pennsylvania provision (for example, “the people,” see supra note 363), and from the Massachusetts provision and Virginia ratification convention resolutions (“right to be secured” and “unreasonable searches and seizures,” see supra text accompanying notes 379, 429). Madison also followed the Virginia convention's preference for defining the scope of the protection more broadly to reach persons, houses, papers, and “other property” rather than “possessions,” as discussed in the text infra.

433

Previous commentaries have not ventured any explanation for Madison's adoption of a single-clause provision. I think the significant clue is that Madison did not use a single “therefore” format in any of the federal rights amendments he proposed. See Speech of James Madison, supra note 432, at 200-02. The complete absence of that format suggests a stylistic aversion, because it had been used in all of the prior state search and seizure provisions, and proposals for a federal search and seizure protection that included an introductory right statement. Likewise, it had been frequently used in provisions dealing with other rights in the state declarations of rights and in proposals for a federal bill of rights. Madison's proclivity to adopt different language to articulate rights previously identified in the various state declarations or state ratification convention proposals is also evident in his treatment of the common-law protection against compelled self-accusation. Madison proposed “No person ... shall be compelled to be a witness against himself.” See Speech of James Madison, supra note 432, at 201; see also Cogan, supra note 122, at 315 (9.1.1.1.a). However, the initial provision adopted by Virginia in 1776 had stated that no man “can be compelled to give evidence against himself.” Va. Decl. of Rights of 1776, § VIII, reprinted in Cogan, supra note 122, at 330 (9.1.3.8). Pennsylvania, Delaware, Maryland, North Carolina, and Vermont had repeated that formulation. See Cogan, supra note 122, at 328-30 (9.1.3.6.a, 9.1.3.1, 9.1.3.2, 9.1.3.5, 9.1.3.7). In keeping with John Adams's more detailed drafting style, the 1780 Massachusetts declaration had adopted a somewhat fuller statement that “No subject shall ... be compelled to accuse, or furnish evidence against himself.” Mass. Const. of 1780, part I, art. XII, reprinted in Cogan, supra note 122, at 328 (9.1.3.3.b.). New Hampshire had also adopted that formulation. See Cogan, supra note 122, at 329 (9.1.3.4). The Virginia, New York, and North Carolina ratification conventions all had proposed that no person should “be compelled to give evidence against himself.” See Cogan, supra note 122, at 326-28 (9.1.2.1-9.1.2.5). Some prior commentators have asserted that these minor language variations are significant, and that Madison's “compelled to be a witness” formulation was narrower than earlier formulations. See, e.g., Amar & Lettow, supra note 320, at 919 & n.274. However, the historical record shows that was not the case.


130

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 The record of the House debate over the language that became the Fifth Amendment provides direct evidence that Madison's “compelled to be a witness against himself” was understood to be synonymous with the earlier usage of “compelled to give evidence against himself.” Representative Lawrance voiced the only objection to Madison's proposal when he complained that Madison's language was a “general declaration” that was too broad unless it was explicitly limited to criminal cases. See discussion infra note 450. The record states that Lawrance “alluded to that part where a person shall not be compelled to give evidence against himself.” See Cogan, supra note 122, at 330 (9.2.1.2.a) (recording House debate, August 17, 1789) (emphasis added). Thus, Madison's “be a witness” language was understood to be interchangeable with the earlier “give evidence” language during the House debate. Moreover, had Madison's language been perceived as narrower than earlier constitutional statements, zealous advocates of a strong bill of rights undoubtedly would have criticized it during that debate. (Elbridge Gerry did criticize several of Madison's other proposals, including his search and seizure proposal, for being too weakly stated. See infra notes 482, 493-497 and accompanying text). However, the Committee of Eleven accepted Madison's language without alteration, see Cogan, supra note 122, at 316 (9.1.1.2), and there is no indication anyone criticized Madison's language as being too narrow during the House debate. Indeed, the precise phrasing of the protection against self-accusation was inconsequential in any event. When the Framers drafted bills of rights, they undertook to preserve existing doctrines, not formulate new ones. They usually did not attempt to define the rights in detail; rather, they simply invoked the then-shared understanding of well-settled common-law rights. See supra notes 329-331 and accompanying text. (The state search and seizure provisions and the Fourth Amendment were unusually detailed because the legal requisites of search and arrest warrants had been the subject of controversy only a decade or two prior to the framings.) The most significant feature of the common-law statements of the right against compelled self-accusation was the breadth with which they were stated. For example, Blackstone, in the 1765 first volume of his commentaries, gave two examples of “established rules and maxims” of the common law--one was that “no ‘man shall be bound to accuse himself.” ’ 1 Blackstone, supra note 27, at 68. In his 1769 fourth volume he stated that “at the common law, nemo tenebatur prodere seipsum [no one is bound to betray himself]; and his fault was not to be wrung out of himself, but rather to be discovered by other means and other men.” 4 id. at 293 (bracketed translation of the Latin from Black's Law Dictionary); see also infra note 574. Likewise, Chief Justice Pratt (Lord Camden) stated in his jury instructions during the 1763 trial in Wood that one reason the seizure of papers under a general warrant was illegal, see supra note 21, was that “nothing can be more unjust in itself, than that proof of a man's guilt shall be extracted from his own bosom.” Wilkes v. Wood, Lofft 1, 3, 19 Howell St. Tr. 1153, 1155, 98 Eng. Rep. 489, 490 (C.P. 1763) (case report published in 1776, see supra note 25); see also cases discussed infra note 511. The most significant innovation in Madison's presentation of the right against compelled self-accusation was not his wording but rather where he placed it in the Bill of Rights. Whereas some earlier state provisions or state ratification proposals might have appeared to have bundled the right with trial rights, Madison did not include it in the provision he proposed for rights “[i]n all criminal prosecutions” (namely, the language that became the Sixth Amendment). Rather, he set it out in an earlier provision in combination with the ban against double jeopardy, the broad “due process of law” protection, and a “takings” clause. See Speech of James Madison, supra note 432, at 201. That placement makes it clear that he understood the right to apply to any aspect or stage of a criminal matter. See also infra note 450. Although the Committee of Eleven and the House did move some provisions around in framing the final Bill of Rights (for example, the grand jury provision), there is no indication anyone objected to Madison's placement of the right against being “compelled to be a witness.” Thus, the language and placement of the right in the Fifth Amendment invoked the full breadth of the common-law right. Another example of Madison's innovative drafting was his use of the term “due process of law” instead of “law of the land” in the what became the Fifth Amendment. The preceding state constitutions and declarations of rights had almost uniformly used “law of the land,” see Cogan, supra note 122, at 349-53 (10.1.3.1.b - 10.1.3.12), as had most of the state ratification convention proposals for federal rights amendments, see id. at 348-49 (10.1.2.2-10.1.2.4). The only prior use of “due process of law” had appeared in the 1787 New York statutory bill of rights and the New York ratification convention proposal for federal amendments. See id. at 353 (10.1.3.6.c), 348 (10.1.2.1). Nevertheless, Madison chose the less used formulation. See supra notes 332-333 and accompanying text.

434

See, e.g., Landynski, supra note 38, at 41-42; Lasson, supra note 16, at 100; Taylor, supra note 49, at 42-43; Amsterdam, supra note 38, at 468 n.465; Kamisar, supra note 38, at 573-74. This also appears to be Amar's understanding; he asserted that “in early drafts of the federal Fourth, it is the loose warrant, not the warrantless intrusion, that is explicitly labeled ‘unreasonable.” ’ See Amar, Fourth Amendment, supra note 58, at 775. Levy also has viewed Madison's text as being narrower than the final text, but for peculiar reasons. See infra note 474. Cuddihy, however, asserted that “Madison's original proposal... embraced the full breadth of the final version [of the Fourth Amendment] simply by acknowledging the multiple categories of unreasonable searches and seizures against which rights existed.”


131

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 3 Cuddihy, supra note 20, at 1410; see also id. at 1476-77 (suggesting that Madison only altered the “phraseology” of the earlier proposals). It appears that Cuddihy concluded that Madison was addressing “multiple categories of unreasonable searches and seizures” because Madison used the plural “rights” when he referred to “the rights of the people.” (No historical source ever referred to “multiple categories of unreasonable searches and seizures”--that is only the conceptual framework that Cuddihy himself employed.) Madison's use of the plural “rights” may have simply reflected his use of the collective terms “the people” and “their” persons, houses, papers, and property.

435

Madison referred to his proposed protection as a prohibition against Congress approving “general warrants” in his June 8, 1789, speech to the House on rights amendments. Speech of James Madison, supra note 432, at 205; see also Cogan, supra note 122, at 53, 55 (1.2.1.1.a) (excerpting from Madison's statement). (One observer of Madison's speech also described his search and seizure proposal as “exemption from general warrants.” Letter from Fisher Ames to Thomas Dwight (June 11, 1789), reprinted in Cogan, supra note 122, at 242 (6.2.5.2).) Madison's notes for his speech to the House show he also planned to refer to “Gl. Warrants” a second time during the speech in a passage describing several desirable rights not included in the English Declaration of Rights. James Madison, Notes for Speech in Congress (June 8, 1789) [hereinafter Madison's Notes], reprinted in 12 The Papers of James Madison, supra note 98, at 193. No such reference, however, appears in the corresponding part of the report of his speech. The three letters were: Letter from James Madison to George Eve (Jan. 2, 1789), reprinted in 11 The Papers of James Madison, supra note 98, at 404, 405 (endorsing “provisions for all essential rights, particularly the rights of Conscience in the fullest latitude, the freedom of the press, trials by jury, security against general warrants &c.”); and Letter from James Madison to Thomas Mann Randolph (Jan. 13, 1789), reprinted in 11 The Papers of James Madison, supra note 98, at 415, 416 (endorsing “the clearest, and strongest provision... for all those essential rights, which have been thought in danger, such as the rights of conscience, the freedom of the press, trials by jury, exemption from general warrants, &c.”); Letter from James Madison to a Resident of Spotsylvania County (Jan. 27, 1789), reprinted in 11 The Papers of James Madison, supra note 98, at 428 (endorsing “specific provision[s] made on the subject of the Rights of Conscience, The Freedom of the Press, Trials by Jury, Exemption from General Warrants, & c.”). These three letters are identified in 3 Cuddihy, supra note 20, at 1405 n.79.

436

Madison's arguments regarding the need for a federal search and seizure provision have sometimes been misstated as though he had expressed a fear about customs searches being made without warrant. Writing in 1928, Charles Warren asserted, in an apparent reference to Madison's speech to the House regarding the need for rights amendments, that Madison feared that customs officers would make searches “without warrants.” See Warren, supra note 16, at 508-09. Warren's statement is an example of prochronistic historiography; he treated the dominant issue of search law at the time he wrote (after Weeks and Carroll) as though it were the historical issue--even though Madison had not expressed any doubt that revenue searches would employ some sort of warrant. See the text of Madison's statement, quoted infra note 438.

437

Madison proposed putting the provisions that became the first, second, third, fifth (except the grand jury clause), eighth, fourth, sixth (except the trial by local jury clause) and ninth amendments “in article 1st, section 9, between clauses 3 and 4.” See Speech of James Madison, supra note 432, at 201-02. He proposed putting the local jury trial clause, the grand jury clause, and the provision that became the seventh amendment (jury trials in civil cases) in “article 3d, section 2....” Id. at 202; see also Edward Hartnett, A ‘Uniform and Entire’ Constitution; Or, What if Madison Had Won?, 15 Const. Commentary 251 (1998).

438

Madison's reason for inserting most of the rights amendments into the limits on Congressional power in Article I is evident in the explanation that he gave during his speech to the House: In our government it is [necessary to guard against abuse by] the legislative, for it is the most powerful [branch], and most likely to be abused, because it is under the least controul; hence, so far as a declaration of rights can tend to prevent the exercise of undue power, it cannot be doubted but such declaration is proper. Speech of James Madison, supra note 432, at 204. He also referred to the need to check the legislature indirectly when he stated that “the prescriptions in favor of liberty ought to be levelled against... the body of the people, operating by the majority against the minority.” Id. These concerns are consistent with Madison's previously expressed concern that the legislative branch would tend to “draw [ ] all power into its impetuous vortex.” The Federalist No. 48 (James Madison).

439

Madison said the following: It is true that the powers of the general government are circumscribed, they are directed to particular objects; but even if government keeps with those limits, it has certain discretionary powers with respect to the means, which may admit of abuse to a certain extent,


132

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 in the same manner as the powers of the state governments under their constitutions may to an indefinite extent.... Now, may not laws be considered necessary and proper by Congress, for it is them who are to judge of the necessity and propriety to accomplish those special purposes which they may have in contemplation, which laws in themselves are neither necessary or proper; as well as improper laws could be enacted by the state legislatures, for fulfilling the more extended objects of those governments. I will state an instance which I think in point, and proves that this might be the case. The general government has a right to pass all laws which shall be necessary to collect its revenue; the means for enforcing the collection are within the direction of the legislature: may not general warrants be considered necessary for this purpose, as well as for some purposes which it was supposed at the framing of their constitutions the state governments had in view. If there was reason for restraining the state governments from exercising this power, there is like reason for restraining the federal government. Speech of James Madison, supra note 432, at 205-06; see also Cogan, supra note 122, at 55 (1.2.1.1.a) (excerpting Madison's speech). Madison may have borrowed this point from Patrick Henry's expression of concern, during the Virginia ratification convention, that the “necessary and proper clause” would permit general warrants. See Patrick Henry, Statements Before the Virginia Ratification Convention (June 14, 1788), reprinted in 3 Elliot's Debates, supra note 84, at 439, 442, 448. Elbridge Gerry had also singled out the Necessary and Proper Clause as a power that “rendered insecure” the rights of citizens. See George Athan Billias, Elbridge Gerry, Founding Father and Republican Statesman 199 (1976).

440

Although there may not have been a clear consensus as to the appropriate scope for judicial review among the Framers, there is little doubt that they at least intended that the federal courts would exercise review over the constitutionality of legislation that impinged on tradition judicial functions and subject matter. For example, during the Constitutional Convention of 1787, Madison expressed doubts “whether it was not going too far to extend the jurisdiction of the Court generally to cases arising Under the Constitution, & whether it ought not to be limited to cases of a Judiciary Nature.” 2 The Records of the Federal Convention of 1787, at 430 (Max Ferrand ed., 1911, reprinted 1966) [hereinafter Records of the Federal Convention]. His notes show that the response to his query was that it was “generally supposed that the jurisdiction given was constructively limited to cases of a Judiciary nature.” Id. The significant point, for present purposes, is that legislation dealing with the issuance of warrants, or with other aspects of criminal procedure, would have been understood to be “of a Judiciary nature.” Madison's expectation that there would be judicial review regarding legislation affecting procedural rights is also evident in his speech to the House on June 8, 1789, when he argued: [If provisions regarding rights] are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights. Speech of James Madison, supra note 432, at 206-07. There are a variety of other endorsements of the principle of judicial review in the records of the Constitutional Convention, the debates over ratification, and the state ratifying conventions. The best known endorsement was by Alexander Hamilton in The Federalist No. 78. See also Eldridge Gerry, Statements Before the Federal Convention (July 21, 1787), reprinted in 1 Records of the Federal Convention, supra, at 97-98; Patrick Henry, Statement Before the Virginia Ratification Convention (June 12, 1788), reprinted in 3 Elliot's Debates, supra note 84, at 313, 325; Patrick Henry, Statement Before the Virginia Ratification Convention (June 15, 1788), reprinted in 3 Elliot's Debates, supra note 84, at 460, 462; John Marshall, Statement Before the Virginia Ratification Convention (June 20, 1788), reprinted in 3 Elliot's Debates, supra note 84, at 551, 553-54.

441

Otis called on the Massachusetts Court to “pass into disuse” the statute that purported to authorize issuance of general warrants. See supra text accompanying note 406. Likewise, the colonial courts had generally refused to issue general writs despite the statutory authority provided by the Townshend Act. See supra note 26. Unfortunately, works on the historical origins of American judicial review have sometimes focused on judicial review of Congressional powers granted in Article I, without adequately addressing the implications of the adoption of the Bill of Rights as a limit on congressional power. See, e.g., Levy, Original Meaning, supra note 45, at 89-123 (1988); J.M. Sosin, The Aristocracy of the Long Robe: The Origins of Judicial Review in America (1989).

442



133


443

Madison had authored a Virginia customs statute in 1787; hence, it is likely that he was familiar with the various state customs statutes as well as the state statutes enacted in the unsuccessful attempt to authorize a national impost. See James Madison, Bill concerning the Collection of Duties (Jan. 8, 1787), reprinted in 9 The Papers of James Madison, supra note 98, at 232-42.

444

The Pennsylvania statute required a sworn-to showing of “probable cause” as a condition for the granting of a search warrant for a house to a national customs collector. Act of April 8, 1786, ch. 30, § 3. So far as I can determine, this statute is the only American source, predating Madison's draft, that used “probable cause,” standing alone, as a standard for a warrant. The Pennsylvania statute may have borrowed the probable cause standard from the English excise or customs statutes discussed infra note 446.

445

The allegations of an offense “in fact” required for a complaint to support a criminal arrest or search warrant are discussed supra notes 290-292 and accompanying text.

446

English revenue statutes used the “probable cause” standard in two ways. One was as a protection for the officer in a case in which seized goods or ships were acquitted in forfeiture proceedings; in that circumstance, the court that adjudged the seized goods not forfeit could nevertheless protect the officer from a trespass action by certifying that the officer had possessed “probable cause” for the seizure. English customs statutes that applied in the American colonies offered this protection. See supra note 295. English revenue statutes also had employed probable cause as grounds for the issuance of an excise search warrant. See, e.g., 10 Geo. 1, ch. 10, § 13 (English excise statute that was never in effect in the American colonies, but that the Framers probably became familiar with when they began to formulate revenue statutes in the 1780s). Lord Mansfield suggested the reason for allowing revenue warrants to be issued on the lower threshold of probable cause: namely, that a revenue search warrant should be more available to a revenue officer than a search warrant for stolen goods should be to a private complainant, because the former was “for the benefit of the public, and it is for their benefit that the parties may proceed safely on reasonable grounds.” See Cooper v. Boot, 4 Doug. 339, 349, 99 Eng. Rep. 911, 916 (K.B. 1785). The implication seems to be that the search for stolen property was only a private benefit to the victim. Note, however, that the Framers were unfamiliar with Cooper because it was not published as of 1789. See supra note 19.

447

Prior commentators have either understated or misunderstood this point. Lasson noted that Hale had written that the examination of a complainant seeking an arrest warrant should included “whether a crime had actually been committed and the reasons for his suspicions.” Lasson, supra note 16, at 35 (citing 2 Hale, supra note 75, at 110). However, when Lasson described the requirements for a search warrant for stolen property, he described Hale as stating that such a search warrant could be issued “after a showing, upon oath, of the suspicion and the ‘probable cause’ thereof, to the satisfaction of the magistrate.” Lasson, supra note 16, at 35-36 (citing 2 Hale, supra note 75, at 150). Actually, Hale had stated that search warrants “are not to be granted without oath made before the justice of a felony committed, and that the party complaining hath probable cause to suspect [the stolen goods] are in such a house or place, and do shew his reasons of such suspicion.” 2 Hale, supra note 75, at 149-50 (emphasis added). Thus, because Lasson's treatment of search warrants understated Hale's insistence on an allegation of felony-in-fact, it allowed readers to erroneously believe that common law permitted a search warrant to be issued on “probable cause” alone. Subsequent commentators have written as though the cause standard for a warrant had evolved from weaker statements up to the probable cause threshold. See, e.g., Levy, Original Meaning, supra note 45; Cuddihy, supra note 20. Actually, the evolution was the reverse.

448

Madison's concern with customs searches was evident in his speech to the house. See supra note 439 and accompanying text.

449

“Probable cause” met with a mixed reception after the adoption of the Fourth Amendment. In 1790, when Pennsylvania revised its search and seizure provision, it adopted “probable cause” as the cause standard for warrants rather than the “supported by evidence” standard in the 1776 Pennsylvania provision. Compare the 1790 provision, supra note 346, with the 1776 provision, supra text accompanying note 353. Pennsylvania had earlier adopted “probable cause” as the standard for national customs search warrants. See supra note 444. In 1792, Kentucky adopted a provision based on the 1790 Pennsylvania provision and also used “probable cause.” See Ky. Const. of 1792, art. XII, reprinted in 4 Swindler, supra note 177, at 142, 150. Indiana followed suit in 1816. See Ind. Const. of 1816, art. I, § 8, reprinted in 3 Swindler, supra note 177, at 364, 365. Mississippi did likewise in 1817. See Miss. Const. of 1817, art. I, § 9, reprinted in, 5 Swindler, supra note 177, at 347, 348. When Tennessee adopted a declaration of rights in 1796, however, it appears to have borrowed only the introductory right statement language from the 1790 Pennsylvania revision but then condemned “general warrants” not based on “evidence of a fact committed.” See Tenn. Const. of 1796, art. XI, § 7, reprinted in 9 Swindler, supra note 177, at 141, 148. The “evidence of a fact committed”


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RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 standard was probably borrowed, via North Carolina, from the Virginia provision. See supra text accompanying notes 347, 351. Tennessee may have used that language because it had been previously used in the 1784 declaration of rights by the proto-state of Franklin. See supra note 351. In 1802, Ohio apparently copied the 1796 Tennessee provision but tried to blend it with the federal probable cause standard by calling for “probable evidence of the fact committed” (which appears to be an oxymoron). See Ohio Const. of 1802, art. VIII, § 5, reprinted in 7 Swindler, supra note 177, at 547, 554 (quoted supra note 177). Illinois, however, reverted to the earlier “evidence of a fact committed” standard without “probable” in 1818. See 3 Ill. Const. of 1818, art. VIII, § 7, reprinted in 3 Swindler, supra note 177, at 237, 244. Virginia and North Carolina still retain their “evidence of a fact committed” standard. See supra text accompanying note 347 and note 351.

450

Concern for the efficient collection of customs affected another aspect of the House deliberations over the proposed Bill of Rights; specifically, the historical record indicates that “in any criminal case” was added to the Fifth Amendment's language protecting the right against self-incrimination to make it clear that that provision did not extend to civil customs collection matters. Representative John Lawrance moved to add that language because otherwise “this clause contained a general declaration, in some degree contrary to laws passed....” John Lawrance [sometimes spelled Laurence], Statement Before First Congress (Aug. 17, 1789), reprinted in Cogan, supra note 122, at 330 (9.2.1.2.a). The 1789 Collections Act, enacted July 31, 1789, was one of the few “laws passed” prior to the House debate over the Bill of Rights in August 1789, and it contained a variety of provisions requiring oaths and production of invoices. See Act of July 31, 1789, ch. 5, § 13, 1 Stat. 29, 39-40. Significantly, Lawrance was the principal author of the Collections Act. See 3 Cuddihy, supra note 20, at 1487-88. Lawrance's insertion of “in any criminal case” was not a novel limit on the right against compelled self-accusation--at common law the right applied to criminal matters, but not to civil matters. See, e.g., Roe v. Harvey, 4 Burr. 2484, 2489, 98 Eng. Rep. 302, 305 (K.B. 1769) (“Lord Mansfield observed that in civil causes, the Court will force parties to produce evidence which may prove against themselves; or leave the refusal to do it (after proper notice) as a strong presumption, to the jury.... But in a criminal or penal cause, the defendant is never forced to produce evidence; though he should hold it in his hands, in Court.”). (Burrows' case report of Roe was published 1776. See 1 Legal Bibliography, supra note 19, 294, entry 20 (“Vol 4, 1776”).) The need to explicitly define the scope of the right against compelled self-accusation in the federal Bill of Rights arose because Madison had not followed the earlier practice of bundling that right only with other rights that also pertained to criminal matters. For example, the 1776 Virginia declaration had combined the right against compelled self-accusation with other rights pertinent to “capital or criminal prosecutions.” See Va. Decl. of Rights of 1776, § VIII, reprinted in Cogan, supra note 122, at 330 (9.1.3.8). The same was true of the Virginia ratification convention proposal. See Cogan, supra note 122, at 328 (9.1.2.5). However, Madison also had included the civil “takings” provision in the same provision as the right against compelled self-accusation, and that injected some ambiguity into the scope of the latter. See Speech of James Madison, supra note 432, at 201; see also Cogan, supra note 122, at 315 (9.1.1.1.a). Unfortunately, the rather straightforward explanation why the Framers inserted “in any criminal case” has been lost sight of. The reason is probably Justice Bradley's erroneous claim in the 1886 Boyd decision that the Fifth Amendment right was intended to prohibit compelled production of invoices for imported goods in civil customs forfeiture proceedings (which Boyd was) because “though [such proceedings] may be civil in form, [they] are in their nature criminal.” See Boyd v. United States, 116 U.S. 616, 633-34 (1886). The most significant feature of Bradley's claim is that he did not discuss the actual legislative history of the addition of “in any criminal case.” Instead, he directed attention to a provision of the Judiciary Act that permitted federal courts to require production of books or writings in civil suits according to the ordinary rules of proceeding in chancery, and asserted that a cardinal rule of chancery was that production was never to be compelled if it would result in forfeiture. See id. at 630-32. Thus, he justified prohibiting compelled production of invoices notwithstanding that the Framers intended to permit compelled production in customs matters. Modern commentary on the Fifth Amendment has uncritically followed Bradley's explanation. See Leonard W. Levy, Origins of the Fifth Amendment: The Right Against Self-Incrimination 424-27 (1968). So far as I can determine, no commentary has previously noted the rather obvious connections between “in any criminal case,” the preservation of settled customs enforcement procedures, and the common-law boundary on the privilege. Indeed, Professor Amar has recently given “in any criminal case” in the Fifth Amendment a novel twist by asserting that the phrase should be understood to mean that the protection only prohibits compelling a defendant to give testimony during his own criminal trial, but allows compelling him to make incriminating statements or produce incriminating evidence prior to his trial or in connection with prosecution or trial of another person. See Amar & Lettow, supra note 320, 898-901. Amar's argument is grounded on the assertion that “in a criminal case” can mean only during a person's own criminal trial. See, e.g., id. at 858-59 (“[T]he [defendant's] compelled words will never be introduced over the defendant's objection in a criminal trial [so] the defendant will never be an involuntary ‘


135

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 witness' against himself ‘ in’ a ‘criminal case’.” (emphasis in original)); id. at 900 (“Unless these words [from a defendant's compelled pretrial statements] are introduced at trial, a suspect is not a ‘witness' against himself ‘in’ a criminal ‘case.” ’ (emphasis in original)); id. at 909-910 (“Textually, the Fifth Amendment speaks to witnessing within the criminal case, not beyond. Therefore, the key question is what ‘witnessing’ is excludable ‘in’ a ‘criminal case'--that is, at trial.” (emphasis in original)). The significant feature of Amar's and Lettow's assertion, for present purposes, is that they offered no evidence that “case” was understood to mean only the defendant's own trial at the time of the framing. That clearly was not the historical understanding. For example, Chief Justice Pratt ruled during Wilkes v. Wood that a potential witness against Wilkes could not be required to answer questions regarding “any matter which may tend to accuse himself.” Lofft 1, 13, 19 How. St. Tr. 1154, 1162, 98 Eng. Rep. 489, 495 (C.P. 1763). (The case report was published 1776. See supra note 25.) Oddly, although Amar treated the civil trespass ruling in Wood as central to the meaning of the Fourth Amendment, see supra note 60, he does not mention it in his discussion of the breadth of the right against self-accusation. See also supra note 433.

451

Early interpretations of the probable cause standard seem to have varied depending on the context. The Supreme Court gave a rather rigorous interpretation of “probable cause” in the context of assessing an arrest warrant for treason in Ex parte Bollman and Swartwout, 8 U.S. (7 Cranch) 75 (1807). In that case, the Court ruled that the absence of an allegation that there had been an actual taking up of arms against the United States defeated probable cause for an arrest warrant for treason. In contrast, the Court later gave a looser interpretation of “probable cause” in the context of assessing the validity of a revenue seizure made under the 1799 Collections Act: [T]he term “probable cause,” according to its usual acceptation, means less than evidence which would justify condemnation; and, in all cases of seizure, has a fixed and well known meaning. It imports a seizure made under circumstances which warrant suspicion. In this, its legal sense, the Court must understand the term to have been used by Congress. Locke v. United States, 11 U.S. (7 Cranch) 339, 348 (1813) (construing Act of March 2, 1799, ch. 22, § 71, 1 Stat. 627, 678). Note that the “in all cases of seizure” language leaves open the possibility that the term could carry a different meaning in the criminal context.

452


453

Letter from Richard Henry Lee to Edmund Randolph (postscript), supra note 120, at 117.

454

See Letters from the Federal Farmer (XVI), supra note 128, at 328.

455


456

See Letters from the Federal Farmer (IV), supra note 127.

457

See supra note 429.

458

See Letters from the Federal Farmer (VI), supra note 122.

459

See supra note 123.

460

One commentator has argued that “possessions” could have been understood to include real property at the time of the framing. See Neil C. McCabe, State Constitutions and the “Open Fields” Doctrine: A Historical-Definitional Analysis of the Scope of Protection Against Warrantless Searches of “Possessions,” 13 Vt. L. Rev. 179 (1988). McCabe did show that “possessions” sometimes referred to land in framing-era usage. Id. at 193-210. However, he does not show that it was ever used that way in the context of complaints about searches and seizures. As described above, the American search controversies were about the threatened seizure of goods from houses. Moreover, McCabe did not offer any explanation for the substitution of “effects” for “possessions” in the Fourth Amendment (discussed in the text infra), and offered no evidence that “effects” was used to refer to land. To the contrary, the evidence is clear that “effects” referred to moveable goods. See infra note 461. Thus, it is implausible that the term “possessions” in search and seizure provisions was understood to apply the right to be secure to land.

461

“Effects” does not seem to have been defined in framing-era legal dictionaries, but it was defined in general purpose dictionaries. A 1730 dictionary defined “effects” as “the goods of a merchant, tradesman, &c.” Dictionarium Britannicum (Nathan Bailey ed., 1730, reprinted 1969). Johnson's Dictionary, supra note 177 (published in 1755), defined the plural of “effect” simply as “Goods; moveables.”


136

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 In addition, some framing-era usages of “effects” clearly used the term to refer only to moveable property. For example, during the debates over boycotting British imports in 1769, the imports were usually referred to as “goods,” “wares,” “manufactures,” “merchandizes,” or “commodities,” but were occasionally referred to as “effects.” See The Letters of Freeman, Etc: Essays on the Nonimportation Movement in South Carolina 105, 107 (William Henry Drayton ed., 1771; reprinted, Robert M. Weir ed., 1977). Similarly, in 1775 the Continental Congress complained that British authorities in Boston “detained the greatest part of the inhabitants of the town, and compelled the few who were permitted to retire, to leave their most valuable effects behind”--a complaint that would not make sense unless it meant that the departing inhabitants were not permitted to take everything of a moveable nature with them. See A Declaration by Representatives of the United Colonies of North-America, Now Met in Congress at Philadelphia, Setting Forth the Causes and Necessity of Their Taking Up Arms (July 6, 1775), quoted in Sources of Our Liberties: Documentary Origins of Individual Liberties in the United States Constitution and Bill of Rights 295, 298 (Richard L. Perry ed., 1959). Similarly, a 1782 wartime Pennsylvania statute authorized seizures of “Goods, Wares, and Merchandize” or “Goods and Property” imported from Britain; one provision excepted “all Goods and Effects” which were the property of any of the States, and another referred to “the Goods or Effects seized” under authority of the act. See An Act for the more effectual Suppression of all Intercourse and Commerce with the Enemies of the United States of America, ch. 31, § 3 (“all Goods and Effects”), § 13 (“the Goods and Effects seized”) (1782). The same understanding is still evident in the 1828 first edition of Webster's Dictionary, supra note 313 (pages unnumbered) (defining “EFFECT” as “[i]n the plural, effects are goods; moveables; personal estate. The people escaped from the town with their effects”) (emphasis in original).

462

Bankruptcy appears to be the only area of framing-era law where the term “effects” was frequently used. References to the bankrupt's “estate and effects” were common in framing-era bankruptcy law because the principal English bankruptcy statute applied to the bankrupt's “goods, wares, merchandizes, money, estate and effects.” An Act to prevent the committing of Frauds by Bankrupts, 5 Geo. 2, ch 30, § 1 (1732) (Eng.). As a result, the term “estate and effects” was often used as an inclusive formula for everything the bankrupt had that was of value. See, e.g., 2 Blackstone, supra note 27, at ch. 31. The term “effects”--often coupled with “estate”-also appears in the 1785 Pennsylvania bankruptcy Act, An Act for the Regulation of Bankruptcy, ch. 230, (1785), and in the 1800 federal bankruptcy Act, Act of Apr. 4, 1800, ch. 19, 2 Stat. 19. The use of “effects” in bankruptcy law probably reflects the fact that, during the framing era, bankruptcy still applied only to “merchants.” See Thomas Plank, The Constitutional Limits of Bankruptcy, 63 Tenn. L. Rev. 487, 507-09 (1996). A bankrupt merchant's remaining wealth might well be largely in the form of unsold goods (though all of his interests, including land, were subject to bankruptcy). In that context, it made sense that bankruptcy law would often refer to the combination of a bankrupt's “effects” (goods and personal items, see the previous note) and “estate” (a term that referred broadly to interests in land or other property). Thus, “estate and effects” of the bankrupt served as an inclusive formula for anything of value that the bankrupt owned or was owed. The early bankruptcy acts, however, used a plethora of terms to denote anything of value that commissioners of bankruptcy could claim and sell for the benefit of the bankrupt's creditors, and it does not appear that there was any particular effort to differentiate among the various terms for forms of property or interests in those statutes.

463

Lord Mansfield gave an expansive construction to the phrase “real and personal effects” in the context of interpreting a will in the 1775 English decision Hogan v. Jackson, 1 Cowp. 299, 98 Eng. Rep. 1096, 1099 (K.B. 1775). The case report of that decision, however, was not published until 1783, see 1 Legal Bibliography, supra note 19, at 298, entry 36; hence, it seems unlikely that Mansfield's interpretation influenced the American Framers. One of the attorneys in Hogan had argued that the word “effects” was properly applicable only to “personal estate,” and that “[a]ll the dictionaries explain it by the words ‘goods and moveables.” ’ 1 Cowp. at 302, 98 Eng. Rep. at 1098. Lord Mansfield chose to interpret “effects” to be “synonimous to worldly substance... whatever can be turned to value” so that “real and personal effects” would mean “all a man's property.” 1 Cowp. at 304, 98 Eng. Rep. at 1099. Mansfield's treatment may have led to a broader understanding of “effects” during the nineteenth century--at least or especially when it was linked to the term “real.”

464

See supra text accompanying notes 351-378.

465

The committee reported the provision as follows: The right of the people to be secure in their person, houses, papers, and effects, shall not be violated by warrants issuing, without probable cause supported by oath or affirmation, and not particularly describing the places to be searched, and the person or things to be seized. House Committee of Eleven Report (July 28, 1789), reprinted in Cogan, supra note 122, at 223-24 (6.1.1.2).


137

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 For the appointment of the Committee, see 3 Documentary History of The First Federal Congress 1789-91: House of Representatives Journal 117 (Linda Grant DePauw ed., 1977). Madison and Egbert Benson were members, but Elbridge Gerry was not.

466

See James Madison, Proposal in the House of Representatives (June 8, 1789), reprinted in Cogan, supra note 122, at 337 (10.1.1.1.ac); House Committee of Eleven Report (July 28, 1789), reprinted in Cogan, supra note 122, at 338 (10.1.1.2).

467

The Supreme Court concluded that “[t]he Framers would have understood the term ‘effects' to be limited to personal, rather than real, property” in Oliver v. United States, 466 U.S. 170, 177 n.7 (1984) (opinion of the Court by Powell, J.). Note, however, that the citations to Blackstone in the discussion in Oliver are mere decorations rather than historical evidence on this point; they refer to Blackstone's discussion of personal property, but he did not use the term “effects” in that discussion. In contrast, Amar has asserted that the Framers intended for “effects” to be a catchall including all buildings and even ships. See Amar, Bill of Rights Book, supra note 58, at 67 (asserting that “other buildings” than houses were “subsumed within the catchall word effects”); Amar, Boston, supra note 19, at 68-69 (criticizing my suggestion that the Fourth Amendment did not reach ships or commercial premises as “Davies's gambit”); Amar, Terry, supra note 58, at 1104-05, 1108-09 (criticizing my argument that ships were not “effects” and asserting that “property,” “effects,” and “possessions” each constituted “broad residual language” meant “to sweep in all important stuff, not to keep out ships, etc.” (emphasis in original)). Amar, however, has not offered any historical evidence to support these assertions.

468


469

One sort of evidence suggests the absence of any popular demand for protection of commercial premises: the state search and seizure provisions that were revised or adopted after the Fourth Amendment was adopted all explicitly referred to “houses” and often used the more traditional, but narrower-sounding “possessions” rather than “effects.” Pennsylvania retained “possessions” rather than change to “effects” when it revised its search and seizure provision in 1790. See supra note 346. Thereafter “possessions” was used by Kentucky (1792), Tennessee (1796), Ohio (1802), Mississippi (1817), Illinois (1818), Maine (1819), and Alabama (1819). The term “effects” was not used in a state provision until Indiana used it (1816), and Missouri followed suit (1820). See the respective state declarations of rights in Swindler, supra note 177.

470

The First Congress adopted customs search authority provisions in the 1789 Collections Act only a few weeks before the House debate on the Bill of Rights. Act of July 31, 1789, ch. 5, 1 Stat. 29. Section 24 initially empowered customs officers to make warrantless searches of ships when they had “reason to suspect” customs fraud. Id. at 43. (However, the Framers would not have thought ships came within protection of the common law “right to be secure” protected in the Fourth Amendment. See supra notes 143-151 and accompanying text.) Section 24 also provided: if [the officer] shall have cause to suspect a concealment [of uncustomed goods], in any particular dwelling-house, store, building, or other place, [ [ [he] shall, upon application on oath or affirmation to any justice of the peace, be entitled to a warrant to enter such house, store, or other place (in the day time only) and there to search for such goods... 1 Stat. at 43. Because this authority for issuance of a search warrant was the only form of authority for a search of a house or other building that was created by the statute, this section effectively required use of a particularized warrant for any search of a building. Unfortunately, this section has been misconstrued in various ways in prior commentary. Amar, Fourth Amendment, supra note 58, at 766, asserted that the statute “authorized, but did not require” use of warrants to search houses and building. That interpretation, however, ignores the absence of any other grant of legal authority by which a federal officer could justify a search of a house. See supra notes 92, 240. It also flies in the face of the explicit grant of warrantless search authority only as to ship searches at the beginning of the same section, as described above. See Maclin, Complexity, supra note 44, at 952. Levy, Original Meaning, supra note 45, at 245, asserted that this section prevented the magistrate from assessing whether there was probable cause for the search before issuing a warrant. However, that reading placed too much weight on “entitled to a warrant” and too little on the earlier “if” in “if [ [ [the officer] shall have cause....” The confusion over the meaning of the search provisions in the 1789 Collections Act no doubt flows in part from a serious gap in the historical record. Although the House debates over the duties and tonnage aspects of the act were reported by Lloyd in volumes one and two of the Congressional Register, see Cong. Register, infra note 475, the entries for the dates on which the procedural aspects of customs collections would have been debated consist only of brief notations that the House resolved itself into a committee of the whole and continued debate on the collections bill. See 2 id. at 54-56 (reporting proceedings on July 2-3, 6-11, 1789). Thus, there is no record of the content of the House debate on the subjects that would have most directly illuminated the Framers' views of the


138

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 relative protections to be afforded houses, commercial buildings, and ships. Likewise, this gap probably also at least partly explains the failure of prior Fourth Amendment commentaries to recognize how focused the federal Framers were on customs searches when they framed the Fourth Amendment.

471

Congress modeled the 1791 federal excise on distilled spirits on earlier English excise collection schemes. Distillers were required to register and designate any buildings or rooms in houses that were used for distilling or for storing liquor and those premises were made subject to discretionary inspection by excise officers at any time during daytime. See Act of Mar. 3, 1791, ch. 15, §§ 25, 26, 29, 1 Stat. 199, 205-07. However, the Act provided for specific search warrants for searches of any premises other than registered distilleries or storerooms: It shall be lawful for any [federal judge or justice of the peace], upon reasonable cause of suspicion, to be made out to the satisfaction of such judge or justice, by the oath or affirmation of any person or persons, by special warrant or warrants... to authorize any of the officers of inspection, by day, in the presence of a constable or other officer of the peace, to enter into all and every such place or places in which any of the said spirits shall be suspected to be [concealed]. Id. § 32, 1 Stat. at 207. This authority for issuance of “special warrant[s]” effectively required use of specific search warrants because it was the only form of search authority for non-registered premises provided for. Thus, an excise search of a house could be justified only by a specific warrant. The exposure of registered rooms to discretionary (general) search authority would appear to mean either that the constitutional “right to be secure” in the Fourth Amendment did not prohibit legislative approval of general search authority as to commercial premises, or that the registration was understood to constitute a waiver of the usual protection. Of course, from the standpoint of modern doctrine, it may seem that the exception for registered buildings or rooms could be explained as a form of waiver of the usual right to security as a condition for being permitted to engage in distilling. I have not found any framing-era discussions that actually discussed a waiver, however. Unfortunately, there is no record of any debate in the Senate regarding the 1791 Excise Act, and the record of the debate in the House of Representatives regarding the procedural aspects of the Act is quite limited. Even so, the House record indicates that the representatives were especially opposed to authorizing excise officers to make discretionary searches of houses but were not necessarily opposed to allowing discretionary search authority regarding commercial premises. Opponents of the excise asserted it would provoke public resistance because it would make houses vulnerable to searches. For example, Representative Jackson asserted that Americans would “not subject themselves to a host of excise officers, who would be warranted by law to penetrate into the inmost recesses of houses.” 14 Documentary History of the First Federal Congress: Debates in the House of Representatives, Third Session: Dec. 1790-Mar. 1791, at 213-14 (William Charles DiGiacomantonio et al. eds., 1995) [hereinafter 14 Debates in the House]. Likewise, Representative Parker questioned whether the government could protect revenue officers “in their searchings of the houses of your citizens.” 14 id. at 221-23. In response, proponents of the excise bill called attention to the fact that it did not authorize discretionary searches of houses, but conferred such search authority only over certain commercial premises. In his report to the House, Treasury Secretary Alexander Hamilton noted that the proposed bill did not give officers “the general power ... of VISITING AND SEARCHING INDISCRIMATELY the houses, stores and other buildings of the dealers in excised articles,” but that the officers' “discretionary power of visiting and searching is to be restricted to those places, which the Dealers themselves shall designate ....” 4 Documentary History of the First Federal Congress: Legislative Histories, Amendments to the Constitution Through Foreign Officers Bill 582, 585 (Charlene Bangs Bickford & Helen E. Veit eds., 1986) [hereinafter 4 Legislative Histories] (capitalization in original). (Note that “discretionary power of visiting” appears to refer to ex officio or warrantless search authority.) Similarly, Representative Sherman asserted that the excise was not odious because it exposed only “distillers and importers” to “the visits of excise officers.” 14 Debates in the House, supra, at 247. Other defenders of the bill also stressed that it did not expose citizen's houses or personal property to searches. Representative Livermore asserted that the proposed legislation did not allow excise officers “to enter at their pleasure into the most private recesses of a man's house or store ....” 14 id. at 247-49. Representative Lawrance insisted that the proposed legislation did not “subject every individual to be searched, and to have his dwelling inspected by excise officers.” 14 id. at 303-04. Representative Smith also observed that one of the “principal objections to the excise in England” was that “it throws open the houses (or as they are emphatically stiled, the castles) of British subjects to the inspection of excise officers”; however, he insisted that objection did not apply to the proposed legislation because “an excise officer cannot enter a dwelling-house; he has access to those places only, which the proprietors set apart for the storage of spirituous liquors. How is domestic tranquility violated?” 14 id. at 257-59. Indeed, Smith asserted that “the regard shewn in this bill for the protection of the citizens, exceeds what was provided in the 47th section of the collection laws of


139

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 the last session [ [ [namely, the search warrant provision of the 1789 Collections Act]; yet, we did not then hear of the dangers of violating either public rights or private property.” 14 id. at 259. (The record does not identify the difference Smith perceived between the search warrant provisions of the two revenue acts; however, the only protection provided in section 34 of the 1791 Excise Act, but not in section 47 of the 1789 Collections Act, was a requirement that an excise search warrant be executed only “in the presence of a Constable or other officer of the peace”-- that is, a local officer. This was apparently viewed as a significant provision; although the Senate sought to strike it out, the House refused to acquiesce in that amendment and it was retained. 4 Legislative Histories, supra, at 609, 625 n. 53.) There do not appear to have been any legal challenges to the general search authority for registered premises in the federal excise acts. That silence suggests that it was widely understood that the right to be secure did not protect commercial premises. See also Maclin, Complexity, supra note 44, at 953-54 (discussing the excise search provisions).

472

The federal collections acts were silent as to searches of wagons until 1815, when Congress enacted a provision empowering a customs officer “to stop, search and examine any carriage or vehicle, of any kind whatsoever, and to stop any person travelling on foot, or beast of burden, on which he shall suspect there are [uncustomed] goods, wares or merchandise....” Act of March 3, 1815, ch. 94, § 2, 3 Stat. 231, 232. The statute also provided that “[t]he necessity for a search warrant arising under this act, shall in no case be considered as applicable to any carriage, wagon, cart sleigh, vessel, boat, or other vehicle, of whatever form or construction, employed as a medium of transportation, or to any packages on any animal or animals, or carried by man on foot.” Id. This provision was short-lived, however; its repeal in 1816, see Act of April 27, 1816, ch. 110, § 3, 3 Stat. 315, suggests that it was viewed as an extreme wartime measure. There was no further provision of search authority regarding vehicles until this section of the 1815 act was revived in the closing months of the Civil War, and then continued. See Act of Feb. 28, 1865, ch. 67, § 1, 13 Stat. 441, 441-42, reenacted in slightly different language in Act of July 18, 1866, ch. 201, § 2, 14 Stat. 178, and then incorporated into Revised Statutes, ch. 10, § 3061, 18 Stat. 588. So far as I can determine, the constitutionality of this search authority regarding vehicles was never challenged in court. It may be relevant that customs searches would have looked for items of some bulk; hence, it is unlikely that the search authority would have been understood to allow highly intrusive searches. It is also possible that the 1815 legislation was related to the New York Sailly decision, discussed supra note 283.

473

See House Committee of Eleven Report, supra note 465; see also Cogan, supra note 122, at 224-25 (6.1.1.4.a, b, c, d) (excerpting various reported versions of the motion to reinsert “against unreasonable searches and seizures” and the description of the omission as a “mistake”). The motion to reinsert the language appears to have been made by Egbert Benson, see infra note 480, a member of the Committee of Eleven, see supra note 465. Cuddihy states that the Committee “excised” the phrase “against unreasonable searches and seizures” but omits to mention the reference to the omission being a “mistake.” 3 Cuddihy, supra note 20, at 1408-09. Levy follows Cuddihy by stating that “unreasonable searches and seizures” was “deleted.” Levy, Original Meaning, supra note 45, at 243. I do not think those treatments are supported by the record.

474

Madison's plural “rights” was altered to the singular “right,” his “secured” was changed to “secure,” and his “by warrants issu ed” was changed to “by warrants issu ing.” In addition, his repetitive use of “their” was eliminated. See Cogan, supra note 122, at 223-24 (6.1.1.2, 6.1.1.3.a, b, c, d) (excerpting both the House Committee of Eleven Report and various reports of the House's consideration of the provision). It is not entirely clear whether these changes were made by the committee report or on the House floor in connection with the motion to reinsert “against unreasonable searches and seizures,” described in the preceding note. I do not think these small language changes carried any substantive import. Levy, however, has treated these small changes and the reinsertion of “against unreasonable searches and seizures” as though they somehow transformed Madison's ban against general warrants into a broad principle against unreasonable searches and seizures: [A motion was made for] the restoration of “unreasonable searches and seizures.” Oddly, [the movant] said he did so on a presumption that a “mistake” had been made in the wording of the clause, which he corrected by changing “rights” to “right” and “secured” to “secure.” The effect was to provide security or, as we might say, privacy to the people; [this] motion changed the meaning from a protection of the right to a protection of the individuals in their persons homes, papers, and effects. Levy, Original Meaning, supra note 45, at 244 (references to Gerry as the movant removed because it is unlikely he made the motion in question, see infra note 482). I find Levy's explanation mystifying.


140


475

The Select Committee that initially reviewed Madison's proposed rights amendments endorsed his proposal to insert the amendments into the text of the Constitution. However, when the full House took up the subject of rights amendments on August 13, 1789, Roger Sherman moved that the amendments be reformatted into a “supplementary” document. 2 Cong. Register 161, 167 (Thomas Lloyd reporter, 1789). See the explanation of the various records of the House debate infra. After debate as to the form of the amendments, see 2 id. at 167-79, that motion was defeated on the same day, see 2 id. at 179. The content of the provision that would become the Fourth Amendment (denoted as the “seventh clause of the fourth proposition”) was debated on August 17th. 2 Id. at 219, 226 (discussed infra notes 478-493 and accompanying text). On August 19, after the debate on the search and seizure provision, but before the conclusion of the debate on the rights amendments, Sherman renewed his motion to put the amendments in a supplementary document. After further debate, his motion passed. See 2 id. at 237, 241. Thereafter, on August 20th, the House formally adopted the search and seizure amendment along with several other amendments. See 2 id. at 241, 243. It does not appear that there was any disagreement that the amendments should be aimed at Congress. Rather, Sherman seems to have sought the supplementary format in the hope of downgrading the importance of the amendments, and possibly of warding off additional amendments to the Constitution. Sherman's ultimate victory probably reflected the desire of the members of the House to finish work on the amendments and move on to other pressing matters. See 2 id. at 167-79, 241. Lloyd's Congressional Register account of the debate was published in New York in 1789. However, because copies were limited, that account was subsequently republished, apparently verbatim but without acknowledgment of the Lloyd's edition, in two different sets of Annals of Congress, both in 1834 (one bearing the running page head “History of Congress” and the other bearing the running page head “Gale's and Seaton's History of Debates in Congress”). The paginations of the three versions of the debates each differ from the others. See Bennett B. Patterson, The Forgotten Ninth Amendment 98-99 (1955) (distinguishing in an explanatory note the two versions of Annals of Congress) . The relevant portions of Gale and Seaton's version of the Annals are also republished in id. at 93-217 (but with different pagination). The earlier commentaries on the Fourth Amendment often cited to one of the versions of the Annals because they were more available. However, I have usually cited only Lloyd's original Congressional Register. The corresponding material can be located in the various versions of the Annals by reference to the date of the debate.

476

It is also significant that the Committee did not drop this provision. After Madison had submitted his proposals, Roger Sherman submitted a shorter alternative proposal for a bill of rights to the Committee which did not include a protection against general warrants. See Roger Sherman's Draft of the Bill of Rights (1789), reprinted in The Rights Retained by the People: The History and Meaning of the Ninth Amendment app. at 351-52 (Randy E. Barnett ed., 1989). However, Sherman does not seem to have voiced any opposition to the search and seizure proposal made by the Committee.

477

See the Committee's proposed text, supra note 465 (“[the right shall not be violated] by warrants issuing [without probable cause or particularity]”); the motion quoted in the text immediately infra.

478

2 Cong. Register, supra note 475, at 236 (Aug. 17, 1789), quoted in Cogan, supra note 122, at 236 (6.2.1.2.a). Lasson quoted this passage from the Gale and Seaton's version of the Annals of Congress. See Lasson, supra note 16, at 101 (quoting Gale and Seaton's Annals, discussed supra note 475). For several shorter renditions of the motion, see Cogan, supra note 122, at 225, (6.1.1.5.a, b), 236-37 (6.2.1.2.b, c, d).

479

The House reporter, Thomas Lloyd, made numerous errors. See Daumbauld, supra note 328, at 35 n.6, 41 n.28, 42 n.32, as cited in Amar, Fourth Amendment, supra note 58, at 775 n.66.

480

The documentary evidence is inconsistent as to whether Benson or Gerry made this motion. There had been an earlier motion to correct the “mistake” of the omission of “against unreasonable searches and seizures” from the report of the Committee of Eleven. See discussion supra note 465. The Congressional Register account shows Gerry making the earlier motion to reinsert “against unreasonable searches and seizures” and shows Benson making the later motion to substitute “and no warrant shall issue.” See 2 Cong. Register, supra note 478; Cogan, supra note 122, at 224-25 (6.1.1.4.a, 6.1.1.5.a). Gazette of the United States shows the reverse, however, with Benson reinserting “against unreasonable searches and seizures” and Gerry substituting “and no Warrants shall issue.” Gazette of the U.S., Aug. 22, 1789, at 249, col. 3, quoted in Cogan, supra note 122, at 237 (6.2.1.2.d); see also id. at 225 (6.1.1.4.d, 6.1.1.5.b). A contemporaneous press report that appeared in several New York newspapers also showed Benson moving to reinsert “against unreasonable searches and seizures,” but did not mention the second motion to substitute “and no warrants shall issue.” For


141

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 two of these identical newspaper accounts, see Daily Advertiser, Aug. 18, 1789, at 2, col. 4, quoted in Cogan, supra note 122, at 236 (6.1.1.4.b); New-York Daily Gazette, Aug. 19, 1789, at 802, col. 4, quoted in Cogan, supra note 122, at 224 (6.1.1.4.c).

481

The Committee membership is discussed supra note 465.

482

Gerry's biographer has observed that, except for Madison, Gerry was probably the most active participant in the debate regarding the rights amendments; that Gerry and Madison were often at odds; and that Gerry resented Madison's having assumed the role of sponsor of the rights amendments. See Billias, supra note 439, at 230-35, 398 n.53. Moreover, the content of the motion to substitute fits Gerry's ideological outlook, because he tended to insist on the most explicit statements of rights. See infra note 495 and accompanying text. Gerry's concern with precise language was evident in other aspects of the House debate over the rights amendments. For example, he complained that the word “disparage” in the language that became the Ninth Amendment should have been “impair” because “‘disparage’ was not of plain import.” See 2 Cong. Register, supra note 478, at 226, reprinted in Cogan, supra note 122, at 628 (15.1.1.4). Likewise, when the language that became the Second Amendment was debated, Gerry wanted to expand “a well regulated militia” to “a well regulated militia trained to arms.” Id. at 171 (4.1.1.8). He also wanted to change the phrase “public danger” at the end of the proposed grand jury provision to “foreign invasion.” Id. at 268 (7.1.1.7.a, b). And during the debate over the Tenth Amendment, he may have sought to add “expressly” between “powers” and “delegated to the United States.” Id. at 665 (16.1.1.8) (note, however, that this last motion may have been by Tucker, see id. (16.1.1.6.a)).

483

Cuddihy has also concluded, based on the newspaper reports (cited supra note 480), that Benson made the first motion to reinsert “against unreasonable searches and seizures,” thus Gerry must have made the motion to substitute “and no Warrants shall issue.” 3 Cuddihy, supra note 20, at 1409-10 & n.89.

484

The fact that the proposed change nevertheless appeared in the Amendment has led prior commentators to fashion a conspiracy theory in which a three-member Style Committee subsequently appointed by the House, which Benson chaired, sneaked in the language change despite the House vote. This scenario, which was probably prompted by the incorrect notion that Benson was the proponent of the substitute language, was first proposed in a 1921 article by Osmond K. Fraenkel, supra note 16, at 366 n.30. It has been nearly universally repeated by later commentators. See, e.g., Landynski, supra note 38, at 41-42; Lasson, supra note 16, at 101-03; Levy, Original Meaning, supra note 45, at 244; Maclin, Central Meaning, supra note 9, at 208-09 & n.35; 3 Cuddihy, supra note 20, at 1411, 1412-13. Bradley rested his interpretation of the intended meaning of the text on the supposed failure of this motion. See Bradley, supra note 56, at 827-28. The conspiracy theory has also been repeated in Payton v. New York, 445 U.S. 573, 611 (1980) (White, J., dissenting). Amar has been the only prior skeptic. See infra note 485.

485

Two documentary accounts show that the motion “lost” or “was negatived.” See 2 Cong. Register, supra note 478, at 226 (Aug. 17, 1789), quoted in Cogan, supra note 122, at 236 (6.2.1.2a); Gazette of the U.S., Aug. 22, 1789, at 249, col. 3, quoted in Cogan, supra note 122, at 236 (6.1.1.5.b). However, other evidence shows the outcome of the vote was probably misreported. Amar has noted documentary evidence that indicates that the altered language appeared in House records prior to the appointment of the threeperson style committee. See Amar, Boston, supra note 19, at 67 n.54 (citing 3 Documentary History of The First Federal Congress 1789-91, supra note 465, at 159), for the text of the search and seizure provision appearing as of August 21, 1789, and id. at 165 for the appointment of the Committee of Three on August 22, 1789.

486

A third motion made by Representative Livermore in the House debate immediately after the motion to substitute “and no warrant shall issue...” shows that the motion must have passed. He moved to drop the “not” that appeared between the probable cause and particularity standards in the Committee's proposal. See 2 Cong. Register, supra note 475, at 236 (Aug. 17, 1789), quoted in Cogan, supra note 122, at 225 (6.1.1.6). Dropping the “not” makes sense only if the substitution of “and no Warrants shall issue, but upon...” had already been made. That substitution changed the statement of the warrant standards from a negative statement of what could not be omitted (hence the original “and not” between probable cause and particularity), to an affirmative statement of conditions that had to be met, in which the “not” was out of place. Hence, the substitution of “and no Warrants shall issue” must have already been made by the House. (Interestingly, the record shows Livermore's motion also “failed,” though that change was also made in the version that appears in the House records identified by Amar. See supra note 485.)

487

Lasson, supra note 16, at 103 (emphasis in original).


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488

See id.

489

See, e.g., Landynski, supra note 38, at 41-43; Taylor, supra note 49, at 42-43; Amsterdam, supra note 38, at 468 n.465; Cunningham, supra note 38, at 552; Kamisar, supra note 38, at 573-74; Maclin, Cure, supra note 44, at 19 n.84. Amar did not discuss the significance of this change beyond asserting that the motion passed, see supra note 485, but his statement that “early drafts” of the Fourth Amendment targeted the too-loose warrant as the enemy, see Amar, Fourth Amendment, supra note 58, at 774-75, implies that he also thought the content was later broadened by the substitution of “and no warrant shall issue....” Cuddihy did not follow Lasson's treatment, however, because he did not view Madison's text as focusing on warrant standards but as asserting “multiple categories of unreasonable searches and seizures,” see supra note 265; thus, he described Gerry's motion as only “polish[ing] the language of the right without enlarging its scope,” 3 Cuddihy, supra note 20, at 1410. Because Levy interpreted the earlier motion to reinsert “against unreasonable searches and seizures” as the crucial change, see supra note 474, he did not discuss the significance of this motion beyond noting that it “split” the provision into two parts. Levy, Original Meaning, supra note 45, at 244.

490

See Lopez v. United States, 373 U.S. 427, 454-55 (1963) (Brennan, J., dissenting) (citing Lasson for the proposition that the first clause sets out a “more encompassing principle” than the warrant standards); Warden v. Hayden, 387 U.S. 294, 303, 317 (1967) (Douglas, J., dissenting) (citing Lasson regarding the enlargement of the text to include a broad reasonableness principle); United States v. Matlock, 415 U.S. 164, 183 (1974) (Douglas, J., dissenting) (citing Lasson regarding the enlargement of the text to include a broad reasonableness principle); Payton v. New York, 445 U.S. 573, 585 (1980) (opinion of the Court by Stevens, J.) (citing Lasson regarding the enlargement of the text to include a broad reasonableness principle); id. at 611 (White, J., dissenting) (same); Oliver v. United States, 466 U.S. 170, 177 (1984) (opinion of the Court by Powell, J.) (same).

491

As described above, there is no persuasive historical evidence of a grievance regarding warrantless intrusions in the prerevolutionary controversies, see supra notes 135-161 and accompanying text, and no persuasive historical evidence of concern about warrantless searches during the debates over the need for a federal bill of rights in 1787 and 1788, see supra notes 162-166 and accompanying text.

492

The First Congress did not enact any warrantless arrest authority when it created the office of federal marshal in the Judiciary Act of 1789, as discussed supra notes 169-172 and accompanying text.

493

Madison's use of “shall” rather than “ought” appears to have been simply a stylistic preference, like his avoidance of “therefore.” See supra note 350.

494

For the provisions and proposals commanding that loose warrants not be issued, see the 1776 Virginia provision, Va. Const. of 1776, art. X (Decl. of Rights), quoted supra text accompanying note 347, which was copied by North Carolina, N.C. Const. of 1776, art. XI (Decl. of Rights), reprinted in Cogan, supra note 122, at 234-35 (6.1.3.5); the 1776 Pennsylvania Provision, Pa. Const. of 1776, art. X (Decl. of Rights), quoted supra text accompanying note 353, which was copied by Vermont, Vt. Const. of 1777, ch. 1 (Right XI), reprinted in Cogan, supra note 122, at 235 (6.1.3.7); the 1776 Maryland provision, Md. Const. of 1776, § 23 (Decl. of Rights), quoted supra note 351, virtually copied by Delaware, Del. Const. of 1776, § 17 (Decl. of Rights), reprinted in Cogan, supra note 122, at 234 (6.1.3.1); the 1780 Massachusetts provision, Mass. Const. of 1780, pt. 1, art. XIV, quoted supra text accompanying note 379, copied by New Hampshire, N.H. Const. of 1783, pt. 1, art. XIX, reprinted in Cogan, supra note 122, at 234 (6.1.3.4); the Pennsylvania and Maryland anti-Federalist proposals quoted supra note 426; the Virginia ratification convention resolution, copied by the New York and North Carolina conventions, quoted supra note 429.

495

See Billias, supra note 439, at 197, 200, 225.

496

Columbian Patriot, supra note 166, at 270, 278-79 (4.28.4) (emphasis in original); see also id. at 270-71 (attributing pamphlet to Warren, and correcting earlier attribution to Gerry (for example, in Pamphlets on the Constitution 2, 12-13 (Paul Leicester Ford ed., 1888, republished 1968))). Warren was prominent among the Massachusetts anti-Federalists, and Gerry was undoubtedly familiar with this passage. In fact, Warren had visited Gerry to discuss the shortcomings of the proposed constitution a month prior to writing this pamphlet. See Billias, supra note 439, at 214.

497

Examples of Gerry's concern with the precise language of the various rights amendments are set out supra note 482.


143


498

The Massachusetts provision is quoted supra text accompanying note 379. Note that John Adams had used “therefore” at the beginning of the second statement in the Massachusetts provision, but had not repeated it at the beginning of the third statement.

499

The fact that the first clause of the Fourth Amendment was left to end with “shall not be violated” appears to be incidental; that was simply the easiest place for Gerry to interrupt Madison's text and insert “and no warrant shall issue but.” Moreover, a statement that a “right... shall not be violated” is tautological; hence, there was nothing in the resulting first clause that should have caused the Framers to think that any significant change in its content had occurred.

500

The punctuation between the two clauses of the Fourth Amendment varied after passage of the motion. A semicolon initially appeared after “shall not be violated” in a statement of the provision on August 21, 1787, see Cogan, supra note 122, at 225 (6.1.1.7) (quoting records of the consideration in the House, August 24, 1789), but it had become a comma by the time the House sent the proposed amendments to the Senate a few days later, see id. at 226 (6.1.1.9.a- c) (quoting records of the consideration in the Senate, August 25, 1789). It remained a comma in the enrolled resolution of Congress, see id. at 232 (6.1.1.22), but was sometimes incorrectly printed with a semi-colon in early collections of statutes, see 1 Statutes at Large 21, 97-98, reprinted in Cogan, supra note 122, at 232 (6.1.1.23.a, b).

501

There is no record of any debate regarding the Bill of Rights in the Senate. Although the Senate made some substantial changes in some of the House rights proposals, it made no change in the language that became the Fourth Amendment. See Cogan, supra note 122, at 226-27 (6.1.1.9-6.1.1.12) (quoting records of the consideration in the Senate, August 25, 1789, and September 4, 1789).

502

There was some controversy over some of the other eleven proposed amendments that were submitted for ratification to the state legislatures, but there is no record of any controversy in the state legislatures regarding the search and seizure provision. See 3 Cuddihy, supra note 20, at 1443-65.

503

See Cogan, supra note 122, at 231-32 (6.1.1.21.a-b, 6.1.1.22) (setting out the “Sixth Article of Amendment” submitted to the states).

504

Quoting Levy, Original Meaning, see supra note 45, at 246.

505

One objection that is sometimes raised regarding attribution of the original meaning or purpose of a constitutional text is that such statements ignore the likely variation of attitudes and understandings that may have existed among the various groups of persons (drafters, federal legislators, state legislators, commentators) who might be lumped together under the label of “Framers.” I have no doubt that is a genuine difficulty for assessing the historical meaning of certain aspects of the Constitution or especially of the Fourteenth Amendment. It is possible to speak of “the” original meaning of the Fourth Amendment, however, because there simply is no indication in the historical sources of any controversy or disagreement as to its meaning (with the exception of the mysterious choice of “effects”) among any of the persons who could be considered “Framers.”

506

See, e.g., Landynski, supra note 38, at 49-61; Lasson, supra note 16, at 107-11.

507

For a discussion of the codification movement circa 1820-40, see Kermit L. Hall, The Magic Mirror: Law in American History 126-27 (1989).

508

See supra notes 231-251, 254 and accompanying text.

509

There is a large literature assessing a trespass remedy as an alternative to exclusion. Nonetheless, the commentators who advocate trespass actions as the historical remedy for illegal arrests and searches have never accounted for the fact that modern standards for assessing arrests and searches are looser than historical standards and do not emphasize the role of a specific complainant as did the common law. See supra text accompanying note 251. For a review and critique of the commentary supporting “tort” remedies, see Yale Kamisar, Remembering the “Old World” of Criminal Procedure: A Reply to Professor Grano, 23 U. Mich. J.L. Reform 537, 562-69 (1990).

510

Cf. Wasserstrom, Two Clauses, supra note 9, at 1394-95 (noting that the Framers were primarily concerned with general warrants and expected common law to protect citizens from unwarranted search and seizure). The irony, of course, is that the incremental changes that undermined the common law right to be secure went virtually unchallenged during the nineteenth century precisely because federal and state courts took the view that the constitutional prohibitions against “unreasonable searches and seizures” only


144

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 banned legislative approval of general warrants but did not address conduct by warrantless officers. See supra notes 179-189 and accompanying text.

511

Boyd v. United States, 116 U.S. 616 (1886), declared unconstitutional a statute that had provided authority for a court order to an importer to produce an invoice regarding the value of imported glass. The Court held that the statute violated both the Fourth and Fifth Amendments. Justice Bradley's majority opinion made four interrelated claims: first, that the Fifth Amendment right against self-incrimination prohibited compelling any person to produce potentially incriminating documents, see id. at 637; second, that the Fifth Amendment protection against self-accusation applied to customs forfeiture proceedings because such proceedings were essentially criminal, see id. at 633-34; third, that a compelled production of documents amounted to a “seizure” within the meaning of the Fourth Amendment, at least by analogy, see id. at 635; and fourth, that a compelled production of a document that violated the Fifth Amendment right would also be “unreasonable” under the Fourth Amendment, see id. at 634. The first of these claims is supported by the historical evidence regarding the Framers' understanding. See the discussion of Roe, supra note 450; see also Rex v. Worsenham, 1 Ld. Raym. 705, 91 Eng. Rep. 1370 (K.B. 1701) (declining to order customs officers being prosecuted for fraud to produce their custom-house books because it would be, in effect “to compel the defendants to produce evidence against themselves”); Regina v. Mead, 2 Ld. Raym. 927, 92 Eng. Rep. 119 (K.B. 1703) (declining to order trustees of a charity to produce books because “it would be to make a man produce evidence against himself in a criminal prosecution”); Rex v. Purnell, 1 Black. W. 37, 96 Eng. Rep. 20 (K.B. 1748) (denying inspection of a college's books in connection with a criminal prosecution). For modern sources recognizing a common-law right against compelled production of incriminating documents at the time of the Fifth Amendment's framing, see Richard A. Nagareda, Compulsion “To Be a Witness” and the Resurrection of Boyd, 74 N.Y.U. L. Rev. 1575, 1619 & n.172 (1999). However, the other three claims Bradley made in Boyd are another matter. The Framers added “in any criminal case” to the Fifth Amendment compelled self-accusation clause to make it clear that the clause did not apply to customs enforcement proceedings. See supra note 450. Thus, Bradley's conclusion that the Fifth Amendment applied to customs forfeiture proceedings was contrary to the Framers' intent. Bradley's claims that compelled production constituted a “seizure” and violated the Fourth Amendment lack historical support. Both claims were founded only on Bradley's assertion that “the Fourth and Fifth Amendments run almost into each other,” 116 U.S. at 630, and stand in “intimate relation” to one another, id. at 633. However, those claims rest, in turn, on Bradley's claim that the Framers were influenced by Lord Camden's remarks as reported in the longer version of Entick--which is unlikely. See infra note 512. Moreover, Camden's treatment in Entick of a search of papers as a form of self-incrimination appears to have been novel claim. See infra note 513. Professor Nagareda has also recently concluded that Boyd went astray by intermixing Fourth and Fifth Amendment analysis. See Nagareda, supra, at 1585-90.

512

Bradley's claim that the Framers would have viewed any seizure of papers as compelled self-incrimination relied upon Lord Camden's remarks as recorded in the longer case report of the 1765 proceedings in Entick. See 116 U.S. at 626-30 (quoting Entick v. Carrington, 19 Howell St. Tr. 1029, 1066-74 (C.P. 1765)). However, it is unlikely the Framers were familiar with that version, which was not published until 1781. The analysis that Bradley quoted is not evident in the earlier, shorter case report of Entick in Wilson's Reports that the Framers were familiar with. See supra note 25. Thus, Bradley's claim that his ruling accorded with what was in the “memory” and “minds” of the Framers was fanciful at best.

513

The so-called “mere evidence” rule was an aspect of Fourth Amendment doctrine from its articulation in Boyd until its rejection in Warden v. Hayden, 387 U.S. 294 (1967). Under that doctrine, searches and seizures were permissible only for fruits or instrumentalities of crime, but not for papers or other items that were only evidentiary in nature. Justice Bradley's opinion in Boyd based that doctrine partly on a distinction between items which the government was entitled to possess (for example, contraband) versus legitimate private property, see 116 U.S. at 623-24, and partly on language from the longer version of Lord Camden's observations in Entick, discussed supra note 512, which analogized a search of papers to self-incrimination. The analogy between a search of papers and compelled self-incrimination does not appear to have been developed in common law sources. I have not located any framing-era source that treated compelled production as a “seizure.” Likewise, I have located only two pre- Entick claims that a search of papers constituted compelled self-incrimination: one appears in a cryptic report of Pratt's (Camden's) remarks during the 1763 trial in Wilkes v. Wood, Lofft 3, 19 Howell St. Tr. 1153, 1155, 98 Eng. Rep. 489, 490 (C.P. 1763) (case report first published 1776, see supra note 25) (“Nothing can be more unjust in itself, than that the proof of a man's guilt


145

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 shall be extracted from his own bosom.”); the other appears in a single passage in the 1764 pamphlet Father of Candor, supra note 23, at 56-59 (Father of Candor may have been Pratt, see supra note 23). Likewise, I have not located any analogy of a search of papers under a warrant to self-incrimination in the American complaints made during the prerevolutionary general writ of assistance grievance or in any of the statements made regarding search authority during the ratification debates of 1787-88. See also supra note 368. Early American discussions of Entick simply described it as standing for the proposition that common law did not provide authority for the issuance of a search warrant other than for stolen property. See, e.g., Hening, supra note 25, at 415. Cogan has cited a case refusing a court order to inspect a college's books for evidence pertinent to a criminal prosecution as though it were a precedent for the Fourth Amendment and, presumably, the mere evidence doctrine. See Cogan, supra note 122, at 245 (6.3.2.1) (reprinting the report of The King v. Dr. Purnell, 1 Black. W. at 37, 96 Eng. Rep. at 20). However, that case report was not published until 1781, see 1 Legal Bibliography, supra note 19, at 293, entry 11; a somewhat different report was published in 1770 in 1 Wils. 239, 95 Eng. Rep. 595, see 1 Legal Bibliography, supra note 19, at 310, entry 131. Although the motion to review the books was apparently resisted in part because the request was too broad, I do not think it is likely that the Framers would have understood either report of Purnell to address a search or seizure. Although the Framers did understand that warrants could be issued only for purposes recognized at common law or by statute, see supra note 381, it does not appear that they were familiar with any “mere evidence” doctrine of the sort Justice Bradley articulated in Boyd. Thus, I agree with Professor Taylor's previous conclusion that the “mere evidence” rule lacked a historical basis, though I do not agree with all of the details of his argument. See Taylor, supra note 49, at 50-71.

514

See 116 U.S. at 622, 630, 631-32, 633. Bradley's use of “unreasonable” as a constitutional standard in its own right was novel and probably was a response to the awkward problem he faced in crafting the rationale for declaring the court order compelling production of an invoice to be a violation of the Fourth Amendment (even putting aside the awkwardness of describing an order to produce as a “seizure”). The order at issue was not merely a subpoena (as it is sometimes described), because it could only be issued by a judge on the government's showing of a particularized need for a specific invoice. See 116 U.S. at 619-20 (quoting Act of June 22, 1874, 18 Stat. 187). Thus, it would have been difficult for Bradley to assert that the order to produce violated the probable cause and particularity standards set out in the second clause of the Fourth Amendment. Instead, he simply asserted that the order's violation of the right against compelled self-accusation also made the “seizure” of the invoice “unreasonable.” 116 U.S. at 633-35. In condemning the compelled production of the invoice as “unreasonable,” Bradley treated “unreasonable” as though it constituted a constitutional standard above and beyond compliance with the warrant standards. However, there were limits to Bradley's innovation. He did not treat “unreasonable” as a relativistic standard--he claimed that compelled seizures of papers were categorically illegal, not that the seizure was inappropriate in particular circumstances. Thus, his usage of “unreasonable” was still Cokean in character. Although Boyd focused new attention on “unreasonable,” and opened the way for “unreasonable” to be viewed as a constitutional standard in its own right, it did not adopt the modern meaning assigned to that term.

515

After describing the court order as unconstitutional and “void,” Bradley stated that admission of the invoice was erroneous and that any information obtained from the invoice could not be used in future proceedings. 116 U.S. at 638. He did not explain that aspect of the ruling; however, it probably seemed like an obvious result of the nullity of the order. In fact, exclusion of evidence obtained under a “void” statute would seem to flow directly from the holding of Marbury v. Madison, 5 U.S. (1 Cranch) 137, 180 (1803) (holding that federal courts lack jurisdiction to apply an unconstitutional statute because “a law repugnant to the constitution is void; and... courts, as well as other departments, are bound by that instrument” (emphasis in original)). The recognition of exclusion in Boyd, however, extended only to the effect of an unconstitutional statute; it did not identify any basis for excluding items seized unlawfully by officers not acting under specific statutory authority. Thus, Boyd stopped short of articulating the modern exclusionary rule.

516

A 1911 incident demonstrated the potential for warrantless seizures of business records “incident to” arrest. Federal marshals in New York had arrested the principals of an import business for alleged customs fraud and then, without obtaining any search warrant, had seized the records of the import business. The business principals challenged the seizure by filing a motion for the return of the papers prior to their trial. The federal court ruled the seizure illegal and ordered the government to return the seized papers, but did not explain the basis for that order beyond citing Boyd. See United States v. Mills, 185 F. 318, 318-20 (C.C.S.D.N.Y. 1911). The United States Attorney, Henry A. Wise, refused to comply with the order. The federal court held Wise in contempt, and he filed an appeal and habeas corpus petition with the Supreme Court. See Wise v. Mills, 220 U.S. 549 (1911); Wise v. Henkel, 220 U.S. 556 (1911). The Justices dismissed Wise's papers on procedural grounds, while avoiding the merits of the controversy. See Wise v. Mills, 220 U.S. at 555 (holding that the lower court's order to return the papers was not “so dehors the authority of the court as to


146

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 cause it to be void, and to justify an officer of the court in refusing to respect and obey it”); Wise v. Henkel, 220 U.S. at 558 (stating that the lower court had authority to decide the petition for return of papers “irrespective of whether there was a constitutional right to exact the return of the books and papers”). The Wise litigation must have alerted the Justices that there was a significant gap in the protection of business records.

517

See supra note 323.

518

232 U.S. 383 (1914). In addition to the Wise litigation, discussed supra note 516, several other developments may have sensitized the Justices to search authority contemporaneously with Weeks's appeal. The income tax applicable to corporations and wealthy individuals, with associated enforcement powers, had been enacted in 1913. See Tariff of 1913 (Revenue Act of 1913), Pub. L. No. 16, 38 Stat. 114, 166. (A corporate excise tax on net profits had commenced a few years earlier. See Tariff of 1909 (Corporate Excise Tax of 1909), ch. 6, § 38, 36 Stat. 11, 112-17.) It may also be significant that the Federal Trade Commission Act, which would create additional federal investigatory powers, was pending in Congress in 1914.

519

Early in his opinion, Day declared the Fourth Amendment limited “the courts of the United States and Federal officials, in the exercise of their power and authority....” 232 U.S. at 391-92. Farther along, he stated that the Amendment's protection of the citizen's person and property “is equally extended to the action of the Government and officers of the law acting under it.” 232 U.S. at 394 (emphasis added). Day also noted that there were precedents for applying the Fourth Amendment to invasions under “judicial sanction” (that is, warrants) and to invasions under “legislative sanction” (that is, seizures made in the exercise of statutory authority as in Boyd)-- but he finessed the fact that there were no precedents for applying the Fourth Amendment directly to the conduct of an officer except in those settings. Id. He then concluded by characterizing the unlawful search by the marshall as misconduct “under color of his office in direct violation of the constitutional rights of the defendant....” 232 U.S. at 398 (emphasis added). Note that Weeks was decided only a year after the Court had clearly held, in Home Telephone and Telegraph, that conduct by a state regulator alleged to violate state law constituted misconduct “under color of” state law and thus constituted “state action.” Home Tel. & Tel. Co. v. City of Los Angeles, 227 U.S. 278, 287 (1913); see also discussion supra note 323.

520

The common-law rule that a search of houses could not be justified except by a valid search warrant, see supra notes 259-285 and accompanying text, had not been disturbed as doctrine prior to Weeks, even though it sometimes may have been ignored in practice, as it was in the search at issue in Weeks itself. The treatment of the seizure of papers and property during the warrantless house search in Weeks as an act “in direct violation of the constitutional rights of the [resident],” 232 U.S. at 398, had the effect of constitutionalizing what had previously been a common-law warrant requirement for house searches. The Court had previously implied a warrant requirement under the Fourth Amendment in 1877 in dicta in Ex parte Jackson, but had not articulated any rationale for it. 96 U.S. 727 (1877); see also discussion supra note 174.

521

Day's characterization of the marshal's invalid warrantless search as a “direct violation of the constitutional rights of the defendant” put it in the same category as the “void” court order in Boyd and also brought it within the basic constitutional principle that a court could not give any recognition to an unconstitutional government act. See supra note 515 (discussing the relationship between Boyd's conclusion that the court order was “void” and the ruling in Marbury that a court has no authority to recognize a “void” government act). Under that logic, exclusion is a necessary consequence of a government search that violates constitutional authority. Indeed, the formal logic of voidness is so strong that it cannot be escaped unless one adopts the view that the constitutional violation involved in the illegal seizure was completed and thus distinct from the subsequent use of the unconstitutionally seized information or items as evidence in court. Thus, when the Burger Court redefined the rationale for exclusion as being solely to deter future police misconduct, rather than to enforce a constitutional imperative, the crucial step in the rationale was the assertion that the constitutional violation was “accomplished” when the seizure occurred so that the later use of the evidence worked no “new” constitutional wrong. United States v. Calandra, 414 U.S. 338, 354 (1974). That analysis was borrowed (without attribution) from an earlier California decision in People v. Mayen, 205 P. 435, 440 (1922)--an analysis that the California court subsequently rejected as artificial in People v. Cahan, 282 P.2d 905, 911-12 (1955).

522

The remedy of exclusion was especially appropriate where the police had evaded the prior judicial assessment of the cause for the search of a house in a warrant application, as had happened in the warrantless search in Weeks. See Kamisar, supra note 38, at 592-93.

523

267 U.S. 132 (1925).


147


524

Taft referred to probable cause as the standard for a lawful seizure of contraband. See e.g., Carroll, 267 U.S. at 155-56, 159-62. In contrast, Justice McReynolds's dissenting opinion disputed both the applicable standard for the search, see id. at 163-69, and the significance of the information possessed by the officers, see id. at 174 (“Has it come about that merely because a man once agreed to deliver whiskey, but did not, he may be arrested whenever he ventures to drive an automobile on the road to Detroit!”).

525

Probable cause was insufficient to justify an arrest of the persons in the car because the Prohibition Act classified a first offense as a misdemeanor. A warrantless arrest for a misdemeanor could not be lawful unless the arresting officer had actually witnessed the commission of the crime. See Carroll, 267 U.S. at 156-58; see also supra notes 219-222 and accompanying text. As a result, Taft analyzed the warrantless search of the automobile for contraband by analogy to an in rem seizure of a ship or vehicle under the customs laws, while asserting that the arrest of the occupants was only incidental to the seizure of contraband. See 267 U.S. at 157-61.

526

267 U.S. at 147-50. Taft actually employed “reasonableness” only to excuse the lack of a search warrant when there was probable cause to believe an automobile contained contraband; he did not employ “reasonableness” as a substitute for the probable cause standard itself. Thus, Taft stopped short of the current generalized-reasonableness construction. Cf. Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 667-68 (1995) (O'Connor, J., dissenting). However, the rhetoric of Taft's opinion outran that specific application.

527

Taft may have drawn the idea--of treating “unreasonable” as a standard that was distinct from the warrant standards--from Boyd, although that decision had still used “unreasonable” only in a categorical, Cokean fashion. See supra note 514. Taft may also have been influenced by a 1921 commentary. See Fraenkel, supra note 16, at 366 (asserting, apparently based on Boyd, that “[i]t is significant that the Amendment itself is in two parts--one which forbids ‘unreasonable searches,’ and the other which requires certain specific particulars to be observed before warrants may be issued”).

528

The Supreme Court had repeatedly invoked “reasonableness” as a broad constitutional standard during the period in which it had asserted a judicial veto over legislation in connection with economic regulation and substantive due process. See, e.g., The Slaughterhouse Cases, 83 U.S. (16 Wall.) 36, 109 (1873); id. at 112, 119 (Bradley, J., dissenting) (stating that all ordinances and regulations must be “reasonable”); Mugler v. Kansas, 123 U.S. 623, 663 (1887) (stating exercise of police power is valid if “reasonable grounds”); Plessy v. Fergusson, 163 U.S. 537, 550-51 (1896) (explaining that because “every exercise of the police power [of a state] must be reasonable,” the question is “whether the statute of Louisiana is a reasonable regulation,” and concluding that the statute at issue was not “unreasonable”); Lochner v. New York, 198 U.S. 45, 56-57 (1905) (stating the issue as whether the regulation was “a fair, reasonable and appropriate exercise of the police power of the State, or... an unreasonable, unnecessary and arbitrary interference with the right of the individual” and concluding that there was “no reasonable ground” for the regulation). The acceptance of this relativistic notion of “reasonableness” as a constitutional standard was so pronounced by the early twentieth century that even Edwin S. Corwin made a prochronistic statement, in his 1928 article, by treating Coke's “against common right and reason” in Dr. Bonham's Case as not only foreshadowing judicial review but as also expressing “that very test of ‘reasonableness' which is the ultimate flowering of this power.” Corwin, supra note 327, at 368. In fact, Coke was referring to a violation of a settled principle of the law of the land (as Corwin certainly understood based on other statements in his writing), not to the sort of relativistic balancing standard that became commonplace in American law in the nineteenth century. See supra notes 392-397 and accompanying text.

529

See supra notes 15, 155 and accompanying text.

530

267 U.S. at 150-53. The early “vehicle” searches Taft referred to involved ships and commercial vehicles.

531

The historical distinction between ships and the personal and domestic interests protected at common law is discussed supra notes 146-151 and accompanying text. Taft's erroneous treatment of warrantless ship searches as intrusions subject to the Fourth Amendment was a major step in the obliteration of the intended meaning of the words “houses, papers, and effects.” Following Carroll, the Court has construed the Fourth Amendment as though it had been intended to serve as a global protection of all manner of privately owned property, including commercial property (though not open fields). Indeed, later cases mixed this understanding of the broad scope of the protection together with the notion of a relativistic reasonableness standard and redefined the scope of the Amendment's protections according to whether there was a “reasonable” expectation of privacy. Katz v. United States, 389 U.S. 347, 361 (1967). Although that formula was initially used to modernize the protection of the Fourth Amendment (by applying it to seizures of telephone conversations), it has since been employed to limit the protection of the house, see, e.g., Florida v. Riley, 488


148

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 U.S. 445 (1989), and of papers, see, e.g., United States v. Miller, 425 U.S. 435 (1976). It has also been used to limit “standing” to challenge the legality of searches, see, e.g., Rakas v. Illinois, 439 U.S. 128 (1978)--including searches of houses, see, e.g., Minnesota v. Carter, 525 U.S. 83 (1998).

532

This point has been made in numerous commentaries. My own views are set out in Davies's Testimony, supra note 3, at 141-43.

533

Professor Amar's commentary would appear to be an example of the desired implications leading the historiography. In his initial discussion of the historical Fourth Amendment in 1991, Amar asserted that “a jury could subsequently assess [the] reasonableness [of a search]” and that “[r] easonableness vel non was a classic question of fact for the jury.” Amar, Bill of Rights, supra note 58, at 1179. However, the only support he offered for the historical-sounding claim that reasonableness “was” the Fourth Amendment legal standard for assessing the lawfulness of a search was a citation to a purely normative statement in an article by Justice Scalia to the effect that searches should be assessed according to reasonableness. See id. at 214 (citing only Scalia, The Rule of Law, supra note 2, at 1180-86). Thereafter, Justice Scalia cited Amar's article as support for Justice Scalia's claim in a 1991 opinion that “colonial juries” could assess damages against an officer for a search “unless the jury found that his action was ‘reasonable.” ’ California v. Acevedo, 500 U.S. 565, 581 (1991) (Scalia, J., concurring) (citing Amar, Bill of Rights, supra note 58, at 1178-80, and Huckle v. Money, 2 Wils. 205, 95 Eng. Rep. 768 (K.B. 1763)). Like the other Wilkesite cases, see supra notes 21-25, Huckle does show that damages could be awarded for unlawful intrusions, but it says nothing about a “reasonableness” standard. Thus, the only authority Justice Scalia actually cited regarding a historical reasonableness standard was Amar's citation of Scalia's own earlier normative claim. Three years after Justice Scalia had cited Amar, Amar published his fuller exposition of claims regarding the historical Fourth Amendment in his 1994 article, Fourth Amendment First Principles. Amar, Fourth Amendment, supra note 58. There Amar wrote as though there were evidence of a historical reasonableness standard--even though he did not identify any. See supra notes 109-115 and accompanying text.

534

Immersion in the materials regarding the entire history of a constitutional provision is the only method that can produce an authentic understanding of the intended meaning. It cannot be gleaned by making assumptions about what the Framers “must have” thought. Neither can it be gleaned by ruminating on the “ordinary meaning” of the words of the text; indeed the important meanings--as in the connotation that “unreasonable” carried in framing-era constitutional discourse--are not necessarily what modern readers would think “ordinary.” Likewise, the historical meaning cannot be gleaned by relying on the historical claims that have appeared in United States Reports or in prior commentaries. It cannot even be gleaned by studying only the historical sources regarding the “origins” of a provision--one cannot adequately detect the dogs-that-did-not-bark-in-the-night that expose unexpected differences between contemporary and historical doctrine unless one also examines the post-framing interpretations.

535

There is no reason to presume that all constitutional statements will be equally susceptible to historical analysis of original meaning, or that they will all reflect an equal degree of settled meaning. The criminal procedure-related provisions of the Bill of Rights were largely based on common law and were largely intended to preserve what were understood to be existing rights; hence, it is highly likely that the Framers of those provisions shared settled understandings of their meanings. In contrast, because the structure of government in the Constitution was in some ways an experiment, it seems unlikely that the Framers shared any settled meaning of provisions such as the Necessary and Proper Clause. Likewise, because it was passed at a time of pronounced political controversy, it seems unlikely that the Framers of the Fourteenth Amendment shared any settled understanding of its meaning.

536

See supra note 13.

537

See supra notes 51-53, 60-61 and accompanying text.

538


539

California v. Acevedo, 500 U.S. 565, 583 (1991) (Scalia, J., concurring); see also supra note 2.

540

See the framing-era condemnations of discretionary authority quoted supra notes 74-84 and accompanying text.

541

See, e.g., United States v. Rabinowitz, 339 U.S. 56, 83 (Frankfurter, J., dissenting) (“To say that the search must be reasonable is to require some criterion of reason. It is no guide at all either for a jury or for district judges or the police to say that an ‘unreasonable


149

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 search’ is forbidden--that the search must be reasonable. What is the test of reason which makes a search reasonable?”); Richard A. Posner, Overcoming Law 250-51 (1995) (commenting on the “imagined” objectivity of a standard of reasonableness).

542

See, e.g., Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 668 (1995); Maryland v. Buie, 494 U.S. 325, 331 (1990); Skinner v. Railway Labor Executives Ass'n, 489 U.S. 602, 619 (1989); New Jersey v. T.L.O., 469 U.S. 325, 337 (1985); United States v. Sharpe, 470 U.S. 675, 682 (1985); Segura v. United States, 468 U.S. 796, 806 (1984); Bell v. Wolfish, 441 U.S. 520, 558 (1978); Scott v. United States, 436 U.S. 128, 137 (1978); United States v. Ramsey, 431 U.S. 606, 617 (1977); South Dakota v. Opperman, 428 U.S. 364, 371-72 (1976); Desist v. United States, 394 U.S. 244, 254 n.23 (1969); Schmerber v. California, 384 U.S. 757, 768 (1966); Harris v. United States, 331 U.S. 145, 150 (1947); Carroll v. United States, 267 U.S. 132, 147 (1925).

543

The direction from which principles are stated matters because it tends to define the default rule for close cases. At common law, intrusions were judged unlawful unless they were positively justified. See, e.g., supra note 203; infra note 544. The credo of modern reasonableness doctrine, however--that the Fourth Amendment forbids only those intrusions that are unreasonable--reverses the common-law default rule. Indeed, advocates of generalized-reasonableness tend to treat the asserted reasonableness of police conduct as though reasonableness itself constitutes a source of police authority. See, for example, discussion of Amar's claims to that effect supra notes 93, 273. The notion that “reasonableness” presumptively permits the exercise of government authority over individuals is also evident in Judge Richard Posner's opinion in United States v. Torres, 751 F. 2d 875 (7th Cir. 1984). The issue was whether wiretaps were legal. Judge Posner concluded they were because statutory authority for wiretaps should not be construed according to “[t]he motto of the Prussian state--that everything which is not permitted is forbidden.” Id. at 880. However, that conclusion inverted the understanding of government authority embraced by the Framers; the principle that “everything that is not permitted is forbidden” is how the common law treated the authority of officers--any intrusion not authorized by positive law was a trespass. See Entick v. Carrington, 2 Wils. 291, 291, 95 Eng. Rep. 807, 807 (C.P. 1765). The Framers understood that restraint of official authority provides freedom for citizens, but that a permissive treatment of the authority of officials detracts from citizens' liberty and security. Likewise, Judge Posner's assertion that a judge has inherent authority to issue search warrants, see 751 F.2d at 880, conflicts with the basic principle announced in Entick, that no warrant can be issued unless positively provided for in law. See also supra text accompanying notes 379-381.

544

See, for example, James Wilson's discussion of a “great and important political maxim” in his law lectures of 1790-91: Every wanton, or causeless, or unnecessary act of authority, exerted, or authorized, or encouraged by the legislature over the citizens, is wrong, and unjustifiable, and tyrannical: for every citizen is, of right, entitled to liberty, personal as well as mental, in the highest possible degree, which can consist with the safety and welfare of the state. [We are servants of the law so that we can be free.] 2 The Works of James Wilson, supra note 196, at 649 (last sentence in brackets translated from the Latin).

545

389 U.S. 347, 357 (1967).

546

See, e.g., Craig Bradley, Two Models of the Fourth Amendment, 83 Mich. L. Rev. 1468, 1473-74 (1988).

547


548


549

It is curious that proponents of originalism seldom question the validity of the Court's 1886 announcement, in Santa Clara Co. v. Southern Pac. R.R. Co., 118 U.S. 394 (1886), that business corporations are “persons” for purposes of constitutional law.

550

The automobile was obviously a form of property that was beyond the Framers' anticipation. However, given that the Framers endorsed a right to be secure for “persons, houses, papers, and effects” but not for commercial interests, one might have thought that the appropriate point to begin the analysis in Carroll would have been to ask whether the auto should be viewed as a protected personal “effect” or should be viewed as comparable to commercial vehicles. I think the answer should have been that the automobile was within the sphere of personal and domestic interests that the Fourth Amendment was intended to protect. Chief Justice Taft, however, never asked that question. Instead, he simply asserted that automobiles carrying contraband were subject to in rem forfeiture because ships and commercial vehicles were. See Carroll v. United States, 267 U.S. 132, 153 (1925). In effect, he decreed that the efficient application of statutory forfeiture authority took precedence over the citizens' constitutional right to be secure in personal automobiles. Id. at 153-56.


150


551

Modern rulings have even undercut the protection of the house from a variety of angles. United States v. Leon, 468 U.S. 897 (1984), effectively held that the exclusionary rule usually will not apply (which is to say that there will be no legal consequence at all) if police enter and search a house pursuant to an unconstitutional warrant. In addition, Anderson v. Creighton, 483 U.S. 635 (1987), protects officers from civil liability even when they illegally enter a house without a warrant. The “standing” doctrines that limit a person's ability to challenge the legality of a search or seizure have also exposed houses by virtually inviting police agencies to illegally enter and search the residences of third parties who are not the primary targets of prosecution themselves. See, e.g., Payner v. United States, 447 U.S. 727 (1980). Were it not for the rulings in Payton v. New York, 445 U.S. 573 (1980), and Welsh v. Wisconsin, 466 U.S. 740 (1984), prohibiting warrantless entries of houses to make arrests, the notion of the special protection of the house would be only a historical relic.

552


553


554

See supra note 56.

555

See, e.g., Scalia, A Matter of Interpretation, supra note 2, at 38 (“What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, not what the original draftsman intended.”). The purported distinction between meaning and intention is artificial. One can rarely if ever arrive at an authentic understanding or application of the “meaning” of a text without considering its authors' purpose within the context in which it was written. See supra note 388. The fact that a reading based on the “ordinary meaning” of the words of the Fourth Amendment has fostered a historically false treatment of that provision by misconstruing the intended meaning of “unreasonable” is an eloquent demonstration of the fallibility of acontextual textualism. Indeed, why should anyone assume that the Framers intended to use an “ordinary meaning” when they adopted “unreasonable” in the Fourth Amendment? They used the peculiar language of constitutional discourse because they were writing a constitution.

556


557

As described above, the Framers would have thought that an ex officio arrest based on mere probable cause alone (without proof of the fact of felony) would be obviously “unlawful.” See supra notes 226-227 and accompanying text. The modern probable cause standard for arrests was adopted after the framing. See supra notes 241-251.

558

Cf. Kamisar, supra note 38, at 574 (arguing that even if the Fourth Amendment had been literally aimed exclusively against general warrants, courts would still have properly interpreted the amendment to prohibit indiscriminate, arbitrary, and unjustified warrantless searches as well).

559

Wyoming v. Houghton, 119 S. Ct. 1297, 1300 (1999) (omitting citations to Wilson v. Arkansas, 514 U.S. 927, 931 (1995), and California v. Hodari D., 499 U.S. 621, 624 (1991)).

560


561

Justice Thomas wrote the unanimous decision in Wilson v. Arkansas, 514 U.S. 927 (1995), which ruled that officers must “knock and announce” before breaking a house to execute a warrant if, but only if, it is “reasonable” to so require in the circumstances. Justice Thomas's opinion correctly recited several framing-era common-law sources that articulated a rigid knock-and-announce rule for serving warrants. See id. at 932. He ended the discussion of framing-era law, however, by stating that “Sir William Blackstone stated simply that the sheriff may ‘justify breaking open doors, if the possession be not quietly delivered.’ 3 Blackstone [Commentaries] *412.” Id. at 932-33. The Blackstone passage Thomas quoted has nothing to do with execution of a search warrant. It refers to a sheriff ejecting squatters after a civil judicial ruling that they have no claim to the property--a situation that obviously does not pose the usual concern for the security of a house and its residents. See 3 Blackstone, supra note 27, at 412-13. In addition, Thomas's historical summary papers over the large gap between early American cases that “embraced the commonlaw knock-and-announce principle” and “[o]ur own cases....” 514 U.S. at 933-34. The simple fact is that the modern flexible reasonableness standard applied in Wilson was unknown to the common law. The Justices' decision to relax the requirements for


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RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 the execution of a search warrant was not based in history; rather it was a departure from historical doctrine. The suggestion that the decision was in any way supported by historical doctrine was only pretense.

562

See examples cited supra notes 152-159 and accompanying text; supra notes 171, 187, 247, 252, 340, 425, 450, 467, 484, 490, 511-513, 533; supra notes 559-561 and accompanying text. Precisely because judges may feel obliged to concoct historical pedigrees to justify novel rulings, legal historians should never take judicial descriptions of legal history at face value.

563

I have simplified the historical doctrine for the purposes of this discussion. As discussed above, Hawkins actually asserted a more restrictive doctrine under which only an arrest of an actually guilty felon could justify the breaking of a house. See supra notes 265-269 and accompanying text. This discussion follows Hale's broader statement regarding the authority of officers to break into houses to arrest. However, I am also omitting Hale's general caveat that the breaking could be justified only if the suspected felon was actually present in the house at the time.

564

These comments are directed to Justice White's historical arguments in his dissenting opinion in Payton v. New York, 445 U.S. 573, 604-12 (1980). He asserted that there was no basis for requiring a warrant for making an arrest in the wanted person's residence because common law had allowed warrantless entries of houses to make arrests. White's claim, however, wrenched the common-law statements regarding the justification for breaking into a house out of the cluster of related historical doctrines. Common-law doctrine was also taken out of historical context in Justice Scalia's concurring opinion in Minnesota v. Carter, 525 U.S. 83, 91 (1998), in which a five-justice majority held that nonsocial visitors could not challenge the legality of a search of a house. Justice Scalia asserted that this conclusion was mandated by the Fourth Amendment itself, in part because “it would have been clear to anyone who knew the English and early American law of arrest and trespass that underlay the Fourth Amendment” that a nonresident could not claim the right to be secure in a house that a resident could claim. Id. at 94 (quoting statements by Coke, a comment by Cooley regarding a statement by Blackstone, and an 1815 English decision). The cited statements, however, pertain to situations where a nonresident who was either already lawfully pursued by officers and subject to arrest or already subject to execution of a civil court judgment was attempting to use the house of another as a refuge. In contrast, there was no basis for arresting the nonresidents in Carter except for evidence obtained during a search of the house the nonresidents had visited. That scenario does not seem to have come up during the framing era, probably because the householder still had a viable trespass remedy for an unlawful entry of his house, as well as a right to use force to defend his house, and officers were reluctant to expose themselves to those risks. See supra notes 263-275 and accompanying text. The scenario in Carter arises today because the post-framing development of “qualified immunity” doctrine has vitiated even the householder's trespass remedy that earlier gave substance to the castle doctrine. See, e.g., Anderson v. Creighton, 483 U.S. 635 (1987) (opinion of the Court by Scalia, J.). Historical authorities never foresaw the incentives for unlawful police searches of houses that the current combination of “immunity” and “standing” doctrines create.

565

See, e.g., supra notes 2, 58.

566

See, e.g., Lawrence Lessig, Fidelity and Constraint, 65 Fordham L. Rev. 1365 (1997).

567

See Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 669 (1995) (O'Connor, J., dissenting). Similarly, Justice Stevens has noted that the Framers would have been less concerned to prevent the issuance of too-loose warrants than improper warrantless intrusions. See United States v. Leon, 468 U.S. 897, 971 (1984) (Stevens, J., dissenting). Justice O'Connor has also noted that the Framers would have been especially concerned about legislation that purported to authorize arrests without a showing of cause. See Illinois v. Krull, 480 U.S. 340, 362 (1987) (O'Connor, J., dissenting).

568

There is no historical basis for treating the constitutional statements of rights as though they were formulated deductively, as the “first principle” language implies. The Framers undoubtedly thought that there were identifiable principles embedded in the common law (for example, that no man could be judge in his own case), but they also understood that the common law was the product of accretion. Although the phrase “first principles” does appear in Blackstone's writing, he used that term to refer virtually to the principles that inhere in the social contract itself. See 1 Blackstone, supra note 27, at 243 (“I say in the ordinary course of law, for I do not now speak of those extraordinary recourses to first principles which are necessary when the contracts of society are in danger of dissolution, and the law proves too weak a defense against the violence of fraud or oppression.” (emphasis in the original)).

569

Cf. Posner, supra note 541, at 251 (“Originalism is not an analytic method; it is a rhetoric that can be used to support any result a judge wants to reach.... Some of the most activist judges, whether of the right or the left... have been most drawn to the rhetoric of


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RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 originalism. For it is a magnificent disguise. The judge can do the wildest things, all the while presenting himself as the passive agent of the sainted Founders--don't argue with me, argue with Them.”).

570

For a discussion of the quest for “usable” legal history, see generally Laura Kalman, Border Patrol: Reflections on the Turn to History in Legal Scholarship, 66 Fordham L. Rev. 87 (1997).

571

To my mind, the crux of the problem of modern search and seizure law is posed by the somewhat contrasting views offered by Professors Wayne LaFave and Albert Alschuler as to the degree to which rules of search and arrest authority are desirable and/ or feasible. See Albert W. Alschuler, Bright-Line Fever and the Fourth Amendment, 45 U. Pitt. L. Rev. 227 (1984); Wayne R. LaFave, “Case-by-Case Adjudication” Versus “Standardized Procedures”: The Robinson Dilemma, 1974 Sup. Ct. Rev. 127; Wayne R. LaFave, The Fourth Amendment in an Imperfect World: On Drawing “Bright Lines” and “Good Faith,” 43 U. Pitt. L. Rev. 307 (1982). My own sense is that a regime of rules would be desirable, but I confess some skepticism as to how broadly rules can be feasibly formulated. The shortcoming of the Court's recent embrace of generalized-reasonableness is that it has short-circuited any attempt to formulate a law of rules for search and seizure.

572

As noted above, I think the adjustments made in Weeks were appropriate and necessary, and I hope to explain that view in more detail in a future publication. I do not think the same can be said of the imposition of the flexible reasonableness-in-thecircumstances standard in Carroll, because the broad endorsement of discretionary authority implied in that standard was inconsistent with the Framers' larger purpose of foreclosing officers from exercising discretionary authority. Of course, I recognize that it was inevitable that some degree of discretionary authority would be recognized in the twentieth century. However Carroll's false claim that the Framers had envisioned a reasonableness-in-the-circumstances standard blunted a thorough examination of just how much discretionary authority was necessary in modern criminal justice, and in precisely what circumstances. It effectively converted the Fourth Amendment from a bar against discretionary police authority to a source of such authority. I think a thorough examination of Carroll reveals it to be an expression of statist-inclined judicial activism that runs contrary to the larger purposes of the Fourth Amendment.

573

See, e.g., County of Riverside v. McLaughlin, 500 U.S. 44, 71 (1991) (Scalia, J., dissenting) (complaining that the Court “in recent years [[[has] invented novel applications of the Fourth Amendment to free the guilty”); cf. Scalia, A Matter of Interpretation, supra note 2, at 41 (stating that “[h] istorically, and particularly in the past thirty-five years, the ‘evolving’ Constitution has imposed a vast array of new constraints--new inflexibilities-- upon administrative, judicial, and legislative action,” and mentioning, first, the extension of the exclusionary rule to the states in Mapp v. Ohio, 367 U.S. 643 (1961)).

574

The implications of the post-framing expansion of the peace officer's authority for constitutional standards and rights are not limited to search and arrest authority. The post-framing creation of police interrogation of suspects is equally prominent in the historical evolution of constitutional doctrine regarding the Fifth Amendment right against compelled self-accusation. Framing-era common law did not permit officers to interrogate or take statements or confessions from suspects. See, for example, Chief Justice Pratt's (Lord Camden's) remark in the press accounts of Leach to the effect that officers could not be permitted to arrest or search at their discretion any more than they could be permitted “to take examinations,” quoted supra note 22. In fact, although English statutory law created authority for justices of the peace to “examine” arrestees (though not under oath) and record their answers for evidence in a subsequent trial, there is evidence that at least some American jurisdictions viewed that practice as violative of the common-law right against compelled self-accusation. Hening's 1794 Virginia justice of the peace manual had this to say: The justice, before whom the prisoner is brought, is bound immediately to examine the circumstances of the crime alleged. But the power of examining the prisoner himself and committing his examination to writing seems not to be recognized by our laws. This authority was granted by statute of England of Ph [ illip] & M[ ary], which not having been adopted by our legislature, is consequently not in force. And that these proceedings are repugnant to the common law, will appear... from judge Blackstone, who says, that at the common law, no man was bound to betray himself: and his fault was not to be wrung out of himself, but rather to be discovered by other means and other men. Hening, supra note 25, at 153 (citations to statutes and other authorities and footnote omitted; the Blackstone citation was to 4 Blackstone, supra note 27, at 293). The Framers never anticipated that ordinary peace officers would be authorized to interrogate arrestees or take admissible statements from them. Thus, the emergence of police interrogation during the nineteenth century threatened to bypass and nullify the historical


153

RECOVERING THE ORIGINAL FOURTH AMENDMENT, 98 Mich. L. Rev. 547 understanding of the right against compelled self-accusation in much the same way that the expansion of police warrantless arrest authority threatened to bypass and nullify the historical understanding of the right to be secure. Likewise, the initial application of the Fifth Amendment right to the police interrogation setting in Bram v. United States, 168 U.S. 532, 542 (1897), is best understood as a parallel to the Court's extension of the Fourth Amendment to warrantless searches in Weeks-- as an effort by the Court to adjust the constitutional right to a drastically different threat than the Framers had any reason to anticipate. As in search and seizure doctrine and practice, the post-framing expansion of police authority is the salient feature of the historical evolution of interrogation doctrine and practice. For other discussions of the historical Fifth Amendment right against compelled self-incrimination, see supra notes 320, 433, 450, 511.

98 MILR 547 End of Document



154

PUTTING A SQUARE PEG IN A ROUND HOLE: THE..., 34 Am. J. Trial Advoc....

34 Am. J. Trial Advoc. 165 American Journal of Trial Advocacy Summer, 2010 Student Note *165 PUTTING A SQUARE PEG IN A ROUND HOLE: THE SEARCHINCIDENT-TO-ARREST EXCEPTION AND CELLULAR PHONES J. Patrick Warfield Copyright © 2010 by American Journal of Trial Advocacy; J. Patrick Warfield I. Introduction In United States v. Wurie, the defendant moved the court to suppress evidence found on his cell phone after the police seized the phone subsequent to his arrest. 1 In upholding the search, the United States District Court for the District of Massachusetts ruled a cell phone is a container that can be searched, just as any other closed container, as long as it is found on the defendant's person. 2 The defendant argued that the police “violated his constitutional rights as guaranteed to him by the Fourth, Sixth and Fourteenth Amendments” by conducting an unwarranted search of the cell phone because the search-incident-to-arrest exception did not apply to cell phones. 3 On a matter of first impression, the District Court of Massachusetts held with the majority of other district and circuit courts, stating that exigent circumstances promoted the search incident to arrest, and therefore the search was reasonable; thus, it was valid under the Fourth Amendment of the United States Constitution. 4 *166 The Wurie case represents a typical case addressing Fourth Amendment search and seizure upholding the legality of searching cell phones subsequent to valid custodial arrests. However, other cases, principally United States v. Park and a recent Supreme Court of Ohio case, State v. Smith, have declined to deem a cell phone a container. 5 No matter *167 whether a court believes that a cell phone is a container, albeit a very advanced container, or declines to adopt such a view, courts tend to struggle with one pervasive issue: What previous Fourth Amendment case law applies to the unwarranted search of cell phones? As society continues to make technological advances, courts are going to continue to grapple with the issue of applying searchand-seizure law related to new technology, while still upholding the privacy interests contained within the Fourth Amendment. The origins of the Fourth Amendment, the rationale applied to the search-incident-to-arrest exception, and the capabilities of today's cell phones need to be understood in order to fully appreciate the decisions of both the Wurie court and those that decline to follow its rationale. Section II discusses the facts and rationale of the Wurie decision. Section III gives a brief analysis of the origins and foundations of the Fourth Amendment. It considers whether a person has a reasonable expectation of privacy in his cell phone and, if so, whether a search incident to arrest overcomes that privacy interest. Section IV discusses the nature of a cell phone compared to other containers and whether a cell phone should be considered a container under the search-incident-to-arrest exception. Section V concludes by commenting on the case law and explaining why the rationale behind a search incident to a lawful arrest does not promote it being applied to the search of cell phones.

II. Facts of Wurie


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On March 27, 2008, Brima Wurie was indicted with distribution of cocaine base (crack cocaine) within 1000 feet of a school, possession of crack cocaine with the intent to distribute, and felon in possession of a *168 firearm and ammunition. 6 He was indicted pursuant to an arrest made for “suspicion of selling a small quantity of drugs.” 7 The arrest was made after an officer patrolling in an unmarked police car noticed a man talking on a cell phone in a parking lot of a convenience store. 8 After a few minutes, the defendant, Wurie, who was driving a white Nissan Altima, picked up the gentleman in the parking lot. 9 Wurie and his passenger drove out of the parking lot onto an adjacent street, traveled one hundred and fifty yards, conducted a u-turn, and then proceeded to reenter the convenience store parking lot. 10 Thereafter, the passenger exited the vehicle. 11 In light of what the officer saw, he believed a drug transaction had just occurred, thus he broadcasted the make, model, color, and license plate of Curie's car over the police radio. 12 The officer then entered the convenience store to confront the gentleman, and found, inter alia, two eight-balls (3.5 grams) of cocaine in plastic bags. 13 Upon questioning at the location, the gentleman stated that he had purchased the cocaine from “B.” 14 Soon after, another officer arrested Curie at a location some distance from the site of the transaction. 15 After being taken to the police station, the officers seized Curie's personal property, including two cell phones, a set of keys, and $1275 in cash. 16 During their seizure of Curie's personal property, approximately five to ten minutes after he was brought to the station, the officers *169 examined both cell phones. 17 During their examination, the officers noticed several phone calls on the caller ID screen from “my house.” 18 At the time of the examination, the phone rang, and one of the officers opened the phone. 19 The caller ID indicated that the incoming call was placed from “my house.” 20 The officers did not answer the phone call, nor did they attempt to access any other information contained on the phone. 21 Using an internet-based reverse phone directory, the officers identified the phone number as belonging to Manny Cristal at 315 Silver Street in Boston, Massachusetts. 22 They also noticed that the wallpaper of the caller ID screen was a picture of a “young black female holding a baby.” 23 Because of the circumstances that led to the arrest, and the fact that defendant possessed two cell phones, a large amount of cash, and was driving a rental car, the officers suspected that Wurie was involved in drug trafficking. 24 They also believed that Wurie had a large stash of drugs, which might be hidden at his house. 25 Therefore, the officers Mirandized Wurie and asked whether he lived at 315 Silver Street. 26 The defendant denied living at 315 Silver Street and stated that he lived at another address. 27 The officers did not believe Wurie and proceeded to 315 Silver Street with Wurie's keys. 28 Arriving at the address, the officers noticed three mail boxes outside of the apartment building, one of which was labeled “315,” “Cristal” and “Wurie.” 29 From ground level, the officers looked into the first floor *170 apartment window and noticed a young black female similar to the woman depicted on Wurie's phone. 30 In order to gain access to the building, the officers used a key from Wurie's key ring to unlock a door, allowing them access to a common hallway shared by the first and second floor tenants. 31 The officers then attempted to unlock the second floor apartment using all of the keys on the ring, but none matched the lock. The officers then attempted to unlock the first floor apartment using the keys, and one unlocked the door. 32 The key was then removed from the lock, and without opening the door, the officers knocked. 33 The door was answered by the same female seen through the window and on Wurie's cell phone, whereupon she was asked to step into the hallway. 34 One of the officers, after the door was opened, smelled the odor of burnt marijuana wafting from


2


inside the apartment. 35 The female explained to the officer that she knew Wurie and that he sporadically stayed with her at the apartment. 36 She further stated that the defendant spent the night the previous evening. 37 Based on this information, the officers entered the apartment in order to “freeze” it until a search warrant was obtained. 38 A search warrant was obtained, and the police recovered “215 grams of crack cocaine, a Smith & Wesson .9 millimeter firearm loaded with five rounds of ammunition, six loose rounds of .40 caliber hollow point ammunition, four plastic bags of marijuana ... drug paraphernalia, and $250 in cash” that was stashed in the apartment's master bedroom. 39 At trial, Wurie moved to suppress the evidence that was obtained from his cell phone and the subsequent search of his apartment. 40 He argued *171 that the “‘police violated his constitutional rights as guaranteed to him by the Fourth, Sixth and Fourteenth Amendments,’ that the ‘stop and seizure were conducted without probable cause, without consent, without a properly issued search warrant, and without any other legal justification.”’ 41 Furthermore, he argued that “‘the seizure of his personal belongings and later use by the police of his phone and keys were done in violation’ of these same rights.” 42 The court easily found that both the arrest and the seizure of Wurie's cell phone and keys were constitutionally valid. 43 The lingering issue of the case, and the question left for the court to decide, was whether a “search incident to arrest may include a search of a cell phone's contents, and if it does, how thorough the search might be.” 44 The Wurie court held that the search of the cell phone incident to arrest was reasonable and limited. 45 When the officers viewed the caller ID screen and noticed the contact entry “my house,” they believed that accessing such information would allow them to find Wurie's larger drug stash. 46 Moreover, it was of no consequence that the search of the cell phone was conducted after the arrest, during Wurie's detention. The Supreme Court has stated that it is also plain that “searches and seizures that could be made on the spot at the time of arrest may legally be conducted later when the accused arrives at the place of detention.” 47 *172 Furthermore, the court analogized the searching of cell phone contents to the “container exception” found in United States v. Lafayette and subsequent cases. 48 In Lafayette, the Supreme Court extended detention searches stating “that it is not ‘unreasonable’ for police, as part of the routine procedure incident to incarcerating an arrested person, to search any container or article in his possession, in accordance with established inventory procedures.” 49 Therefore, the court denied Wurie's motion to suppress, and found that the police officers acted reasonably with their search of his cell phone. 50 As of the Wurie decision, neither the First Circuit nor the United States Supreme Court had yet to rule on the matter. 51 In understanding whether or not the search-incident-to-arrest exception applies to the unwarranted search of a cell phone's memory, it is important to understand the purpose, design, and case law surrounding the Fourth Amendment.

III. Origins and Foundations of the Fourth Amendment The Fourth Amendment states, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable *173 searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause ... describing the place to be searched, and the persons or things to be seized.” 52 The Supreme Court, “[i]n determining whether a particular governmental action violates this provision, ... inquire[s] first whether the action [is] regarded as an unlawful search or seizure under the common law when the Amendment was framed.” 53 In order to understand the origins of the Fourth Amendment, and its purpose in American jurisprudence, it is essential to look to the time period surrounding the ratification of the Bill of Rights. 54


3


Part of the driving force behind the enactment of the Fourth Amendment was the writs of assistance issued by the British Crown in the American Colonies. 55 Writs were issued to customs officials, giving them power under British law to search for smuggled goods. 56 The discretion that was bestowed upon customs officials was broad and almost unlimited. 57 The writ empowered the officer and his deputies “to search, at their will, wherever they suspected uncustomed goods to be, and to break open any receptacle or package falling under the suspecting eye.” 58 *174 Under the British rule, the colonists developed a disdain for these broad encompassing writs, setting the stage for the Fourth Amendment. 59 As with the other amendments to the Bill of Rights, the Fourth Amendment was aimed at preventing the tyranny of the federal government on the people of each state. The framers created two essential clauses in the Fourth Amendment: (1) no “unreasonable searches and seizures,” known as the reasonableness clause, and (2) if a warrant is to be issued it should be issued only upon “probable cause supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized,” known as the warrant clause. 60 The reasonableness clause has been uniformly applied by the Supreme Court and state courts to promote a person's reasonable expectation of privacy. 61 Meaning, if a person does not have a “reasonable expectation of privacy” in the item or place to be searched, the Fourth Amendment does not apply. 62 In United States v. Katz, Justice Harlan's concurrence proffered the generally accepted two-part test of a person's expectation of privacy: (1) “that a person have exhibited an actual (subjective) expectation of privacy,” and (2) “that the expectation be one that society is prepared to recognize as ‘reasonable.”’ 63 If there is no reasonable expectation of privacy, then there is no “search or seizure” under the Fourth Amendment. 64 Therefore, there is no need to obtain a warrant. 65

A. Reasonable Expectation of Privacy in Cell Phones If there is a reasonable expectation of privacy, the government must either obtain a warrant, or the officer wishing to make the search must *175 qualify under the numerous exceptions that have been carved out of the Fourth Amendment through case and statutory law. 66 Courts, in an attempt to apply the notions of privacy toward cell phones, have often looked to past technology and case law. For some, it is hard to imagine a time without cell phones. However, not too long ago the seemingly ubiquitous cell phone was nonexistent, and the wireless pager was the preferred mobile device. In numerous jurisdictions, pagers have been analogized to cell phones. 67 The majority of courts have held that a person has a reasonable expectation of privacy in a pager's memory. 68 Despite this, courts have been less uniform in finding the same privacy rights that apply to pagers also apply to cell phones. 69 In United States v. Finley, the leading warrantless search of cell phones case, the court held that people have a reasonable expectation of privacy in the call records and text messages contained on their phones. 70 In Finley, the defendant was indicted on one count of possession of *176 methamphetamine with intent to distribute. 71 At the time of his arrest, police seized a cell phone that was located in his pocket. 72 Finley was taken to the station house, and, during questioning, the police searched through the phone's text message and call records. 73 During the search, it appeared that several of the messages “related to narcotics use and trafficking.” 74 In opposing Finley's motion to suppress, the government alleged that he did not have a reasonable expectation of privacy because it was his employer's phone, and that he did not take the precaution of password protecting the contents. 75 The Fifth Circuit Court of


4


Appeals, in holding that Finley had a reasonable expectation of privacy in his cell phone, found that he took normal precautions to maintain privacy in the contents of his phone, regardless of whether it was password protected. 76 Other cases have held the opposite, ruling that a person does not have a reasonable expectation of privacy in the contents of his cell phone. 77 In United States v. Fierros-Alvarez, another case involving methamphetamines, the United States District Court for the District of Kansas held that the defendant did not have a reasonable expectation of privacy in his cell phone call directory and phone book. 78 The defendant was pulled over for his inability to pay a toll on the Kansas Turnpike. 79 After some questioning, the defendant was arrested for driving without a license, failing to pay the road toll, and for operating a vehicle with expired temporary *177 tags. 80 In conducting an inventory search of the car, the officers noticed that the back seat appeared to have a hidden compartment, and, after a drug canine was brought in, their suspicions were confirmed. 81 Six pounds of methamphetamine were obtained from the vehicle. 82 During questioning at the station house eleven hours later, the officers searched the contents of a “boost phone” and obtained names and numbers from the phone's memory. 83 In determining that the defendant did not have a reasonable expectation of privacy in the contents of the cell phone, the court stated that, once a number is dialed, “the telephone company must receive the number for the call to be completed and a ‘person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”’ 84 The court claimed that the officer's use of a pen register is not considered to be a Fourth Amendment search. 85 A pen register is defined by the United States Code as “a device or process which records or decodes dialing ... information transmitted by an instrument or facility from which a wire or electronic communication is transmitted, provided, however, that such information shall not include the contents of any communication.” 86 *178 Since the pen register does not obtain the specific contents of the communication, it is therefore not a search under the Fourth Amendment. 87 Despite the ruling in Fierros-Alvarez, numerous courts have concluded, or at least implied, that a person has a reasonable expectation of privacy in the contents of his cell phone. 88 Therefore, either the police must *179 obtain a warrant to search the phone, or, as is more often the case, some exception to the warrant requirement must apply in order for the search to be valid.

B. Search-Incident-to-Arrest Exception: Chimel and Robinson The Supreme Court has held that “searches conducted outside the judicial process, without prior approval by a judge or magistrate, are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and welldelineated exceptions.” 89 The Court has also stated that one of “the exceptions to the warrant requirement is a search incident to a lawful arrest.” 90 In Chimel v. California, the United States Supreme Court created the search incident to a lawful arrest exception to the Fourth Amendment. 91 The Court stated that, after a lawful custodial arrest, an officer may search “the arrestee's person and the area ‘within his immediate control'--construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” 92 Chimel was apprehended in his home pursuant to a valid arrest warrant for burglary. 93 After being arrested and placed in handcuffs, he refused to grant the officers consent to search the entire house. 94 Nevertheless, the officers *180 conducted a search of the house and found stolen items that related to the burglary charge. 95 The Supreme Court held that it was “entirely reasonable for the arresting officer to search for and seize any evidence” or weapon on the arrestee's person or within his immediate control. 96 But searching rooms and areas outside the immediate control of the arrestee “in the absence of a search warrant” or another qualified exception to the warrant requirement is unjustified. 97 The Court


5


concluded that the rationale behind the search incident to a lawful arrest exception is officer-bystander safety and to prevent the destruction of evidence. 98 Four years later, in United States v. Robinson, the Court found that the rationale of a search incident to a lawful arrest also applied to all closed containers found on the person. 99 In Robinson, the defendant was pulled over by police for operating a vehicle under a revoked license. 100 After a lawful custodial arrest, the officer conducted a search incident to that arrest and found a crumpled up cigarette package. 101 The officer, in investigating the contents of the cigarette package, found fourteen gelatin capsules of heroin. 102 The Court held that the search-incident-to-arrest exception also encompassed the search of all containers found on the person, or within their immediate control. 103 In allowing an officer to search containers, the rationale set forth in Chimel, officer-bystander safety and preservation of evidence, justified the search. 104 In accordance with the analysis found in Chimel and Robinson, the court in United States v. Wurie stated that the search of the defendant's cell phone was valid as incident to a lawful arrest. 105 The court held that “[it] see[s] no principled basis for distinguishing a warrantless search of *181 a cell phone from the search of other types of personal containers found on a defendant's person.” 106 But, unlike the Wurie court, not all courts have been able to accept the idea that a cell phone is akin to a container, and therefore able to be searched subsequent to a valid arrest. 107 Absent a definitive ruling by the Supreme Court, lower courts will apply different rules as to whether the search of a cell phone is valid--and, if such searches are valid--the more important question is to what extent the cell phone may be searched?

C. Finley, Wurie, and the Search Incident to a Lawful Arrest Without a Supreme Court ruling, lower courts are attempting to apply previous Fourth Amendment case law to the search of a cell phone. In United States v. Finley, the Fifth Circuit Court of Appeals concluded that the defendant had a reasonable expectation of privacy in the contents of his cell phone. 108 But the court held that Finley's cell phone was analogous to a container, and under Robinson and Chimel, the container could be searched incident to a valid arrest. 109 Moreover, the exigency of the *182 circumstances, the fear of losing evidence for trial, warranted the officer's search of the contents of the phone. 110 Therefore, the court admitted the evidence at trial, but the Finley opinion fails to explain the source of the exigencies and how evidence would be lost if the cell phone was not immediately searched. 111 Furthermore, in Finley, the defendant conceded that his cell phone was analogous to a container. 112 Thus, in some cases where the defendant has not conceded that a cell phone is a “container,” Finley is not entirely applicable. In the case of Wurie, the officers used his cell phone and call record to determine with whom he was dealing drugs and where he might be keeping his stash. 113 The court concluded that there is “no principled basis for distinguishing a warrantless search of a cell phone from the search of other types of personal containers found on a defendant's person that fall within ... the Fourth Amendment's reasonableness requirement.” 114 In taking up where Finley failed to explain the source of the exigencies, the Wurie court cited United States v. Parada, and parenthetically cited the holding that incoming phone calls and text messages would “overwrite memory and destroy evidence.” 115 Wurie analogized cell phones to luggage, wallets, purses, address books, and various other “containers.” 116 This type of analogy seems to be pervasive throughout the case law dealing with searches of cell phones. Just like the Wurie and Finley courts, it appears that the majority of these cases tend to grapple with one overall question: What, in previous Fourth Amendment case law, is the most similar to a cell phone?


6


*183 IV. Previous Technology: Putting a Square Peg in a Round Hole In understanding whether the search-incident-to-arrest exception applies to cell phones, courts have been looking to previous case law and previous technology to determine how the exception should be applied. In Wurie, the court likened a cell phone to an address book found in a man's wallet, which the Seventh Circuit Court of Appeals upheld as admissible in United States v. Rodriguez. 117 In Rodriguez, the Seventh Circuit upheld the admissibility of a photocopy of a man's address book. 118 The defendant was arrested for attempt to distribute cocaine. 119 After being arrested, Rodriguez was taken to the station house, and a search produced a wallet. 120 Subsequently, the police photocopied the address book contained in the wallet and used that information to catch the defendant's co-conspirators. 121 The court of appeals held that the search of Rodriguez's wallet was reasonable and that it fell within the search-incident-to-arrest exception of the Fourth Amendment. 122 Moreover, the Wurie court also likened a search of the cell phone to a search of a woman's purse, relying on United States v. Moreno. 123 In that case, the court held that the search of a woman's purse was valid as a search incident to arrest. 124 After a failed controlled buy, the police *184 arrested Mr. and Mrs. Moreno subsequent to finding ten ounces of heroine in plain view in their automobile. 125 Mrs. Moreno, the driver of the car, had her purse searched, and the police found a revolver and marked money from an earlier transaction. 126 The Morenos moved to suppress the evidence obtained from her purse, but the Ninth Circuit Court of Appeals denied the motion, holding that the search was valid as incident to a lawful arrest. 127 As technology progressed several years later, courts were confronted with the pager. Just as with cell phones today, courts grappled with applying old case law to meet new forms of technology. In United States v. Ortiz, the Seventh Circuit Court of Appeals ruled that a search of the defendant's pager was admissible under the search incident to an arrest exception. 128 The pager was found on Ortiz's person, and the court held that it was a container that could be searched. 129 Ortiz was arrested for criminal contempt and possession of heroin. 130 After seizing the defendant's pager, the officers obtained several numbers from its memory linking Ortiz to the heroin charge. 131 In denying Ortiz's motion to suppress the information obtained from the pager, the court held that the officer was conducting a valid search incident to arrest. 132 The court further stated that “[a]n officer's need to preserve evidence is an important ... rationale for permitting [the] search.” 133 The court also noted that pagers have only a finite amount of memory, and “incoming pages may destroy currently stored telephone numbers in a pager's memory.” 134 Therefore, officers have the authority to retrieve information from the pager's memory incident to a lawful custodial arrest. 135 *185 Although it is fair to say that many courts have analogized a pager to a cell phone, some courts have not been as quick to make that inference. These cases illustrate the major differences between pagers and cell phones. 136 Particularly, cell phones have a larger memory to store numbers and call logs, which seems to be the object of most of the police searches. 137 But, with this increased memory, cell phones have greater capacity to store information, such as address books, pictures, and emails. 138 These differences should make other courts take a hard look at the validity of the analogy or whether to apply the “container rule,” at all, to cell phones.

A. Park and Smith: Search Incident to Arrest Does Not Apply Those courts that decline to apply the search-incident-to-a-lawful-arrest exception are in the minority of jurisdictions wrestling with the issue. 139 Although not federal law, the most thoughtful and persuasive argument for not treating a cell phone as a


7


container is found in the Supreme Court of Ohio's case, State v. Smith. 140 The Smith court relied heavily on the analysis of United States v. Park, an unreported case from the District Court for the Northern District of California. 141 Therefore, *186 understanding the holding in Park is imperative to understanding the more definitive ruling of Smith.

1. United States v. Park The Park decision was one of the first to stray away from the analysis seen in United States v. Finley. 142 The Park court held that the unwarranted search of the defendant's cell phone was unlawful under the Fourth Amendment. 143 In Park, the police executed a search warrant and, in the process, arrested the defendant for numerous drug offenses. 144 At some point after the arrest, while the defendant was being questioned at the station house, the police searched his cell phone. 145 On a motion to suppress, the California court held contrary to Finley, stating: [F]or purposes of Fourth Amendment analysis cellular phones should be considered “possessions within an arrestee's immediate control” and not part of “the person.” This is so because modern cellular phones have the capacity for storing immense amounts of private information. Unlike pagers or address books, modern cell phones record incoming and outgoing calls, and can also contain address books, calendars, voice and text messages, email, video and pictures. Individuals can store highly personal information on their cell phones, and can record their most private thoughts and conversations on their cell phones through email and text, voice and instant messages. 146 Therefore, the motion to suppress was granted because the search-incident-to-arrest exception did not apply to the unwarranted search of the cell phone. 147

*187 2. State v. Smith A few years later, in State v. Smith, the Ohio Supreme Court employed some of the same analysis used above. 148 In Smith, Wendy Thomas Northern was brought into a hospital after a reported drug overdose. 149 After being admitted, the police questioned her about her overdose, and she agreed to set up a controlled buy at her residence. 150 To set up the buy, Northern phoned her drug dealer, and police recorded her cell phone conversation. 151 Once the drug deal was completed, police arrested the defendant, Smith, and seized his cell phone. 152 Although it is unclear when the police searched the memory of the cell phone, at some point the police searched the call records to “confirm[] that Smith's cell phone had been used to speak with Northern.” 153 Smith was indicted on one count of trafficking cocaine. 154 During pre-trial motions, the defendant moved to suppress the evidence obtained from his cell phone. 155 After motions were heard, the judge informed the parties that he would reserve ruling until the evidence was offered at trial. 156 During the prosecution's case, the judge admitted the evidence, principally on grounds proposed in the Finley decision: search incident to arrest, the preservation of evidence, and that a cell phone is a container. 157 A jury later found the defendant to be guilty on all counts. 158 *188 On appeal, the majority agreed with the trial court, holding that the Finley decision was correct and that the evidence was admissible. 159 A dissent was filed where Judge Donovan argued that the evidence obtained should be suppressed as an


8


unreasonable warrantless search. 160 The dissenting opinion relied heavily on United States v. Park, likening a cell phone to a small computer rather than a pager. 161 The Supreme Court of Ohio granted Smith's final discretionary appeal as to whether the Fourth Amendment prevents the search of a cell phone after it has been seized incident to a lawful arrest. 162 On discretionary appeal, the Supreme Court of Ohio stated that “whether the warrantless search of cell phone passes constitutional muster depends upon how a cell phone is characterized.” 163 The court held that a person has a reasonable expectation of privacy in the contents of his cell phone because cell phones have the ability to store vast amounts of private data. 164 Therefore, a person would have a “justifiable expectation” of privacy in that information. 165 Moreover, those privacy interests that a person has in his cell phone go “beyond the privacy interest[s] in an address book or pager.” 166 The court stated that this expectation of privacy requires that police either obtain a warrant, or find an exception to the warrant requirement prior to searching the phone. 167 Contrary to most jurisdictions, the Supreme Court of Ohio held that the search-incident-to-arrest exception did not apply to cell phones because a cell phone is not a container, and even if it was a container, the *189 exigencies of the circumstances do not merit the unwarranted search. 168 The court, in its conclusion, compared the analysis in both the Park and Finley cases. 169 One major difference between the Smith case and that of Finley and Wurie is that the defendant did not concede that his cell phone was in fact a container. 170 The Ohio Supreme Court's analysis relied heavily upon the Supreme Court of the United States' definition of a closed container. 171 The Supreme Court of the United States held that a closed “‘container’ means ‘any object capable of holding another object.”’ 172 The Smith court used the example of a cigarette packet that contained drugs, such as in United States v. Robinson. 173 Moreover, the Ohio court asserted the cases holding that a cell phone is akin to container have misconstrued the Supreme Court's definition. 174 Each of these cases ... fails to consider the Supreme Court's definition of “container” in [New York v.] Belton, which implies that the container must actually have a physical object within it. Additionally, the pagers and computer memo books of the early and mid 1990s bear little resemblance to the cell phones of today. Even the more basic models of modern cell phones are capable of storing a wealth of digitized information wholly unlike any physical object found within a closed container. 175

Therefore, under the foregoing analysis, the court held that a cell phone is not a closed container because an individual has privacy concerns “that go [] beyond the privacy interest in an address book or pager.” 176 Even if a cell phone is considered to be a container, the court held that there were no exigent circumstances that justified the search. 177 *190 The prosecution argued in its brief that the memory of cell phones to store incoming calls is finite and that deleted phone numbers are gone forever. 178 The court noted that the prosecution failed to raise the argument in the court of appeals; therefore, the issue was not properly raised before the court. 179 Moreover, the prosecution did not offer any evidence at the suppression hearing. 180 But the court took up the issue arguendo, noting that, even if the issue was appealable, the prosecution failed to demonstrate that the numbers would be deleted. 181 Furthermore, the prosecution failed to demonstrate that, even if the numbers were deleted, that such information could not be obtained from a cellular service provider. 182


9


B. A Cell Phone Is a Cell Phone With the Ohio Supreme Court finding that a cell phone is not a container, this begs the question of how it should be classified. The court concluded with a very simple answer; cell phones should be classified as cell phones, and all should be protected, irrespective of their type. 183 It determined that even the “basic cell phones in today's world have a wide variety of possible functions,” and thus “it would not be helpful to create a rule that requires officers to discern capabilities of a cell phone before acting accordingly.” 184 The court is stating that each cell phone is unique. In one sense, cell phones are like pagers because they contain digital address books, which *191 are, in some way, like traditional address books. 185 The law is clear that traditional address books have lower expectations of privacy. 186 But, they are also like computers because they are able to store pictures, data, and a wide host of private information, which courts are clear have a higher expectation of privacy. 187 Therefore, because cell phones have qualities of both a pager and a computer, it appears that they should have their own category under the law. 188 With this in mind, the Ohio Supreme Court concluded that, once the police seized the physical cell phone itself, they had taken adequate steps to preserve the evidence, and thus a warrant should have been obtained to search the contents of the phone. 189

V. Conclusion The law applied to search and seizure is indicative of the times in which we live, and courts will be constantly struggling with applying previous case law to new technology. The decisions of Wurie and Smith are at odds as to whether a cell phone can be searched as a search incident to a lawful arrest. Both recognize that a person has a reasonable expectation of privacy in the contents of his cell phone, an approach that all courts should recognize. 190 A court finding that a person does not have a reasonable *192 expectation of privacy in the contents of his phone needs to look no further than Justice Harlan's concurrence in United States v. Katz. 191 It is a hard argument to make, regardless of whether a cell service provider has third party access to the call records, that a person does not have a subjective expectation of privacy in the his phone, and that such expectation is not readily recognizable by the population. 192 However, even though many courts find that a person has a reasonable expectation of privacy in the contents of his cell phone, the cases differ on whether a cell phone should be considered a container under Fourth Amendment. Although the majority of courts find a cell phone to be akin to a container, the better approach seems to be that discussed in Smith v. Slate. 193 A cell phone is not a container; it holds too much information and has the ability to contain data that is both private and personal. 194 Therefore, a warrant should be obtained before searching its contents. 195 Like the dissent in Smith, some courts might wish to apply a varying standard as to what police officers might be able to search--that is, they can search text messages and call records, but not emails and other documents. But this type of approach will not aid officers in the field and will create more litigation into an already crowded criminal justice court system. 196 Although there are many “bright line” tests in Fourth Amendment law, the standards for a search of a cell phone need to be truly demarcated. *193 No one is served by ambiguous rules. In today's world, there are not too many people who use a cell phone just to talk; emailing, text messaging, and data viewing are common functions for these devices. As time progresses, society will only increase its dependence and demand on these mobile devices. The extent to which these devices can and will be used is only going to be amplified with the increase in public demand and usage. In order to confront the increasing use of such devices, the law needs to be clear on what the Fourth Amendment protects.


10


Footnotes 1 612 F. Supp. 2d 104, 105 (D. Mass. 2009). 2

Wurie, 612 F. Supp. 2d at 110.

3

Id. at 105.

4

Id. at 110; see United States v. Pineda-Areola, 372 Fed. App'x 661, 663 (7th Cir. 2010) (“Even if dialing a phone were considered a search, the officers were entitled to search Pineda-Areola and the phone incident to his lawful arrest.”); Silvan W. v. Briggs, 309 F. App'x 216, 225 (10th Cir. 2009) (holding the search-incident-to-arrest exception includes the contents of a cell phone found on a person); United States v. Murphy, 552 F.3d 405, 411 (4th Cir. 2009) (holding that the search of cell phone was valid to preserve evidence); United States v. Young, 278 F. App'x 242, 245-46 (4th Cir.) (per curiam) (holding that the officers' search of the cell phone's text message was valid in order to preserve evidence), cert denied, 129 S. Ct. 514 (2008); United States v. Finley, 477 F.3d 250, 259-60 (5th Cir.) (holding that the defendant had a reasonable expectation of privacy, thus he had standing ground to challenge the search of his cell phone, but the search was permissible incident to arrest), cert. denied, 549 U.S. 1353 (2007); United States v. Monson-Perez, No. 4:09CR623, 2010 WL 889833, slip op., at *7-8 (E.D. Mo. Mar. 8, 2010), available at 2010 U.S. Dist. LEXIS 20575, at *23; United States v. McCray, No. CR408-231, 2009 WL 29607, at *4 (S.D. Ga. Jan. 5, 2009), available at 2008 U.S. Dist. LEXIS 116044, at *13-15 (“While such electronic storage devices are of more recent vintage than papers, diaries, or traditional photographs, the basic principle still applies: incident to a person's arrest, a mobile phone or beeper may be briefly inspected to see if it contains evidence relevant to the charge for which the defendant has been arrested.”); United States v. Santillan, 571 F. Supp. 1093, 1102-04 (D. Ariz. 2008) (holding the search was valid either under the search-incident-to-arrest exception, exigent circumstances, inevitable discovery doctrine, or independent source doctrine); United States v. Deans, 549 F. Supp. 2d 1085, 1094 (D. Minn. 2008) (holding, in accord with the Fifth Circuit, that if the cell phone is lawfully seized, the contents may be searched); United States v. Valdez, No. 06-CR-336, 2008 WL 360548, at *3 (E.D. Wis. Feb. 8, 2008), available at 2008 U.S. Dist. LEXIS 9995, at *9-10 (finding the arresting officers' concern of the loss of evidence contained in the cell phone justified the warrantless search); United States v. Curry, No. 07-100-P-H, 2008 WL 219966, at *10 (D. Me. Jan. 23, 2008), available at 2008 U.S. Dist. LEXIS 5438, at *29 (holding that the search incident to arrest of the cell phone was valid because it was conducted “substantially contemporaneous” with the defendant's arrest); United States v. Lottie, No. 3:07cr51RM, 2008 WL 150046, at *3 (N.D. Ind. Jan. 14, 2008), available at 2008 U.S. Dist. LEXIS 2864, at *8 (holding that, because of the exigent circumstances, a warrantless search of the cell phone was valid); United States v. Dennis, No. 07-008-DLB, 2007 WL 3400500, at *7 (E.D. Ky. Nov. 13, 2007), available at 2007 U.S. Dist. LEXIS 83892, at *2 (holding that a search of the cell phone incident to arrest was the same as any other type of evidence seized incident to arrest); United States v. Mercado-Nava, 486 F. Supp. 2d 1271, 1277 (D. Kan. 2007) (holding that the same exceptions of the Electronic Communications Privacy Act applied to other warrantless searches of cell phones); United States v. Zamora, No. 1:05 CR 250 WSD, 2006 WL 418390, at *4 (N.D. Ga. Feb. 21, 2006), available at 2006 U.S. Dist. LEXIS 8196, at *17-18 (stating search incident to arrest and exigent circumstances permitted the search); United States v. Parada, 289 F. Supp. 2d 1291, 1304 (D. Kan. 2003) (stating that exigent circumstance was created because numerous incoming calls would erase memory and thus destroy evidence, justifying search of the cell phone); cf. United States v. James, No. 1:06CR134 CDP, 2008 WL 1925032, at *4 (E.D. Mo. Apr. 29, 2008), available at 2008 U.S. Dist. LEXIS 34864, at *10-11, aff'd in part, 2010 WL 3325608 (8th Cir. 2010) (holding that the automobile exception applies to search of a cell phone because it allows officers to search closed containers found in vehicles, and thus should allow search of cell phones); see cf. United States v. Morales-Ortiz, 376 F. Supp. 2d 1131 (D.N.M. 2004) (holding that the inevitable discovery doctrine permitted the illegal search of a cell phone's memory).

5

See United States v. Park, No. CR 05-375 SI, 2007 WL 1521573, at *9 (N.D. Cal. May 23, 2007), available at 2007 U.S. Dist. LEXIS 40596, at *33 (order granting motion to suppress cell phone search); State v. Smith, 920 N.E.2d 949 (Ohio 2009), reconsideration denied, 921 N.E.2d 248 (Table) (Ohio 2010); see also United States v. Quintana, 594 F. Supp. 2d 1291, 1299-1300 (M.D. Fla. 2009) (The “search of the contents of Defendant's cell phone had nothing to do with officer safety or the preservation of evidence related to the crime of arrest,” and therefore was inadmissible. But a search of a cell phone “may be justified in searching the contents of a cell phone for evidence related to the crime of arrest, even if the presence of such evidence is improbable.”); United States v. Wall, No.


11

PUTTING A SQUARE PEG IN A ROUND HOLE: THE..., 34 Am. J. Trial Advoc.... 08-60016-CR, 2008 WL 5381412, at *3-4 (S.D. Fla. Dec. 22, 2008), available at 2008 U.S. Dist. LEXIS 103058, at *12-13 (holding the electronic memory of a cell phone was not within the scope of an inventory search and no exigent circumstances justified the search); United States v. Lasalle, No. 07-00032-SOM, 2007 WL 1390820, at *6-8 (D. Haw. May 9, 2007), available at 2007 U.S. Dist. LEXIS 34233, at *21-22 (order granting motion to suppress).

6

Wurie, 612 F. Supp. 2d at 105. The court stated in dicta that the only issue that was relevant was the “propriety” of the warrantless search of the defendant's cell phone call log. Id. at 106 n.2. Moreover, there was no issue of tainted evidence because the “warrant affidavit fully satisfie[d] the probable cause requirement of the Fourth Amendment.” Id.

7

Id. at 105.

8

Id. at 106.

9

Id.

10

Id.

11

Id.

12

Id.

13

Id.

14

Id.

15

Curie, 612 F. Supp. 2d at 106.

16

Id.

17

Id.

18

Id.

19

Id.

20

Id.

21

Id.

22

Id.

23

Id.

24

Id. at 107 n.6.

25

Id. at 107.

26

Wurie, 612 F. Supp. 2d at 107. One of the officers stated that Wurie was Mirandized at the time of arrest. Id. at 107 n.5.

27

Id.

28

Id.

29

Id.

30

Id.

31

Id.


12


32

Id.

33

Id.

34

Id.

35

Id.

36


37

Id.

38

Id.

39

Id.

40

Id. at 105.

41

Id.

42

Id.

43

Id. at 108-09. In the Boston area, a common form of drug dealing frequently takes place while riding in a car. Id. at 107 n.3. The court found the officers had probable cause based on their observation of the scene and knowledge of Boston drug trafficking. Id. at 108. Moreover, the seizure of Wurie's keys and cell phone were valid pursuant to two United States Supreme Court decisions. Id. (citing Illinois v. Lafayette, 462 U.S. 640 (1983); United States v. Edwards, 415 U.S. 800, 803 (1974)).

44


45

Id. at 110.

46

Id. (citing United States v. Sheehan, 583 F.2d 30, 32 (1st Cir. 1978) (holding that obtaining names and numbers from a suspects wallet was valid)).

47

Id. at 108 (quoting Edwards, 415 U.S. at 803). The Wurie court also stated that the inventory search conducted at the place of detention allows officers to also search containers as part of a routine arrest without violating the Fourth Amendment. Id. at 109; see Lafayette, 462 U.S. at 648 (emphasis added) (“[I]t is not ‘unreasonable’ for police, as part of the routine procedure incident to incarcerating an arrested person, to search any container or article in his possession, in accordance with established inventory procedures.”). But, the rationale of routine inventory searches, specifically the preservation of arrestee's property, prevention of police liability, and officerbystander safety, are wholly absent when searching the electronic database of a phone. Therefore, searching the electronic database would be invalid against the Fourth Amendment if the only justification of such a search is for inventory purposes. See South Dakota v. Opperman, 428 U.S. 364 (1976).

48

Wurie, 612 F. Supp. 2d at 108 (citing Lafayette, 462 U.S. at 648).

49

Lafayette, 462 U.S. at 648; see, e.g., United States v. Rodriguez, 995 F.2d 776, 778 (7th Cir.) (holding it was valid to search the contents of the arrestee's address book in his wallet), cert. denied, 510 U.S. 1029 (1993); United States v. Rust, 650 F.2d 927, 928 (8th Cir. 1981) (per curiam) (holding it was valid to search an arrestee's wallet), reh'g denied; United States v. Monclavo-Cruz, 662 F.2d 1285, 1287 (9th Cir. 1981) (holding the search of a woman's purse one hour after arrest was not a valid search incident to arrest), reh'g denied; United States v. Garcia, 605 F.2d 349, 355 (7th Cir. 1979) (holding the search of hand-held luggage was valid); United States v. Castro, 596 F.2d 674, 677 (5th Cir.) (holding the search of an arrestee's wallet was valid), cert. denied, 444 U.S. 963 (1979); United States v. Moreno, 569 F.2d 1049, 1052 (9th Cir.) (holding it was valid to search an arrestee's purse), cert. denied, 435 U.S. 972 (1978).

50



13


51

Id. at 109.

52

U.S. CONST. amend. IV.

53

Wyoming v. Houghton, 526 U.S. 295, 300 (1999) (citing Wilson v. Arkansas, 514 U.S. 927, 931 (1995); California v. Hodari D., 499 U.S. 621, 624 (1991)).

54

See generally NELSON LASSON, THE HISTORY AND DEVELOPMENT OF THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION (Johns Hopkins Press 1937).

55

See MARC L. MILLER & RONALD F. WRIGHT, CRIMINAL PROCEDURES: CASES, STATUTES, AND EXECUTIVE MATERIALS 140-48 (3d ed. 2007).

56

LASSON, supra note 54, at 51.

57

Id. at 54.

58

Id. John Otis, Jr., a revolutionary and lawyer, explained the writs of assistance in this fashion: Now one of the most essential branches of English liberty is the freedom of one's house. A man's house is his castle; and whilst 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, can inquire. Bare suspicion without oath is sufficient. 2 LEGAL PAPERS OF JOHN ADAMS 113, 142 (L. Kinvin Wroth & Hiller B. Zobel eds., 1965).

59

See LASSON, supra note 54, at 13.

60

U.S. CONST. amend. IV; MILLER & WRIGHT, supra note 55, at 102.

61

See Katz v. United States, 389 U.S. 347, 360-61 (1967) (Harlan, J., concurring).

62

Id. at 361 (Harlan, J., concurring). Katz was a landmark case that established a privacy interest in people, not places. Id. The Court held that a person had a reasonable expectation of privacy in the conversations taking place in a phone booth; therefore, wire tapping was considered a search under the Fourth Amendment and required a warrant. Id. at 353 (majority opinion).

63

389 U.S. 347, 361 (1967) (Harlan, J., concurring).

64

Katz, 389 U.S. at 353.

65

Id.

66

California v. Acevedo, 500 U.S. 565, 580 (1991) (citing Mincey v. Arizona, 437 U.S. 385, 390 (1978)).

67

See, e.g., Finley, 477 F.3d at 260; Young, 278 Fed. App'x at 245-46; Wurie, 612 F. Supp. 2d at 109; Santillan, 571 F. Supp. 2d at 1102; United States v. Meador, No. 1:06 CR 134 CDP DDN, 2008 WL 4922001, at *11 (E.D. Mo. Jan. 7, 2008); Park, 2007 WL 1521573, at *8; see also Matthew E. Orso, Cellular Phones, Warrantless Searches, and the New Frontier of Fourth Amendment, 50 SANTA CLARA L. REV. 183, 205 (2010); Byran Andrew Stillwagon, Bringing an End to Warrantless Cell Phone Searches, 42 GA. L. REV. 1165, 1176 (2008).

68

See United States v. Hunter, No. 96-4259, 1998 WL 887289, at *3 (4th Cir. Oct. 29, 1998), available at 1998 U.S. App. LEXIS 27765, at *10 (holding that a search of a pager's contents in order to preserve evidence was valid); United States v. Thomas, 114 F.3d 403, 404 n.2 (3d Cir. 1997) (stating in dicta that retrieval of a number off of a pager was valid pursuant to a search incident to arrest); United States v. Stroud, No. 93-30445, 1994 WL 711908 (9th Cir. Dec. 21, 1994), available at 1994 U.S. App. LEXIS 37039; United States v. Diaz-Lizaraza, 981 F.2d 1216, 1223 (11th Cir. 1993) (holding that it was reasonable for an agent to turn on a pager to obtain its number); United States v. Morales-Ortiz, 376 F. Supp. 2d 1131 (D.N.M. 2004); United States v. Reyes, 922 F. Supp. 818, 834


14

PUTTING A SQUARE PEG IN A ROUND HOLE: THE..., 34 Am. J. Trial Advoc.... (S.D.N.Y. 1996) (ruling that a phone number log found on pager's memory could be searched based on general consent to search the car); United States v. Lynch, 908 F. Supp. 284 (D.V.I. 1995); United States v. Chan, 830 F. Supp. 531, 535-36 (N.D. Cal. 1993) (amended order) (holding the search of a pager's data was analogous to a search of container contents).

69

United States v. Fierros-Alvarez, 547 F. Supp. 2d 1206, 1209-10 (D. Kan. 2008) (mem. and order denying motion to suppress).

70

477 F.3d 250, 259 (5th Cir.), cert. denied, 549 U.S. 1353 (2007).

71

Finley, 477 F.3d at 255.

72

Id. at 254 They later learned that the cell phone belonged to his employer, Southwest Plumbing, and was issued for work purposes, but this did not affect his standing to suppress the search. Id. The court found that Finley had standing for the motion to suppress because he had the right to exclude others, albeit not his employer, from using the phone. Id. at 259.

73

Id. at 254.

74

Id.

75

Id. at 259.

76

Id.; see also Rakas v. Illinois, 439 U.S. 128, 152-53 (1978) (Powell, J., concurring), reh'g denied, 439 U.S. 1112 (1979).

77

See, e.g., United States v. Fierros-Alvarez, 547 F. Supp. 2d 1206, 1211 (D. Kan. 2008) (mem. and order denying motion to suppress); United States v. Faller, 681 F. Supp. 2d 1028, 1046 (E.D. Mo. 2010).

78

547 F. Supp. 2d 1206, 1211 (D. Kan. 2008).

79

Fierros-Alvarez, 547 F. Supp. 2d at 1208.

80

Id.

81

Id.

82

Id.

83

Id. Boost phones are single-use phones purchased for a limited amount of time. Id. This case also contained another issue of third party standing because the defendant first claimed the phone was not his. Id. “[T]he court denie[d] the defendant's motion for lack of standing. For the sake of argument, the court ... assume[d] the defendant ... proved standing and address[ed] the automobile exception to a search warrant.” Id. at 1211.

84

Id. at 1210 (quoting Smith v. Maryland, 442 U.S. 735, 742-44 (1979)). But, the court failed to take into account that address books contained on cell phones are often not shared with a third party and remain stored on the cell phone. See also In re United States, 665 F. Supp. 2d 1210, 1213 (D. Or. 2009), where the court held that email has less privacy interest because, when a person accesses her email via an internet service provider (i.e., Comcast, Netzero, Earthlink, AOL and others), the ISP stores that information on a server. Id. Therefore, given the access by a third party, a person has no reasonable expectation of privacy in the email because his email is not “truly private.” Id. The court concluded by stating that “[t]he law here remains unclear and commentators have noted that there are several reasons that the Fourth Amendment's privacy protections for the home may not apply to our ‘virtual home’ online.” Id.

85

Fierros-Alvarez, 547 F. Supp. 2d at 1210 (citing Maryland, 442 U.S. at 445-46).

86

18 U.S.C. § 3127(3) (2006).

87

Fierros-Alverez, 547 F. Supp. 2d at 1210 (citing Maryland, 442 U.S. at 741).

88

See United States v. Zavala, 541 F.3d 562, 577 (5th Cir. 2008) (holding that the defendant had a reasonable expectation of privacy in the contents of his cell phone); United States v. Finley, 477 F.3d 250, 259 (5th Cir.) (holding the defendant had a reasonable


15

PUTTING A SQUARE PEG IN A ROUND HOLE: THE..., 34 Am. J. Trial Advoc.... expectation of privacy, but the search was permissible incident to arrest), cert. denied, 549 U.S. 1353 (2007); United States v. McGhee, No. 8:09CR31, 2009 WL 2424104, at *1 (D. Neb. July 21, 2009), available at 2009 U.S. Dist. LEXIS 129576, at *6 (holding the arrestee had a reasonable expectation of privacy in the contents of his cell phone). Other courts have found that an exception to the warrant requirement applied and have thereby held, at least by implication, that a person has a reasonable expectation of privacy in cell phone contents. Cf. United States v. Murphy, 552 F.3d 405, 411 (4th Cir.) (holding the search of the cell phone was valid to preserve evidence), cert. denied, 129 S. Ct. 2016 (2009); United States v. Young, 278 F. App'x 242, 245-46 (4th Cir.) (per curiam) (holding the officers' search of the cell phone's text message was valid in order to preserve evidence), cert denied, 129 S. Ct. 514 (2008); United States v. James, No. 1:06CR134 CDP, 2008 WL 1925032, at *4 (E.D. Mo. Apr. 29, 2008), available at 2008 U.S. Dist. LEXIS 34864, at *10-11, aff'd in part, 2010 WL 3325608 (8th Cir. 2010) (holding a cell phone is a container, and the automobile exception allowed the officers to search the phone's records); United States v. Valdez, No. 06-CR-336, 2008 WL 360548, at *3 (E.D. Wis. Feb. 8, 2008), available at 2008 U.S. Dist. LEXIS 9995, at *9-10 (finding the arresting officers' concern for the loss of evidence contained in the cell phone was sufficient to justify the warrantless search); United States v. Curry, No. 07-100-P-H, 2008 WL 219966, at *7 (D. Me. Jan. 23, 2008), available at 2008 U.S. Dist. LEXIS 5438, at *29 (holding that the search incident to arrest of the cell phone was valid because it was conducted “substantially contemporaneous” with the defendant's arrest); United States v. Deans, 549 F. Supp. 2d 1085, 1093-94 (D. Minn. 2008) (holding, in accord with the Fifth Circuit, that if the cell phone is lawfully seized, the contents may be searched); United States v. Lottie, No. 3:07cr51RM, 2008 WL 150046, at *3 (N.D. Ind. Jan. 14, 2008), available at 2008 U.S. Dist. LEXIS 2864, at *8 (holding that, because of the exigent circumstances, a warrantless search of the cell phone was valid); United States v. Mercado-Nava, 486 F. Supp. 2d 1271, 1277 (D. Kan. 2007); United States v. Dennis, No. 07-008DLB, 2007 WL 3400500, at *7 (E.D. Ky. Nov. 13, 2007), available at 2007 U.S. Dist. LEXIS 83892, at *2 (holding that a search of the cell phone incident to arrest was the same as any other type of evidence seized incident to arrest); United States v. Morales-Ortiz, 376 F. Supp. 2d 1131, 1139 (D.N.M. 2004) (holding the inevitable discovery doctrine permitted the illegal search of a cell phone's memory); United States v. Parada, 289 F. Supp. 2d 1291, 1304 (D. Kan. 2003) (stating that exigent circumstance was created because numerous incoming calls would erase memory and thus destroy evidence, justifying search of the cell phone). The United States Suprmee Court rcently issued an opinion in Quon v. Arch Wireless Operating Co., 529 F.3d 892, 899 (9th Cir. 2008), reh'g en banc denied, 554 F.3d 769, cert. granted, 130 S. Ct. 1011 (2009). The question presented in the Quon case was whether “a SWAT team member has a reasonable expectation of privacy in ... [text] messages ... [transmitted on his] SWAT pager, where the police department has an official no-privacy policy but a non-policymaking lieutenant announced an informal policy of allowing some personal use of the pagers.” Brief of Petitioner-Appellees at *i, Quon v. Arch Wireless Operating Co., 529 F.3d 892 (9th Cir. 2008) (No. 08-1332), 2010 WL 565207, at *i.

89

Katz v. United States, 389 U.S. 347, 357 (1967) (emphasis added).

90

Arizona v. Gant, 129 S. Ct. 1710, 1716 (2009); see Weeks v. United States, 232 U.S. 383, 392 (1914).

91

395 U.S. 752, 762-63, reh'g denied, 396 U.S. 869 (1969).

92

Chimel, 395 U.S. at 763.

93

Id. at 753.

94

Id. at 753-54.

95

Id. at 754.

96

Id. at 763.

97

Id. at 768.

98

Id. at 763-64.

99

414 U.S. 218, 236 (1973).

100

Robinson, 414 U.S. at 220.


16


101

Id. at 221-23.

102

Id. at 223.

103

Id. at 236.

104

Id.

105

612 F. Supp. 2d 104, 110 (D. Mass. 2009).

106


107

See id.; State v. Smith, 920 N.E.2d 949 (Ohio 2009), reconsideration denied, 921 N.E.2d 248 (Table) (Ohio 2010); United States v. Wall, No. 08-60016-CR, 2008 WL 5381412, at *3-4 (S.D. Fla. Dec. 22, 2008), available at 2008 U.S. Dist. LEXIS 103058, at *12-13 (holding that electronic memory of a cell phone was not within the scope of an inventory search, and no exigent circumstances justified the search), aff'd, 343 F. App'x 564 (11th Cir. 2009); United States v. Park, No. CR-05-375-SI, 2007 WL 1521573, at *9 (N.D. Cal. May 23, 2007), available at 2007 U.S. Dist. LEXIS 40596, at *33 (order granting a motion to suppress a cell phone search) (stating that the court would decline to extend admissibility of evidence found on a cell phone pursuant to a search incident to arrest because cell phones should not be considered part of the individual's clothing but rather possessions within his immediate control).

108

477 F.3d 250, 259 (5th Cir.), cert. denied, 549 U.S. 1353 (2007). As a minor issue, the cell phone did not strictly belong to Finley. See Finley, 477 F.3d at 258. It was issued to him through his employer. Id. Regardless of that fact, the court found that the defendant had standing to file a motion to suppress, and that he (1) had a property interest in the phone, (2) had a right to exclude others from the phone, (3) displayed a subjective expectation of privacy in its contents, and (4) took precautions to maintain his privacy interest in the phone. Id. at 259. Therefore, the court found he had a privacy interest in the contents. See id.

109

See Finley, 477 F.3d at 260. Mistakenly, counsel for the defendant argued a different case in favor of suppression, Walter v. United States, claiming police did not have the right to search a closed container found on an arrestee's person. Id. (citing Walter v. United States, 447 U.S. 649 (1980)).

110

Id. at 259-60.

111

See id. at 260.

112

Id. (citing Walter, 447 U.S. 649).

113

Wurie, 612 F. Supp. 2d at 106-07.

114

Id. at 110.

115

Id. at 109 (citing United States v. Parada, 289 F. Supp. 2d, 1291, 1304 (D. Kan. 2003)).

116

Id. at 110.

117

Id.; United States v. Rodriguez, 995 F.2d 776, 778 (7th Cir. 1993).

118

Rodriguez, 995 F.2d at 778.

119

Id. at 777.

120

Id.

121

Id.

122

Id. at 778; United States v. Molinaro, 877 F.2d 1341, 1346-47 (7th Cir. 1989); United States v. Richardson, 764 F.2d 1514, 1527 (11th Cir.) (noting a search incident to arrest extends to a wallet found on the arrestee's person), cert. denied sub nom. Crespo-Diaz


17

PUTTING A SQUARE PEG IN A ROUND HOLE: THE..., 34 Am. J. Trial Advoc.... v. United States, 474 U.S. 952 (1985); United States v. McEachern, 675 F.2d 618, 622 (4th Cir. 1982); United States v. Passaro, 624 F.2d 938, 943 (9th Cir. 1980), cert. denied, 449 U.S. 1113 (1981); United States v. Gay, 623 F.2d 673, 675 (10th Cir.), cert. denied, 449 U.S. 957 (1980); United States v. Castro, 596 F.2d 674, 677 (5th Cir.), cert. denied, 444 U.S. 963 (1979).

123

Wurie, 612 F. Supp. 2d at 110; United States v. Moreno, 569 F.2d 1049, 1052 (9th Cir.), cert. denied, 435 U.S. 972 (1978).

124

Moreno, 569 F.2d at 1052.

125

Id. at 1051.

126

Id.

127

Id. But see United States v. Monclavo-Cruz, 662 F.2d 1285, 1287 (9th Cir. 1981).

128

84 F.3d 977, 984 (7th Cir. 1996).

129

Ortiz, 84 F.3d at 984.

130

Id. at 978-79.

131

Id. at 983.

132

Id. at 984.

133

Id.

134

Id.

135

Id.

136

See State v. Smith, 920 N.E.2d 949 (Ohio 2009), reconsideration denied, 921 N.E.2d 248 (Table) (Ohio 2010); United States v. Park, No. CR 05-375 SI, 2007 WL 1521573 (N.D. Cal. May 23, 2007), available at 2007 U.S. Dist. LEXIS 40596, at *33 (order granting a motion to suppress a cell phone search).

137

Park, 2007 WL 1521573, at *8.

138

See Smith, 920 N.E.2d 955.

139

See United States v. Quintana, 594 F. Supp. 2d 1291, 1299-1300 (M.D. Fla. 2009); United States v. Wall, No. 08-60016-CR, 2008 WL 5381412, at *3-4 (S.D. Fla. Dec. 22, 2008), available at 2008 U.S. Dist. LEXIS 103058, at *12-13 (holding that electronic memory of a cell phone was not within the scope of an inventory search, and no exigent circumstances justified the search); United States v. Lasalle, No. 07-00032 SOM, 2007 WL 1390820, *6-8 (D. Haw. May 9, 2007), available at 2007 U.S. Dist. LEXIS 34233, at *21-22 (order granting motion to suppress); Park, 2007 WL 1521573, at *9.

140

920 N.E.2d 949 (Ohio 2009), reconsideration denied, 921 N.E.2d 248 (Table) (Ohio 2010).

141

Smith, 920 N.E.2d at 953; see United States v. Park, No. CR 05-375 SI, 2007 WL 1521573, at *1 (N.D. Cal. May 23, 2007), available at 2007 U.S. Dist. LEXIS 40596, at *33 (order granting a motion to suppress a cell phone search).

142

Park, 2007 WL 1521573, at *7-8; United States v. Finley, 477 F.3d 250 (5th Cir.), cert. denied, 127 S. Ct. 2065 (2007).

143

Park, 2007 WL 1521573, at *9.

144

Id. at *1-2.

145

Id. at *1.


18


146

Id. at *8 (quoting United States v. Chadwick, 433 U.S. 1, 16 n. 10 (1977)).

147

Id. at *9.

148


149

Smith, 920 N.E.2d at 950.

150

Id.

151

Id.

152

Id.

153

Id.

154

Id. at 951. Besides the cocaine trafficking count, Smith was indicted on two counts of possession of criminal tools, one count of tampering with evidence, and one count of possession of cocaine. Id.

155

Id.

156

Id.

157

Id.

158

Id.

159

Id.

160

State v. Smith, No. 07-CA-47, 2008 WL 2861693, slip op., at *10-11 (Ohio Ct. App. July 25, 2008) (Donovan, J., dissenting) (citing United States v. Park, No. CR 05-375 SI, 2007 WL 1521573 (N.D. Cal. May 23, 2007), available at 2007 U.S. Dist. LEXIS 40596, at *33 (order granting a motion to suppress a cell phone search)).

161

Id. (Donovan, J., dissenting); Park, 2007 WL 1521573 (order granting motion to suppress cell phone search).

162

Smith, 920 N.E.2d at 951. Smith's appeal was based on a challenge to the Fourth Amendment of the United States Constitution, which is virtually identical to article one of the Ohio Constitution. Id. at 952 n.1 (citing OHIO CONST. art. 1, § 14).

163


164

Id. at 955.

165

Id.

166

Id.

167

Id.

168

Id. at 953-54, 955-56.

169

Id. at 953.

170

See id. (“Because Smith does not concede here that a cell phone is analogous to a closed container, the analysis in Finley is not entirely applicable.”).

171

Id. at 953-54.


19


172

Id. at 954 (quoting New York v. Belton, 453 U.S. 454, 460 n.4, reh'g denied, 453 U.S. 950 (1981)).

173

Id. (citing United States v. Robinson, 414 U.S. 218, 223 (1973)).

174


175

Id.

176

Id. at 955.

177

Id. at 955-56.

178

Id. at 955.

179

Id. at 956.

180

Id. at 955.

181

Id.

182

Id. at 956.

183

Id. at 954-55. In its analysis, the court quickly distinguished between two types of cell phones: (1) smart phones, PDAs, iPhones, and Blackberrys, and those which have internet and email access, and (2) those that are just regular dial-and-text phones. Id. It had been proposed by the dissent that officers, when making a search of a cell phone, should determine what caliber of device they had seized--whether the phone is a type 1 or a type 2. Id. at 954. Once the type of phone had been deduced, the officer would vary his search method depending on the device. Id. But, the majority disagreed with this approach. Id.

184

Id. at 954.

185


186

Id.

187

Id.

188

See id.

189

Id.

190

At the time of this writing, the Supreme Court of the United States issued an opinion in Quon v. Arch Wireless Operating Co., 529 F.3d 892 (9th Cir. 2008), reh'g en banc denied, 554 F.3d 769, cert. granted, 130 S. Ct. 1011 (2009). See discussion supra note 88. The Supreme Court ruled narrowly in the case, and instead of making a broad sweeping determination whether a person has a reasonable expectation of privacy in the contents of text messages sent from a government issued alphanumeric pager, the Court couched the opinion within the government employer-employee relationship. City of Ontario, Cal. v. Quon, No. 08-1332, 2010 WL 2400087, at *8 (June 17, 2010). The Court stated that it was unnecessary to reach the merits of the privacy expectations because “[a] broad holding concerning employees' privacy expectations vis-à-vis employer-provided technological equipment might have implications for future cases that cannot be predicted. It is preferable to dispose of this case on narrower grounds.” Id. at * 10; see O'Connor v. Ortega, 480 U.S. 709 (1987). In its analysis, the Court seemed very concerned with the lack of understanding about the implication of electronic communication devices, and thus ruled narrowly. Quon, 2010 WL 2400087, at *9-10. Unlike at the time of the Katz ruling, where the courts understood the technology at bar, the Court stated, “[i]t is not so clear that courts at present are on so sure a ground. Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices.” Id. at *9. Therefore, the Court declined to issue an opinion on the employees' reasonable expectation of privacy. Id. at *8.


20


191

389 U.S. 347, 361 (1967) (Harlan, J., concurring).

192

Katz, 389 U.S. at 361.

193


194

See Smith, 920 N.E.2d at 955.

195

Id.

196

See id.

34 AMJTA 165 End of Document



21

THE IPHONE MEETS THE FOURTH AMENDMENT, 56 UCLA L. Rev. 27

56 UCLA L. Rev. 27 UCLA Law Review October, 2008 Article THE IPHONE MEETS THE FOURTH AMENDMENT Adam M. Gershowitz a1 Copyright (c) 2008 Regents of the University of California; Adam M. Gershowitz Under the search incident to arrest doctrine, police may search the entire body and immediate grabbing space of an arrestee, including the contents of all containers, without any probable cause. Because almost all traffic infractions are arrestable offenses, police have enormous opportunity to conduct such searches incident to arrest. In the near future, these already high-stakes searches will become even more important because millions of drivers will not only possess containers that hold a few scattered papers, such as wallets or briefcases, but also iPhones--capable of holding tens of thousands of pages of personal information. If current Fourth Amendment jurisprudence is extended to its logical conclusion, officers who arrest drivers for traffic infractions will be permitted to search the call histories, text messages, email, photos, movies, and internet browsing history on iPhones with no suspicion of wrongdoing whatsoever. This Article demonstrates how the full contents and multiple applications of iPhones can be searched without a warrant or probable cause under existing U.S. Supreme Court precedent. The Article also offers approaches courts and legislatures might adopt to ensure greater protection for the soon-to-be pervasive iPhone devices. Courts and legislatures can attempt to minimize this invasion of privacy by changing the legal rules to require that searches be related to the purpose of the arrest, by limiting searches to applications that are already open, by restricting suspicionless investigation to a small number of discrete steps, or by limiting searches to data already downloaded onto the iPhone, rather than data that is merely accessible through the iPhone's internet connection.

Introduction I. The Search Incident to Arrest Doctrine as a Search for Bright-Line Rules II. Bright-Line Rules in an Era of Pagers and Cell Phones III. The Stakes and Likely Results When the iPhone Meets the Search Incident to Arrest Doctrine IV. Disentangling the iPhone From a Bright-Line Rule: Possible Approaches to Cabining the Search Incident to Arrest Doctrine A. Change Nothing: The Search Incident to Arrest Rule Works Well, So Changing It to Account for New Technology Is Not a Good Idea B. Change Everything: Limiting the Search Incident to Arrest Doctrine in All Police Interactions to a Search Related to the Crime of Arrest C. Change By a Different Sovereign: Encouraging State Legislatures to Adopt a More Protective Rule D. Change at the Margins: The Open Application Test E. Changing the Bright-Line Rule: Limiting the Search Incident to Arrest Doctrine to Five Steps of Searches F. Distinguishing Between Data on the Device and Remotely-Stored Data Accessible From the Device Conclusion

28 32 36 40 45 45 48 50 53 54 56 57

*28 Introduction Imagine that Defendant Dan is stopped by the police for driving through a stop sign. The officer thinks that Dan looks suspicious, but has no probable cause to believe Dan has done anything illegal, other than driving recklessly. Because running a stop sign


1


is an arrestable offense and the officer is suspicious that Dan might be involved in more serious criminal activity, the officer arrests Dan for the traffic violation. Under the search incident to arrest doctrine, officers are entitled to search the body of the arrestee to ensure that he does not have weapons and to prevent him from destroying evidence. The search incident to arrest is automatic and allows officers to open containers found on the person, even when there is no probable cause to believe anything illegal is inside. For instance, a standard search incident to arrest often turns up drugs located in a small container such as a cigarette pack. Yet, Dan does not have a cigarette pack in his pocket; instead, like millions of other technophiles, Dan is carrying an iPhone. The officer removes the iPhone from Dan's pocket and begins to rummage through Dan's cell phone contacts, call history, emails, pictures, movies, and, perhaps most significantly, his internet browsing history. Thus, in addition to finding Dan's personal financial data and embarrassing personal information, the police also discover incriminating pictures of stolen contraband, emails evidencing drug transactions, and internet surfing of websites containing child pornography. Is all of this evidence admissible even though Dan has only been arrested for a traffic infraction and there was no probable cause (not to mention no warrant) to search the contents of his iPhone? When one considers the breadth of information located in Dan's iPhone, it would seem shocking that officers need no suspicion whatsoever in order to search through that information. Yet, that result *29 appears to follow from longstanding U.S. Supreme Court precedent laid down well before handheld technology was even contemplated.

*** The iPhone may turn out to be the most popular invention of the decade. Before its release in July 2007, crowds lined up for days to be among the first to get the device. 1 In the first three days on the market, Apple sold more than a quarter of a million iPhones 2 and the company expects to sell more than ten million devices worldwide by the end of 2008. 3 And unlike many technological releases, customer satisfaction seemed to meet or exceed expectations. 4 Thus, sales can be expected to remain strong even as competing companies follow suit with similar products. 5 For those who have not had the opportunity to tinker with one, the iPhone is a handheld wireless device that functions as a cell phone, BlackBerry, camera, music player, and video player, while simultaneously providing internet access. In short, for those on the go, the iPhone packages multiple applications into a single device small enough to fit into a back pocket. It does not take a crystal ball to predict that such devices will be ubiquitous in the United States within a few years. Just as almost everyone for the last few years has had a conventional cell phone at their disposal, it seems likely that tens of millions of Americans will be driving around with either iPhones or a competing product in their pockets or purses within the next few years. 6 While the iPhone is a wonderful technological innovation and its proliferation will no doubt improve everyday life, it comes with unexplored *30 legal repercussions. Specifically, what type of Fourth Amendment protection should such devices receive? Can they be searched without a warrant or without probable cause at a conventional traffic stop? And if so, how far can law enforcement explore the contents of the devices without violating the U.S. Constitution? In conducting a warrantless search of the handheld device, are officers limited to scanning the displayed screen of an iPhone, or are they permitted to manipulate the touch screen to open picture files or an internet browser? And once those functions are open, how deep can officers continue to look? Must the police stop when they see nothing illegal in a list of displayed emails, or can they open different email folders and begin to read messages? If the history page of an internet browser lists a website that might suggest child pornography-for instance, “www.questionable-pornography-here.com”--can the officer click on the hyperlink to bring up the website? If the website page comes up and it appears that the arrestee had used a saved password to enter the site previously, can the officer click on the “submit” button to move beyond the front page and into the salacious content?


2


Obviously, the framers of the Fourth Amendment could not have conceived of a handheld technological device like the iPhone, 7 and courts have not yet been called upon to answer most of the difficult questions posed by such devices. 8 Yet, current Fourth Amendment doctrine strongly suggests that the Supreme Court would authorize invasive searches of the iPhones found in pockets or purses of arrested individuals. For nearly four decades, 9 the search incident to arrest doctrine has functioned as a bright-line rule--allowing police to search the entire person of an arrestee without getting into sticky questions of whether there was *31 probable cause to open a particular container. 10 While society and technology have changed drastically over the last few decades, the search incident to arrest rule has remained static. 11 Thus, if we think of an iPhone as a container 12 --like a cigarette package or a closed box-- police can open and search the contents inside with no questions asked and no probable cause required, so long as they are doing so pursuant to a valid arrest. And as scholars have long recognized, states have expansive criminal codes that give police authority to arrest for a huge number of infractions. 13 Thus, police officers with nothing more than a hunch of illegal activity may arrest an individual for a simple traffic violation 14 and proceed to search thousands of pages of private data located on the iPhone found in the arrestee's pocket. 15 *32 Part I of this Article provides an overview of the history and scope of the search incident to arrest exception to the warrant requirement. Part II reviews the handful of cases dealing with searches of conventional cell phones and pagers incident to a lawful arrest. Part III then explains the complicated problems that develop when this doctrine is applied to iPhones. Finally, Part IV offers a number of approaches that courts and legislatures could adopt to narrow the scope of warrantless searches of iPhones and similar handheld wireless devices.

I. The Search Incident to Arrest Doctrine as a Search for Bright-Line Rules The Fourth Amendment provides that “no Warrants shall issue, but upon probable cause.” 16 Yet, as any criminal procedure student knows, the Supreme Court has long recognized a slew of exceptions allowing the police to search without first procuring a warrant. 17 For purposes of this Article, there is one exception of particular significance, perhaps the most common rationale for police to search without a warrant 18 --the search incident to arrest doctrine. The history of the search incident to arrest exception dates back to the creation of the exclusionary rule in 1914, when the Supreme Court obliquely suggested in dictum that the government has the right “to search the person of the accused when legally arrested, to discover and seize the fruits or *33 evidences of crime.” 19 Although the Court alluded to such searches in that case and a handful of other early decisions, 20 the doctrine's modern conception was the 1969 decision in Chimel v. California. 21 In Chimel, police arrested a suspect in his home for burglary and proceeded to search the entire three-bedroom house, as well as the attic and garage, for proceeds of that burglary. 22 While the Court found this warrantless search to be unconstitutionally broad, it nevertheless recognized that police can search suspects incident to arrest in narrower circumstances. 23 The Court explained that a search incident to arrest must be limited to a search for weapons that an arrestee could use against the officer and to prevent an arrestee from concealing or destroying evidence. 24 The Court concluded that a search for weapons and evidence must be limited to the arrestee's person and the area within his immediate control from which he might gain possession of a weapon or destroy evidence. 25 The Court specifically rejected the contention that police could search areas beyond that from which an arrestee could grab a weapon or evidence. 26


3


A few years after Chimel, the Supreme Court addressed the question of whether police could open closed containers located on an arrestee's person. In United States v. Robinson, 27 police arrested a suspect for operating a motor vehicle with a revoked license. 28 While conducting a search incident to arrest, the officer felt an object in Robinson's coat pocket but could not tell what it was. 29 The officer reached into the pocket and pulled out a “crumpled up cigarette package.” 30 Still not sure what was in the package, the officer opened it and discovered capsules of heroin. 31 In rejecting Robinson's challenge to the search, the Court made clear that officers conducting a search incident to arrest can open and search through all items on an arrestee's person, even if they are in a closed container, and even if the officers have no suspicion that the contents of the container are illegal. 32 The Court explained *34 that the search incident to arrest doctrine does not require case-by-case adjudication and that there need not be analysis of each step of the search to determine whether it was necessary to prevent the arrestee from acquiring weapons or destroying evidence. 33 Rather, Robinson made clear that searches of the arrestee's person and the containers thereon can be conducted automatically incident to an arrest. The Court's decision thus created a bright-line rule. The Court's affinity for bright-line rules became even clearer eight years later in New York v. Belton. 34 In Belton, the officer stopped a car for speeding and, upon smelling marijuana, arrested the occupants. 35 With the occupants away from the vehicle, the officer then searched the passenger compartment of the car and found a jacket in the backseat. The officer unzipped the pockets of the jacket and found cocaine. 36 Praising its decision in Robinson, the Court reaffirmed that police officers must be afforded “a straightforward rule, easily applied, and predictably enforced.” 37 Lamenting that there was not yet such straightforward rule for the search of the interior of a car at a traffic stop, the Court adopted another bright-line rule permitting the search of the entire passenger compartment of an automobile when an occupant of the car is lawfully arrested. 38 Just as in Robinson, the Court made clear that the bright-line rule would apply even if there were no chance that an arrestee could break free of his restraints to grab a weapon or destroy evidence in the passenger compartment of the car. The Court further explained that the search of the passenger compartment included any containers found therein, whether open or closed, and irrespective of whether they could contain a weapon or evidence. 39 The Belton decision marked a considerable expansion of the search incident to arrest doctrine. 40 *35 In the Court's last significant search incident to arrest decision, the 2004 decision in Thornton v. United States, 41 an automobile was again the focus of attention. 42 Unlike the occupant in Belton, the Thornton case involved a driver who had already exited and walked away from his vehicle before being approached by police. 43 After Thornton was arrested for drug possession, the officer then proceeded to his vehicle and searched the passenger compartment incident to arrest. The officer found a handgun under the seat, which led to a charge of possessing a firearm in furtherance of a drug-trafficking crime. 44 The Court once again stressed the need for a “clear rule, readily understood by police officers and not depending on differing estimates of what items were or were not within reach of an arrestee at any particular moment.” 45 In rejecting Thornton's suppression argument, the Court extended the Belton rule to permit a full-scale search of the passenger compartment of a vehicle incident to the arrest of a “recent occupant” of a vehicle. 46 The Court's decisions over the last forty years suggest that the search incident to arrest exception to the warrant requirement should be interpreted expansively. Indeed, in Belton, the Court specifically stated that “container” should be interpreted broadly to include “any object capable of holding another object. It thus includes closed or open glove compartments, consoles, or other receptacles located anywhere within the passenger compartment, as well as luggage, boxes, bags, clothing, and the like.” 47 Consistent with this guidance, lower courts have taken a broad approach and upheld searches of numerous small containers


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incident to arrest, such as wallets, 48 envelopes, 49 and aspirin *36 bottles. 50 Although some state courts have interpreted their own constitutions and criminal codes to be more restrictive than the Constitution, 51 most lower courts have not hesitated to apply the search incident to arrest doctrine to new situations unforeseen by the Supreme Court. 52

II. Bright-Line Rules in an Era of Pagers and Cell Phones The Supreme Court's decisions in Robinson 53 and Belton 54 made clear that, incident to a lawful arrest, officers can open containers located on a person or in their immediate grabbing space without having any independent probable cause to search those containers. 55 For many years, the only evidence found as a result of such searches was tangible physical evidence, such as drugs or illegal weapons. As technology has advanced however, a handful of lower courts have been forced to rule on the admissibility of nontangible digital evidence located in electronic devices, specifically pagers, cell phones, and computers. These courts have been forced to confront whether the search incident to arrest doctrine--designed with a world of tangible evidence in mind--should apply to data digitally contained in electronic devices. Most courts have upheld such searches. The earliest of these electronic data cases (and consequently the most primitive of the technology at issue) was a 1993 decision from the Northern District of California dealing with a pager found on an arrestee. 56 The defendant, Chan, was arrested as part of a drug sting operation and police found a pager on Chan's person. 57 The police then activated the pager's memory function and retrieved telephone numbers stored inside it. 58 Two numbers found in the pager linked Chan to the drug sting the police were *37 conducting. 59 Chan contended that he had a reasonable expectation of privacy in the pager and that activating it amounted to a search that required a warrant. 60 The court sided with Chan in part by agreeing that a pager is analogous to a closed container and that individuals have a reasonable expectation of privacy in the contents of electronic containers. 61 However, the court ultimately concluded that because the search of the pager came on the heels of a lawful arrest of Chan, a warrantless search was permitted under the search incident to arrest doctrine. 62 Citing Belton and Chimel, 63 the court concluded that all containers can be searched incident to a lawful arrest, including electronic containers. 64 Moreover, the court considered and specifically rejected as irrelevant the fact that Chan could not retrieve a weapon from the pager nor plausibly destroy any evidence from the pager. 65 Accordingly, the evidence found when the officer turned on and searched the pager was admissible. 66 Over the next few years, a handful of other courts were called upon to analyze the question raised in Chan and these courts likewise permitted the search of the contents of a pager incident to arrest. 67 These courts reiterated that the search incident to arrest exception allows police to open all containers on a person and further explained that pagers are analogous to a wallet or address book, which courts have long permitted police to search incident to a lawful arrest. 68 One court further recognized that it was especially important to search pagers quickly because an incoming page could destroy existing numbers currently stored in the pager's memory. 69 *38 The era of pagers has all but ended, making way for the age of cell phones. At first, cell phones were used primarily for phone calls, but in recent years text messaging has become a very commonly used feature as well. 70 To date, fewer than a dozen courts have addressed searches of cell phones incident to arrest. The Fifth Circuit's recent 2007 decision in United States v. Finley 71 is representative. Police arrested Finley after a staged drug sale. 72 The police then searched Finley incident to arrest and found a cell phone in his pocket. 73 One of the investigating officers searched through the phone's records and found text


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messages that appeared to relate to drug trafficking. 74 One incoming text message said, “So u wanna get some frozen agua,” a common term for methamphetamine. 75 Another text message said, “Call Mark I need a 50,” a likely reference to asking for fifty dollars' worth of narcotics. 76 Finley was convicted of aiding and abetting drug possession with intent to distribute. 77 On appeal, Finley contended that the search of his cell phone was unlawful. The Fifth Circuit rejected Finley's contention that the cell phone could be seized but not searched. 78 Relying on the conventional search incident to arrest caselaw--namely United States v. Robinson and New York v. Belton 79 --the court explained that “police officers are not constrained to search only for weapons or instruments of escape on the arrestee's person; they may also, without any additional justification, look for evidence of the arrestee's crime on his person in order to preserve it for use at trial.” 80 The court further explained that police can open containers found on the arrestee's person and saw no reason why the doctrine should not be extended to text messages contained in a cell phone. 81 In short, the Fifth Circuit did not recognize any conceptual difference between searching a person's body or physical containers on that body for *39 drugs and searching electronic equipment for digital information. A handful of district courts have reached the same conclusion as the Fifth Circuit and admitted evidence seized from cell phones. 82 To be sure, two lower courts have suppressed evidence found on cell phones pursuant to a search incident to arrest. Yet, those decisions rested primarily on grounds that the search took place too long after the arrest to be considered a contemporaneous search incident to arrest. 83 Perhaps the reason for the lack of contrary authority is that searching a conventional cell phone or pager incident to arrest is relatively easy to square with precedent that permits police to search tangible containers found on an *40 arrestee. 84 A cell phone's memory of incoming and outgoing calls, as well as its text messages, can easily be analogized to an address book or a letter in an envelope. 85 Much as the traditional search incident to arrest cases permit police to open a wallet, take out a letter, and read it before the arrestee has an opportunity to destroy the evidence, it also makes sense to allow the police to review electronic call histories and text messages in a cell phone. 86 An arrestee familiar with the functions of his cell phone could just as easily delete text messages or call logs as he could tear up a letter or an incriminating list of addresses on a piece of paper.

III. The Stakes and Likely Results When the iPhone Meets the Search Incident to Arrest Doctrine To date, no court has been called upon to address the constitutionality of searching an iPhone. In light of the handful of cell phone and pager cases discussed by the lower federal and state courts, 87 it might seem that there is no difference in searching an iPhone. Just as text messages stored on a cell phone are evidence within a digital container, it would seem that call histories, emails, and pictures on an iPhone would simply be characterized as evidence stored in a (larger) digital container. As a conceptual matter, there is no real difference between a crumpled up cigarette package, an early-generation cell phone, and an iPhone with a much larger memory. Yet, this is cause for concern because no matter what theoretical similarities exist between *41 an iPhone and a conventional cell phone (or a cigarette package for that matter), the former stores tremendously more information and in a very different way. The differences can be demonstrated by thinking about how many steps or searches police might be able to take with respect to the new and old technology. The cell phone and pager cases decided by courts in the last few years are what we might call first level cases because they do not require in-depth searching to obtain evidence. Police need to push only a limited number of buttons in order to reach pager numbers and only a few additional buttons to retrieve text messages. If we think of each step that police must take to retrieve


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information as a separate search, then reviewing pager numbers might amount to only two levels of searches: first, pushing the memory button for the list of recent pages; and second, scrolling through the numbers to find the incriminating calls. Reviewing text messages on a cell phone can be conceptualized as three separate searches: (1) opening the text message function; (2) opening the list of received text messages; and (3) opening and reading a particular text message. This is similar to the searches in Robinson 88 where the police officer (1) felt the cigarette package; (2) pulled out the package; and (3) opened the package. Put simply, the data on early-generation cell phones is limited in its amount and usefulness, and police officers will either find the evidence or run into a dead end rather quickly. Accordingly, the degree of privacy invasion can be measured by the number of steps an officer must take to retrieve the incriminating information. In the cases decided to date dealing with text messages and pagers, this number has been small because those devices have few, relatively simple functions capable of storing electronic data. The same can be said for tangible evidence such as cigarette packages, purses, wallets, or suitcases. The iPhone drastically changes this situation for two reasons. First, the iPhone stores tremendously more information--thereby providing law enforcement with access to information that the typical arrestee would otherwise be incapable of carrying in his pocket. In addition to the text messages, contact information, and call histories found on conventional phones, iPhones also contain an iPhoto application. This application holds far more pictures than could be stored on a conventional cell phone and displays them in much clearer detail. Similarly, the iPhone's easily accessible email application makes it simple to access thousands of new, saved, and sent email messages. The iPhone enables users to store thousands of audio and *42 video files. Music, books, and videos ranging from classical music to potentially obscene pornographic videos can be accessed with the touch of a few buttons. Second, and perhaps with greater ramifications than the data stored on the actual device, the iPhone provides a mechanism for accessing information via the internet. The iPhone's internet browser is just like the one found on a standard computer; it can dial out and retrieve information stored remotely with an internet service provider. An example is instructive. Imagine that an officer arrests an individual following a lawful traffic stop and finds an iPhone in the driver's pocket. The officer then takes the following steps: (1) activates the touch screen to view the phone's contents; (2) clicks on the internet browser icon; (3) clicks on the toolbar to find the bookmarks link; (4) finds a suspicious-looking bookmark labeled “porn pictures”; (5) clicks on that particular bookmark to bring up the webpage; (6) sees that the webpage contains a series of icons including a “members” button and clicks on that image; (7) brings up the “members” page which has a saved account number and password already entered; (8) clicks on the “submit” button which utilizes the saved account information and password to bring up the content of the website; (9) sees that, in addition to pictures, the website also has a message function and the account owner has two new messages; and (10) clicks on the message icon and brings up the two new messages, both of which detail an incriminating conversation about exchanging pictures of underage children. Or imagine how an officer could utilize the internet to circumvent an arrestee's privacy protections, such as if an arrestee had password-protected his iPhoto application to hide his photographs. After (1) turning on the iPhone; and (2) attempting to open the iPhoto application, the officer discovers that the application is password-protected and cannot be opened. 89 *43 The officer might then (3) activate the internet browser; (4) click on the browsing history to see what webpages the owner had visited; (5) click on the history link that referenced the arrestee's web-based email account--for instance, Yahoo! or Gmail; (6) read through the folders in the email account until finding one labeled “personal information”; (7) read through the messages in that folder until finding an email with the subject “passwords”; (8) open that email and retrieve the password for the iPhoto application; (9) close the internet browser and again click on the iPhoto application; (10) enter the password found in the email, thus opening the iPhoto application; (11) search through the folders in the iPhoto application, finding the most suspiciously labeled folder--for instance, “kid pics”; and (12) open that folder and search through all of the pictures inside that folder.


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Countless other complicated scenarios could likewise be envisioned. As the scenarios become more convoluted, it becomes harder to analogize them to a closed container or a wallet containing an address list. And indeed, the iPhone provides access to information that would almost never before be found in arrestees' pockets or immediate grabbing space, but which could potentially subject them to criminal prosecution. For instance: (1) bank statements accessed via the saved password on your banking website 90 or (2) MySpace or Facebook webpages that have personal data, pictures, contacts, and exchanges of messages, might be rich sources of incriminating information. 91 *44 In searching for incriminating information, officers will no doubt come into contact with extremely sensitive personal information that is not remotely illegal but which is nevertheless highly embarrassing. For instance, by searching an arrestee's internet browsing history, police might stumble across chat rooms demonstrating that the arrestee has unusual sexual proclivities. Or police might discover that the arrestee is homosexual and is trying to keep that information secret from her family or employer. If the arrestee is a politician, the ramifications would be particularly devastating if police were to discover from his emails that he has been having an affair or that he made derogatory comments about other political figures. Additionally, an arrestee's internet browsing history or his bookmarked webpages might lead to a health insurance website that includes bills for a serious or embarrassing medical condition. The list of scenarios is endless. And while such embarrassing, but not incriminating, information probably would not be admissible in a prosecution, its discovery would cause emotional distress. Moreover, while noncriminal information should never be released beyond the initial traffic stop if it has no place in a prosecution, it sometimes manages to find its way into the public domain. 92 In sum, the search incident to arrest doctrine permits police to search the contents of any container found on the arrestee, including electronic receptacles of digital information. Courts already have held that the doctrine applies to the electronic contents of pagers and cell phones and permits the copying of phone numbers and the reading of text messages. If courts take the next step--and they almost certainly will--by applying the search incident to arrest doctrine to the iPhone, officers will be in a position to review incoming and outgoing call histories, scan contact lists, read thousands of emails, view nearly limitless numbers of color photographs and movies, listen to voicemail at the touch of the button, and view the internet websites that an arrestee has visited.

*45 IV. Disentangling the iPhone From a Bright-Line Rule: Possible Approaches to Cabining the Search Incident to Arrest Doctrine The difference between the data found on a cell phone and an iPhone is dramatic but, at present, the Fourth Amendment and its search incident to arrest doctrine make no distinction. In this Part, I consider what approaches, if any, courts and legislatures might adopt to address this problem.

A. Change Nothing: The Search Incident to Arrest Rule Works Well, So Changing It to Account for New Technology Is Not a Good Idea While it is undoubtedly troubling to permit suspicionless searches of the many applications of an iPhone, one could plausibly argue that attempting to craft a rule disallowing such searches would be worse. At present, the search incident to arrest doctrine is a bright-line rule that is easy for police officers to understand and apply. And courts faced with a search incident to arrest usually have an easy time determining whether the officers' actions were permissible. Compare this to the rest of Fourth Amendment law, which is riddled with exceptions, caveats, and uncertainty. 93 Indeed, the typical Fourth Amendment section of a criminal procedure textbook is at least twice as long as the Fifth Amendment section. 94 Carving out an exception to the search incident to arrest doctrine to deal with the iPhone might afford more privacy protection to a device that is capable of holding reams of


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personal information that individuals reasonably expect to be protected against government intrusion, but at what cost? There is a colorable argument *46 that any benefit to be had from a new rule would be outweighed by muddling one of the few areas of Fourth Amendment law that is currently intelligible. 95 Moreover, as Professor Orin Kerr has explained, not every change in technology necessitates changing the rules of constitutional criminal procedure to be more protective of individuals. 96 The same courts that have made a mess of current Fourth Amendment law may lack the institutional competence to draft rules for emerging technology. As Professor Kerr has explained, “[j]udges cannot readily understand how the technologies may develop, cannot easily appreciate context, and often cannot even recognize whether the facts of the case before them raise privacy implications that happen to be typical or atypical.” 97 While I do not desire that Fourth Amendment law be made any more complicated, ultimately, I am not convinced that courts should restrain themselves by applying an ill-fitting bright-line rule to the iPhone. 98 I see two primary reasons. First, the major informal constraints typically facing police in executing searches are not present with respect to the iPhone. As Professor Bill Stuntz has explained, police investigations are ordinarily constrained by limited resources and limited time. 99 New technology is typically expensive in law and economic terms. Thus, while the Supreme Court has held that there is no Fourth Amendment search when police observe backyards from helicopters or planes, 100 that has not enabled police to do so with impunity. Police departments typically cannot afford to buy or rent helicopters, nor do they *47 have the time to file flight plans, spend hours in the air, and simply look around without being guided by some particularized suspicion. 101 With respect to the iPhone, however, the new technology inverts the typical state of affairs because it is the individual, not the police officer, who has the new technology. Moreover, unlike flyovers or costly thermal imaging devices, 102 the technology is everywhere. Apple expects to sell more than ten million iPhones by the end of 2008. 103 In the next decade, millions of drivers will have an iPhone or a substantially similar device in their pockets during many of the nearly thirty million traffic stops that occur each year. 104 And unlike helicopters or thermal imagers, the cost to police in searching is almost nil. A study by the Bureau of Justice Statistics found that police searched the car or the driver in 6.6 percent of the twenty-seven million traffic stops that occurred in a particular year. 105 Upwards of 470,000 searches were conducted incident to arrest at a traffic stop. 106 If police are already conducting such searches incident to arrest, they can easily take a few extra moments to seize the iPhone, turn it on, and start rummaging through its files and applications. 107 *48 The iPhone drastically changes the amount of private information that can be accessed during a search incident to arrest. And unlike thermal imaging devices or airplane flyovers, iPhone searches could potentially affect millions of people. The stakes are higher and it is worth considering whether the search incident to arrest doctrine might be amended to fit this problem.

B. Change Everything: Limiting the Search Incident to Arrest Doctrine in All Police Interactions to a Search Related to the Crime of Arrest The most drastic change to the search incident to arrest doctrine--short of abolishing it altogether--would be to limit officers to searching for evidence of the crime for which the suspect was arrested. Thus, if the driver were arrested for drug possession, police could search anywhere drugs might be found. But if the driver were arrested for failure to wear a seatbelt, a search for drugs would be impermissible. Justice Antonin Scalia advocated this revision to the search incident to arrest doctrine in his 2004 concurring opinion in Thornton v. United States, 108 in which the Supreme Court upheld the search of the passenger compartment of a “recently” occupied car. 109 Joined by Justice Ruth Bader Ginsburg, Justice Scalia argued that searching a


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vehicle incident to arrest should only be permitted when “it is reasonable to believe evidence related to the crime of arrest might be found in the vehicle.” 110 Justice Scalia's view departs from the traditional rationale for the search incident to arrest doctrine. Instead of conducting the searches to prevent the arrestee from harming the officer or destroying evidence, such searches would be justified as “evidence-gathering” exercises that can be conducted because of “a reasonable belief that evidence [will] be found.” 111 Justice Scalia wrote for only himself and Justice Ginsburg in expressing this view, so we might be inclined to dismiss this approach as simply unlikely to be adopted. However, as Professor James Tomkovicz has recently explained, it is not altogether implausible to assume that Justice Scalia's position may some day command a majority: Chief Justice Roberts and Justice Alito have not yet had a chance to address this approach, and Justice Stevens and Justice *49 Souter are on record as being very dissatisfied with the current state of the search incident to arrest doctrine. 112 Besides its unlikely adoption, perhaps a stronger objection to Justice Scalia's approach is that the evidence-gathering approach lacks doctrinal justification. Searching to gather evidence during a search incident to arrest is troubling because it would permit searches based on suspicion--rather than officer safety--that involve less than probable cause. 113 Likewise, such an approach would offer no justification for permitting searches of the passenger compartment incident to arrest but not the trunk of the vehicle. 114 On the plus side, Justice Scalia's approach would solve the iPhone dilemma by reconceptualizing the entire search incident to arrest doctrine, without requiring a special rule for particular new technology. 115 If police could only search for evidence related to the crime of arrest, most traffic stops would not permit searches of an iPhone's contents. And even when police were permitted to search an iPhone incident to arrest, the scope of the search would be limited. If an officer arrested a driver for possession of drugs with intent to distribute, it would make sense to search his text messages for further evidence of the crime, since that function is commonly used in conjunction with drug sales. 116 But it would not seem to be permissible for the officer to search through the arrestee's pictures under the iPhoto function or the history section under his internet browser because such applications likely have nothing to do with drug sales. A rule limiting the search incident to arrest exception to the crime of arrest would prevent police from roaming at large among the thousands of pages of data held in the iPhone.

*50 C. Change By a Different Sovereign: Encouraging State Legislatures to Adopt a More Protective Rule Scholars dispute the ability of state courts to provide greater protection of constitutional rights than federal courts. 117 Although the debate rages, it is undisputed that, in the criminal procedure context, a number of states have imposed greater restrictions on searches and seizures under the Fourth Amendment and state constitutional equivalents. 118 Notably, numerous state courts have cabined the search incident to arrest exception under state law to narrower circumstances than authorized by the Supreme Court. 119 One approach states courts might take is the one advocated by Justice Scalia and discussed in Part IV.B. If the Supreme Court refuses to limit the search incident to arrest doctrine to searches of the arrestee for weapons and evidence of the crime for which he has been arrested, then the state courts could look to their own constitutions to do so. To date, a handful of state courts have adopted this approach. 120 Moreover, we should look beyond state courts to consider the role of state legislatures in crafting statutory protections. While new criminal procedure rules typically come from courts, it would be a mistake to ignore possible legislative solutions. 121


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And, indeed, legislatures have taken action in the past to narrow what they believe to be an overly broad search incident to arrest doctrine. In the wake of the Supreme Court's expansive 1973 decision in United States v. Robinson 122 permitting police to open all containers on a person *51 incident to a lawful arrest, the Massachusetts legislature adopted statutory language specifically designed to narrow the search incident to arrest doctrine. 123 For over thirty years, that statute has provided that [a] search conducted incident to an arrest may be made only for the purposes of seizing fruits, instrumentalities, contraband and other evidence of the crime for which the arrest has been made, in order to prevent its destruction or concealment; and removing any weapons that the arrestee might use to resist arrest or effect his escape. Property seized as a result of a search in violation of the provisions of this paragraph shall not be admissible in evidence in criminal proceedings. 124

Other state legislatures could revise their codes to follow the Massachusetts model. Or those legislatures could take a different approach and authorize the seizure of iPhones or other wireless devices incident to arrest but prohibit warrantless searches of those devices without a warrant. 125 The key question is, how likely are legislatures to take action to protect iPhones from warrantless searches? Legislatures are not typically in the business of limiting police officers' ability to conduct criminal investigations. 126 To the contrary, legislators' interests are typically in line with those of law enforcement and they therefore enact statutes that favor expansive police authority. 127 Yet, when it comes to iPhones the situation might be different. Unlike the faceless backdrop in which legislators typically award police great investigatory powers, the scenarios in which an iPhone can be searched incident to arrest are likely to resonate with legislators. As typically middle- or upper-class individuals with teenage or young adult children, legislators are one of the demographic groups likely to *52 purchase iPhones. 128 And while legislators rarely commit the crimes of murder or rape, 129 as mostly middle-class white men they are statistically more likely to be involved in computer crimes such as financial misconduct or fraud. 130 It is evidence of these crimes that is most likely to accidentally turn up during a search of an iPhone incident to an arrest, whether for running a stop sign or driving while intoxicated. Moreover, while legislatures are unlikely to have illegal child pornography on their computers or iPhones, it is reasonable to assume many male legislators have downloaded “run-of-themill” pornography. 131 While this material is not illegal, its discovery would be embarrassing and politically devastating. 132 And as Professor Craig Lerner has demonstrated, significant legislative protections for criminal defendants often arises in response to a particular legislator being put through the criminal justice process. 133 Thus, while legislators are tough on crime and reluctant to reduce punishments or remove old crimes from the books, it is reasonable to expect that legislators will create criminal procedure protections that track their own self-interest. 134 *53 It is therefore possible that legislators will enact laws limiting the search of iPhones incident to arrest. Moreover, legislators have incentive to enact such restrictions to please constituents. While it is unlikely that a lobby will form to press for a law exempting iPhones from the search incident to arrest doctrine, it is entirely possible that in the near future a prominent business executive or other powerful and connected individual will be embarrassed when his iPhone is searched at a traffic stop. And when those middle- and upper-class individuals--the type who vote and, more importantly, have money to make campaign contributions--press for some legislative action, lawmakers will have little reason to refuse them. The soft-on-crime label tends not to stick when the new law benefits a considerable majority and protects the middle-class right to privacy. 135


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D. Change at the Margins: The Open Application Test A more modest revision to the search incident to arrest doctrine, but one that nevertheless would eliminate the current brightline rule, would be for courts to adopt an open application test. Under an open application approach, police would be permitted to search any open application on the iPhone incident to arrest but would not be authorized to look through applications that are closed when the arrest is made. Thus, an individual who took steps to close the iPhoto application could expect the pictures contained therein to remain private. More significantly, an individual who kept her iPhone off entirely could avoid any search of its contents. There are at least two problems with this approach: First, it would be very difficult to know if officers are telling the truth when they say an application was open. Because an iPhone can be turned on simply by tapping the touch screen and applications can be activated simply by touching an icon, it would be easy for officers to testify that an application was open at the time of arrest, even if it was in fact closed. 136 Of course, the prospect of police *54 lying runs throughout Fourth Amendment jurisprudence. Police could just as easily lie and say they received consent to search the trunk of a vehicle when they in fact did not, or that they smelled marijuana when in fact there was no such smell. A second and more compelling reason to reject the open application test is that it runs afoul of one of the original justifications for the search incident to arrest doctrine: preventing the destruction of evidence. 137 Just as police could quickly open a closed application on the iPhone, so too could a suspect. An arrestee skilled at using his iPhone might be able to turn on the device, select an application, and destroy text messages, emails, photos, or other evidence in a matter of seconds. Given that the Supreme Court has adopted a fiction that almost any physical evidence--whether in a closed or open container-in the arrestee's grasp could potentially be destroyed (even if the arrestee is handcuffed 138 ) it would make little sense to draw a line forbidding searches of closed applications on an electronic device that an arrestee could easily open and destroy. 139

E. Changing the Bright-Line Rule: Limiting the Search Incident to Arrest Doctrine to Five Steps of Searches Another solution would be to limit police to only a fixed number of steps when searching the contents of an iPhone incident to arrest. For instance, courts could set a bright-line rule that police can take five steps, but no more, when rummaging through an iPhone's contents. As with the open application test, this solution likely causes more problems than it would solve, but is worth exploring briefly. The primary virtue of the search incident to arrest doctrine is that it provides bright-line rules that are easily understood and applied. Thus, police *55 know that they can open an arrestee's wallet but cannot search the trunk of his car. The primary detriment of the search incident to arrest doctrine is that it permits the police to rummage through numerous layers of enclosed materials, even if there is no probable cause to believe contraband is buried beneath. This problem is particularly vexing with respect to the iPhone because it contains layer upon layer of data. As previously discussed, police conceivably could (1) turn on the phone; (2) open an internet browser; (3) type in a web-based email account such as www.hotmail.com; (4) log into the account (if the user id and password are saved); (5) open a folder of messages; (6) open a particular message; (7) read the message; (8) open the attachment to the message; and so forth. One compromise approach would be to create a bright-line “five-level deep” rule (or some other admittedly arbitrary number) limiting the search of iPhones to a total of five steps. Under such a rule, the police could search five levels deep into an iPhone's contents, but no further. Thus, for example, police could (1) turn on the phone; (2) open the internet browser; (3) type in a webbased email account such as www.hotmail.com; (4) log into the account (if the user id and password are saved); and (5) open


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a folder of messages. If the officer completes the fifth step without finding anything incriminating that could be destroyed, the officer would need to stop searching. To search further, the officer would need to procure a warrant. 140 The main virtue to this approach is that it puts an outer limit on how far police may search electronic data while at the same time leaving intact a relatively bright-line rule that makes clear to police exactly how far they can go. On the other hand, whether police exceeded the five steps would certainly be debated in individual cases. Judges would have to make findings of fact ranging from the simple--whether the phone was already turned on when the search incident to arrest began, thus not counting as one of the five steps--to the more fuzzy inquiries. For instance, when police linked from one webpage to another, were they taking two steps, or just one? This sort of unguided fact-finding is exactly what courts have tried to avoid by advocating a bright-line search incident to arrest rule. Perhaps more obviously troubling, selecting a certain number of searches--for instance, saying that police can search five levels deep into an iPhone, but not six--is terribly arbitrary. While courts could say the number of levels is correlated to the likelihood that the arrestee could reach that data and destroy it, selecting a level would still be beyond the institutional *56 capacity of courts. 141 Moreover, no comparable five-step rule exists for searches of tangible evidence found during a typical search incident to arrest. If police can exceed five steps to discover drugs in a small bag hidden inside a box lying under some papers in the glove compartment of a car, it is difficult to justify a five-step rule only for iPhones.

F. Distinguishing Between Data on the Device and Remotely-Stored Data Accessible From the Device Finally, courts could try to draw a conceptual line between data that is “on” or “in” the iPhone and data that is simply accessible via the iPhone. This would essentially be drawing a line between the iPhone's internet browser function and its other applications. An arrestee's pictures in his iPhoto application, his text messages, and his incoming call history would be considered contained “in” the phone. If internet service were cut off, the owner of the phone would still be able to access these features because the data has been downloaded to the phone. By contrast, web-based email accounts or other material that an individual accesses over the internet are not typically downloaded to the phone and are instead, for lack of a better phrase, simply floating around on electronic servers in cyberspace. Because such data is not physically present on the iPhone without proactively seeking it out, courts and legislatures could draw a line forbidding such searches incident to arrest while allowing police to search applications that have data permanently on the iPhone. One wrinkle to this approach might be if the internet browser that allows the user to access information floating in cyberspace is open when the officer searches the iPhone. For instance, what if the officer conducting the search incident to arrest discovers that the internet browser is open to a web-based email account and the selected email has incriminating information in it? Surely it would not make sense to say that the officer could search the rest of the iPhone's applications but not the open web-based email. One solution to this problem would be to harken back to the original search incident to arrest jurisprudence that allows a full-scale search of some areas beyond the person of the arrestee if the area is in the immediate grabbing space. 142 For instance, the search incident to arrest doctrine typically does not allow a search of the trunk of a vehicle, but if the trunk is open and the *57 arrestee is standing near it, then such a search is permissible. 143 In the hypothetical scenario outlined above, web-based email can be analogized to the trunk of a car. The web-based email, banking information, or MySpace page, would typically be considered to be outside the grabbing space of the suspect. However, when the webpage is open in the internet browser at the time of arrest it would be within the arrestee's immediate grabbing space. Thinking in terms of physical tangible space, an approach that differentiates between material downloaded onto the iPhone and material that is simply accessible via the iPhone seems to make sense. Just as officers could search the cigarette pack in Mr. Robinson's pocket, they can also search the photos he is carrying on his iPhone. And just as the police could not search Mr.


13


Robinson's medical records stored in his house (rather than on his person), the police also could not search electronic data not currently downloaded onto his phone. Yet, the comparison with Robinson's medical records fails at a certain level when we consider that one purpose of the search incident to arrest doctrine is to prevent destruction of evidence. Of course, Mr. Robinson could not destroy the medical records in his house while being arrested at a traffic stop. Yet, he could quickly open his internet browser, log onto his web-based email account, and destroy incriminating evidence without ever leaving the traffic stop. Nevertheless, this approach is conceptually promising because it does not require a wholesale revision of the search incident to arrest doctrine, which has been framed with tangible physical evidence in mind.

Conclusion At the end of the day, all six approaches appear to be somewhat unsatisfying. Permitting the police to search only for evidence related to the purpose of arrest would improve the doctrine for all cases, not just those involving iPhones, but it has recently been rejected by a majority of the Supreme Court. Asking state legislatures to limit police to search incident to arrest only for evidence related to the arrest is plausible, but highly unlikely to occur in many states. An open application test may encourage police deception and will likely create the types of factual disputes that the bright-line search incident to arrest doctrine was designed to avoid. A five-step limit will likewise raise factual questions that are best avoided. Finally, while *58 a rule that differentiates between data on the iPhone and data accessible via the phone is the most conceptually pure, it does not account for the possibility that arrestees could still destroy data that is merely accessible via the iPhone. Nevertheless, despite the flaws associated with each proposal, all are likely preferable to doing nothing and allowing police to search thousands of pages of electronic data without probable cause or a warrant.

Footnotes a1 Associate Professor, South Texas College of Law. I am grateful to John Blevins, Dale Carpenter, Sharon Finegan, John W. Hall, Orin Kerr, Dan Markel, Usha Rodrigues, and Andrew Solomon for their helpful comments.

1

See Long Wait Over for iPhone Fans: Some Waited in Line Three Days for Debut, Chi. Trib., June 30, 2007, at 1.

2

See Eric Benderoff, Apple Credits iPhone Buyers: Early Adopters of the Device Who Are Upset Over Quick Price Cut Get $100 Compensation, Chi. Trib., Sept. 7, 2007, at 6 (“Apple sold about 270,000 iPhones [in] the first three days.”).

3

See Katie Hafner, iPhone Futures Turn Out to Be a Risky Investment, N.Y. Times, July 6, 2007, at C3 (“Apple has said it expects to sell as many as 10 million phones by the end of 2008.”). Analysts believe that the company can sell as many as forty-five million devices worldwide by the end of 2009, due to a recent international rollout reaching 575 million potential customers. See Philip Elmer-Dewitt, iPhone Rollout: 42 Countries, 575 Million Potential Customers, Fortune, May 16, 2008.

4

A Westlaw search of “iPhone w/10 love” in the allnews database on July 31, 2008 yielded 461 documents.

5

Michelle Roberts, AT&T Profit Soars: iPhone Gives Cell Provider a Boost, Augusta Chron., July 25, 2007, at B11; Bob Tedeschi, Navigating the New World of Cellphones, as the Options Pile Up, N.Y. Times, June 19, 2008, at C6; cf. Troy Wolverton, iPhone Outselling Rivals: Even So, It May Be Falling Short of High Expectations, San Jose Mercury News, Sept. 5, 2007, at C2.

6

Although there are competing handheld wireless products, for ease of exposition I will simply refer to iPhones throughout this Article.

7

A large body of Fourth Amendment scholarship focuses on unforeseen technological changes making it easier for law enforcement to investigate criminal activity. For an excellent example deviating from the view that all advances merit greater court involvement, see Orin S. Kerr, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L. Rev.


14

THE IPHONE MEETS THE FOURTH AMENDMENT, 56 UCLA L. Rev. 27 801 (2004). The iPhone scenario inverts the problem, however, by placing the advanced technology in the hands (or pockets) of the one being searched, rather than the officer doing the searching.

8

A handful of courts have been asked to decide whether a search of a traditional cell phone's call history or text messages is permissible incident to arrest. With very narrow exceptions, those courts have upheld the searches as valid. See infra notes 71-84 and accompanying text.

9

Scholars convincingly maintain that the search incident to arrest doctrine is more than nine decades old. See James J. Tomkovicz, Divining and Designing the Future of the Search Incident to Arrest Doctrine: Avoiding Instability, Irrationality, and Infidelity, 2007 U. Ill. L. Rev. 1417 (dating the search incident to arrest exception back to Weeks v. United States, 232 U.S. 383 (1914), and Carroll v. United States, 267 U.S. 132 (1925)). The modern incarnation of the doctrine can be traced to U.S. Supreme Court decisions in the 1960s and 1970s.

10

See United States v. Robinson, 414 U.S. 218, 235 (1973) (“The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.”); Chimel v. California, 395 U.S. 752 (1969).

11

As explained below, the Supreme Court has drastically expanded the reach of the search incident to arrest exception. See infra notes 28-52 and accompanying text. As Professor James J. Tomkovicz has chronicled in his recent article, over the last few decades “the Court [has] modestly, but consistently, increased the scope of law enforcement authority to conduct automatic searches following lawful arrests.” Tomkovicz, supra note 9, at 1441. By “static,” I mean only that the Court has not accounted for new technology. On the need for new rules of criminal procedure to deal with an increasingly digital world, see Orin S. Kerr, Digital Evidence and the New Criminal Procedure, 105 Colum. L. Rev. 279, 281-89 (2005) (arguing that existing criminal procedure law is tailored toward tangible evidence in a way not suited to dealing with digital information).

12

See Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531, 538 (2005). Kerr explains that “computer searches and home searches are similar in many ways. In both cases, the police attempt to find and retrieve useful information hidden inside a closed container”; yet he also describes significant differences between computer data collection and conventional searches.

13

See Henry M. Hart, Jr., The Aims of the Criminal Law, 23 Law & Contemp. Probs. 401, 431 (1958) (“What sense does it make to insist upon procedural safeguards in criminal prosecutions if anything whatever can be made a crime in the first place?”); William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 507 (2001) (“American criminal law, federal and state, is very broad; it covers far more conduct than any jurisdiction could possibly punish. The federal code alone has thousands of criminal prohibitions covering an enormous range of behavior, from the heinous to the trivial. State codes are a little narrower, but not much.”). For instance, whereas the Massachusetts Code contained 214 crimes in 1860, today the total number of offenses exceeds 500. See id. at 514.

14

See, e.g., Atwater v. City of Lago Vista, 532 U.S. 318 (2001) (finding no constitutional violation in arresting a driver for failure to wear a seatbelt and searching incident to that arrest). This problem is what Professor Donald Dripps has referred to as the “Iron Triangle,” in which police can pull over an automobile for pretextual reasons (so long as they can point to an almost unlimited number of traffic violations), arrest individuals for almost any low-level misdemeanor infraction, and then proceed to search the individual for contraband totally unrelated to the stop and arrest. See Donald A. Dripps, The Fourth Amendment and the Fallacy of Composition: Determinacy Versus Legitimacy in a Regime of Bright-Line Rules, 74 Miss. L.J. 341, 393 (2004) (“The Iron Triangle means in practice that the police have general search power over anyone traveling by automobile.”).

15

Police will also likely conduct warrantless searches of iPhones at traffic stops under the consent and automobile exceptions, though far less often than under the search incident to arrest doctrine. Under the first, police will be permitted to search the contents of an iPhone if a reasonable person would have thought his consent extended that far. See, e.g., United States v. Reyes, 922 F. Supp. 818 (S.D.N.Y. 1996) (finding that consent to search a car in which suspect was traveling extended to a search of a pager found inside the car). Under the automobile exception to the warrant requirement, police will be permitted to search the contents of the iPhone at a traffic stop if they have probable cause to believe it contains evidence of the crime they are investigating. For instance, if police


15

THE IPHONE MEETS THE FOURTH AMENDMENT, 56 UCLA L. Rev. 27 have probable cause to believe the owner of the iPhone is utilizing the phone's text message function to facilitate drug dealing, police could look through the text messages of an iPhone found in a vehicle. See California v. Acevedo, 500 U.S. 565, 581 (1991) (allowing police to open containers in an automobile without a warrant).

16


17

Exceptions to the Fourth Amendment's warrant requirement are so pervasive and disorganized that Professor Akhil Amar has referred to Fourth Amendment jurisprudence as “a sinking ocean liner--rudderless and badly off course.” Akhil Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 759 (1994).

18

See Wayne R. LaFave, 3 Search and Seizure: A Treatise on the Fourth Amendment §5.2(c) & n.55 (2007) (describing the search incident to arrest as probably the most common type of police search).

19

Weeks v. United States, 232 U.S. 383, 392 (1914).

20

For a recent and excellent discussion of the history of the search incident to arrest doctrine, see Tomkovicz, supra note 9, at 1421-45.

21

395 U.S. 752 (1969).

22

Id. at 754.

23

Id. at 763, 768.

24

Id. at 763.

25

Id.

26

Id. at 768.

27

414 U.S. 218 (1973).

28

Id. at 220.

29

Id. at 223.

30

Id.

31

Id.

32

Id. at 235-36.

33

Id. at 235.

34

453 U.S. 454 (1981).

35

Id. at 455-56.

36

Id. at 456.

37

Id. at 459.

38

Id. at 460.

39

Id. at 461. The Court did not make clear in Belton, nor has it in any subsequent cases, whether locked containers in an automobile can be opened incident to arrest. For a survey of the lower court authority, see LaFave, supra note 18, §7.1(c) n.99. Likewise, the Court has never squarely addressed the question of whether the trunk portion of an SUV, station wagon, or hatchback qualifies as being part of the passenger compartment of the vehicle. See, e.g., Sellman v. State, 828 A.2d 803, 818 (Md. 2003) (describing the


16

THE IPHONE MEETS THE FOURTH AMENDMENT, 56 UCLA L. Rev. 27 issue of whether a hatchback is in the passenger compartment as a “fact-bound question”). For a long list of cases reaching different conclusions on this issue, see LaFave, supra note 18, §7.1(c) n.96.

40

See Tomkovicz, supra note 9, at 1437 (explaining that the Belton Court “was instigating a new era of expansion for search incident authority”).

41

541 U.S. 615 (2004).

42

Id. at 617-19.

43

Id. at 618.

44

Id.

45

Id. at 623.

46

See id. at 623-24. Ironically, the Court's celebration of a bright-line approach makes little sense when the Court has provided no guidance as to who qualifies as a “recent occupant” of a vehicle. See George Dery & Michael J. Hernandez, Turning a Government Search Into a Permanent Power: Thornton v. United States and the “Progressive Distortion” of Search Incident to Arrest, 14 Wm. & Mary Bill Rts J. 677, 698 (2005) (“The stage is thus now set for needless litigation as to the boundaries of Thornton's not-sobright-line rule. Attorneys in the courts and officers on the beat will struggle in their attempts to determine who qualifies as a ‘recent occupant’ of a vehicle. The spawning of case after case attempting to clarify the outer boundaries of Thornton's time and space rule creates the very confusion Belton originally aimed to avoid.”).

47

New York v. Belton, 453 U.S. 454, 460 n.4 (1981).

48

See, e.g., United States v. Rodriguez, 995 F.2d 776, 778 (7th Cir. 1993) (permitting the searching of a wallet and photocopying of an address book incident to arrest); United States v. Hatfield, 815 F.2d 1068, 1071-72 (6th Cir. 1987) (upholding the search of a wallet incident to arrest as well as the admission of lock picks found in the wallet); State v. Winston, 295 S.E.2d 46 (W. Va. 1982) (upholding the search of a wallet).

49

See, e.g., United States v. McCrady, 774 F.2d 868, 872 (8th Cir. 1985) (upholding the search of an envelope found in a locked glove compartment).

50

See Daniels v. State, 416 So.2d 760 (Ala. Crim. App. 1982).

51

See, e.g., State v. Stroud, 720 P.2d 436 (Wash. 1986) (en banc) (relying on a state constitution to conclude that the police may not search a locked glove compartment incident to arrest without procuring a warrant).

52

See, e.g., supra notes 48-50.

53

United States v. Robinson, 414 U.S. 218 (1973).

54

New York v. Belton, 453 U.S. 454 (1981).

55

See Wayne A. Logan, An Exception Swallows a Rule: Police Authority to Search Incident to Arrest, 19 Yale L. & Pol'y Rev. 381, 381 (2001) (“Compared to Fourth Amendment jurisprudence more generally, with its well-earned reputation for complexity and variability, the search incident to arrest exception to the Amendment's warrant requirement would appear an oasis of consistency.”).

56

United States v. Chan, 830 F. Supp. 531 (N.D. Cal. 1993).

57

Id. at 533.

58

Id.

59

Id.


17


60

Id.

61

Id. at 535.

62

Id. at 535-36.

63

Chimel v. California, 395 U.S. 752 (1969).

64

Chan, 830 F. Supp. at 536.

65

Id.

66

Id. at 536.

67

See United States v. Hunter, No. 96-4259, 1998 WL 887289, at *3 (4th Cir. Oct. 29, 1998) (per curiam) (upholding the retrieval of numbers from a pager); United States v. Ortiz, 84 F.3d 977, 983-84 (7th Cir. 1996) (same); United States v. Stroud, No. 93-30445, 1994 WL 711908, at *2 (9th Cir. Dec. 21, 1994) (same); United States v. Diaz-Lizaraza, 981 F.2d 1216, 1223 (11th Cir. 1993) (holding that it is permissible to insert batteries and reactivate the beeper so that it may be called after an arrest); United States v. Reyes, 922 F. Supp. 818, 834 (S.D.N.Y. 1996) (upholding the retrieval of numbers from a pager); United States v. Lynch, 908 F. Supp. 284, 290 (D.V.I. 1995) (same).

68

See Lynch, 908 F. Supp. at 288.

69

See Ortiz, 84 F.3d at 984; see also United States v. Zamora, No. 1:05CR250(WSD), 2006 WL 418390, at *4 (N.D. Ga. Feb. 21, 2006) (recognizing with respect to cell phones that they are dynamic and that “[w]ith each call is the risk that a number stored would be deleted”).

70

See David Hayes, The Cell Phone Is Called on to Do It All--A Wireless Wonder: With Features Ad Infinitum, It's Getting to Be Like Your Personal Computer, Kan. City Star, Oct. 30, 2005, at A1 (“After years of relatively slow growth, U.S. wireless subscribers now are sending billions of text messages each month.”).

71

477 F.3d 250 (5th Cir. 2007).

72

Id. at 253-54.

73

Id. at 254.

74

Id.

75

Id. at 254 n.2.

76

Id.

77

Id. at 255.

78

See id. at 260.

79

See supra text accompanying notes 28-40.

80

Finley, 477 F.3d at 259-60.

81

See id. at 260.

82

See United States v. Valdez, No. 06-CR-336, 2008 WL 360548, at *3 (E.D. Wis. Feb. 8, 2008) (upholding the search of a cell phone's address book and call logs incident to arrest, though noting that “we can leave for another day the propriety of a broader search equivalent to the search of a personal computer”); United States v. Curry, No. 07-100-P-H, 2008 U.S. Dist. LEXIS 5438, at *30-31


18

THE IPHONE MEETS THE FOURTH AMENDMENT, 56 UCLA L. Rev. 27 (D. Me. Jan. 23, 2008) (upholding the search of a cell phone for call logs from a drug informant); United States v. Lottie, No. 3:07CR-51-AS, 2007 WL 4722439, at *4 (N.D. Ind. Oct. 12, 2007) (upholding the search of a cell phone primarily on exigency grounds but arguably under the search incident to arrest exception as well); United States v. Mercado-Nava, 486 F. Supp. 2d 1271, 1275-76 (D. Kan. 2007) (upholding the search of a cell phone for numbers of outgoing and incoming calls); United States v. Murphy, No. 1:06CR00062, 2006 WL 3761384, at *4 (W.D. Va. Dec. 20, 2006) (upholding the search of a cell phone's text messages); United States v. Diaz, No. CR 05-0167 WHA, 2006 WL 3193770, at *4-5 (N.D. Cal. Nov. 2, 2006) (upholding the recording of names and numbers in an address book and recording messages); United States v. Zamora, No. 1:05 CR 250 WSD, 2006 WL 418390, at *5 (N.D. Ga. Feb. 21, 2006) (upholding the search of a cell phone for numbers of outgoing and incoming calls); United States v. Cote, No. 03 CR271, 2005 WL 1323343, at *6 (N.D. Ill. May 26, 2006) (upholding the search of a cell phone's call log, phone book, and wireless web inbox); United States v. Brookes, No. CRIM 2004-0154, 2005 WL 1940124, at *3 (D.V.I. June 16, 2005) (upholding the search of numbers in a cell phone and pager); United States v. Parada, 289 F. Supp. 2d 1291, 1303-04 (D. Kan. 2003) (upholding the search of stored numbers to prevent destruction of evidence).

83

See United States v. Park, No. CR-05-375SI, 2007 WL 1521573, at *11-12 (N.D. Cal. May 23, 2007); United States v. Lasalle, No. 07-00032 SOM, 2007 WL 1390820, at *7-8 (D. Haw. May 9, 2007); cf. United States v. Carroll, 537 F. Supp. 2d 1290, 1299 (N.D. Ga. 2008) (expressing skepticism at search incident to arrest of a BlackBerry when the suspect surrendered at the police station, but ordering further briefing before deciding the issue). In Park, the court stated that “due to the quantity and quality of information that can be stored on a cellular phone, a cellular phone should not be characterized as an element of [an] individual's clothing or person, but rather as a possession within an arrestee's immediate control that has fourth amendment protection at the station house.” 2007 WL 1521573, at *9 (internal quotation marks omitted). This approach conceivably makes sense if the court is saying that the search of the cell phone was impermissible because it occurred too long after the arrest. But if the court is contending that the search was instead invalid because it was a search of the possessions within the arrestee's immediate control rather than on his person, it is difficult to square with the Supreme Court's decision in New York v. Belton, 453 U.S. 454, 462-63 (1981), and other cases that repeatedly reaffirm that a search incident to arrest extends to the person's area of immediate control. Perhaps for this reason, the Park decision stands contrary to eleven other decisions upholding the searches of cell phones incident to arrest and another seven decisions permitting the search of pagers incident to arrest. See sources cited supra notes 67, 82.

84

More puzzling is why there are so few reported cases of police searching cell phones or pagers incident to arrest. One possibility is that such searches are regularly conducted, but no evidence is found. This result would tend to make sense because unless police are actively investigating a case, a series of pager numbers or an address book of contacts may not be incriminating without further information. While text messages might be more immediately incriminating, it is only in the last few years that the text message craze has begun in earnest. See David Ovalle, Texting Gets Dicey With Booze, Miami Herald, June 13, 2005, at 1A. A related possibility is that police are not yet regularly engaged in searching cell phones and electronic devices, possibly because they are so accustomed to searching for tangible evidence such as drugs. A third explanation is that police are conducting such searches but that defendants plead guilty rather than continuing to challenge the search and risk conviction. In any event, the paucity of cases is not likely to last for long as iPhones will likely become an attractive target for police searching for evidence of illegal activity.

85

See, e.g., United States v. Rodriguez, 995 F.2d 776 (7th Cir, 1993) (upholding the search of a wallet and photocopying of an address book incident to lawful arrest); United States v. Meriwether, 917 F.2d 955, 958 (6th Cir. 1990) (“The digital display pager, by its very nature, is nothing more than a contemporary receptacle for telephone numbers.”).

86

See, e.g., United States v. Lynch, 908 F. Supp. 284 (D.V.I. 1995) (refusing to suppress data found from search of pager incident to arrest because the search of a pager for phone numbers is just like the search of a wallet or address book found on a person); see also Cote, 2005 WL 1323343, at *6 (refusing to suppress data found on a cell phone for the same reason).

87


88


89

The Supreme Court has not clearly determined whether officers can open a locked container, such as a glove compartment, during a search incident to arrest. Many courts have permitted such searches. See, e.g., United States v. Woody, 55 F.3d 1257, 1269-70 (7th Cir. 1995); State v. Fry, 388 N.W.2d 565, 577 (Wis. 1986). There is contrary authority however. See State v. Stroud, 720 P.2d 436


19

THE IPHONE MEETS THE FOURTH AMENDMENT, 56 UCLA L. Rev. 27 (Wash. 1986) (en banc) (relying on a state constitution to conclude that police may not search a locked glove compartment incident to arrest without procuring a warrant). In a recent decision, a federal magistrate concluded that it would violate a defendant's Fifth Amendment protection against selfincrimination to be compelled to provide the government with the password that encrypted a laptop found during a search at the Canadian border. See In re Boucher, No. 2:06-mj-91, 2007 WL 4246473, at *6 (D. Vt. Nov. 29, 2007). For criticism of the decision, see Sherry F. Colb, Does the Fifth Amendment Protect the Refusal to Reveal Computer Passwords? In a Dubious Ruling, A Vermont Magistrate Judge Says Yes, Findlaw's Writ, Feb. 4, 2008, http:// writ.news.findlaw.com/colb/20080204.html. On the rise of computer searches at the border, see Adam Liptak, If Your Hard Drive Could Testify..., N.Y. Times, Jan. 7, 2008, at A12 (discussing emerging cases in which the government compares searching a hard drive to rummaging through a suitcase); Ellen Nakashima, Clarity Sought on Electronic Searches: U.S. Agents Seize Travelers' Devices, Wash. Post, Feb. 7, 2008, at A1 (describing suspicionless searches of electronic data of international air travel passengers at the border, including requiring passengers to enter passwords into their laptops, copying the histories of websites visited on those laptops, reviewing documents saved in Microsoft Word, compiling lists of phone numbers in cell phones, and demanding to see emails). For a scholarly assessment of the border searches, see Christine A. Coletta, Note, Laptop Searches at the United States Borders and the Border Search Exception to the Fourth Amendment, 48 B.C. L. Rev. 971 (2007).

90

“Banking data is a fertile source of evidence for prosecution.” See, e.g., Cassondra Kirby, Two Lexington Women Indicted on Money Laundering Charges: Accused of Bilking Millions for Luxuries, Lexington-Herald Leader, Dec. 3, 2005, at B4 (recounting how a defendant denied money laundering charges but prosecutors said that “her bank records show otherwise”).

91

Prosecutors increasingly are finding MySpace and Facebook profiles to be a source of evidence. See Erica Perez, Getting Booked by Facebook: Police Are Finding, With Help of Networking Sites, That Students Are Incriminating Themselves Online, Milwaukee J. Sentinel, Oct. 3, 2007, at A1 (“Facebook.com and MySpace.com are the newest crime-busting tools in a police officer's repertoire, particularly for campus police, who are using the sites to investigate student crimes and violations and gather information about where students live and whom they know. In some cases, the information they find is making its way into court.”); Michael A. Scarcella, 14 Are Targeted in Gang Sweep: Accused of Ties to Manatee's SUR 13, and Facing Racketeering Charges, Sarasota Herald Trib., July 7, 2007, at B1 (“A new trend in law enforcement has police surfing MySpace pages on the Internet for evidence in criminal cases.”); Joseph Person, Uploading Zone a Risky Place to Park, State, May 28, 2006, at C1 (describing college athletes who videotaped their underage drinking and posted it online on Facebook).

92

See, e.g., Brian Rogers & Matt Stiles, County DA Wants Court to Seal Revealing Emails: Correspondence Brings to Light His Close Relationship With Secretary, Houston Chron., Dec. 26, 2007, at A1 (describing romantic emails from the Harris County District Attorney to his secretary that were intended to be produced under seal as part of a civil rights lawsuit but that were nevertheless released into the public domain).

93

See Craig M. Bradley, Two Models of the Fourth Amendment, 83 Mich. L. Rev. 1468, 1473 (1985) (“In fact, the exceptions [to the Fourth Amendment's warrant requirement] are neither few nor well-delineated. There are over twenty exceptions to the probable cause or the warrant requirement or both.”); see also California v. Acevedo, 500 U.S. 565, 582 (1991) (Scalia, J., concurring in the judgment) (contending that the Fourth Amendment's warrant requirement has “become so riddled with exceptions that it [is] basically unrecognizable”).

94

See, e.g., Joshua Dressler & George C. Thomas, III, Criminal Procedure: Principles, Policies, and Perspectives (2d ed. 2003); Marc L. Miller & Ronald F. Wright, Criminal Procedures: Cases, Statutes, and Executive Materials (3d ed. 2007). Justice Sandra Day O'Connor made this very point in opposing a public safety exception to the Miranda doctrine. See New York v. Quarles, 467 U.S. 649, 663-64 (1984) (O'Connor, J., concurring in the judgment and dissenting in part) (“The end result will be a finespun new doctrine on public safety exigencies incident to custodial interrogation, complete with the hair-splitting distinctions that currently plague our Fourth Amendment jurisprudence.”).

95

By “intelligible” I do not mean to suggest that the search incident to arrest doctrine is sound or logical. To the contrary, I am in agreement with Professor James J. Tomkovicz's recent criticism that the bright-line rule allows police to conduct an automatic search incident to arrest when there is no conceivable way that the arrestee could grab a weapon or destroy evidence. See Tomkovicz, supra note 9, at 1452-53.


20


96

See Kerr, supra note 7, at 805.

97

Id. at 858-59.

98

Professor Orin Kerr might very well agree because he has explained that [his] argument applies only when technologies are in flux. [His] concern is the institutional competence of courts and legislatures when facts are changing quickly. As a result, [his] interest is not whether a given case involves a “technology” in an absolute sense, but rather whether the basic assumptions upon which rules are generated are likely to remain constant or to shift in unpredictable ways. See id. at 859.

99

See William J. Stuntz, Race, Class, and Drugs, 98 Colum. L. Rev. 1795, 1821 (1998) (explaining how it is lower cost for police to search for drugs in poor neighborhoods where transactions are conducted on the street while searching for drugs in upscale neighborhoods costs more because transactions are behind closed doors and more secretive).

100

See Florida v. Riley, 488 U.S. 445 (1989) (plurality opinion) (holding that warrantless aerial surveillance does not constitute a Fourth Amendment search); California v. Ciraolo, 476 U.S. 207 (1986) (same).

101

See Craig Wong, Fleet Expansion Chops Earnings, Toronto Star, Sept. 15, 2006, at F5 (noting that the average cost of a new helicopter is roughly CAD $500,000); Laura Fasbach, Should N.J. Governors Go by Chopper? Corzine Smash-Up Prompts a New Look at Air Travel, Record, Apr. 23, 2007, at A1 (explaining that a state police helicopter costs about $2800 an hour to pay for fuel and the pilot). As one British police officer explained, “we never go on a [helicopter] job without the economics of it being evaluated.” Gerry Hold, Police Helicopter Costs Pounds: 19-a-Minute to Run, S. Wales Echo, June 26, 2006, at 6.

102

In Kyllo v. United States, 533 U.S. 27 (2001), the Supreme Court held that the use of a thermal imaging device to measure heat coming from a house amounted to a Fourth Amendment search requiring probable cause and a warrant. Nevertheless, the Court's 2001 decision turned in large part on the fact that the thermal imaging technology was not in general public use, a factual conclusion that likely would not be true today. See Orin S. Kerr, Four Models of Fourth Amendment Protection, 60 Stan. L. Rev. 503, 539 (2007) (explaining that the Supreme Court decides only a handful of cases under its reasonable expectation of privacy test and that lower court decisions involving factual variations tend to be authoritative).

103

See Hafner, supra note 3.

104

See Bureau of Justice Statistics, U.S. Dep't of Justice, Characteristics of Drivers Stopped by Police, 1999, at 1, 4 (2002) (estimating that in 1999, “19.3 million drivers age 16 or older, or 10.3% of all licensed drivers were stopped by police” and that because some drivers were stopped more than once, a total of 27 million traffic stops occurred).

105

See id. at 10.

106

See id. at 12.

107

I will concede, however, that good police officers conducting a standard traffic arrest might be reluctant to spend significant time searching an iPhone because they simply have no idea what to look for or where incriminating information might be hidden. Drugs can be held in only a few areas and are relatively easy to uncover during a search incident to arrest. In contrast, when searching an iPhone officers would likely have no idea which emails or websites to browse to find incriminating information. Of course, it is not just the “good” police officers, but also the overly aggressive officers with which the Fourth Amendment must be concerned. I am grateful to Professor Orin Kerr for making this point to me.

108

541 U.S. 615 (2004) (Scalia, J., concurring in the judgment).

109

See id. at 623-24, 632 (Scalia, J., concurring in the judgment).

110

Id. at 632.

111

Id.


21


112

See Tomkovicz, supra note 9, at 1451-52 (“It is not hard to imagine at least three of these Justices endorsing the ‘evidence-gathering’ rationale that Justice Scalia relied upon to sustain the search in Thornton itself.”).

113

See David S. Rudstein, Belton Redux: Reevaluating Belton's Per Se Rule Governing the Search of an Automobile Incident to Arrest, 40 Wake Forest L. Rev. 1287, 1345-46 (2005); see also Dripps, supra note 14, at 404 (“The police, incident to arrest, must have some reason--but not probable cause--to suspect evidence, contraband or weapons. That's a standard, not a rule, and a fairly vague standard at that.”); Tomkovicz, supra note 9, at 1464 (“[Justice Scalia] never asserts, because it would not be defensible to do so, that an arrest for an evidentiary offense will always, or nearly always, satisfy the constitutional standard--probable cause to believe that an item of interest to the government will be found in surrounding areas....”). But see Edwin J. Butterfoss, Bright Line Breaking Point: Embracing Justice Scalia's Call for the Supreme Court to Abandon an Unreasonable Approach to Fourth Amendment Search and Seizure Law, 82 Tul. L. Rev. 77, 107-08 (2007) (downplaying this concern).

114

See Tomkovicz, supra note 9, at 1471 (“Why is it not logical to believe that evidence located in the arrestee's vicinity might be found inside her trunk?”).

115

See Kerr, supra note 7, at 858-59 (cautioning against courts generating new and individual rules each time new technology raises unforeseen issues).

116

See, e.g., United States v. Slater, 971 F.2d 626, 637 (10th Cir. 1992) (explaining that a cell phone is a “recognized tool of the trade in drug dealing”).

117

The literature on this subject is vast. For two prominent and contrasting viewpoints, compare James A. Gardner, The Failed Discourse of State Constitutionalism, 90 Mich. L. Rev. 761 (1992) (documenting the failure of state constitutionalism), with William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977) (advocating that state courts can provide greater protection of liberties under state constitutions).

118

See Barry Latzer, Toward the Decentralization of Criminal Procedure: State Constitutional Law and Selective Disincorporation, 87 J. Crim. L. & Criminology 63, 92 (1996) (“A good chunk of Fourth Amendment doctrine, or some more protective variant of it, is now a part of the state constitutional jurisprudence of most states.”).

119

See id. at 94 nn.131, 133 (collecting nearly twenty cases from numerous states that limit the search incident to arrest exception).

120

See, e.g., State v. Ringer, 674 P.2d 1240 (Wash. 1983) (en banc); State v. Caraher, 653 P.2d 942 (Or. 1982) (en banc).

121

See, e.g., Douglas A. Berman, Foreword: Addressing Capital Punishment Through Statutory Reform, 63 Ohio St. L.J. 1, 10 (2002) (“[W]e turn to legislatures to find some hope within an otherwise discouraging story about the reform of capital systems....”); Ronald F. Wright, Parity of Resources for Defense Counsel and the Reach of Public Choice Theory, 90 Iowa L. Rev. 219, 223-24 (2004) (arguing that indigent defense funding is more likely to improve if the reform comes from legislatures rather than the judiciary).

122

414 U.S. 218 (1973).

123

See Commonwealth v. Madera, 521 N.E.2d 738 (Mass. 1988) (discussing the reason for passing the statute); Commonwealth v. Toole, 448 N.E.2d 1264 (Mass. 1983) (same).

124

See Mass. Gen. Laws Ann. ch. 276, §1 (West 2004).

125

Justice John Paul Stevens has long advocated a similar approach permitting police to search the passenger compartment of an automobile incident to arrest but not open any of the containers found therein. See Robbins v. California, 453 U.S. 420, 451-52 (1981) (Stevens, J., dissenting); Thornton v. United States, 541 U.S. 615, 634 (2004) (Stevens, J., dissenting); see also Rudstein, supra note 113, at 1340-41 (discussing but ultimately rejecting this approach because it does not eliminate the problem of pretextual arrests).

126

See Donald A. Dripps, Criminal Procedure, Footnote Four, and the Theory of Public Choice; Or, Why Don't Legislatures Give a Damn About the Rights of the Accused?, 44 Syracuse L. Rev. 1079 (1993); see also William J. Stuntz, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, 107 Yale L.J. 1, 12 (1997) (“Perhaps more so than anywhere else in constitutional


22

THE IPHONE MEETS THE FOURTH AMENDMENT, 56 UCLA L. Rev. 27 law, in criminal procedure the broad exercise of judicial power tends to be justified precisely by the legislators' unwillingness to protect constitutional interests.”).

127

See Stuntz, supra note 13, at 539 (“[P]olice benefit from laws that criminalize street behavior that no one wishes actually to punish...cheaper policing should be a boon to police and legislators alike.”).

128

At least at this time, it is likely that legislators' children are the primary demographic group that Apple and its competitors are targeting. See Devona Walker, In Southwest Florida, Apple Geeks Aren't Sold, Sarasota Herald Trib., June 27, 2007, at D1 (“[T]he iPhone's ideal demographic: a young, professional, tech-savvy gadget kind of guy who came into adulthood with an affinity for everything Apple.”). As the devices become more ubiquitous however, middle-aged men and women will increasingly own them personally rather than purchasing them as gifts for children.

129

See Craig S. Lerner, Legislators as the “American Criminal Class”: Why Congress (Sometimes) Protects the Rights of Defendants, 2004 U. Ill. L. Rev. 599, 622-23 (2004) (explaining that most indictments of federal legislators have been for nonviolent offenses, particularly financial crimes).

130

See id. at 623-24 (explaining that in addition to financial crimes, between 1970 and 2000 “six members of Congress were indicted for sex-related offenses, and several others have been investigated by their colleagues for sexual improprieties”).

131

See Meghan Daum, Porn's Lost Sex Appeal, L.A. Times, Oct. 20, 2007, at A19 (“[N]umbers suggest that 20% of men and 13% of women look at pornography at work....”).

132

See Alan Bernstein, County GOP Nervous About Fallout From Email Scandal--Two Republicans Hoping to Replace DA Say a Housekeeping Is Needed to Return Integrity to the Office, Houston Chron., Jan. 10, 2008, at B1 (describing the uproar when pornography was found on the office computer of the elected District Attorney of Harris County); see also Scott Glover, The U.S. 3rd Circuit Names a Special Panel to Investigate Possible Misconduct of Federal Jurist Alex Kozinski, L.A. Times, June 17, 2008, at 1 (describing how Judge Alex Kozinski declared a mistrial in an obscenity trial he was presiding over and called for an investigation of himself following the disclosure that sexually explicit material was posted on his personal website).

133

See Lerner, supra note 129, at 632-61. For a recent and excellent argument challenging the view that criminal legislation tends to be entirely one-directional and that legislators never decriminalize conduct, see Darryl K. Brown, Democracy and Decriminalization, 86 Tex. L. Rev. 223, 265-74 (2007).

134

See William J. Stuntz, The Political Constitution of Criminal Justice, 119 Harv. L. Rev. 781, 796 (2006) (“[L]egislatures have been a good deal quicker to expand criminal procedure protections than to contract criminal liability.”).

135

See Marc Mauer, Why Are Tough on Crime Policies So Popular, 11 Stan. L. & Pol'y Rev. 9, 16 (1999) (“[T]he conclusion that crime policy has shifted toward a ‘get tough’ strategy needs to be tempered with the recognition that when the perceived offenders are white and/or middle class, policymakers appear to be more receptive to rational policy considerations.”).

136

Unfortunately, many experts believe that officers lie or, at best, fudge facts to ensure that guilty defendants are convicted. See Christopher Slobogin, Testilying: Police Perjury and What to Do About It, 67 U. Colo. L. Rev. 1037, 1041 (1996) (“[T]he existing literature demonstrates a widespread belief that testilying is a frequent occurrence....”); Myron R. Orfield, The Exclusionary Rule and Deterrence: An Empirical Study of Chicago Narcotics Officers, 54 U. Chi. L. Rev. 1016, 1050 (1987) (concluding that more than 75 percent of officers surveyed believed that police shade the facts regarding probable cause, and that 19 percent of those who so believed also believed perjury was reasonably common). For the classic statement, see Alan M. Dershowitz, The Best Defense, at xxi (1982) (“Almost all police lie about whether they violated the Constitution in order to convict guilty defendants.”).

137

See Chimel v. California, 395 U.S. 752, 763 (1969) (“[I]t is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction.”).

138

See Carol A. Chase, Cars, Cops, and Crooks: A Reexamination of Belton and Carroll With an Eye Toward Restoring Fourth Amendment Privacy Protection to Automobiles, 85 Or. L. Rev. 913, 918 n.31 (2006) (“Several courts have approved the search incident to arrest of an automobile notwithstanding that the suspect has been handcuffed and placed inside a police cruiser.”).


23


139

See Tomkovicz, supra note 9, at 1427 (explaining that while the pre-Chimel era was marked by drastic changes in the scope of the search incident to arrest doctrine, “during the more than thirty-five years since its radical, contractive swing in Chimel, the search incident pendulum has moved slowly, yet steadily, in the opposite direction”).

140

Of course, a warrant would require probable cause, which is unlikely to be shown given the lack of any incriminating evidence found thus far in the search.

141

See Kerr, supra note 7, at 858-59.

142

See Chimel, 395 U.S. at 763.

143

See, e.g., State v. Alderman, No. 28991-1-II, 2003 WL 21965127, at *3 (Wash. App. Aug. 19, 2003) (upholding the search of a vehicle's trunk that was “partially open” under the search incident to arrest doctrine).

56 UCLALR 27 End of Document



24

THE SEARCH INCIDENT TO ARREST EXCEPTION..., 43 Creighton L. Rev....

43 Creighton L. Rev. 1157 Creighton Law Review June, 2010 Note THE SEARCH INCIDENT TO ARREST EXCEPTION PLAYS CATCH UP: WHY POLICE MAY NO LONGER SEARCH CELL PHONES INCIDENT TO ARREST WITHOUT A WARRANT Chelsea Oxton - '10 Copyright (c) 2010 Creighton University; Chelsea Oxton I. INTRODUCTION On November 3, 2009, Christian Taylor (“Taylor”) went into a Sprint PCS store in San Mateo, California and attempted to purchase thirty Blackberry cell phones. 1 Taylor gave the store clerk a southern California address for a company called “Hype Agency.” 2 When store representatives tried to contact the company's owner, the owner claimed she did not know Taylor. 3 The store clerk grew suspicious and called the San Mateo, California police. 4 When the police officers arrived, they arrested Taylor for unauthorized use of personal identifying information. 5 The police officers searched Taylor's person following the arrest and found Taylor's iPhone. 6 The police officers scrolled through Taylor's email, text messages, photos, call history, and contact list. 7 Based on the information found in Taylor's iPhone, the police officers obtained a search warrant to conduct a complete investigation of the phone, which led to the state charging Taylor with identity theft, commercial burglary, and attempted grand theft. 8 The question whether the state of California may use evidence found in Taylor's cell phone turns on the search incident to arrest exception, *1158 an area of Fourth Amendment law that has particular significance regarding searches of cell phones. 9 The search incident to arrest exception is an exception to the Fourth Amendment's requirement that law enforcement obtain a warrant before performing a search. 10 Under the search incident to arrest exception, police officers may search the entire person of an arrestee, including any containers found on the arrestee, incident to a lawful arrest. 11 In several instances, law enforcement has rummaged through a disturbing amount of personal information stored in arrestees' cell phones under the authority of the search incident to arrest exception, actions numerous courts have upheld. 12 The purpose of this Article is to demonstrate how lower courts have incorrectly applied the search incident to arrest exception and prior Supreme Court of the United States precedent, issued far before the widespread use of cell phones, to authorize searches of arrestees' cell phones incident to arrest. 13 While modern cell phones are incredible technological innovations whose proliferation has undoubtedly improved everyday life, they come with largely unexplored legal consequences. 14 The Fourth Amendment protects arrestees' rights to be secure from unreasonable searches and seizures in their persons, homes, and effects. 15 Yet, applying the Fourth Amendment to modern technology such as cell phones posits some fundamental questions. 16 In the current digital environment, what is embodied by “papers” and “effects” under the *1159 Fourth Amendment? 17 Further, what kind of Fourth Amendment protection should devices such as cell phones receive? 18 Certainly, the Framers of the Fourth Amendment could not have imagined a handheld technological device like the modern cell phone. 19


1


This Article proceeds in three sections. 20 First, this Article's Background section discusses the history and technological capabilities of cell phones. 21 Next, the Background examines Supreme Court of the United States case law on the search incident to arrest exception and lower-court case law on searches of cell phones incident to arrest. 22 This Article's Argument section then explains how lower courts have used the Supreme Court of the United States' bright-line rules under the search incident to arrest exception to uphold searches of cell phones incident to arrest. 23 This Article then demonstrates why lower courts erroneously upheld searches of cell phones incident to arrest by failing to consider the digital type and vast amount of information cell phones store, as well as the continually growing technology of cell phones. 24 Next, this Article explains why lower court decisions that allowed searches of cell phones incident to arrest are further incorrect in light of Arizona v. Gant, 25 the Supreme Court's recent decision on the search incident to arrest exception. 26 Finally, this Article concludes that future courts should interpret the search incident to arrest exception with the unique technological capabilities of cell phones in mind and no longer allow warrantless searches of arrestees' cell phones. 27

II. BACKGROUND A. History and Capabilities of Modern Cell Phones Motorola demonstrated the world's very first handheld mobile telephone in 1973. 28 In 1983, Motorola made the first cell phone commercially available. 29 The first series of mobile phones, known as first *1160 generation (“1G”) cell phones, were limited to voice communication connected to wired forms and were analog based. 30 However, the notion of simply thinking of cell phones as mere phones that were portable began to crumble in the 1990s when second generation cell phones emerged. 31 Second generation cell phones used digital waves, which allowed for greater frequency sharing, and offered expanded capabilities, including text messaging, audio and video downloading, and camera functions. 32 As the 1990s progressed, cell phones were multimedia-capable and included such features as clocks, alarms, calendars, calculators, games, and address books. 33 In 1996, Nokia introduced a mobile phone that also functioned as a handheld computer. 34 The first commercial third generation (“3G”) network first appeared in Japan in October 2001. 35 Third-generation cell phone systems are digital and handle data, as well as voice communication. 36 The birth of 3G technologies allowed network operators to give cell phone users a broader range of advanced services, including broadband Internet access, video calls, voice control, and global positioning *1161 system (“GPS”) navigation. 37 In one handheld device, a user can download music and movies, take pictures, and handle financial transactions. 38 Third-generation cell phones can also store and track details from calls, including lists of calls received and sent, duration of calls, missed calls, and voice messages. 39 The next generation of cell phone service is the fourth generation (“4G”) systems. 40 Sprint plans to sell the carrier's first 4G cell phone in the summer of 2010; Verizon also plans to offer its 4G network in late 2010. 41 The term “smartphone” developed for cell phones that are essentially small computers equipped with Internet access, email, music, and GPS capabilities, and the limitless possibilities of downloadable applications (“apps”), which the Apple iPhone first popularized. 42 Wireless carriers have pushed smartphones as the way to go for consumers. *1162 43 Wireless providers have launched numerous smartphones on the market; for example, Apple first began selling the iPhone in July 2007; Verizon Wireless launched the Droid phone in October 2009; and Research in Motion introduced the BlackBerry Pearl 3G in April 2010. 44


2


Modern cell phones have the ability to store massive amounts of private information. 45 Apple's iPhone 3GS has thirty-two gigabytes of storage space. 46 As an illustration of its enormous storage capacity, the iPhone 3GS is capable of storing about 220,000 copies of the complete text of Lewis Carroll's Alice in Wonderland. 47 Current cell phone memory cards allow for storage space of anywhere from sixteen gigabytes of information, which translates to approximately 9,000 images and sixteen hours of video, to sixty-four gigabytes of information. *1163 48 Current cell phones can also store deleted information on Subscriber Identity Module (“SIM”) cards. 49 Cell phones have become ubiquitous and indispensible in Americans' daily lives. 50 From 2002 to 2007, the proportion of adults who owned cell phones surged in almost every country across the globe. 51 By the end of 2008, there were more than four-billion cell phone subscribers worldwide. 52 In the United States alone, an estimated 280 million Americans are current cell phone users as of January 2010. 53 A growing number of Americans also use the latest smartphones; in a 2009 audit, the Nielsen Company estimated that fifteen percent of all households in the United States own a smartphone, while landline telephones are continually evaporating. 54 Through the several benefits they offer, cell phones have fundamentally changed the way Americans work and interact. 55

*1164 B. Supreme Court of the United States Jurisprudence on the Search Incident to Arrest Exception of the Fourth Amendment Warrant Requirement The Fourth Amendment of the United States Constitution protects individuals from unreasonable searches and seizures. 56 Under the Fourth Amendment, searches performed outside the judicial process, without approval by a magistrate or judge, are per se unreasonable. 57 The warrant requirement is subject only to a few well-delineated and specifically established exceptions. 58 One such traditional and widely accepted exception to the Fourth Amendment warrant requirement is a search incident to a lawful arrest. 59 No doctrine of the Fourth Amendment has a more unpredictable, interesting, and pendular history than the search incident to arrest exception. 60 1. Chimel v. California: The Supreme Court of the United States Creates the Modern Parameters of the Search Incident to Arrest Exception The modern parameters of the search incident to arrest exception found their source in the landmark decision Chimel v. California, 61 decided in 1969. 62 In Chimel, Orange, California and Santa Ana, California police officers went to the home of the petitioner, Ted Steven Chimel (“Chimel”), with a warrant for his arrest for burglarizing a *1165 coin shop. 63 Chimel's wife brought the police officers inside the home where they waited for Chimel to return home. 64 Once Chimel returned, the police officers proceeded to look through his entire home, telling Chimel, even after he refused requests to look through the premises, that they would conduct a search regardless based on his lawful arrest. 65 The search ultimately extended to every area of the home. 66 The police officers directed Chimel's wife to open drawers and physically manipulate the contents thereof to view items potentially taken during the burglary, which formed the basis for Chimel's arrest. 67 The state of California charged Chimel with two counts of burglary, and a jury convicted Chimel on each count. 68 The California Court of Appeals affirmed the convictions, concluding that any errors made at trial were not sufficiently prejudicial to Chimel. 69 The California Supreme Court also affirmed the convictions, reasoning the court should not invalidate the search


3


solely because the search issued from a defective arrest warrant. 70 The Supreme Court of the United States granted certiorari to consider Chimel's substantial constitutional claims. 71 In its subsequent opinion in Chimel, the Supreme Court of the United States set forth the parameters of a search performed incident to arrest and established the present boundaries of the search incident to arrest exception. 72 Under the parameters set forth in Chimel, it is reasonable for police officers to search (1) the arrestee's person and (2) the area within the arrestee's immediate control. 73 The Supreme Court construed the latter phrase to mean the area within which the arrestee might gain possession of destructible evidence or weapons. 74 The Court also gave two reasons why such a search is reasonable when police officers perform a valid arrest: (1) to remove weapons the arrestee may use to resist arrest or effect escape; and (2) to search for *1166 and seize evidence on the person of the arrestee to prevent its concealment or destruction. 75 2. United States v. Robinson: The Supreme Court of the United States' First Step Towards Expanding the Search Incident to Arrest Exception Four years after Chimel v. California, 76 the Supreme Court of the United States issued United States v. Robinson 77 in which it announced that all searches justified by arrests should be treated alike. 78 In Robinson, a District of Columbia police officer arrested Willie Robinson, Jr. (“Robinson”) for driving a vehicle under a revoked operator's permit. 79 The police officer searched Robinson following his arrest and found a crumpled cigarette package in the left breast pocket of Robinson's coat. 80 The police officer opened the package and discovered fourteen capsules filled with heroin. 81 A jury convicted Robinson in the United States District Court for the District of Columbia for possession of a controlled substance, and he subsequently appealed that conviction. 82 The United States Court of Appeals for the District of Columbia Circuit reversed Robinson's conviction. 83 The District of Columbia Circuit reasoned that the Chimel decision's two justifications for the search of a person incident to arrest, evidence preservation and removing weapons from the arrestee, did not justify conducting a full search of Robinson's person when his arrest was for a mere motor vehicle violation. 84 The Supreme Court of the United States granted certiorari. 85 The Supreme Court of the United States held in Robinson that, when a police officer makes a lawful custodial arrest, a full search of the arrestee's person is both reasonable under the Fourth Amendment and an exception to the Fourth Amendment warrant requirement. 86 Justice William H. Rehnquist, writing for the majority, reasoned that *1167 a police officer's decision as to the parameters of a search incident to arrest is a quick, ad hoc judgment that does not require case-by-case analysis to determine whether weapons or evidence would in fact be found on the arrestee's person. 87 The Supreme Court determined that the mere fact of a lawful arrest establishes the authority to search. 88 The Court made it clear that, although it had issued a line of cases that inconsistently discussed searches incident to arrest prior to Chimel, all of its decisions undoubtedly expressed the basic authority of the arresting police officer to search the arrestee's person. 89 3. New York v. Belton: The Supreme Court of the United States Issued Bright-Line Rules and Further Expanded the Scope of the Search Incident to Arrest Exception Following United States v. Robinson, 90 the Supreme Court of the United States decided New York v. Belton, 91 in which it discussed the parameters of a search incident to arrest in the context of vehicle searches. 92 In Belton, the Supreme Court held that when the occupant of a vehicle is lawfully arrested, the arresting police officer may search the passenger compartment of the vehicle contemporaneous to the arrest and may further examine the contents of any containers found inside the passenger compartment of the vehicle. 93 The Belton case arose when a New York State police officer stopped a vehicle for speeding. 94


4


During the stop of the vehicle, the police officer smelled marijuana, saw a package he associated with marijuana, and arrested the vehicle's four occupants for possession of marijuana. 95 After separating the four arrestees outside of the vehicle, the police officer searched the vehicle's passenger compartment. 96 During the search, the police officer found a leather jacket lying on the backseat, which *1168 belonged to one of the arrestees, Roger Belton (“Belton”). 97 The police officer unzipped one of the jacket pockets and found cocaine inside. 98 The state of New York indicted Belton for possession of a controlled substance, and Belton later pleaded guilty to a lesser-included offense after the Ontario County Court denied his motion to suppress the cocaine found in his jacket. 99 The Appellate Division of the New York Supreme Court upheld the search as constitutional, a decision the New York Court of Appeals reversed. 100 The Supreme Court of the United States granted certiorari. 101 The Supreme Court began its analysis by explaining the importance of having familiar standards for police officers in accordance with its previous decision in Robinson. 102 The Court determined applicable case law suggested the generalization that items inside a passenger compartment are generally and inevitably within the area an arrestee might reach to obtain a weapon or evidence. 103 Under such a generalization, the Court articulated its holding: when police officers have made a lawful arrest of the occupant of a vehicle, the police officer, contemporaneous with the arrest, may search the passenger compartment of the vehicle. 104 After discussing the Chimel v. California 105 decision, the Court in Belton reasoned that the category of search incident to arrest cases involving vehicle searches required a workable rule. 106 Thus, the Court explained that law enforcement may also examine the contents of containers discovered inside the passenger compartment because such containers, like the passenger compartment itself, are also within the arrestee's reach. 107 The Supreme Court in Belton briefly discussed containers found inside a passenger compartment in more detail. 108 First, the Supreme *1169 Court defined a container as any object that is capable of holding another object, thus encompassing closed or open glove compartments, other receptacles inside the passenger compartment, and items such as luggage, bags, boxes, clothing, and the like, which are capable of holding other tangible objects limited by the size of the containers themselves. 109 The Court conceded that such containers would sometimes be incapable of holding a weapon or evidence of the arresting offense. 110 However, the Court explained, as its earlier decision in Robinson made clear, that the authority to search the arrestee's person incident to a lawful arrest does not depend on a court's later finding of the probability of finding weapons or evidence on the arrestee's person. 111 Rather, an arrest was a reasonable intrusion justifying a search incident to arrest that required no additional support. 112 In his dissenting opinion in Belton, Justice William J. Brennan stated the majority adopted the fiction that a vehicle's interior is always in the immediate control of an arrestee who was a recent occupant of the vehicle. 113 Through its holding, which allowed police officers to search areas and containers that an arrestee could never reach, Justice Brennan explained that the Belton majority had substantially expanded the proper scope of a search performed incident to arrest and disregarded precedent and principle in trying to achieve a more workable standard for police officers. 114 According to Justice Brennan, the majority sought to justify the departure by announcing the need for a “bright-line” rule to guide police officers in their everyday *1170 activities. 115 However, the bright-line rule failed on its terms, he wrote, and would only create more problems than it would solve. 116 4. Thornton v. United States: Continuing the Trend of Bright-Line Rules Under the Search Incident to Arrest Exception


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Thirteen years after New York v. Belton, 117 the Supreme Court of the United States in Thornton v. United States 118 again discussed the parameters of a search incident to arrest in the context of vehicles. 119 In Thornton, a Norfolk, Virginia police officer prepared to stop a driver, Marcus Thornton (“Thornton”), after a check revealed that his license tags were issued to a different vehicle. 120 However, before the police officer could make the stop, Thornton pulled into a parking lot and exited his vehicle. 121 The police officer parked and accosted Thornton, who eventually admitted having narcotics. 122 After arresting Thornton, the police officer searched his vehicle and found a handgun under the driver's seat. 123 On appeal, the Supreme Court of the United States determined that once a police officer finds probable cause to arrest a recent occupant of a vehicle, it is reasonable for the police officer to search its entire passenger compartment to ensure the safety of police officers and preserve evidence, regardless of the likelihood that the arrestee could access weapons or contraband inside the vehicle. 124 The Supreme Court reasoned that the need for a clear rule that police officers could readily understand justified the generalization enunciated in Belton that police officers could search the entire passenger compartment regardless of any possibility the arrestee could reach the passenger compartment. 125 *1171 5. Arizona v. Gant: The Supreme Court of the United States Reexamines the Search Incident to Arrest Exception and Explains the New York v. Belton Decision In Arizona v. Gant, 126 decided in 2009, the Supreme Court of the United States reexamined the search incident to arrest exception. 127 The Supreme Court held in Gant that the rationales of its Chimel v. California 128 decision authorized law enforcement to search a vehicle incident to the arrest of its recent occupant only when (1) the arrestee is within reaching distance of the vehicle's passenger compartment and unsecured at the time of the search or (2) when it is reasonable to believe the vehicle contains evidence of the arresting offense. 129 Absent such justifications, the Court stated a search of the vehicle of such an arrestee is unreasonable unless law enforcement obtains a warrant or demonstrates that another exception to the warrant requirement is present. 130 In Gant, two Tucson, Arizona police officers went to a residence to investigate suspected drug activity reported from an anonymous tip. 131 The police officers spoke with Rodney Gant (“Gant”), who answered the door, at the residence. 132 Gant explained that the owner of the residence was expected to return later. 133 After the police officers left, they performed a records check and discovered that Gant had an outstanding warrant for driving with a suspended license. 134 The police officers returned to the residence later that evening when Gant arrived and parked his vehicle at the end of the driveway. 135 One of the police officers met Gant about ten to twelve feet from Gant's vehicle, arrested him, and placed him in handcuffs. 136 The arresting police officer called for backup, and, after two other police officers arrived at the scene, the police officers locked Gant in the backseat of one of their patrol cars. 137 With Gant handcuffed in the back of the patrol car, the police officers then searched Gant's vehicle. 138 The police *1172 officers found a firearm inside the vehicle and a bag of cocaine in a jacket lying on the backseat. 139 The state of Arizona charged Gant with possession of drug paraphernalia and possession of a controlled substance. 140 The Superior Court of Arizona for Pima County denied Gant's motion to suppress the evidence found in his vehicle and upheld the search of his vehicle as a valid search incident to arrest. 141 On appeal, the Arizona Supreme Court held that the search was not justified under the search incident to arrest exception. 142 Relying on Chimel, the Arizona Supreme Court determined that the underlying justifications for the Chimel rule were no longer present in Gant's arrest at the time of the search. 143 The Arizona Supreme Court reasoned that the arresting police officers had secured the scene and handcuffed Gant; thus, the search of the


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arrestee's vehicle was not justified as a search necessary to protect the police officers or prevent the destruction of evidence. 144 The Supreme Court of the United States granted certiorari in light of the chorus calling for the Supreme Court to revisit New York v. Belton, 145 including members of the Supreme Court itself, lower courts, and scholars who questioned the Belton decision's clarity and fidelity to the Fourth Amendment. 146 In Gant, the Supreme Court of the United States set forth its opinion as to the proper reading of Belton, stating that the justifications behind the Chimel rule determine the scope of the Belton decision. 147 The Supreme Court also noted that the Belton decision has been widely understood to permit a search of a vehicle incident to the arrest of its recent occupant even when there is no possibility the arrestee could obtain access to the vehicle when the search is performed. *1173 148 However, the Court explained such a broad reading of Belton would authorize a vehicle search incident to the arrest of every recent occupant and would unhinge the rule from the underlying justifications enunciated in Chimel. 149 Accordingly, in Gant, the Court rejected such a broad reading of Belton and announced its holding that the rationale of Chimel authorizes law enforcement to search a vehicle incident to the arrest of its recent occupant only when the arrestee is unsecured and is within reaching distance of the vehicle's passenger compartment at the time the search is conducted. 150 The Court further concluded that, because of the unique circumstances present in the vehicle context, a search incident to arrest is justified when it is reasonable to believe police officers would find evidence relevant to the arresting offense inside the vehicle, even though such a conclusion did not follow from the Chimel decision. 151 Through this conclusion, the Court adopted the approach Justice Antonin Scalia previously advocated in Thornton v. United States 152 that police officers may search incident to arrest when it is reasonable to believe evidence of the crime of arrest will be found. 153 The Supreme Court ended its discussion by touching on the checkered history of the search incident to arrest exception. 154 The Court explained that the Gant opinion's dissenting justices ignored the exception's history in arguing that stare decisis required adhering to an expansive reading of Belton, even when the justifications for a search incident to arrest are absent. 155 Rather, the Court's majority stated that blind adherence to the Belton decision's false assumption *1174 would permit manifold unconstitutional searches. 156 Further, according to the Court, the twenty-eight years since Belton was decided demonstrated that the generalization underlying its broad reading was unfounded. 157

C. Searches of Cell Phones Incident to Arrest in Lower Courts In analyzing searches of cell phones incident to arrest, lower courts have treated cell phones as containers under the Supreme Court of the United States' United States v. Robinson 158 and New York v. Belton 159 decisions. 160 Other lower courts have analogized cell phones to personal effects such as purses, wallets, and address books. 161 Finally, some lower courts have reasoned that law enforcement may search cell phones incident to arrest in order to preserve evidence commensurate with one of the rationales for the search incident to arrest exception articulated in the Supreme Court of the United States' Chimel v. California 162 decision. 163 *1175 1. Courts Finding that Cell Phones Are Containers that Can Be Searched Incident to Arrest In United States v. Finley, 164 the United States Court of Appeals for the Fifth Circuit concluded that a warrantless search of the contents of a cell phone was lawful incident to arrest. 165 In Finley, Midland, Texas police officers conducted a controlled purchase of methamphetamine in which an undercover police officer purchased methamphetamine from an individual named


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Mark Brown (“Brown”). 166 The appellant, Jacob Finley (“Finley”), drove Brown to the location of the controlled purchase. 167 Police officers stopped Finley's vehicle and arrested Finley and Brown immediately after the purchase. 168 Following the arrests, police officers searched Finley's person and found a cell phone in his pocket. 169 A police officer later searched Finley's cell phone for call records and text messages, several of which appeared to relate to narcotics. 170 The state of Texas convicted Finley after the United States District Court for the Western District of Texas denied his motion to suppress the text messages found on his cell phone. 171 The Fifth Circuit concluded that the search of Finley's cell phone was lawful, reasoning that it was well-settled that a full search of an arrestee is reasonable under the United States v. Robinson 172 decision. 173 The Fifth Circuit also noted that the permissible scope of a search incident to arrest extended to containers on the arrestee's person under both New York v. Belton 174 and Robinson. 175 Because law enforcement searched Finley's cell phone pursuant to arrest, the Fifth Circuit determined the district court had correctly denied Finley's motion *1176 to suppress the text messages and call records retrieved from his cell phone. 176 The United States District Court for the District of Minnesota, in its decision in United States v. Deans, 177 agreed with Finley that police officers with the Minnesota Bureau of Criminal Apprehension could search data electronically stored in a cell phone if it was lawfully seized incident to arrest. 178 In Deans, after a controlled purchase of cocaine, police officers arrested one of the defendants, Jason Robert Zeimes (“Zeimes”), and searched his vehicle. 179 The police officers found two cell phones inside the vehicle and searched the phones' electronic memories. 180 The Minnesota District Court, like the Fifth Circuit in Finley, cited the Belton rule articulating that the scope of a vehicle search incident to the owner's lawful arrest extends to any containers within the passenger compartment of the vehicle. 181 The Minnesota District Court also cited the Belton decision's definition as to what constitutes a container. 182 However, the Minnesota District Court noted that the Belton decision did not expressly discuss the authority to search the electronic memory of a device like a cell phone. 183 *1177 The court in Deans further recognized that the Supreme Court of the United States decided Belton in 1981 before the widespread use of cell phones. 184 However, in Ohio v. Smith, 185 the Ohio Supreme Court disagreed with the categorization the courts made in Finley and Deans and held that a cell phone was not a closed container under the Fourth Amendment. 186 In Smith, Beavercreek, Ohio police officers arranged a controlled purchase of crack cocaine with the appellant, Antwaun Smith (“Smith”), and recorded the cell phone conversations made in arranging the purchase. 187 Police officers arrested Smith the same evening and seized a cell phone found on Smith's person during the arrest. 188 Police officers eventually discovered phone numbers and call records from Smith's cell phone that confirmed Smith was the individual with whom police officers arranged the purchase of crack cocaine. 189 The state of Ohio indicted Smith with trafficking in cocaine; possession of cocaine and criminal tools; and tampering with evidence. 190 In determining whether the Fourth Amendment prohibits the warrantless search of cell phones incident to arrest, the Ohio Supreme Court first held that a cell phone is not a closed container. 191 The Ohio Supreme Court reasoned that cell phones did not match the Belton decision's definition of any object that is capable of holding another object. 192 The Ohio Supreme Court then recognized that there were legitimate concerns in allowing warrantless searches of cell phones and smartphones due to the continuing and rapid advancements made in cell phone technology. 193 Cell phones, the court explained, are also more intricate and multifunctional than tangible *1178 address books or pagers and, thus, are distinguishable from such items. 194


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Therefore, as the court determined cell phones were not containers, and individuals had a heightened privacy interest in the contents of their cell phones than in items such as pagers or address books, the Ohio Supreme Court held that law enforcement may not search the contents of a cell phone incident to a lawful arrest without a warrant. 195 2. Courts Determining Cell Phones Are Similar To Purses, Wallets, and Address Books In Concluding Law Enforcement May Search Cell Phones Incident to Arrest In United States v. McCray, 196 the United States District Court for the Southern District of Georgia determined that SavannahChatham Metropolitan police officers, incident to a person's arrest, could briefly inspect a cell phone to determine whether it contained evidence relevant to the arresting offense. 197 The Georgia District Court reasoned that the Supreme Court of the United States and many lower courts repeatedly recognized law enforcement's right to open and inspect wallets, address books, papers, and similar items seized from an arrestee to determine if the items have evidentiary value. 198 The Georgia District Court then noted that courts have extended these principles to electronic storage devices found on an arrestee at the time of arrest, including pagers, mobile phones, and digital cameras. 199 The Georgia District Court reasoned that, although electronic devices such as cell phones are more modern than items like diaries, papers, and other items, the basic principle of allowing searches incident to arrest of the latter category of items is still applicable to allow inspection of arrestees' cell phones. 200 Similarly, in United States v. Cote, 201 the United States District Court for the Northern District of Illinois determined that the search of a cell phone was permissible incident to a valid arrest by analogizing *1179 a cell phone to address books and wallets. 202 The Illinois District Court reasoned that courts have long held searches of items such as address books and wallets as valid searches when made incident to arrest. 203 The Illinois District Court considered items such as address books and wallets analogous to cell phones because cell phones would contain similar information as those items. 204 In California v. Diaz, 205 the California Court of Appeals for the Second District held that Thousand Oaks, California police officers completed a valid search incident to arrest when they accessed a text message in an arrestee's cell phone. 206 The California Court of Appeals explained that it was not persuaded by the argument that cell phones should afford greater protection than other items carried on one's person due to the tremendous amount of personal information cell phones may store. 207 Like the courts in McCray and Cote, the California Court of Appeals cited several previous decisions that upheld warrantless searches of items found on one's person incident to arrest such as wallets, address books, purses, pagers, and even cell phones. 208 The California Court of Appeals reasoned that, although cell phones may contain personal information, so do other items carried on one's person such as wallets and purses. 209 Further, the court explained the fact that electronic devices may store vast amounts of private information does not raise a heightened expectation of privacy when an arrestee is carrying the device on one's person at the time of a lawful arrest. 210 However, the California Supreme Court granted a petition for review of the Diaz decision and deferred action pending *1180 the Supreme Court of the United States' Arizona v. Gant 211 decision. 212 The United States District Court for the Eastern District of Wisconsin in United States v. Valdez 213 cited decisions similar to those the California Court of Appeals cited in Diaz to reach its conclusion that the search of a cell phone incident to arrest was lawful. 214 According to the Wisconsin District Court, while the United States Court of Appeals for the Seventh Circuit had not specifically discussed cell phone searches incident to arrest, the Seventh Circuit had approved of similar searches incident to arrest, including the search of a wallet, a personal address book, and a pager. 215 Thus, the Wisconsin District Court decided that the search of the cell phone at issue was also lawful under the search incident to arrest exception. 216


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In 2007, however, the United States District Court for the Northern District of California in United States v. Park, 217 distinguished modern cell phones from pagers and address books. 218 In Park, the arrestees, Edward Park, Brian Ly, and David Lee, moved to suppress the warrantless search of their cell phones that occurred about an hour and a half after their arrests. 219 The California District Court determined the search was not roughly contemporaneous with the arrest and, thus, would only be lawful if the searches were limited to the arrestees' persons and did not include possessions within the arrestees' immediate control. 220 The court in Park, unlike the United *1181 States Court of Appeals for the Fifth Circuit in United States v. Finley, 221 found a modern cell phone was a possession within an arrestee's immediate control as opposed to a part of an arrestee's person. 222 The California District Court reasoned that, unlike address books or pagers, modern cell phones record calls, contain address books, calendars, text and voice messages, video, pictures, and email; and are capable of storing immense amount of highly personal information. 223 The California District Court also distinguished cases that upheld searches of pagers incident to arrest, finding that searches of pagers implicated significantly fewer privacy interests considering the technological differences between modern cell phones and pagers. 224 The court further noted that the searches of the cell phones at issue went significantly beyond the original rationales for the search incident to arrest exception, police officer safety and evidence preservation, as police officers performed the searches for a purely investigatory purpose. 225 3. Courts Have Reasoned that Police Officers May Search Cell Phones Incident to Arrest to Preserve Evidence Under the Supreme Court of the United States' Decision in Chimel v. California In United States v. Murphy, 226 the United States Court of Appeals for the Fourth Circuit concluded that no error was committed in denying the suppression of a search of a cell phone's contents. 227 In Murphy, a Virginia state trooper conducted a traffic stop of a speeding vehicle, in which the arrestee, Damian Antonio Murphy (“Murphy”), was the front seat passenger. 228 The state trooper asked the driver *1182 and its two passengers for identification, but none could produce a valid driver's license. 229 During his exchange with the state trooper, Murphy identified himself with varying names. 230 To verify his identity, Murphy gave one of the state troopers his cell phone and showed the officer how to use the cell phone to locate his employer's number. 231 The state troopers arrested Murphy for obstruction of justice and subsequently conducted an inventory search of the vehicle. 232 While law enforcement inventoried the items seized from the vehicle, a state trooper determined some of the cell phones seized contained potentially incriminating information. 233 Twenty-three days later, a Drug Enforcement Administration (“DEA”) agent examined Murphy's cell phone and identified numerous text messages from a particular individual. 234 The agent subsequently interviewed the individual, who confirmed that Murphy was the individual's drug supplier. 235 The Fourth Circuit discussed one of Murphy's arguments on appeal that police officers should only be able to search cell phones without a warrant if they first ascertain the storage capacity of the cell phone. 236 The Fourth Circuit rejected the contention that police officers must determine a cell phone's storage capacity to justify a warrantless search incident to arrest, reasoning that such a rule would be both unworkable and unreasonable. 237 The Fourth Circuit also reasoned that the manifest need for evidentiary preservation warranted police officers retrieving text message and other information from cell phones incident to arrest. 238 The Fourth Circuit cited its previous decision *1183 in United States v. Young 239 to support the contention in Murphy that police officers could search cell phones incident to arrest to preserve evidence. 240 In Young, the Fourth Circuit concluded that police officers properly copied and accessed text messages of the cell phone of the arrestee, Lance D. Young (“Young”), during a search incident to arrest. 241 Police officers searched the cell phone in Young


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after Young's girlfriend gave consent to search the apartment she leased, which she said Young used to traffic heroin. 242 After their initial search of the premises uncovered heroin and firearms, police officers returned to the apartment two days later, handcuffed Young, and searched his person, finding his cell phone. 243 The police officers then accessed stored text messages in the cell phone and wrote the messages down. 244 A jury convicted Young of conspiracy to possess with intent to distribute heroin, among other charges. 245 On appeal, the Fourth Circuit concluded that, because police officers had no way of knowing whether the cell phone would preserve or automatically delete the text messages, the police officers permissibly discovered and copied the messages down incident to arrest. 246 Accordingly, the Fourth Circuit affirmed Young's convictions. 247 In United States v. Parada 248 and United States v. Mercado-Nava, 249 the United States District Court for the District of Kansas *1184 similarly upheld searches of cell phones incident to arrest in citing the need to preserve evidence. 250 In Parada, the Kansas District Court concluded that a police officer could immediately search or retrieve the memory of a cell phone, specifically numbers of incoming phone calls stored therein, as a matter of exigency to prevent the destruction of evidence. 251 The police officer who searched the phone, the Kansas District Court explained, recorded the numbers in the event that later incoming calls would delete numbers stored earlier in the cell phone since a cell phone has a limited memory to store incoming numbers. 252 Later, in Mercado-Nava, the Kansas District Court found that searches of cell phones, in which law enforcement accessed stored numbers in the phones, was justified as a search incident to arrest, reasoning that the need to preserve evidence is emphasized when evidence may be lost because of the dynamic nature of information deleted from and stored on cell phones. 253 The United States District Court for the District of Arizona similarly concluded that a search of a cell phone was permissible as a search incident to arrest in United States v. Santillan 254 because law enforcement had a legitimate concern that evidence on the cell phone could be destroyed. 255 The Arizona District Court explained that law enforcement agents had reason to believe other suspects had contacted the arrestee; thus, those law enforcement agents had a legitimate concern that further incoming calls to the cell phone could destroy evidence located on the cell phone's recent contact lists. 256 *1185 The Arizona District Court indicated that the law enforcement agents accessed the recent contacts list from the arrestee's cell phone due to exigency and the need to preserve evidence, noting that evidence destruction was a paramount concern to the agents. 257 However, other courts have disagreed that law enforcement should always be allowed to search cell phones incident to any arrest to preserve evidence. 258 The United States District Court for the District of New Mexico determined that the evidence surrounding the search of a cell phone's contents in United States v. Morales-Ortiz 259 did not justify a finding of exigent circumstances, similar to the Kansas District Court's finding in Parada. 260 An agent with the Drug Enforcement Administration (“DEA”) testified in Morales-Ortiz that retrieving information from the cell phone at issue in the case was necessary to prevent losing evidence if the cell phone's battery died. 261 However, the court noted that the Government had not provided any evidence indicating that the DEA agent who searched the cell phone only retrieved its incoming call list, as was the case in Parada. 262 Rather, testimony showed the agent retrieved numbers and names, suggesting the information came from the cell phone book's memory, which did not justify a finding of exigent circumstances. 263 Most recently, in United States v. Quintana, 264 the United States District Court for the Middle District of Florida determined that information gleaned from a Florida highway patrol trooper's search of an arrestee's cell phone photo album should be suppressed. 265 In Quintana, the police officer stopped the arrestee, Ariel Quintana (“Quintana”), for speeding and smelled marijuana emanating from *1186 Quintana's vehicle. 266 After learning Quintana's license was suspended, the police officer arrested Quintana for driving with a suspended license. 267 Quintana's cell phone began to ring while he was in custody, and


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the police officer removed the cell phone from Quintana's pocket. 268 The police officer looked through information on the cell phone, specifically the cell phone's photo album, in an attempt to find evidence related to the smell of marijuana coming from Quintana's vehicle. 269 Relying on the Supreme Court of the United States' oral argument in Arizona v. Gant, 270 the Florida District Court reasoned that, rather than trying to preserve evidence that Quintana was driving with a suspended license, the police officer rummaged for information from the cell phone related to the marijuana odor he detected coming from Quintana's vehicle. 271 The search of the contents of Quintana's cell phone, the Florida District Court explained, did not have anything to do with preservation of evidence related to the arresting offense. 272 Thus, the Florida District Court determined in Quintana that the Chimel decision's twin rationales did not justify the search but rather pushed the search incident to arrest exception beyond its permissible limits. 273 The Florida District Court further reasoned that, although police officers may search a cell phone for evidence related to a drugrelated arresting offense, citing Justice Antonin Scalia's statement during oral argument of the Gant decision, the police officer arrested Quintana for driving with a suspended license. 274 *1187 Similarly, in United States v. McGhee, 275 the United States District Court for the District of Nebraska determined that Omaha, Nebraska police officers were not justified in performing a warrantless search of an arrestee's cell phone incident to arrest and accordingly suppressed information gleaned from the cell phone. 276 In McGhee, the state of Nebraska charged Terrell L. McGhee (“McGhee”) with conspiring from approximately March 14, 2008 through March 24, 2008 to distribute and possess with intent to distribute crack cocaine. 277 Police officers obtained a warrant for McGhee's arrest for these crimes on January 23, 2009. 278 On January 27, 2009, police officers with the Omaha Police Department Gang Intelligence Unit, as well as various other law enforcement agents, executed arrest warrants for various persons, including McGhee. 279 The police officers arrested McGhee and searched McGhee's person incident to his arrest, finding a cell phone. 280 Police officers documented the contact list on McGhee's cell phone at the scene of his arrest. 281 In determining that the contents retrieved from McGhee's cell phone should be suppressed, the Nebraska District Court explained that, consistent with the Supreme Court of the United States' opinion in Gant, it was unreasonable for the police officers to believe that searching McGhee's cell phone would produce evidence of the crime *1188 for which McGhee was arrested. 282 As the Nebraska District Court explained, McGhee's arrest was for a drug conspiracy during March 2008, and police officers arrested McGhee in January 2009. 283 The Nebraska District Court also cited the Gant decision in which the Supreme Court of the United States indicated that the search incident to arrest exception does not apply when the justifications for the exceptionensuring officer safety and preventing the destruction of evidence-are absent. 284 Accordingly, the Nebraska District Court reasoned that McGhee's cell phone posed no risk of harm to the police officers, and there was no evidence suggesting that McGhee's cell phone concealed any contraband or destructible evidence. 285

III. ARGUMENT For nearly four decades, the Supreme Court of the United States articulated bright-line rules under the search incident to arrest exception of the Fourth Amendment's warrant requirement. 286 Particularly, the Supreme Court's decisions in United States v. Robinson 287 and New York v. Belton 288 played a significant role in lower court decisions that analyzed searches of cell phones incident to arrest. 289 Several lower courts used the Supreme Court's bright-line rules to uphold warrantless searches of cell phones under the search incident to arrest exception. 290 Lower court decisions incorrectly upheld searches of cell


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phones incident to arrest for three fundamental reasons: (1) the digital type of information cell phones typically store; (2) the massive amount of private information cell phones store; and (3) the extraordinary *1189 technology implicit in modern cell phones. 291 Lower courts also incorrectly upheld searches of arrestees' cell phones in light of the recent change the search incident to arrest exception has undergone following Arizona v. Gant, 292 the Supreme Court's most recent decision on the topic. 293 Lower court decisions articulated in the wake of Gant have employed the Gant Court's reasoning and correctly struck down searches of cell phones performed incident to arrest. 294 Courts should continue the current trend and no longer allow law enforcement to search cell phones without a warrant under the search incident to arrest exception. 295

A. The Supreme Court of the United States' Bright-Line Rules on the Search Incident To Arrest Exception The Supreme Court of the United States issued bright-line rules under the search incident to arrest exception throughout the latter half of the twentieth century that expanded law enforcement authority and enabled broad interpretation of the exception. 296 In Chimel v. California, 297 the Supreme Court of the United States constrained law enforcement's authority to search incident to arrest based on the underlying rationales for the rule, preserving police officer safety and preventing the destruction of evidence. 298 However, in the more than thirty-five years after Chimel, expansive decisions swung the search incident to arrest pendulum in the opposite direction. 299 Accordingly, for nearly four decades, the search incident to arrest exception functioned as a bright-line rule that allowed law enforcement to search the entire person of an arrestee without delving into difficult questions concerning whether there was probable cause to open containers found on an arrestee. 300 Two decisions, United States v. Robinson 301 and New York v. Belton, 302 played particular importance in expanding *1190 law enforcement's authority under the search incident to arrest exception. 303 In Robinson, the Supreme Court of the United States first expanded the scope of the search incident to arrest exception in favor of having a bright-line rule for police officers. 304 The Supreme Court held in Robinson that, in the case of a lawful arrest, a full search of the arrestee's person, including any containers found on the arrestee's person, was both reasonable under the Fourth Amendment and an exception to the Fourth Amendment warrant requirement. 305 The Supreme Court determined in Robinson that the authority to search the arrestee incident to arrest did not require case-by-case adjudication. 306 The Court reasoned that a police officer's determination of where and how to search an arrestee is a quick, ad hoc judgment, each step of which does not need to be analyzed under the Fourth Amendment. 307 According to the Court, the authority to search an arrestee incident to a lawful arrest did not require any additional justification other than the occurrence of a lawful, custodial arrest based on probable cause. 308 Eight years later in Belton, the Supreme Court reaffirmed the need for a bright-line rule under the search incident to arrest exception and instigated a new era of expansion of the search incident to *1191 arrest exception. 309 To establish a workable rule, the Supreme Court held in Belton that when police officers make a lawful arrest of a recent occupant of a vehicle, the police officers may search the passenger compartment of the vehicle incident to the arrest. 310 The Supreme Court further held that police officers may examine the contents of any containers discovered inside the passenger compartment of the vehicle. 311 In Belton, the Court articulated what constituted a container under the search incident to arrest exception, explaining that a container denoted any object that is capable of holding another object and, thus, included items such as boxes, bags, and luggage. 312 Citing the bright-line rule earlier articulated in Robinson, the Court explained that law enforcement's authority to search such containers did not change, even if containers found could hold neither a weapon nor evidence of the


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arresting offense. 313 Rather, the custodial arrest based on probable cause allowed for the intrusion and required no additional justification. 314 Through decisions such as Belton, the Supreme Court of the United States consistently, albeit modestly, increased the scope of law enforcement's authority to conduct automatic searches incident to lawful arrests and suggested that courts should expansively interpret the search incident to arrest exception. 315 According to the Supreme Court of the United States, lower courts should treat all custodial arrests alike for search justification purposes. 316 No justification, other than the fact that a lawful arrest had occurred, was required for police officers to have the authority to search the entire person of an arrestee, including any containers found thereon. 317 According to the Supreme *1192 Court in Belton, the authority to search the contents of containers did not depend on the probability that evidence or weapons could be inside, despite the Chimel decision's explanation to the contrary. 318 Ensuring that police officers had a straightforward rule to follow deserved greater significance, according to the Supreme Court, than analyzing the specific facts of search incident to arrest scenarios. 319

B. Lower Courts Repeatedly Allowed Searches of Cell Phones Incident to Arrest Using the Supreme Court of the United States' Bright-Line Jurisprudence Several lower courts have used two rationales drawn heavily from the Supreme Court of the United States' bright-line jurisprudence on the search incident to arrest exception to uphold searches of cell phones incident to arrest. 320 First, lower courts authorized searches *1193 of cell phones incident to arrest by categorizing cell phones as containers under the New York v. Belton 321 decision. 322 Second, lower courts upheld searches of cell phones incident to arrest by analogizing cell phones to items such as purses and wallets, which plainly fall under the Supreme Court's denotation of a container in Belton. 323 1. Lower Courts Categorized Cell Phones as Containers Under New York v. Belton The broad rules and bright-line jurisprudence the Supreme Court of the United States long articulated under the search incident to arrest exception influenced lower courts in classifying cell phones as containers. 324 Under Belton, police officers may search any containers found on the person of an arrestee or in the arrestee's grabbable space, including the passenger compartment of vehicles. 325 Accordingly, if courts considered a cell phone a container, then law enforcement could open and search that cell phone's contents with no probable cause required, so long as the police officers did so incident to a valid arrest. 326 In recent years, lower courts have cited Belton as authority to search containers, as well as the Belton decision's denotation of a container, in determining that searches of cell phones are lawful incident to arrest. 327 However, the courts that classified cell phones as mere containers *1194 did not analyze whether a cell phone is indeed a container under Belton or why a cell phone should fit the Belton decision's container classification. 328 For example, in United States v. Finley, 329 the United States Court of Appeals for the Fifth Circuit authorized the search of an arrestee's cell phone by employing the bright-line rule from Belton. 330 The Fifth Circuit concluded that the search of the arrestee Jacob Finley's (“Finley”) cell phone following his arrest for a controlled purchase of methamphetamine was lawful under the search incident to arrest exception. 331 The Fifth Circuit cited Belton for the authority that the permissible scope of a search performed incident to arrest encompassed containers found on the arrestee's person. 332 Although the Fifth Circuit did not explain why a cell phone fit the Belton decision's container classification, it ultimately upheld the search under that decision's authority. 333


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Similarly, in United States v. Deans, 334 the United States District Court for the District of Minnesota also used the Supreme Court of the United States' decision in Belton to justify the search incident to arrest of a cell phone. 335 The Minnesota District Court determined in Deans that police officers could search any data stored on two cell phones seized from the arrestee Jason Robert Zeimes' (“Zeimes”) vehicle *1195 when the cell phones were lawfully seized incident to arrest. 336 The Minnesota District Court reasoned that the Belton decision authorized a search of a vehicle, as well as any containers found therein, performed incident to the lawful arrest of a recent occupant of the vehicle. 337 The Minnesota District Court further cited the Belton decision's definition of a container, which encompassed any object that is capable of holding another object, including luggage, boxes, or bags. 338 The Minnesota District Court noted that the Belton decision was decided in 1981 prior to cell phones' widespread use and that Belton did not specifically address the authority to search a cell phone. 339 Yet, despite the concession, the Minnesota District Court did not discuss why a cell phone fit within the Supreme Court of the United States' denotation of a container or why it ultimately treated the cell phone as a container under Belton. 340 Both the Fifth Circuit in Finley and the Minnesota District Court in Deans used the Belton decision's authority to search containers and the Belton decision's denotation of a container to justify searches of cell phones under the search incident to arrest exception. 341 Accordingly, both courts treated cell phones as containers under Belton. 342 However, neither court analyzed the object searched, a cell phone, or discussed why a cell phone fit the Belton decision's definition of a container. 343 As the Fifth Circuit and Minnesota District Court's decisions *1196 were void of any analysis on the specific object searched, both courts set deficient, yet, in the case of Finley, frequently cited precedent for later courts faced with challenges of cell phone searches performed incident to arrest. 344 2. Lower Courts Analogized Cell Phones to Items That Plainly Fall Under the Definition of a Container in New York v. Belton The bright-line jurisprudence the Supreme Court of the United States long articulated on the search incident to arrest exception additionally influenced lower courts that upheld searches incident to arrest of cell phones by analogizing cell phones to items that fall under the plain language of the New York v. Belton 345 decision's denotation of a container. 346 When the Supreme Court explained what a container constituted in Belton, the Court specifically listed boxes, bags, luggage, and clothing as falling under the definition of a container. 347 Accordingly, for years after Belton, several courts determined that searches of purses, wallets, and similar items found on an arrestee's person fell under the plain language of the Belton decision's container classification, and, thus, police officers could search such items incident to arrest. 348 Recently, lower courts confronted with the *1197 searches of technological devices such as cell phones have analogized cell phones to purses, wallets, and the like in validating searches of cell phones under the search incident to arrest exception. 349 However, the courts using the analogy did not address what similarities cell phones share with such items or why cell phones deserve the same treatment under the search incident to arrest exception. 350 In United States v. McCray, 351 for example, the United States District Court for the Southern District of Georgia used prior decisions upholding searches of items such as purses and wallets, which were based on the Supreme Court of the United States' bright-line jurisprudence, in holding that police officers may inspect a cell phone incident to arrest. 352 The Georgia District Court cited United States v. Robinson 353 for the legal authority to search containers on an arrestee's person, as well as a string of lower court case law that repeatedly upheld law enforcement's inspection of papers, address books, wallets, and similar items seized from arrestees. 354 The Georgia District Court then reasoned that, because law enforcement may search a purse, wallet, or address book incident to arrest, law enforcement may also *1198 search a cell phone incident to arrest. 355 However, the


15


court did not discuss why cell phones are similar to items such as purses, wallets, and address books, which other prior courts had properly treated as containers under Belton. 356 Similarly, in United States v. Valdez, 357 the United States District Court for the Eastern District of Wisconsin used prior case law upholding searches of address books and wallets incident to arrest in concluding that the search of an arrestee's cell phone was lawful. 358 The Wisconsin District Court cited Robinson for the authority that police officers may search containers found on an arrestee and multiple cases approving warrantless searches of containers such as wallets and personal address books incident to arrest. 359 Under the weight of the authority authorizing searches incident to arrest of items such as wallets and address books, the Wisconsin District Court then reasoned that law enforcement may also search a cell phone incident to arrest. 360 However, the Wisconsin District Court did not discuss why cell phones are similar to items such as purses, wallets, and address books that other courts properly treated as containers under Belton. 361 The United States District Court for the Northern District of Illinois in United States v. Cote 362 also analogized cell phones to wallets *1199 and address books in determining that the search of a cell phone incident to arrest was permissible. 363 The Illinois District Court cited to other court decisions that validated searches incident to arrest of address books and wallets in reasoning that police officers did not need the arrestee's consent or a search warrant before searching the call log, wireless web inbox, and phone book of the arrestee's cell phone. 364 The Illinois District Court briefly analyzed why it considered a cell phone analogous to items such as wallets and address book, stating that they all contained similar information. 365 Beyond the brief note, however, the Illinois District Court did not discuss the type of information it considered cell phones, wallets, and address books contained in common. 366 Lower courts ultimately used Belton and the Supreme Court of the United States' bright-line jurisprudence on the search incident to arrest exception to validate searches of arrestees' cell phones, rather than properly analyzing the object at issue. 367 Consistent with the bright-line guidance from the Supreme Court of the United States, several lower courts took a broad approach and, without hesitation, applied the search incident to arrest exception to new situations unforeseen by the Supreme Court. 368 The search incident to arrest exception was created with a world of tangible evidence in mind, including when the Supreme Court decided Belton in 1981 before the widespread use of cell phones. 369 In fact, in 1981, the first handheld mobile phone had not yet been introduced in the United States. 370 *1200 However, in recent years, courts such as the Fifth Circuit in Finley and the Georgia District Court in McCray have confronted whether the exception should apply to information digitally stored in electronic devices. 371 As a result of the Supreme Court's bright-line jurisprudence, lower courts analyzing searches of cell phones broadly inferred that the Supreme Court would not exempt a cell phone from the Belton decision's container classification, despite any unique traits cell phones may have. 372

C. Lower Courts Erroneously Allowed Searches of Cell Phones By Incorrectly Categorizing Cell Phones as Containers and Incorrectly Analogizing Cell Phones to Items That Plainly Constitute a Container Under New York v. Belton A cell phone does not constitute a container under New York v. Belton, 373 contrary to the United States Court of Appeal for the Fifth Circuit's and the United States District Court for the District of Minnesota's decisions in United States v. Finley 374 and United States v. Deans, 375 respectively. 376 Further, cell phones are not analogous to items such as wallets, purses, and the like. 377 Lower courts have erroneously categorized cell phones as containers and analogized cell phones to items such as


16


purses, wallets, and address books for three main reasons. 378 First, cell phones only store digital information, as opposed to the tangible objects that containers such as purses, wallets, and the like contain. 379 Second, modern cell phones store massive amounts of information and feature ever-increasing storage capacities. *1201 380 Third, cell phones feature a wide array of technological capabilities that move them further away from the Belton decision's classification of a container under the search incident to arrest exception. 381 First, cell phones do not fall under the Supreme Court of the United States' definition of a container in Belton due to the entirely different category of information cell phones store compared to the items specifically enumerated by the Supreme Court in Belton. 382 Items such as luggage, boxes, bags, and clothing that the Supreme Court listed in Belton are all capable of holding other tangible objects limited by the size of the containers themselves. 383 In contrast, a cell phone does not contain other tangible objects but only digital information such as stored text messages, call records, voicemail messages, and Internet browsing histories. 384 Cell phones further fail to qualify under the Belton decision's container classification and are distinguishable from items such as purses and wallets that plainly match the Belton decision's container classification due to the increasing storage capacities of current cell phones. 385 While the storage capacity of tangible items such as purses, briefcases, wallets, and the like to hold other tangible items is limited by the size of the containers themselves, the ability of cell phones to store digital information has grown increasingly unlimited. 386 Modern cell phones have the ability to store massive amounts of private information. 387 The latest version of the iPhone, the iPhone 3GS, is capable of storing thirty-two gigabytes of information, enough storage space for nearly 220,000 complete copies of Lewis Carroll's Alice *1202 in Wonderland. 388 Current cell phone memory cards can store anywhere from twelve or sixteen gigabytes of information, translating into nine-thousand images and sixteen hours of video, to sixty-four gigabytes of information in memory cards that are specifically designed for the increasing capabilities available with advanced smartphones. 389 While some courts have reasoned that police officers have a legitimate interest in searching cell phones to retrieve information that may be deleted or lost, such a concern seems irrelevant when considering that current cell phones can store deleted information on Subscriber Identity Module (“SIM”) cards. 390 Similar to retrieving seemingly deleted information from computers, third parties can retrieve information erased from cell phones using tools, such as technological retrieval devices used by law enforcement. 391 Finally, cell phones do not fit the container classification under Belton due to the ever-increasing technological capabilities and features of modern cell phones. 392 As the complexity of cell phones grows, it becomes harder to analogize cell phones to a container such *1203 as a wallet. 393 A modern cell phone, such as an iPhone, provides access to information that police officers would have almost never found before in an arrestee's pockets or immediate grabbable area but that could still potentially subject the arrestee to criminal prosecution. 394 Modern cell phones can store a variety of different types of digital information, including records of incoming and outgoing calls; sent and received text messages, email, pictures, and video; personal calendars, address books, and voicemails. 395 Cell phones also record information stemming from the continually expanding list of applications (“apps”) cell phones may feature. 396 Current cell phones can store such personal information from Internet browsing histories, destinations and directions from global positioning system (“GPS”) navigation systems, voiceactivated controls, text messaging, music and video files, and personal bank account data. 397 After the Supreme Court of the United States' decision in Belton, several lower courts incorrectly validated searches of cell phones incident to arrest by classifying cell phones as containers and analogizing cell phones to items that plainly constitute containers under Belton. 398 However, the courts rarely analyzed why cell phones should fall under the container classification


17


or deserve similar treatment as *1204 items that clearly are containers under Belton. 399 Searching for pre-digital analogies is insufficient. 400 In the current digital world, the analysis surrounding searches of digital items must take into account the possibility that conventional legal rules, even when applied to older types of information, may be outdated. 401 Courts must also consider that rules developed for older forms of information could have devastating effects on privacy if they are applied to new ways of storing information that have become central to Americans' lives. 402 Further, applying ill-fitting bright-line rules to a context in which police officers could search through sophisticated technological devices such as cell phones, which store vast amounts of private information and are carried by approximately 280 million Americans, is undesirable and inappropriate. 403 Ultimately, courts should no longer employ the twenty-eight year old Belton rule allowing searches of containers and similar prior decisions to validate searches of cell phones incident to arrest. 404

*1205 D. Lower Court Decisions Incorrectly Upheld Searches of Cell Phones Incident to Arrest In Light of the Supreme Court of the United States' Recent Decision in Arizona v. Gant The Supreme Court of the United States' recent decision in Arizona v. Gant 405 further illustrates why courts have incorrectly upheld searches of cell phones incident to arrest. 406 Although the vast majority of lower courts upheld searches of cell phones incident to arrest for several years, recent developments have changed how courts should analyze searches incident to arrest of cell phones. 407 Prior to the Supreme Court of the United States' decision in Gant, lower courts repeatedly and predominantly upheld warrantless searches of arrestees' cell phones incident to arrest. 408 However, the Gant decision demonstrated why lower courts should reexamine the issue. 409 While the search incident to arrest exception operated as a bright-line rule for decades, the Supreme Court rejected the notion that courts should *1206 broadly interpret the exception. 410 Further, the Supreme Court's decision in Gant reinstated the importance of the Chimel decision's twin rationales for the search incident to arrest exception, neither of which authorize searching cell phones incident to arrest. 411 Finally, several lower-court decisions issued after Gant have deemed searches of cell phones unlawful under the search incident to arrest exception. 412 Through the changes evident from the Gant decision, the Fourth Amendment privacy interest individuals enjoy in their cell phones has been properly protected. 413 1. The Supreme Court of the United States in Arizona v. Gant Rejected Lower Courts' Broad Interpretation of New York v. Belton The Supreme Court of the United States' recent rejection of lower courts' broad interpretation of New York v. Belton 414 in Arizona v. Gant 415 demonstrates that lower courts erroneously interpreted Belton to encompass such modern technological devices as cell phones. 416 While the search incident to arrest exception operated as a bright-line rule for decades and suggested that courts interpret the exception expansively, the Gant Court had no compunction in casting aside the Belton decision's twentyeight year old bright-line rule. 417 The rule in *1207 Belton authorized searches of vehicles, including containers therein, incident to the lawful arrest of a recent occupant of the vehicle. 418 Read broadly, as many lower courts did, the Belton decision allowed searches of vehicles incident to any arrest, even when there was no conceivable way arrestees could grab a weapon or destroy evidence inside the vehicle. 419 The broad reading treated the ability to search a vehicle incident to arrest as a police officer entitlement, rather than an exception justified by the twin rationales of Chimel v. California, 420 the Supreme Court of the United States decision that set the parameters of the search incident to arrest exception. 421 The Supreme Court's decision in Gant, however, rejected the broad reading of Belton and reinstated the importance of the Chimel decision's twin rationales in


18


searches incident to arrest. 422 In light of the Supreme Court rejecting a broad reading of the Belton rule, courts should rethink whether it is appropriate to broadly interpret the Belton decision's denotation of a container to encompass such modern *1208 technological devices as cell phones. 423 Decisions that relied on Belton are now subject to reexamination in light of Gant. 424 2. The Twin Rationales of the Search Incident To Arrest Exception That Were Reaffirmed in Arizona v. Gant Do Not Support Searching Cell Phones Incident To Arrest The Arizona v. Gant 425 decision further refuted the contention that police officers may search cell phones incident to arrest by reaffirming that any search conducted under the search incident to arrest exception must be based on the two underlying rationales for that exception. 426 In Chimel v. California, 427 the Supreme Court of the United States articulated the two justifications for the search incident to arrest exception: officer safety and preventing the destruction of evidence, that is, preserving evidence. 428 The Supreme Court later stated in New York v. Belton 429 that, although containers sometimes would not contain weapons or evidence of the arresting offense, police officers' authority to search incident to arrest did not depend on the probability that they would find weapons or evidence. 430 However, the Supreme Court determined in Gant that when both of the Chimel decision's justifications for the search incident to arrest exception are absent, the exception does not apply. 431 Because the Gant decision *1209 reinstated the importance of the Chimel decision's underlying rationales for the search incident to arrest exception, and neither rationale justifies searching cell phones incident to arrest, courts should no longer justify searches of cell phones under the exception. 432 First, cell phones pose little, if any, threat to police officer safety. 433 The mere content of text messages or any other data stored on a cell phone presents no danger of physical harm to police officers who affect arrests or others. 434 Further, unlike bags, boxes, and luggage that could hold firearms or other dangerous weapons, cell phones are incapable of carrying such weapons. 435 Second, and contrary to what several courts have determined, the preservation of evidence rationale also does not support searching cell phones incident to arrest. 436 Once police officers seize a cell phone, there is no longer any risk that an arrestee could reach the phone to destroy evidence. 437 Using the preservation of evidence rationale to validate searching cell phones is also tenuous due to the massive storage capacities of modern *1210 cell phones. 438 Any risk that cell phones would automatically delete information after police officers effectuate an arrest, reasoning that several courts have employed in validating cell phone searches incident to arrest, is negligible in observing the enormous amount of information cell phones can store. 439 In very recent cases following Gant, lower courts have recognized that neither the police officer safety nor the preservation of evidence rationale in Chimel justified searching cell phones incident to arrest. 440 Because the twin rationales for the search incident to arrest exception are absent when police officers search a cell phone incident to arrest, the rule should not apply to allow such searches. 441 *1211 3. The Arizona v. Gant Decision Potentially Limited Searches Based on the Nature of the Arresting Offense In Arizona v. Gant, 442 the Supreme Court of the United States held that police may search a vehicle incident to the arrest of a recent occupant of the vehicle only when the arrestee is within reaching distance of the passenger compartment and is unsecured at the time of the search. 443 The Supreme Court also concluded in Gant that police may search a vehicle incident to arrest when it is reasonable to believe that evidence of the arresting offense may be found inside the vehicle. 444 In Gant, Tucson, Arizona police officers arrested Rodney Gant (“Gant”) for driving with a suspended license. 445 Thus, according to the Supreme Court, the police officers could not have expected to find evidence of the crime of driving with a suspended license in the passenger


19


compartment of Gant's vehicle. 446 The police officers had also searched Gant's vehicle after they had handcuffed Gant and placed him in the back of a patrol car. 447 Thus, Gant was also not within reaching distance of his vehicle at the time of the search, and the justifications for the search incident to arrest exception, protecting arresting police officers and safeguarding evidence of the crime of arrest, were absent. 448 Accordingly, the Court found the search of Gant's vehicle was unreasonable. 449 The Supreme Court's holding in Gant that police officers may search a vehicle incident to a recent occupant's arrest when police officers have a reasonable basis to believe evidence of the arresting offense will be found inside the vehicle stemmed from Justice Antonin Scalia's concurring opinion to the Court's 2004 Thornton v. United States 450 decision. 451 In his concurring opinion to Thornton, Justice Scalia explained that police officers may arrest a motorist for a wide *1212 variety of crimes. 452 However, in many cases, arresting officers have no reasonable basis to believe that evidence relevant to the arresting offense may be found inside the vehicle. 453 Therefore, Justice Scalia explained that he would limit searches of a vehicle incident to a recent occupant's arrest when it is reasonable for police officers to believe that evidence relevant to the arresting offense may be found inside the vehicle. 454 Justice Scalia ultimately affirmed the decision that upheld the search at issue because, in Thornton, a Norfolk, Virginia police officer arrested the arrestee, Marcus Thornton (“Thornton”), for a drug offense; thus, according to Justice Scalia, it was reasonable for the arresting officer to believe that contraband or other evidence relevant to the crime of arrest may be found inside Thornton's vehicle. 455 Since the Supreme Court adopted Justice Scalia's approach on the search incident to arrest exception in Gant, lower courts have used the holding in Gant to invalidate searches incident to arrest of cell phones when polices officers had no reason to believe evidence of the crime of arrest would be found the arrestee's cell phone. 456 Because the underlying justifications for the search incident to arrest exception do not authorize searching cell phones incident to arrest, it appears that the Court's holding in Gant, which authorizes searches when it is reasonable to believe evidence of the crime of arrest will be found, would never justify searches of cell phones incident to arrest. 457 However, some commentators and courts have suggested that there are exceptions when police officers would have reason to believe an arrestee's cell phone stores evidence of the crime of arrest. 458 For example, consistent *1213 with Justice Scalia's concurring opinion in Thornton, police officers could reasonably believe a cell phone would store evidence of the crime of arrest when the arrest is drug-related. 459 Police officers could also reasonably believe a cell phone would store evidence of the arresting offense when police officers observe a suspect using a cell phone during the commission of the crime or while engaging in suspicious activity leading to arrest. 460 If police officers arrest an individual for a traffic violation, then it would not be reasonable to believe a cell phone would contain evidence relevant to that particular crime and, thus, the search incident to arrest exception would not support searching the cell phone. 461 However, it is not entirely clear whether the Supreme Court's holding in Gant, which adopted Justice Scalia's approach, would authorize searching cell phones incident to arrest. 462 The Supreme Court explained in Gant that circumstances unique to the vehicle context confirmed its conclusion authorizing searches when it is reasonable for a police officer to believe evidence relevant to the arresting offense may be found inside the vehicle. 463 The Supreme Court did not clearly elucidate what it meant by the phrase circumstances unique to the vehicle context. 464 However, the Supreme Court's citation *1214 in Gant to Justice Scalia's concurring opinion in Thornton made it clear that the circumstances elucidated by the Court encompassed the mobility and reduced expectation of privacy justifications that also drive the automobile exception of the Fourth Amendment's warrant requirement. 465 In his earlier opinion in Thornton, Justice Scalia specifically observed that Belton was limited to searches of vehicles, a context that gives rise to heightened law enforcement needs and a reduced expectation of privacy. 466 Contrastingly, individuals have a legitimate, reasonable expectation of privacy in the digital contents stored in their cell phones that is not reduced in any way. 467 Accordingly, despite what some courts have alluded to after the Gant decision, the Supreme Court's


20


holding in Gant may not authorize searching cell phones incident to arrest even if it may be reasonable to believe the cell phone would store evidence of the arresting offense. 468 Ultimately, however, as Chimel's twin rationales for the search incident to arrest exception do not support searching arrestees' cell phones, the only justification for searching a cell phone incident to arrest after Gant would depend upon the nature of the crime of arrest and the particular facts or suspicions the police officers have as to the arrestee's cell phone in a given case. 469 4. Lower Courts Post-Arizona v. Gant Have Correctly Struck Down Searches of Cell Phones Performed Incident to Arrest In the wake of the Supreme Court's decision in Arizona v. Gant, 470 several lower courts have correctly struck down warrantless *1215 searches of cell phones performed incident to arrest, illustrating how the Gant decision changed the analysis surrounding searches of arrestees' cell phones. 471 Most recently, in Ohio v. Smith, 472 decided eight months after Gant, the Ohio Supreme Court took broad leaps in upholding the privacy interest inherent in a personal cell phone. 473 Two other post-Gant decisions, United States v. Quintana 474 and United States v. McGhee, 475 demonstrated how Justice Scalia's approach in his concurring opinion in Thornton, adopted by the Supreme Court in Gant, limited searches of cell phones based on the crime of arrest, although it is not entirely clear that such reasoning is directly supported by Gant in regards to cell phones specifically. 476 The Ohio Supreme Court held in Smith that law enforcement may not search a cell phone incident to arrest without a warrant. 477 First, the Ohio Supreme Court reasoned that a cell phone is not a closed container under New York v. Belton 478 due to the capabilities of modern cell phones and the fact that a cell phone is not a physical object capable of holding other physical objects as the definition of a container in Belton described. 479 Second, the Ohio Supreme Court *1216 struck down the argument that traditional principles governing searches incident to arrest covered the search of an arrestee's cell phone when the state of Ohio presented no evidence that either justification for the exception, police officer safety and preservation of evidence, were present. 480 The United States District Court for the Middle District of Florida's decision in Quintana employed the Gant decision's second holding that limited searches based on the arresting offense and its description of the importance the Chimel decision's twin rationales. 481 In Quintana, police officers arrested Ariel Quintana (“Quintana”), the owner of a cell phone, who was arrested for driving with a suspended license. 482 The Florida District Court explained that, by searching the cell phone, the arresting police officer did not seek to preserve evidence that Quintana was driving with a suspended license. 483 Rather, the police officer rummaged for information related to a separate suspicion. 484 Further, according to the Florida District Court, searching the cell phone had no basis in preserving evidence related to the arresting offense or in ensuring officer safety. 485 Thus, the Florida District Court determined in Quintana that the search of Quintana's cell phone pushed the search incident to arrest exception beyond its limits and that the Chimel decision's twin rationales justifying the search incident to arrest exception did not justify the search. 486 Accordingly, the Florida District Court suppressed the information police officers obtained from the cell phone. 487 The United States District Court for the District of Nebraska's decision in McGhee also similarly used the Gant decision's second holding that limited searches based on the crime of arrest and its reiteration *1217 of the importance of the Chimel decision's twin rationales. 488 In McGhee, the police officers arrested Terrell L. McGhee (“McGhee”) for a drug-distribution conspiracy. 489 However, police officers made the arrest in January 2009 pursuant to an arrest warrant based on a drug conspiracy that allegedly occurred in March 2008. 490 Thus, according to the Nebraska District Court, police officers could


21


not have reasonably believed that a search of McGhee's cell phone at the time of arrest would produce evidence related to the arresting offense, which had occurred ten months earlier. 491 The Nebraska District Court further noted that McGhee's cell phone did not present any harm to the police officers, and no evidence suggested McGhee's cell phone concealed any destructible evidence. 492 Therefore, the Nebraska District Court determined that the search incident to arrest exception did not justify performing a warrantless search of the cell phone. 493 The lower court decisions issued in the wake of the Gant decision suggest a very favorable change in the area of cell phone searches performed incident to arrest. 494 For several years before the Supreme Court issued Gant, the vast majority of lower courts determined that law enforcement could limitlessly explore the contents of arrestees' cell phones, reasoning that cell phones were containers under the Supreme Court of the United States' decision in Belton. 495 However, suddenly, lower courts that have most recently employed the Supreme Court of the United States' reasoning in Gant, in which the Supreme Court rejected a broad interpretation of Belton and reestablished the *1218 importance underlying rationales for the search incident to arrest exception, have determined the exception does not support searching cell phones incident to arrest. 496 The new trend in lower courts has led to correct and thorough analyses of the parameters of the search incident to arrest exception, rather than merely employing the Belton decision's twenty-eight year old rule to continually allow the warrantless search of modern cell phones. 497

IV. CONCLUSION Technological innovation has changed what objects courts are called upon to analyze under the Fourth Amendment. 498 Today, complex technological devices such as modern cell phones, which store immense amounts of personal information and feature a wide array of applications and capabilities, have become a ubiquitous personal effect for millions of Americans. 499 Present circumstances warrant a modern interpretation of the Fourth Amendment in light of the technological revolution that has undoubtedly changed how society functions, something courts have only realized to a limited extent. 500 Of course, not every change in technology warrants altering Fourth Amendment law to require greater privacy protection. 501 However, *1219 courts must consider that rules developed for older forms of information could have devastating effects on privacy if they are applied to new ways of storing information that have become central to Americans' lives. 502 Further, applying ill-fitting brightline rules to a context in which police officers could limitlessly search through sophisticated technological devices such as cell phones is undesirable and inappropriate. 503 Proposals such as having state legislatures limit searches to evidence relevant to the crime of arrest pose preferable alternatives to doing nothing and allowing law enforcement to search thousands of pages of private information on cell phones without probable cause or a warrant. 504 The Supreme Court issued bright-line rules under the search incident to arrest exception for several years in an attempt to clarify the law for police officers. 505 However, its bright-line jurisprudence led several courts to skip careful study of the purpose of the exception and the nature of the particular object searched when analyzing cell phone searches incident to arrest. By simply classifying cell phones as a container under the New York v. Belton 506 decision, lower courts repeatedly and incorrectly authorized police officers to explore the contents of arrestees' cell phones in an effort to find any information relevant for prosecution. As a result, lower courts created case law that severely limited the privacy interest millions of Americans have in their personal cell phones and wholly failed to recognize the unique nature of modern cell phones. However, through its recent decision in *1220 Arizona v. Gant, 507 the Supreme Court of the United States reinstated the importance of the rationales for the search incident to arrest exception and abandoned expansive interpretation of the Belton decision. In the wake of Gant, a number of lower courts fittingly struck down warrantless searches of cell phones incident to arrest. With the change evident in


22


these decisions, it appears that courts will acknowledge the uniqueness of modern cell phones and protect the privacy interest millions of Americans enjoy in their cell phones with far greater care in the future.

Footnotes 1 People's Opposition to Defendant's Motion to Suppress, and Motion to Traverse and Quash Search Warrant at 1, California v. Taylor, No. SC 070057 (Cal. Super. Ct. Dec. 5, 2009), available at https:// www.eff.org/files/filenode/peoples_opposition.pdf.

2

Id. at 2.

3

Id.

4

Id.

5

Id.

6

Notice of Motion and Motion to Suppress Evidence and to Traverse and to Quash Search Warrant at 2, California v. Taylor, No. SC 070057 (Cal. Super. Ct. Dec. 5, 2009), available at http:// www.eff.org/files/filenode/people_v_ taylor/ FINALMotiontoSuppressEvidence.pdf.

7

Id. at 3.

8

People's Opposition to Defendant's Motion to Suppress, and Motion to Traverse and Quash Search Warrant at 4, California v. Taylor, No. SC 070057 (Cal. Super. Ct. Dec. 5, 2010), available at https:// www.eff.org/files/filenode/peoples_opposition.pdf. Taylor's defense attorneys filed a motion to suppress the evidence found in Taylor's iPhone, which the California County Superior Court has yet to decide. Taylor, supra note 6, at 7-9 (arguing the information from Taylor's cell phone should be suppressed under the search incident to arrest exception); Joshua Melvin, San Mateo County judge hears testimony in cell phone privacy case, San Mateo County Times, Feb. 18, 2010, at 1, http://www.insidebayarea.com/sanmateocountytimes/localnews/ci_ 14429729 (explaining the decision of whether the evidence from Taylor's iPhone would be suppressed was left to a San Mateo judge after the suppression hearing).

9

See Taylor, supra note 6, at 7 (arguing that the search incident to arrest exception did not justify the warrantless search of Taylor's iPhone); Adam M. Gershowitz, The iPhone Meets the Fourth Amendment, 56 UCLA L. Rev. 27, 30 (2008) (noting police could arrest individual for simple traffic violation and search through thousands of pages of private data on iPhone found in individual's pocket); see infra notes 10-12 and accompanying text.

10

Arizona v. Gant, 556 U.S. --, 129 S. Ct. 1710, 1716 (2009) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)).

11

See United States v. Robinson, 414 U.S. 218, 235-236 (1973) (upholding search of closed cigarette package found on arrestee's person); New York v. Belton, 453 U.S. 454, 460, 461 (1981) (holding police may search containers-open or closed-that are within arrestee's reach).

12

See, e.g., United States v. Finley, 477 F.3d 250, 254, 260 (5th Cir. 2007) (describing police searching arrestee's cell phone and text messages stored therein); United States v. Deans, 549 F. Supp. 2d 1085, 1090, 1094 (D. Minn. 2008) (describing police searching the electronic memories of two cell phones found in arrestee's vehicle); United States v. McCray, No. CR408-231, 2009 WL 29607, at *2 (S.D. Ga. Jan. 5, 2009) (describing police searching the photo directory of arrestee's mobile phone).

13


14

See Adam M. Gershowitz, The iPhone Meets the Fourth Amendment, 56 UCLA L. Rev. 27, 29-30 (2008) (noting the repercussions of the iPhone in particular).

15



23


16

See James X. Dempsey, Digital Search & Seizure: Updating Privacy Protections To Keep Pace With Technology, Practising Law Institute, 935 PLI/Pat. 543, 550 (2008) (noting the application of “the Fourth Amendment to modern technology opens some fundamental questions.”).

17

Id.

18

Gershowitz, supra note 14, at 30.

19

See Adam M. Gershowitz, The iPhone Meets the Fourth Amendment, 56 UCLA L. Rev. 27, 30 (2008) (positing question regarding iPhones in particular).

20


21


22


23


24


25

556 U.S. --, 129 S. Ct. 1710 (2009).

26

See infra notes 406-07, 412-14, 416-96 and accompanying text.

27


28

Tom Farley, The Cell-Phone Revolution, American Heritage: Invention and Technology Magazine, Winter 2007, at 6.

29

Jarice Hanson, 24/7: How the Internet and Cell Phones Change the Way We Live, Work, and Play 24, 25 (Praeger Publishers 2007). Mobile phones were only originally designed for installation in vehicles and were much larger than current cell phones. Maria Literral, What Are 1st, 2nd, and 3rd Generation Mobile Phones?, P 4 (2008), http://www.articlesbase.com/technology-articles/whatare-1st-2nd-and-3rd-generation-mobile-phones-467075.html #. Initially, mounting cell phones in vehicles “seemed to be the likely method of creating more mobile communications,” although “relatively few consumers seemed interested in car phones, because they were awkward and expensive.” Hanson, supra note 29, at 25. Motorola's first phone weighed close to two pounds. Id. Original chunky units designed only for cars “were later converted for use as transportable phones the size of a small suitcase and the rest is history.” Literral, supra note 29, P 4.

30

Id. P 3; Hanson, supra note 29, at 25. Analog technology “is the process of taking an audio or video signal (in most cases, the human voice) and translating it into electronic pulses.” Paul Wotel, Analog. Digital. What's the Difference?, Telecom, HelloDirect.com, P 2, http:// telecom.hellodirect.com/docs/Tutorials/AnalogVsDigital.1.051501.asp (last visited Feb. 18, 2010). Digital technology, on the other hand, involves “breaking the signal into a binary format where the audio or video data is represented by a series of ‘1's and ‘0's.” Id.

31

Tom Farley, The Cell-Phone Revolution, American Heritage: Invention and Technology Magazine, Winter 2007, at 9; Literral, supra note 29, P 5.

32

Hanson, supra note 29, at 25.

33

Gerard Goggin, Cell Phone Culture: Mobile Technology In Everyday Life 32 (Routledge 2006).

34

Farley, supra note 31, at 9. Nokia's handheld-computer cell phone was a “GSM” mobile phone dubbed the “Communicator.” Id. GSM, a digital system, originally stood for “Groupe Spéciale Mobile” after the European committee that designed the specifications for the GSM system but now stands for “Global System for Mobile.” Id. at 8-9.


24


35

Maria Literral, What Are 1st, 2nd, and 3rd Generation Mobile Phones?, P 7 (2008), http://www.articlesbase.com/technology-articles/ what-are-1st-2nd-and-3rd-generation-mobile-phones-467075.html#.

36

Jarice Hanson, 24/7: How the Internet and Cell Phones Change the Way We Live, Work, and Play 25-26 (Praeger Publishers 2007).

37

Literral, supra note 35, P 8; Press Release, Apple, Apple Announces the New iPhone 3GS - The Fastest and Most Powerful iPhone Yet, P 5 (June 8, 2009), available at http://www.apple.com/pr/library/2009/06/08iphone.html; see ConsumerReports.org, Cell Phones and Services Buying Guide, P 1, 6, http:// www.consumerreports.org/cro/electronics-computers/phones-mobile-devices/cell-phonesservices/cell-phone-service-buying-advice/cell-phone-service-features/features.htm (last visited Feb. 5, 2010) (noting GPS receivers are now common on cell phones and that nearly all current cell phones “have some type of location-based technology”). Thirdgeneration cell phones can make calls; send and receive text messages, email, pictures, and video; and contain calendars, address books, voicemail, and Internet access. See United States v. Park, No. CR 05-375 SI, 2007 WL 1521573, at *8 (N.D. Cal. May 23, 2007). The Park case was decided in 2007 after the first 3G commercial network launched in 2001 and before the emergence of “4-G technology,” which has been discussed since 3G mobile telephone technology emerged. Park, 2007 WL 1521573, at *1; Literral, supra note 35, P 7, 10. Morgan Stanley's Kathryn Huberty predicts that Verizon will complete a “4G rollout” some time in 2011. Philip Elmer-DeWitt, Broader Distribution Could Double iPhone Sales in 2010-Morgan Stanley, Fortune: Brainstorm Tech, Oct. 2, 2009, P 5, http:// brainstormtech.blogs.fortune.cnn.com/2009/10/02/broader-distribution-could-double-iphone-sales-in-2010morgan-stanley/.

38

Id.; see also Apple.com, Apps for Managing Money, http:// www.apple.com/iphone/apps-for-everything/managing-money.html (last visited Feb. 5, 2010) (advertising applications such as Mint.com application allowing users to enter banking account and credit card information to “[k]now where your money is wherever you go.”).

39

Gerard Goggin, Cell Phone Culture: Mobile Technology In Everyday Life 32 (Routledge 2006).

40

See Peter Svensson, Cheaper service helps Sprint cut subscriber loss, The Omaha World-Herald, P 17 (Apr. 28, 2010), available at http:// www.omaha.com/article/20100428/AP05/304289952 (noting the next big hope for Sprint is its 4G network “or the next generation of cellular broadband service.”).

41

Svensson, supra note 40, P 17-18.

42

Wes Taylor, Best of the Decade: Technology, Omaha World-Herald, Dec. 27, 2009, at 2, http://www.omaha.com/article/20091227/ LIVING/712279967. As of November 2009, Apple offered 100,000 apps for the iPhone, ranging from twenty categories, including business and health. Press Release, Apple, Apple Announces Over 100,000 Apps Now Available On The App Store, P 1 (Nov. 4, 2009), available at http://www.apple.com/pr/library/2009/11/04appstore.html.

43

Suzanne Choney, Is 2010 the year of wireless congestion?, Msnbc.com, P 3, 5-6, Jan. 4, 2010, http://www.msnbc.msn.com/ id/34634571/ns/technology_ and_science-tech_and_gadgets/.

44

Apple.com, Why you'll love iPhone, P 1, available at http:// www.apple.com/iphone/why-iphone/; Brian X. Chen, June 29, 2007: iPhone, You Phone, We All Wanna iPhone, Wired.com, June 29, 2009, http:// www.wired.com/thisdayintech/2009/06/ dayintech_0629/; Peter Svensson, Verizon's big ad push for Android takes on iPhone, The Washington Post, P 1 (Oct. 20, 2009) (describing new ad campaigns for Verizon's iPhone challenger the Droid); Press Release, Research in Motion, RIM Introduces the New BlackBerry Pearl 3G Smartphone, P 1 (Apr. 26, 2010), available at http:// finance.yahoo.com/news/RIM-Introduces-the-Newiw-2864348663.html?x=0&.v=1.

45

United States v. Zavala, 541 F.3d 562, 577 (5th Cir. 2008); United States v. Park, No. CR 05-375 SI, 2007 WL 1521573, at *8 (N.D. Cal. May 23, 2007). Rather than storing tangible objects, cell phones only store digital information such as stored text messages, call records, voicemail messages, and Interest browsing histories. See United States v. Park, No. CR 05-375 SI, 2007 WL 1521573, at *8 (N.D. Cal. May 23, 2007) (noting the vast amount of digital information cell phones can store); Adam M. Gershowitz, The iPhone Meets the Fourth Amendment, 56 UCLA L. Rev. 27, 41-2 (2008) (noting tremendous amounts of information stored on an iPhone including contact information, call histories, text messages, pictures, email, and audio and video files). Similar to retrieving seemingly deleted information from computers, third parties can retrieve information erased from cell phones using tools, such as technological


25

THE SEARCH INCIDENT TO ARREST EXCEPTION..., 43 Creighton L. Rev.... retrieval devices used by law enforcement. Productivity Portfolio, Deleting Cell Phone Data Before Upgrading Phones, Sept. 9, 2009, P 6, http://www.timeatlas.com/Cell_Phones/General/Deleting_Cell_Phone_ Data_Before_Upgrading_Phones; see Christa Miller, The Mobile Device Investigator's Toolbox, Officer.com, Nov. 2008, P 1-2, 15, http:// www.officer.com/print/Law-EnforcementTechnology/The-mobile-device-INVESTIGATORS-TOOLBOX/1$44226 (describing various tools at police disposal for retrieving information from cell phones). Cell phones are worse about storing seemingly-deleted data than computers due to the type of memory cell phones use. Productivity Portfolio, supra, P 6.

46

Apple.com, Introducing iPhone 3GS, http:// www.apple.com/iphone/iphone-3gs/ (last visited Feb. 5, 2010).

47

Declan McCullagh, Police push for warrantless searches of cell phones, Cnet.com, P 8, Feb. 18, 2010, http:// news.cnet.com/8301-13578_3-10455611-38.html.

48

See Press Release, Kingston Technology Co., Inc., Flash Memory Card offers 16 GB capacity for mobile phones, P 1 (Feb. 26, 2009), http:// news.thomasnet.com/fullstory/556272 (describing “16 GB microSDHC Flash memory card can store approximately 3,000 digital songs, 9,000 images ... or up to 16 hr [sic] of video.”); Press Release, SanDisk, SanDisk Doubles Storage Capacity for Mobile Phones and Portable Devices With Introduction of 64GB iNAND Embedded Flash Drives, P 2 (Jan. 7, 2008), available at http://www.sandisk.com/about-sandisk/press-room/press-releases/2010/2010-02-15-sandisk-doubles-storage-capacityfor-mobile-phones-and-portable-devices-with-introduction-of-64gb-inand-; see also Wireless and Mobile News, Verizon Samsung Omnia (i910) Review, P 4 (Feb. 24, 2009), http://www.wirelessandmobilenews.com/2009/02/verizon-samsung-omnia-i910-reviewof-reviews-2.html (describing Verizon's Samnsung Omnia cell phone's storage capacity of eight gigabytes with capability to “add a 16 gigabyte microSD card” to increase storage space).

49

See Productivity Portfolio, supra note 45, P 3 (noting GSM cell phones store address-book data on SIM cards); see also GSM World, Market Data Summary, Oct. 19, 2009, P 2, http://www.gsmworld.com/newsroom/market-data/market_data_summary.htm (noting that there are 299,057,084 users of GSM technology in the United States and Canada as of October 2009).

50

James X. Dempsey, Digital Search & Seizure: Updating Privacy Protections To Keep Pace With Technology, Practising Law Institute, 935 PLI/Pat. 543, 547 (2008).

51

Press Release, Pew Research Center, The Pew Global Attitudes Project, 77 (2007), available at http://pewglobal.org/reports/ pdf/258.pdf. The Pew Global Attitudes Project reported that Italy was the only country that did not experience a surge in cell-phone use from 2002 to 2007. Id.

52

International Telecommunication Union, Measuring the Information Society: The ICT Development Index 51 (2009).

53

See Suzanne Choney, Is 2010 the year of wireless congestion?, Msnbc.com, P 1, Jan. 4, 2010, http://www.msnbc.msn.com/ id/34634571/ns/technology_and_science-tech_and_gadgets/ (explaining that cell-phone network congestion in 2010 could be caused by “nearly 280 million Americans' increasing reliance on cell phones”). YouraMedia estimated that, as of January 2009, there were approximately 270 million cell phone subscribers in the United States. YouraMedia, Stats on Cell Phone Use in U.S., at 1 (June 20, 2009), available at http://www.youra.com/media/images/prsmsstats.pdf. According to YouraMedia, wireless usage has penetrated into over 86 percent of the United States population over 13 years of age. Id.

54

Choney, supra note 53, P 21.

55

Id.

56

Soldal v. Cook County, Ill., 506 U.S. 56, 62 (1992).

57

Katz v. United States, 389 U.S. 347, 357 (1967).

58

Arizona v. Gant, 556 U.S. --, 129 S. Ct. 1710, 1716 (2009) (quoting Katz, 389 U.S. at 357)).

59

See United States v. Robinson, 414 U.S. 218, 224 (1973) (noting it is well-settled that a traditional exception to the Fourth Amendment is the search incident to a lawful arrest).


26


60

James J. Tomkovicz, Divining and Designing the Future of the Search Incident to Arrest Doctrine: Avoiding Instability, Irrationality, and Infidelity, 2007 U. Ill. L. Rev. 1417, 1419 (2007).

61

395 U.S. 752 (1969).

62

See Tomkovicz, supra note 60, at 1427 (noting that Chimel v. California, 395 U.S. 752 (1969), set “the current state of search incident to arrest law”). In Chimel, the Supreme Court of the United States noted the brief history of the search incident to arrest exception leading up to the Chimel decision but acknowledged that much of what the Supreme Court had previously said about the exception was dictum. See 395 U.S. at 755, 756 (citing Weeks v. United States, 232 U.S. 383, 392 (1914) (noting the Weeks decision discussed the ability to search incident to arrest but only as dictum). The Court also commented on the turbulent nature of many of its preChimel, search incident to arrest cases. See id. at 757 (citing Go-Bart Importing Co. v. United States, 282 U.S. 344, 358 (1931); United States v. Lefkowitz, 285 U.S. 452, 465 (1932); Harris v. United States, 331 U.S. 145 (1947)) (noting the decision in Marron v. United States, 275 U.S. 192 (1925), “did not mean all that it seemed to say” after the Go-Bart and Lefkowitz decisions that were also subsequently “thrown to the winds” in the Harris case).

63

Chimel v. California, 395 U.S. 752, 752, 753 (1969); People v. Chimel, 439 P.2d 333, 335 (Cal. 1968), rev'd, Chimel v. California, 395 U.S. 752 (1969).

64


65

Id. at 753-54.

66

Id. at 754.

67

Id. at 753-54.

68

Id. at 754.

69

People v. Chimel, 61 Cal. Rptr. 714, 721 (Cal. Ct. App. 1967), rev'd, Chimel v. California, 395 U.S. 752 (1969).

70

Chimel, 395 U.S. at 754; People v. Chimel, 68 Cal.2d 436, 444 (1968), rev'd, Chimel v. California, 395 U.S. 752 (1969).

71


72

See id. at 763 (describing proper extent of search incident to arrest principle); Arizona v. Gant, 556 U.S. --, 129 S. Ct. 1710, 1723 (2009).

73


74

Id.

75

See id. at 762-63 (explaining that it is reasonable after an arrest has been made for an officer “to search the person arrested in order to remove any weapons” and “to search for and seize any evidence on the arrestee's person in order to prevent is concealment or destruction”).

76

395 U.S. 752 (1969).

77

414 U.S. 218 (1973).

78

United States v. Robinson, 414 U.S. 218, 235 (1973).

79

Robinson, 414 U.S. at 220 (citing D.C. Code Ann. § 40-302(d) (1967)).

80

Id. at 221-23.

81

Id. at 223.


27


82

Id. at 219.

83

Id. at 219-20; United States v. Robinson, 471 F.2d 1082, 1087-88 (D.C. Cir. 1972), rev'd, 414 U.S. 218 (1973).

84

Robinson, 471 F.2d at 1093-94.

85


86

United States v. Robinson, 414 U.S. 218, 219, 235 (1973).

87

Robinson, 414 U.S. at 219, 235.

88

Id. at 235.

89

See id. at 224-25 (citing Chimel v. California, 395 U.S. 752 (1969); Preston v. United States, 376 U.S. 364 (1964); United States v. Rabinowitz, 339 U.S. 56 (1950); Trupiano v. United States, 334 U.S. 669 (1948); Harris v. United States, 331 U.S. 145 (1947); United States v. Lefkowitz, 285 U.S. 452 (1932); Go-Bart Co. v. United States, 282 U.S. 344 (1931); Marron v. United States, 275 U.S. 192 (1927); Carrol v. United States, 267 U.S. 132 (1925) (noting that the Supreme Court's cases had undoubtedly expressed “the unqualified authority of the arresting authority to search the person of the arrestee” and citing numerous cases doing so).

90

414 U.S. 218 (1973).

91

453 U.S. 454 (1981).

92

See New York v. Belton, 453 U.S. 454, 455-56 (1981) (discussing facts involving arrests made following traffic stop and subsequent search of arrestees' vehicle).

93

Belton, 453 U.S. at 460.

94

Id. at 455.

95

Id. at 455-56.

96

Id. at 456.

97

Id.

98

Id.

99

Id.

100

Id. The New York Court of Appeals held that “[a] warrantless search of the zippered pockets of an unaccessible jacket may not be upheld as a search incident to a lawful arrest where there is no longer any danger that the arrestee or a confederate might gain access to the article.” People v. Belton, 50 N.Y.2d 447, 449 (1980), rev'd, New York v. Belton, 453 U.S. 454 (1981).

101


102

Id. at 458-59 (quoting Dunaway v. New York, 442 U.S. 200, 213-14 (1979); United States v. Robinson, 414 U.S. 218, 235 (1973)). The Supreme Court stated that its prior decision in Robinson articulated an easily-applied, straightforward rule for police. Id. at 459.

103

Id. at 460.

104

Id.

105

395 U.S. 752 (1969).

106



28


107

Id. (citations omitted).

108

See id. at 461 n.4 (giving definition of a “container” and discussing specifics of authority to search containers incident to arrest).

109

See id. (defining container as “any object capable of holding another object” and listing luggage, boxes, bags, clothing, and open and closed compartments as falling under that definition); Adam M. Gershowitz, The iPhone Meets the Fourth Amendment, 56 UCLA L. Rev. 26, 39-40 (2008) (noting search incident to arrest precedent permits police to search “tangible containers” found on arrestees).

110


111

Id. (quoting United States v. Robinson, 414 U.S. 218, 235 (1973)).

112

Id. (quoting Robinson, 414 U.S. at 235); see also Stephen A. Saltzburg, Daniel J. Capra, & Angela J. Davis, Basic Criminal Procedure 307 (4th ed., Thompson-West 2005) (stating the Supreme Court in Belton noted “a rule giving the officer an automatic right to open containers in the grab area was consistent with Robinson.”).

113

Belton, 453 U.S. at 466 (Brennan, J., dissenting). A later panel of the Supreme Court of the United States in Arizona v. Gant discussed Justice Brennan's opinion, saying the Belton case had “been widely understood to allow a vehicle search incident to arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search.” 556 U.S. --, 129 S. Ct. 1710, 1718. The Supreme Court explained in Gant that such a reading of Belton may have been “attributable to Justice Brennan's dissent in Belton, in which he characterized the [Supreme] Court's holding as resting on the ‘fiction ... that the interior of a car is always within the immediate control of an arrestee who has recently been in the car.”’ 129 S. Ct. at 1718 (quoting Belton, 453 U.S. at 466)).

114


115

Id. at 469.

116

Id.

117

453 U.S. 454 (1981).

118

541 U.S. 615 (2004).

119

See Thornton v. United States, 541 U.S. 615, 617 (2004) (reaching the question of whether Belton's rule applies when an officer initially makes contact with an arrestee after the arrestee leaves his vehicle).

120

Thornton, 541 U.S. at 617-18.

121

Id. at 618.

122

Id. Thornton also removed baggies of marijuana and crack cocaine from his pocket and showed the baggies to the officer. Id.

123

Id.

124

Id. at 622-23. The Supreme Court conceded that it was unlikely Thornton could have reached his gun located under the driver's seat of his vehicle once he was outside the vehicle, but explained that “the firearm and the passenger compartment in general were no more inaccessible than were the contraband and the passenger compartment in Belton.” Id. at 622.

125

Id. at 623.

126

556 U.S. --, 129 S. Ct. 1710 (2009).

127

Craig M. Bradley, Two and A Half Cheers For the Court, American Association for Justice, 45-Aug. Trial 48, 48 (2009).

128

395 U.S. 752 (1969).


29


129

Arizona v. Gant, 556 U.S. --, 129 S. Ct. 1710, 1719, 1723 (2009).

130

Gant, 129 S. Ct. at 1723-24.

131

Id. at 1714.

132

Id.

133

Id. at 1714-15.

134

Id. at 1715.

135

Id.

136

Id.

137

Id. The officer called for backup because officers had arrested two other individuals at the residence and secured them in the only other patrol cars available at the scene. Id.

138

Id.

139

Id.

140

Id.

141

Id.; State v. Gant, No. CR-230000042, 2004 WL 5588539, at *1 (Ariz. Super. Ct. Dec. 7, 2004), rev'd, 143 P.3d 379 (Ariz. App. Div. 2006), aff'd, 162 P.3d 640 (Ariz. 2007).

142

State v. Gant, 162 P.3d 640, 646 (Ariz. 2007).

143

Gant, 162 P.3d at 644.

144

Id.; Gant, 129 S. Ct. at 1715-16. Justice Bales, who dissented to the Arizona Supreme Court's opinion, explained that he dissented because Belton allowed the search of Gant's vehicle, which was an interpretation of the Fourth Amendment that the Arizona Supreme Court could not reexamine itself. Gant, 162 P.3d at 650 (Bales, J., dissenting). However, Justice Bales noted that the court could “add our voice to the others that have urged the Supreme Court to revisit Belton” since its bright-line rule has “long been criticized and probably merits reconsideration.” Id. (citations omitted).

145

453 U.S. 454 (1981).

146

Gant, 129 S. Ct. at 1716.

147

See id. at 1718-19 (discussing the Arizona Supreme Court's reading of New York v. Belton, 453 U.S. 454 (1981), and the “widely understood,” broad reading of Belton before rejecting the latter because it “untether[ed] the [Belton] rule from the justifications underlying the Chimel exceptions”).

148

Id. at 1718 (quoting Belton, 453 U.S. at 466 (1981) (Brennan, J., dissenting)). The Supreme Court in Gant also noted the concurring opinions of Justice O'Connor and Justice Scalia in Thornton v. United States, 541 U.S. 615 (2004), the former of which noted that lower courts seemed to treat the authority to search a vehicle incident to arresting one of its recent occupants as a “police entitlement rather than as an exception justified by the twin rationales of Chimel.” Gant, 129 S. Ct. at 1718 (quoting Thornton, 541 U.S. at 624 (O'Connor, J., concurring in part)). Justice Scalia, as the Supreme Court explained, had also observed that a “legion” of cases justified searches incident to arrest when the arrestee was secured and handcuffed in the back of a patrol car and improbably could obtain access to any weapons inside the vehicle. Gant, 129 S. Ct. at 1718 (quoting Thornton, 541 U.S. at 628 (Scalia, J., dissenting)).

149

Id. at 1719 (quoting Belton, 453 U.S. at 460)).


30


150

Id. at 1719.

151

Id. (quoting Thornton, 541 U.S. at 632).

152

541 U.S. 615 (2004).

153

Gant, 129 S. Ct. at 1719, 1723 (citing Thornton v. United States, 541 U.S. 615, 632 (Scalia, J., concurring)).

154

See id. at 1723 (noting that the dissent in Gant “ignore[d] the checkered history of the search incident to arrest exception” and discussing Supreme-Court cases leading up to Chimel).

155

Id. at 1722, 1723. The doctrine of stare decisis, the Court noted, is essential but does not compel the Court to follow a prior decision when its rationale no longer resists “‘careful analysis.”’ Id. at 1722 (quoting Lawrence v. Texas, 539 U.S. 558, 577 (2003)).

156

Id. at 1723.

157

Id. The Court stated that “we” now know that items inside the passenger compartment of a vehicle “are rarely ‘within the area into which an arrestee might reach.”’ Id. (quoting Belton, 453 U.S. at 460).

158

414 U.S. 218 (1973).

159

453 U.S. 454 (1981).

160

See, e.g., United States v. Finley, 477 F.3d 250, 259-60 (5th Cir. 2007) (citations omitted) (relying on United States v. Robinson, 414 U.S. 218 (1973), and New York v. Belton, 453 U.S. 454 (1981), in concluding search of cell phone incident to arrest was lawful); United States v. Deans, 549 F. Supp. 2d 1085, 1094 (D. Minn. 2008) (citation omitted) (same using Belton); United States v. McCray, No. CR408-231, 2009 WL 29607, at *2 (S.D. Ga. Jan. 5, 2009) (citations omitted) (same using Robinson). Courts have recognized that the owner of a cell phone has a reasonable expectation of privacy in the digital data stored on the cell phone. See, e.g., Quon v. Arch Wireless Operating Co., 529 F.3d 892, 905 (9th Cir. 2008) (finding individuals have a reasonable expectation of privacy in text messages stored on cell phone); Finley, 477 F.3d at 259 (concluding individual had a reasonable expectation of privacy in text messages and call records stored on his cell phone); see Katz v. United States, 389 U.S. 347, 350-51 (1967) (stating “the Fourth Amendment protects people, not places” and that Fourth Amendment issues should not be analyzed using the areas searched but rather the individual privacy the Fourth Amendment protects against certain government intrusion).

161

McCray, 2009 WL 29607, at *2 (citations omitted) (noting Supreme Court and other courts “repeatedly recognized the right of the police to open and inspect papers, wallets, address books, and similar items seized from an arrestee” in determining that officers may briefly inspect a cell phone incident to arrest); United States v. Valdez, No. 06-CR-336, 2008 WL 360548, at *2 (E.D. Wis. Feb. 8, 2008) (citations omitted) (relying on prior case law upholding searches of a wallet and address book incident to arrest in concluding that the search of a cell phone was lawful incident to arrest); United States v. Cote, No. 03CR271, 2005 WL 1323343 (N.D. Ill. May 26, 2005) (determining officers permissibly searched cell phone incident to arrest in analogizing cell phones to wallets and address books).

162

395 U.S. 752 (1969).

163

See, e.g., United States v. Murphy, 552 F.3d 405, 411-12 (4th Cir. 2009) (quotation omitted) (citations omitted) (concluding district court properly refused to suppress contents of cell phone seized incident to arrest citing the “manifest need ... to preserve evidence”); United States v. Young, No. 07-4213, 2008 WL 2076380, at *3 (4th Cir. May 15, 2008) (per curiam) (same); United States v. Mercado-Nava, 486 F. Supp. 2d 1271, 1278-79 (D. Kan. 2007) (finding search of cell phone justified as search incident to arrest in reasoning that the “need to preserve evidence is underscored where evidence may be lost due to the dynamic nature of the information stored on and deleted from cell phones”).

164

477 F.3d 250 (5th Cir. 2007).

165

United States v. Finley, 477 F.3d 250, 259 (5th Cir. 2007).


31


166


167

Id. at 254.

168

Id.

169

Id.

170

Id. Some of the text messages included an incoming text stating, “‘Call Mark I need a 50;”’ “‘So u wanna get some frozen agua [?];”’ and “‘Any chance I could use ur digitals real quik[?]”’. Id. at 255 n.2. The officer who reviewed the messages testified that he understood the messages as relating to narcotics. Id.

171

Id. at 253, 255.

172

414 U.S. 218 (1973).

173

Finley, 477 F.3d at 259 (quoting United States v. Robinson, 414 U.S. 218, 235 (1973)).

174

453 U.S. 454 (1981).

175

Finley, 477 F.3d at 260 (citing United States v. Johnson, 846 F.2d 279, 282 (5th Cir. 1988) (per curiam); New York v. Belton, 453 U.S. 454, 460-61 (1981); Robinson, 414 U.S. at 223-24).

176


177

549 F. Supp. 2d 1085 (D. Minn. 2008).

178

United States v. Deans, 549 F. Supp. 2d 1085, 1094 (D. Minn. 2008) (citing United States v. Finley, 477 F.3d 250, 260 (5th Cir. 2007)); Defendant Jason Zeimes's Memorandum of Law in Support of Suppression of Evidence at 1, United States v. Zeimes, 549 F. Supp. 2d 1085 (D. Minn. 2008) (No. 07-CR-423).

179

Deans, 549 F. Supp. 2d at 1090.

180

Id. at 1093.

181

Id. at 1093-94 (citing New York v. Belton, 453 U.S. 454, 460-61 (1981)); see United States v. Finley, 477 F.3d 250, 260 (5th Cir. 2007) (citing Belton, 453 U.S. at 460-61) (noting the scope of searches incident to arrest extend to any containers found on arrestee's person).

182

See Deans, 549 F. Supp. at 1094 (quoting Belton, 453 U.S. at 460 n.4) (noting that Supreme Court “ruled that a ‘container’ ‘denotes any object capable of holding another object.”’).

183

Id. One observer, James X. Dempsey, has observed that it is insufficient to merely search for pre-digital analogies and that, in the current digital world, the analysis of searching digital items must take into account the possibility that conventional rules, even applied to older types of information, may be outdated. James X. Dempsey, Digital Search & Seizure: Updating Privacy Protections To Keep Pace With Technology, Practising Law Institute, 935 PLI/Pat. 543, 551 (2008); see Montejo v. Louisiana, 556 U.S. --, 129 S. Ct. 2079, 2093 (2009) (Alito, J., concurring) (noting that the Supreme Court of the United States “had no compunction about casting aside [the] 28 year old bright-line rule” from Belton-that police may always search the passenger compartment of a vehicle incident to the arrest of a recent occupant of the vehicle). Further, Dempsey argues that courts must also consider that rules developed for older forms of information could have devastating effects on privacy if they are applied to new ways of storing information that have become central to Americans' lives. Dempsey, supra note 183.

184

Deans, 549 F. Supp. at 1094.

185

920 N.E.2d 949 (Ohio 2009).


32


186

Compare Ohio v. Smith, 920 N.E.2d 949, 954 (Ohio 2009) (holding cell phones are not closed containers), with United States v. Finley, 477 F.3d 250, 261 (5th Cir. 2007) (using Belton for authority that police may search containers on arrestee's person in concluding search of arrestee's cell phone was lawful); United States v. Deans, 549 F. Supp. 2d 1085, 1094 (D. Minn. 2008) (same).

187

Smith, 920 N.E.2d at 950. Police had a woman named Wendy Thomas Northern (“Northern”), who identified Smith as Northern's drug dealer, call Smith and arrange the purchase at Northern's residence. Id.

188

Id.

189

See id. (explaining that “at some point police discovered that the call records and phone numbers confirmed that Smith's cell phone had been used to speak with Northern.”).

190

Id. at 951 (citations omitted).

191

Id. at 954.

192

Id. (quoting New York v. Belton, 453 U.S. 454, 460 n.4 (1981)). The Ohio Supreme Court did acknowledge that courts had likened other electronic devices, such as pagers, to containers but stated that those cases failed “to consider the Supreme Court's definition of ‘container’ in Belton, which implies that the container must actually have a physical object within it.” Id. (citations omitted).

193

Id.

194

Id. at 955. The Ohio Supreme Court explained, “Given their unique nature as multifunctional tools, cell phones defy easy categorization.” Id.

195

Id.

196

No. CR408-231, 2009 WL 29607 (S.D. Ga. Jan. 5, 2009).

197

United States v. McCray, No. CR408-231, 2009 WL 29607, at *4 (S.D. Ga. Jan. 5, 2009).

198

McCray, 2009 WL 29607, at *2 (citing United States v. Robinson, 414 U.S. 218, 223-24 (1973); United States v. Rodriguez, 995 F.2d 776, 778 (7th Cir. 1993); United States v. Richardson, 764 F.2d 1514, 1527 (11th Cir. 1985); United States v. McFarland, 633 F.2d 427, 429 (5th Cir. 1980); United States v. Castro, 596 F.2d 596 F.2d 674, 677 (5th Cir. 1979)).

199

Id. at *3 (citations omitted).

200

Id. at *4.

201

No. 03CR271, 2005 WL 1323343 (N.D. Ill. May 26, 2005).

202

United States v. Cote, No. 03CR271, 2005 WL 1323343, at *6 (N.D. Ill. May 26, 2005). Subsequent to the arrest of the defendant, Francois Cote, the agents seized Cote's cell phone and accessed information in the cell phone's phone book, call log, and wireless web inbox. Cote, 2005 WL 1323343, at *1, 6.

203

Id. at *6. (citations omitted).

204

Id.

205

165 Cal. App. 4th 732 (Cal. Ct. App. 2008), reh'g granted, 196 P.3d 220 (Cal. 2008).

206

People v. Diaz, 165 Cal. App. 4th 732, 734 (Cal. Ct. App. 2008), reh'g granted, 196 P.3d 220 (2008).

207

Diaz, 165 Cal. App. 4th at 736-37.


33


208

Compare United States v. McCray, No. CR408-231, 2009 WL 29607, at *2 (S.D. Ga. Jan. 5, 2009) (citations omitted) (relying on prior cases upholding searches of address books and wallets in upholding search of cell phone incident to arrest), and United States v. Cote, No. 03CR271, 2005 WL 1323343, at *6 (N.D. Ill. May 26, 2005) (citations omitted) (same), with Diaz, 165 Cal. App. 4th at 737 (citing United States v. Finley, 477 F.3d 250, 260 (5th Cir. 2007); United States v. Chan, 830 F. Supp. 531, 536 (N.D. Cal. 1993); United States v. Rodriguez, 995 F.2d 776, 777-78 (7th Cir. 1993); People v. Decker, 222 Cal. Rptr. 689 (Cal. 1986); United States v. Passaro, 624 F.2d 938, 944 (9th Cir. 1980)) (same).

209

Diaz, 165 Cal. App. 4th at 738.

210

Id.

211

556 U.S. --, 129 S. Ct. 1710 (2009).

212

People v. Diaz, 196 P.3d 220 (Cal. 2008). The Supreme Court of the United States decided Arizona v. Gant on April 21, 2009, six months after the California Court of Appeals decided Diaz on October 28, 2008. Arizona v. Gant, 556 U.S. --, 129 S. Ct. 1710, 1710 (2009); People v. Diaz, 165 Cal. App. 4th 732, 732 (Cal. Ct. App. 2008).

213

No. 06-CR-336, 2008 WL 360548 (E.D. Wis. Feb. 8, 2008).

214

Compare United States v. Valdez, No. 06-CR-336, 2008 WL 360548, at *2 (E.D. Wis. Feb. 8, 2008) (citing United States v. Ortiz, 84 F.3d 977, 984 (7th Cir. 1996); United States v. Rodriguez, 995 F.2d 776, 777 (7th Cir. 1993); United States v. Molinaro, 877 F.2d 1341, 1346 (7th Cir. 1989)) (relying on cases upholding searches incident to arrest of wallets, address books, and pagers in upholding search of cell phone incident to arrest), with People v. Diaz, 165 Cal. App. 4th 732, 737 (Cal. Ct. App. 2008) (citing Rodriguez, 995, F.2d at 777-778; United States v. Chan, 830 F. Supp. 531, 536 (N.D. Cal. 1993); People v. Decker, 176 Cal. App.3d 1247, 1252 (Cal. Ct. App. 1986); United States v. Passaro, 624 F.2d 938, 944 (9th Cir. 1980)) (relying on prior cases upholding searches of a wallet, purse, address book, and pager incident to arrest in upholding search of cell phone incident to arrest).

215

Valdez, 2008 WL 360548, at *2 (citing Ortiz, 84 F.3d at 984; Rodriguez, 995 F.2d at 777; Molinaro, 877 F.2d at 1346).

216

Id. at *2, 4.

217

No. CR 05-375 SI, 2007 WL 1521573 (N.D. Cal. May 23, 2007).

218

See United States v. Park, No. CR 05-375 SI, 2007 WL 1521573, at *8 (N.D. Cal. May 23, 2007) (noting that “[u]nlike pagers or address books” modern cell phones have multiple technological functions such as text messaging and email).

219

Park, 2007 WL 1521573, at *1, 5.

220

Id. at *1.

221

477 F.3d 250 (5th Cir. 2007).

222

Park, 2007 WL 1521573, at *8 (citing United States v. Chadwick, 433 U.S. 1, 16 n.10 (1977)); see United States v. Finley, 477 F.3d 250, 260 n.7 (5th Cir. 2007) (saying a cell phone did not “fit into the category of ‘property not immediately associated with [his] person’ because it was on his person at the time of arrest.”) (quoting Chadwick, 433 U.S. at 15)).

223

Park, 2007 WL 1521573, at *8. The court took judicial notice of the features of two of the cell phones-T-Mobile Sidekick IIs-that police searched. Id. at *8 n.6 (citation omitted).

224

Id. at *9 (citing United States v. Ortiz, 84 F.3d 977, 984 (7th Cir. 1996); United States v. Chan, 830 F. Supp. 531, 536 (N.D. Cal. 1993)).

225

Id. at *8 (citing Chimel v. California, 395 U.S. 752 (1969)). One year after the Park decision, the United States District Court for the Southern District of Florida similarly observed that the mere content of text messages or any other data stored on a cell phone


34

THE SEARCH INCIDENT TO ARREST EXCEPTION..., 43 Creighton L. Rev.... presents no danger of physical harm to law enforcement officers who affect arrests or others. United States v. Wall, No. 08-60016CR, 2008 WL 5381412, at *3 (S.D. Fla. Dec. 22, 2008).

226

552 F.3d 405 (4th Cir. 2009).

227

United States v. Murphy, 552 F.3d 405, 410 (4th Cir. 2009).

228

Murphy, 552 F.3d at 407.

229

Id. at 407-08.

230

Id. at 408.

231

Id.

232

Id.

233

Id. at 409.

234

See id. at 407, 409 (noting Murphy's arrest and the inventory search of the vehicle occurred on June 6, 2006 and that a DEA agent subsequently searched Murphy's cell phone on June 29, 2006).

235

Id. at 409.

236

Id. at 411.

237

Id. The court explained that police would have no way of knowing a cell phone's storage capacity by merely looking at the phone and that, in the time it would take to determine this information, stored information inside the phone could be lost. Id. (citation omitted). The court further noted that Murphy's argument was problematic in failing to offer any standard to determine what would be a large or small storage capacity. Id.

238

Id. (quoting United States v. Young, No. 07-4213, 2008 WL 2076380, at *2-3 (4th Cir. May 15, 2008) (per curiam), cert. denied,-U.S. --, 129 S. Ct. 514 (2008); citing United States v. Hunter, No. 96-4259, 1998 WL 887289, at *3 (4th Cir. Oct. 29, 1998)). The Fourth Circuit in Murphy further cited United States v. Ortiz, 84 F.3d 977 (7th Cir. 1996), which held that the need to preserve evidence similarly justified retrieving text messages and call records from a pager incident to arrest. Id. (citing Ortiz, 84 F.3d at 984). However, one commentator prior to the Murphy decision observed that, once police officers seize a cell phone, there is no longer any risk that an arrestee could reach the phone to destroy evidence held by the phone. See Bryan Andrew Stillwagon, Bringing An End to Warrantless Cell Phone Searches, 42 Ga. L. Rev. 1165, 1196 (2008) (noting that any possibility an arrestee may use a cell phone to harm an officer can be avoided by simply seizing the cell phone). Justice Scalia also observed after the Murphy decision during oral arguments for the Supreme Court of the United States' decision in Arizona v. Gant, 556 U.S. --, 129 S. Ct. 1710 (2009), that, “if you're going to use [the preservation-of-evidence] rationale you have to link the reason for the arrest with the likelihood that there would be any evidence found in the car that would support the arrest.” Transcript of Oral Argument at 22, Arizona v. Gant, 556 U.S. --, 129 S. Ct. 1710 (No. 07-542).

239

No. 07-4213, 2008 WL 2076380 (4th Cir. May 15, 2008) (per curiam), cert. denied,--U.S. --, 129 S. Ct. 514 (2008).

240

Murphy, 552 F.3d at 411 (citing Young, 2008 WL 2076380, at *2-3).

241

United States v. Young, No. 07-4213, 2008 WL 2076380, at *1, 3 (4th Cir. May 15, 2008) (per curiam), cert. denied,--U.S. --, 129 S. Ct. 514 (2008).

242

Young, 2008 WL 2076380, at *1.

243

See id. (explaining that police first searched the apartment on August 24, 2005 finding heroin and firearms and later returned to the apartment on August 26, 2005 and arrested Young).


35


244

Id.

245

Id. The jury also convicted Young of aiding and abetting the possession with intent to distribute heroin and possession of a firearm in relation to a drug trafficking crime. Id.

246

Id. at *3.

247

Id. The court stated that Young's privacy rights in his cell phone were tempered by the need of an arresting officer to preserve evidence. Id. at *2.

248

289 F. Supp. 2d 1291 (D. Kan. 2003).

249

486 F. Supp. 2d 1271 (D. Kan. 2007).

250

See United States v. Parada, 289 F. Supp. 2d 1291, 1303-04 (D. Kan. 2003) (concluding police had the authority to search a cell phone's memory of incoming call records to prevent destruction of evidence); United States v. Mercado-Nava, 486 F. Supp. 2d 1271, 1278, 1279 (D. Kan. 2007) (finding officers' search of cell phone was justified as a search incident to arrest reasoning “[t]he need to preserve evidence is underscored where evidence may be lost due to the dynamic nature of the information stored on and deleted from cell phones.”).

251

Parada, 289 F. Supp. 2d at 1303-04.

252

Id. The court for the District of Kansas noted that later incoming calls can delete earlier recorded numbers “whether the phone is turned on or off, so it is irrelevant whether the defendant or the officers turned on the phone.” Id.; see also United States v. Valdez, No. 06-CR-336, 2008 WL 360548, at *1 (E.D. Wis. Feb. 8, 2008) (noting arresting officer's testimony that he “immediately searched defendant's cell phone because he was concerned that the information contained in the phone, such as the call history and the address book, could be erased remotely or lost on deactivation.”).

253

Mercado-Nava, 486 F. Supp. 2d at 1278, 1279 (citing United States v. Zamora, No. 1:05 CR 250 WSD, 2006 WL 418390, at *4 (N.D. Ga. 2006); Parada, 289 F. Supp. 2d at 1304).

254

571 F. Supp. 2d 1093 (D. Ariz. 2008).

255

United States v. Santillan, 571 F. Supp. 2d 1093, 1102-03 (D. Ariz. 2008).

256

Santillan, 571 F. Supp. 2d at 1102. The agents involved in Santillan were Immigration and Customs Enforcement (“ICE”) agents, one of whom had observed the defendant, Manual M. Santillan, jogging back and forth and talking on a cell phone on a road that extended towards the border to Mexico. Id. at 1097. The Arizona District Court also determined that the search of the cell phone's call records was permissible under the exigent circumstances exception, reasoning that law enforcement had reason to believe that accessing the cell phone was necessary to prevent evidence destruction. Id. at 1104.

257

Id. at 1103 n.5. The court also noted the agents' concern for officer safety. Id.

258

See, e.g., United States v. Morales-Ortiz, 376 F. Supp. 2d 1131, 1142 (D. N.M. 2004) (determining evidence did not justify finding exigent circumstances existed to support search); United States v. Quintana, 594 F. Supp. 2d 1291, 1300 (M.D. Fla. 2009) (determining search of cell phone “had nothing to do with...the preservation of evidence related to the crime of arrest” and suppressing contents of cell phone seized incident to arrest); United States v. McGhee, No. 8:09CR31, slip op., 2009 WL 2424104, at *3 (D. Neb. July 21, 2009) (determining law enforcement was not justified in conducting warrantless search of cell phone incident to arrest reasoning in part that “no evidence suggest[ed] the cell phone appeared to be or to conceal contraband or other destructible evidence.”).

259

376 F. Supp. 2d 1131 (D. N.M. 2004).

260

United States v. Morales-Ortiz, 376 F. Supp. 2d 1131, 1142 (D. N.M. 2004) (citing United States v. Parada, 289 F. Supp. 2d 1291, 1303-04 (D. Kan. 2003)).


36


261

Morales-Ortiz, 376 F. Supp. 2d at 1142.

262

Id.

263

Id.

264

594 F. Supp. 2d 1291 (M.D. Fla. 2009).

265

United States v. Quintana, 594 F. Supp. 2d 1291, 1301 (M.D. Fla. 2009).

266

Quintana, 594 F. Supp. 2d at 1294.

267

Id. at 1295.

268

Id.

269

Id. at 1295-96.

270

556 U.S. --, 129 S. Ct. 1710 (2009).

271

Quintana, 594 F. Supp. 2d at 1300. The court for the Middle District of Florida noted that the Gant decision was forthcoming at the time it issued its decision in Quintana. Id. The court in Quintana specifically discussed comments made by Justice Stevens and Justice Scalia at oral argument for the Gant case. Id. The court for the Middle District of Florida explained that Justice Stevens stated during oral argument that “‘the interest in preserving evidence really should only be present when there is probable cause to believe there is some evidence.”’ Id. (citing Transcript of Oral Argument at 21, Arizona v. Gant, 556 U.S. --, 129 S. Ct. 1710 (2009) (No. 07-542)). The court also noted Justice Scalia's statement during oral argument that “‘if you're going to use [the preservation-of-evidence] rationale you have to link the reason for the arrest with the likelihood that there would be any evidence found in the car that would support the arrest.”’ Id. (citing Transcript of Oral Argument at 22, Arizona v. Gant, 556 U.S. --, 129 S. Ct. 1710 (2009) (No. 07-542)).

272

Id.

273

Id.

274

Id. (citing Transcript of Oral Argument at 22, Arizona v. Gant, 556 U.S. --, 129 S. Ct. 1710 (2009) (No. 07-542)). Other courts and commentators have similarly observed that, in the case of drug-related crimes, police officers could reasonably believe a cell phone could store evidence of the crime of arrest. See United States v. Santillan, 571 F. Supp.2d 1093, 1100-01 (D. Ariz. 2008) (citations omitted) (stating cell phones are recognized tools of the drug-dealing trade); Adam M. Gershowitz, The iPhone Meets the Fourth Amendment, 56 UCLA L. Rev. 26, 49 (2008) (stating if officers make arrest “for possession of drugs with intent to distribute, it would make sense to search his text messages for further evidence of the crime, since that function is commonly used in conjunction with drug sales.”). However, as Gershowitz noted, if an individual is arrested for a traffic violation, it would not be reasonable to believe a cell phone would contain relevant evidence. See Gershowitz, supra (explaining that “[i]f police could only search for evidence related to the crime of arrest, most traffic stops would not permit searches of an iPhone's contents.”). Further, the United States District Court for the District of Arizona in Santillan also suggested that police officers could reasonably believe a cell phone would store evidence of the arresting offense when police officers observe a suspect using a cell phone during the commission of the crime or while engaging in suspicious activity leading to arrest. See Santillan, 571 F. Supp.2d at 1097, 1102-03 (concluding search incident to arrest of cell phone was permissible after agent observed arrestee talking on cell phone during events that led agent to conclude defendant was likely spotter for drug-smuggling activity and was using cell phone to communicate with occupants of trucks seen driving nearby that appeared modified to smuggle drugs).

275

No. 8:09CR31, 2009 WL 2424104 (D. Neb. July 21, 2009).

276

United States v. McGhee, No. 8:09CR31, slip op., 2009 WL 2424104, at *3 (D. Neb. July 21, 2009).


37


277

McGhee, 2009 WL 2424104, at *1. McGhee was also charged with distributing cocaine base on or about March 14, 21, and 24, 2008. Id.

278

Id. at *2.

279

Id.

280

Id.

281

Id.

282

Id. at *3. (citing Arizona v. Gant, 556 U.S. --, 129 S. Ct. 1710, 1719 (2009)). The Nebraska District Court cited to the holding in Gant that “law enforcement may search a vehicle incident to a lawful arrest only when ‘it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.”’ Id. (quoting Gant, 129 S. Ct. at 1719). The Nebraska District explained that the Government in McGhee's case argued that Gant was not applicable to the case but that McGhee argued that the Gant opinion highlighted “the reasons why officers lacked justification to search the contents of the cell phone without a warrant.” Id.

283

Id.

284

Id. (citing Gant, 129 S. Ct. at 1716).

285

Id.

286


287

414 U.S. 218 (1973).

288

453 U.S. 454 (1981).

289


290

See, e.g., United States v. Finley, 477 F.3d 250, 259-60 (5th Cir. 2007) (citing United States v. Robinson, 414 U.S. 218, 223-24, 235 (1973); New York v. Belton, 453 U.S. 454, 460-61 (1981)) (concluding search of cell phone incident to arrest was lawful in relying on authority to search the full person of an arrestee and containers incident to arrest from Robinson and Belton); United States v. Deans, 549 F. Supp. 2d 1085, 1093-94 (D. Minn. 2008) (citing Belton, 453 U.S. at 460-61) (determining officers may search data stored on cell phone incident to arrest after citing authority from Belton to search containers incident to arrest).

291


292

556 U.S. --, 129 S. Ct. 1710 (2009).

293


294


295


296


297

395 U.S. 752 (1969).

298

James J. Tomkovicz, Divining and Designing the Future of the Search Incident to Arrest Doctrine: Avoiding Instability, Irrationality, and Infidelity, 2007 U. Ill. L. Rev. 1417, 1427 (2007); see Chimel v. California, 395 U.S. 752, 762-63 (1969) (marking the “proper extent” of a search incident to arrest as searching the person of an arrestee to ensure officer safety and to prevent the concealment or destruction of any evidence on the arrestee's person).


38


299

Tomkovicz, supra note 298, at 1427.

300

Adam M. Gershowitz, The iPhone Meets the Fourth Amendment, 56 UCLA L. Rev. 27, 30-31 (2008).

301

414 U.S. 218 (1973).

302

453 U.S. 454 (1981).

303

See United States v. Robinson, 414 U.S. 218, 235 (1973) (holding that a full search of an arrestee's person incident to arrest is reasonable under the Fourth Amendment regardless of any probability that either justification for the search incident to arrest exception exists at the time of the arrest); New York v. Belton, 453 U.S. 454, 460-61 (1981) (holding that police officers may search an automobile when they have made a lawful arrest of an occupant of the automobile and may also search any containers within the passenger compartment of the automobile regardless of any possibility that any containers within the passenger compartment could contain weapons or evidence of the crime of arrest); see infra notes 304-19 and accompanying text.

304

See Robinson, 414 U.S. at 235 (determining that a search incident to an arrest of a suspect does not require any justification other than the occurrence of a lawful arrest in reasoning that a police officer's determination how to search an arrestee's person is a quick ad hoc judgment of which the Fourth Amendment does not require step-by-step analysis); see infra notes 305-08 and accompanying text.

305

See United States v. Robinson, 414 U.S. 218, 235-236 (1973) (stating the search of arrestee's person and seizure of heroin found in crumpled package of cigarettes from arrestee's person were permissible under the Fourth Amendment); see also New York v. Belton, 453 U.S. 454, 461 (1981) (saying the Supreme Court in Robinson “rejected the argument that such a container-there a ‘crumpled up cigarette package'-located during the a search of Robinson incident to his arrest could not be searched”); Stephen A. Saltzburg, Daniel J. Capra, Angela J. Davis, Basic Criminal Procedure 301 (4th ed. Thomson-West 2005) (explaining that Robinson established “the automatic right to search containers found on an arrestee”).

306

Robinson, 414 U.S. at 235.

307

Id.

308

Id.

309

See Belton, 453 U.S. at 459-60 (citing Robinson, 414 U.S. at 235) (explaining the importance of a straight-forward, easily-applied rule to guide police); Tomkovicz, supra note 298, at 1437.

310


311

Id.

312

Id. at 461 n.4. The Supreme Court specifically stated that a container included, “closed or open glove compartments, consoles, or other receptacles located anywhere within the passenger compartment, as well as luggage, boxes, bags, clothing, and the like.” Id.

313

See id. at 461 (citing United States v. Robinson, 414 U.S. 218, 235 (1973)) (noting that sometimes containers would not be capable of holding weapons or evidence but that law enforcement could search such items regardless consistent with Robinson).

314

New York v. Belton, 453 U.S. 454, 461 (1981) (citing Robinson, 414 U.S. at 235).

315

Tomkovicz, supra note 298, at 1441; Gershowitz, supra note 300, at 35. Gershowitz also noted that, while technology and society have changed drastically in recent decades, “the search incident to arrest rule has remained static.” Id. at 31.

316

See United States v. Robinson, 414 U.S. 218, 235 (1973) (noting that there “is an adequate basis for treating all custodial arrests alike for purposes of search justification.”).

317

See Robinson, 414 U.S. at 235, 236 (explaining that a search incident to arrest does not require any additional justification other than the occurrence of a lawful, custodial arrest based on probable cause and holding that a full search of the person is both an exception to


39

THE SEARCH INCIDENT TO ARREST EXCEPTION..., 43 Creighton L. Rev.... the Fourth Amendment's warrant requirement and is reasonable under the Fourth Amendment); Belton, 453 U.S. at 460 (determining that police may examine the contents of any containers in the passenger compartment of an automobile and noting that such a search does not matter if a container could hold neither a weapon or evidence under Robinson).

318

Compare Belton, 453 U.S. at 461 (citing Robinson, 414 U.S. at 235) (explaining that the possibility weapons or evidence could be found on arrestee played no role in the authority to search incident to arrest), with Chimel v. California, 395 U.S. 752, 762-63 (1969) (determining the “proper extent” of a search incident to arrest encompassed searching an arrestee and the area arrestee could reach in order to ensure officer safety and prevent the concealment or destruction of evidence).

319

See Belton, 453 U.S. at 459 (citing Robinson, 414 U.S. at 235) (noting that the Court in Robinson “hewed to a straightforward rule, easily applied, and predictability enforced that is necessary to guide police and issuing workable rule as a result); Robinson, 414 U.S. at 235 (rejecting suggestion that “there must be litigated in each case the issue of whether or not there was present one of the reasons supporting the authority for a search of the person incident to a lawful arrest.”).

320

See, e.g., United States v. Finley, 477 F.3d 250, 260 (5th Cir. 2007) (citing New York v. Belton, 453 U.S. 454, 460-61 (1981) (using Belton's authority to search containers found on an arrestee's person to uphold search of cell phone incident to arrest); United States v. Deans, 549 F. Supp. 2d 1085, 1093-94 (D. Minn. 2008) (citing Belton, 453 U.S. at 460-61 n.4) (using Belton's authority to search containers found inside passenger compartment of vehicle to support search of cell phone found in vehicle incident to the arrest of a recent occupant of the vehicle); United States v. Valdez, No. 06-CR0336, 2008 WL 360548 (E.D. Wis. Feb. 8, 2008) (citing United States v. Robinson, 414 U.S. 218, 236 (1973)) (upholding search of cell phone incident to arrest after citing Robinson for authority that police officers may search containers an arrestee is carrying); see infra notes 325-44, 346-71 and accompanying text. Other lower courts have upheld searches of cell phones incident to arrest by reasoning that law enforcement need to search cell phones to preserve any evidence that may be stored inside a cell phone's memory. See, e.g., United States v. Mercado-Nava, 486 F. Supp. 2d 1271, 1278, 1279 (D. Kan. 2007) (finding search of cell phones justified as search incident to arrest reasoning the “need to preserve evidence is underscored where evidence may be lost due to the dynamic nature of the information stored on and deleted from cell phones”); United States v. Santillan, 571 F. Supp. 2d 1093, 1102-03 (D. Ariz. 2008) (concluding search of cell phone was permissible search incident to arrest reasoning officers had valid concern arrestee's cell phone could destroy evidence located on cell phone's recent contact's lists); United States v. Murphy, 552 F.3d 405, 411 (4th Cir. 2009) (quoting United States v. Young, No. 07-4213, 2008 WL 2076380, at *3 (4th Cir. May 15, 2008)) (concluding no error made by district court in denying motion to suppress contents of arrestee's cell phone citing “‘manifest need ... to preserve evidence”’). In upholding searches of cell phones incident to arrest, lower courts have also reasoned that prior courts have upheld searches of pagers, another digital device, incident to arrest. See, e.g., Mercado-Nava, 486 F. Supp. 2d at 1277, 1278 (citations omitted) (citing decisions upholding searches of pagers incident to arrest in upholding search of cell phone incident to arrest); United States v. McCray, No. CR408-231, 2009 WL 29607, at *3 (S.D. Ga. Jan. 5, 2009) (citations omitted) (same); United States v. Valdez, 2008 WL 360548 at *2 (E.D. Wis. 2008) (citations omitted) (same).

321

453 U.S. 454 (1981).

322


323


324


325

See New York v. Belton, 453 U.S. 454, 460-61 (1981) (citing United States v. Robinson, 414 U.S. 218, 235 (1973)) (reading the definition of the limits of the area law enforcement may search from Chimel v. California, 395 U.S. 752 (1969), as encompassing the passenger compartment of a vehicle and any containers therein when law enforcement arrest a recent occupant of the vehicle).

326

See Adam M. Gershowitz, The iPhone Meets the Fourth Amendment, 56 UCLA L. Rev. 27, 31 (2008) (noting that “if we think of an iPhone as a container...police can open and search the contents inside with no questions asked and no probable cause required, so long as they are doing so pursuant to a valid arrest.”).

327

See, e.g., United States v. Finley, 477 F.3d 250, 260 (5th Cir. 2007) (citing Belton, 453 U.S. at 460-61) (using Belton's authority to search containers found on an arrestee's person to uphold search of cell phone incident to arrest); United States v. Deans, 549


40

THE SEARCH INCIDENT TO ARREST EXCEPTION..., 43 Creighton L. Rev.... F. Supp. 2d 1085, 1093-94 (D. Minn. 2008) (citing Belton, 453 U.S. at 460-61 n.4) (using Belton's authority to search containers found inside passenger compartment of vehicle to support search of cell phone found in vehicle incident to the arrest of a recent occupant of the vehicle).

328

Compare Finley, 477 F.3d at 260 (noting general law from Belton that proper scope of search incident to arrest encompassed containers in upholding search of arrestee's cell phone but not discussing why a cell phone fit Belton's classification of a container), and Deans, 549 F. Supp. 2d at 1093-94 (same), with State v. Smith, 920 N.E.2d 949, 953 (Ohio 2009) (distinguishing definition of container given in Belton in holding that a cell phone is not a “container” under a Fourth Amendment analysis).

329

477 F.3d 250 (5th Cir. 2007).

330


331

United States v. Finley, 477 F.3d 250, 253, 254, 259 (2007).

332

Finley, 477 F.3d at 260 (citing United States v. Johnson, 846 F.2d 279, 282 (5th Cir. 1988) (per curiam); Belton, 453 U.S. at 460-61; United States v. Robinson, 414 U.S. 218, 223-24 (1973)). Oddly enough, the appellant, Jacob Pierce Finley, argued using authority from Walter v. United States, 447 U.S. 649 (1980), that “since a cell phone is analogous to a closed container,” the police did not have the authority to inspect its contents without a search warrant. Finley, 477 F.3d at 460 (citing Walter, 447 U.S. at 657). However, the Fifth Circuit explained that the Walter case was inapplicable to Finley's case as the Walter decision did not involve any exception to the Fourth Amendment's warrant requirement. Id.

333

See id. (citing Belton for the authority to search any containers-open or closed-found on an arrestee's person but not discussing what constituted a container under Belton or why a cell phone constituted a container under Belton).

334

549 F. Supp. 2d 1085 (D. Minn. 2008).

335


336

United States v. Deans, 549 F. Supp. 2d 1085, 1093, 1094 (D. Minn. 2008).

337

Deans, 549 F. Supp. 2d at 1093-94 (citing Belton, 453 U.S. at 460-61).

338

Id. at 1094 (citing Belton, 453 U.S. at 460 n.4).

339

Id.

340

See id. (citing Belton for the authority to search any containers found in passenger compartment of vehicle but not discussing why a cell phone constituted a container under Belton).

341

See United States v. Finley, 477 F.3d 250, 259, 260 (5th Cir. 2007) (citing Belton, 453 U.S. at 460-61; United States v. Robinson, 414 U.S. 218, 223-24 (1973)) (citation omitted) (citing Belton and Robinson rule that officers may search any containers found on arrestee's person in concluding that search of cell phone was lawful incident to arrest); Deans, 549 F. Supp. 2d at 1093-94 (citing Belton, 453 U.S. at 460-61, 461 n.4) (using Belton in agreeing that officers could search cell phone incident to arrest); see also Gershowitz, supra note 326, at 38 (explaining that the court in Finley relied on “the conventional search incident to arrest case lawnamely United States v. Robinson and New York v. Belton”).

342

See Finley, 477 F.3d at 259, 260 (citing Belton, 453 U.S. at 460-61) (citations omitted) (citing Belton's rule that officers may search any containers found on an arrestee's person in concluding search of cell phone was lawful incident to arrest); Deans, 549 F. Supp. 2d at 1093-94 (citing Belton, 453 U.S. at 460-61, 461 n.4) (using Belton's authority that officers may search the passenger compartment of a vehicle and any containers therein incident to the arrest of a recent occupant of the vehicle in agreeing that officers could search cell phone seized from vehicle's passenger compartment incident to the arrest of the vehicle's driver).

343

See Finley, 477 F.3d at 260 (citing Belton, 453 U.S. at 460-61) (citing Belton's authority that a search of a lawful arrest includes any containers on the arrestee's person in immediately determining no warrant was required to search a cell phone on the defendant's


41

THE SEARCH INCIDENT TO ARREST EXCEPTION..., 43 Creighton L. Rev.... person when the search was performed pursuant to the defendant's arrest but not discussing why a cell phone was a container under Belton); Deans, 549 F. Supp. 2d at 1093-94 (citing Belton's authority to search any containers found in the passenger compartment of a vehicle in upholding the search of a cell phone seized from the passenger compartment of the defendant's vehicle without discussing why a cell phone fit Belton's container classification).

344

Compare State v. Smith, 920 N.E.2d 949, 954 (Ohio 2009) (discussing unique nature of cell phone and massive amount of private information cell phones store in striking down search of cell phone incident to arrest), with Finley, 477 F.3d at 260 (using Belton's authority that a search incident to arrest includes any containers on the arrestee's person in immediately determining no warrant was required to search a cell phone on the defendant's person when the search was performed pursuant to the defendant's arrest but not discussing why a cell phone constituted a container under Belton); see, e.g., United States v. Murphy, 552 F.3d 405, 411, 412 (4th Cir. 2009) (citing Finley for authority upholding search of cell phone incident to arrest in ultimately validating search of cell phone); United States v. Young, No. 07-4213, 2008 WL 2076380, at *3 (4th Cir. May 15, 2008) (per curiam) (same); State v. Smith, No. 07CA-47, 2008 WL 2861693, at *7, 8 (Ohio App. 2 Dist. July 25, 2008), rev'd, 920 N.E.2d 949 (Ohio 2009) (same).

345

453 U.S. 454 (1981).

346

New York v. Belton, 453 U.S. 461 (1981); See infra notes 346-71 and accompanying text.

347

Belton, 453 U.S. at 461 n.4. According to the Supreme Court, a container denoted “any object capable of holding another object.” Id.

348

See, e.g., United States v. Rodriguez, 995 F.2d 776, 778 (7th Cir. 1993) (upholding copying of contents of arrestee's address book incident to arrest); People v. Decker, 176 Cal. App. 3d 1247, 1253 (Cal. Ct. App. 1986) (upholding search of arrestee's purse incident to arrest); United States v. Richardson, 764 F.2d 1514, 1527 (11th Cir. 1985) (upholding search of wallet and papers found on arrestees' person incident to arrest); compare Belton, 453 U.S. at 461 n.4 (explaining officers may search containers in passenger compartment of vehicle and that a container “denotes any object capable of holding another object” and includes such items as “luggage, boxes, bags, clothing, and the like.”), and United States v. Robinson, 414 U.S. 218, 235 (1973) (holding that a full search of the arrestee's person including containers found on the arrestee's person such as a cigarette package is permissible under the Fourth Amendment), with Rodriguez, 995 F.2d at 778 (determining officers permissibly copied contents of arrestee's address book found on arrestee's person incident to his arrest).

349

See, e.g., United States v. Valdez, No. 06-CR-336, 2008 WL 360548, at *2, 4 (E.D. Wis. Feb. 8, 2008) (citations omitted) (analogizing cell-phone searches incident to arrest to searches incident to arrest of a wallet and personal address book); People v. Diaz, 165 Cal. App. 4th 732, 738 (Cal. Ct. App. 2008) (stating cell phones do not give rise to a heightened expectation of privacy than objects such as “wallets, purses and the like” that also contain personal information); United States v. Cote, No. 03CR271, 2005 WL 1323343, at *6 (N.D. Ill. May 26, 2005) (analogizing cell phones to “items such as wallets and address books...since they would contain similar information”).

350

Compare United States v. McCray, No. CR408-231, 2009 WL 29607, at *2, 4 (determining cell phone search incident to arrest was valid after citing numerous cases that repeatedly authorized searches of purses, wallets, and the like incident to arrest), and Valdez, 2008 WL 360548, at *2 (same), with United States v. Smith, 920 N.E.2d 949, 953-54 (Ohio 2009) (specifically distinguishing cell phones from address books and rejecting claim that cell phones are analogous to items that fall under the closed-container classification because such items-unlike cell phones-are traditionally physical objects capable of holding other physical objects under Belton).

351

No. CR408-231, 2009 WL 29607 (S.D. Ga. Jan. 5, 2009).

352


353

414 U.S. 218 (1973).

354

McCray, 2009 WL 29607, at *2 (citing United States v. Robinson, 414 U.S. 218, 223-24, 236 (1973) (upholding search incident to arrest of crumpled cigarette package on arrestee's person); United States v. Rodriguez, 995 F.2d 776, 778 (7th Cir. 1993) (same of address book and wallet); United States v. Richardson, 764 F.2d 1514, 1527 (11th Cir. 1985) (same of wallet and papers); United


42

THE SEARCH INCIDENT TO ARREST EXCEPTION..., 43 Creighton L. Rev.... States v. McFarland, 633 F.2d 427, 429 (5th Cir. 1980) (same of piece of notebook paper); United States v. Castro, 596 F.2d 674, 677 (5th Cir. 1979) (same of paper found in arrestee's pocket)).

355

See id. at *2, 4 (citations omitted) (citing cases upholding searches incident to arrest of purses, address books, and the like in ultimately validating search of cell phone incident to arrest). The Georgia District Court further reasoned that other courts had authorized searches of other “electronic storage devices” found on arrestees, namely, searches of pagers, mobile telephones, and digital cameras. Id. at *3 (citing United States v. Finley, 477 F.3d 250, 259-60 (5th Cir. 2007)) (citations omitted).

356

See id. at *2, 4 (citing authority upholding searches of address books, wallets, and similar items incident to arrest and ultimately upholding search of cell phone search incident to arrest but not discussing similarities between such items); compare New York v. Belton, 453 U.S. 454, 461 n.4 (1981) (explaining a container denoted “any object capable of holding another object” and included bags, boxes, and luggage), with People v. Decker, 176 Cal. App. 3d 1247, 1253 (Cal. Ct. App. 1986) (upholding search of arrestee's purse), and Rodriguez, 995 F.2d at 778 (upholding search of address book and wallet found on arrestee's person).

357

No. 06-CR-336, 2008 WL 360548 (E.D. Wis. Feb. 8, 2008).

358

United States v. Valdez, No. 06-CR-336, 2008 WL 360548, at *2, 4 (E.D. Wis. Feb. 8, 2008).

359

Valdez, 2008 WL 360548, at *1-2 (citations omitted). The Wisconsin District Court also cited case law upholding searches of pagers and cell phones incident to arrest and reasoned that officers knew call histories on the arrestee's cell phone could be deleted or lost, “giving rise to a legitimate concern about destruction of evidence.” Id. at *2, 3 (citations omitted).

360

See id. at *2, 4 (citing weight of authority upholding searches incident to arrest of wallets, address books, pagers, and cell phones in finding search of cell phones was lawful incident to arrest).

361

See id. at *2 (relying on cases authorizing searches of papers and wallets incident to arrest but not discussing similarities of such items with cell phones).

362

No. 03CR271, 2005 WL 1323343 (N.D. Ill. May 26, 2005).

363

United States v. Cote, No. 03CR271, 2005 WL 1323343, at *6 (N.D Ill. May 26, 2005) (citation omitted).

364

Cote, 2005 WL 1323343, at *6 (citing United States v. Rodriguez, 995 F.2d 776 (7th Cir. 1993)).

365

Id. In People v. Diaz, the California Court of Appeal for the Second District gave a similar approach as the Illinois District Court in Cote, explaining that cell phones, wallets, purses, and the like all contain personal information. See 165 Cal. App. 4th 732, 738 (Cal. Ct. App. 2008) (determining that cell phones contain personal information just as purses, wallets, and the like do). The California Court of Appeals further explained that the fact that electronic devices have the ability to store vast amounts of private information does not lead to a heightened expectation of privacy when an individual is carrying the device on his person and is subject to a lawful arrest. Id.

366

See Cote, 2005 WL 1323343, at *6 (finding cell phones analogous to address books merely because the items contain “similar information”).

367


368

See supra notes 297-319, 320-21, 325-65 and accompanying text; Adam M. Gershowitz, The iPhone Meets the Fourth Amendment, 56 UCLA L. Rev. 27, 35 (2008).

369

Gershowitz, supra note 367, at 36; see United States v. Deans, 549 F. Supp. 2d 1085, 1094 (D. Minn. 2008) (noting the Belton decision was decided years before cell-phone use was widespread).

370

See Maria Literral, What Are 1st, 2nd, and 3rd Generation Mobile Phones?, June 30, 2008, P 3, http://www.articlesbase.com/ technology-articles/what-are-1st-2nd-and-3rd-generation-mobile-phones-467075.html# (noting Motorola introduced the first handheld mobile phone in the United States in 1983).


43


371

Gershowitz, supra note 367, at 36; see, e.g., United States v. Finley, 477 F.3d 250, 259-60 (5th Cir. 2007) (confronting search of cell phone incident to arrest); Deans, 549 F. Supp. 2d at 1093-94 (same).

372

Compare United States v. Robinson, 414 U.S. 218, 235 (1973) (authorizing searches incident to arrest in any arrest scenario regardless of the possibility that evidence would be found), with Finley, 477 F.3d at 259-60 (authorizing searches incident to arrest of cell phones in light of rules from Robinson and Belton on containers found incident to arrest on arrestee's person), and Deans, 549 F. Supp. 2d at 1093-94 (citing Belton authorizing search of cell phones found in arrestee's vehicle incident to arrest in upholding search of cell phone incident to arrest).

373

453 U.S. 454 (1981).

374

477 F.3d 250 (5th Cir. 2007).

375

549 F. Supp. 2d 1085 (D. Minn. 2008).

376

See infra notes 382-83, 385-90, 392-403 and accompanying text; see supra notes 325-44 and accompanying text; see State v. Smith, 920 N.E.2d 949, 954 (Ohio 2009) (holding that a cell phone does not constitute a container under the Fourth Amendment).

377

See infra notes 382-83, 385-90, 392-403 and accompanying text; see supra notes 346-71 and accompanying text; see State v. Smith, 920 N.E.2d 949, 954-55 (Ohio 2009) (distinguishing cell phones from items such as address books).

378


379


380


381


382


383

See New York v. Belton, 453 U.S. 454, 461 n.4 (1981) (defining container as “any object capable of holding another object” and listing luggage, boxes, bags, clothing, and open and closed compartments as falling under that definition); Adam M. Gershowitz, The iPhone Meets the Fourth Amendment, 56 UCLA L. Rev. 26, 39-40 (2008) (noting search incident to arrest precedent permits police to search “tangible containers” found on arrestees).

384

See United States v. Park, No. CR 05-375 SI, 2007 WL 1521573, at *8 (N.D. Cal. May 23, 2007) (noting the vast amount of digital information cell phones can store); Gershowitz, supra note 382, at 41-2 (noting tremendous amounts of information stored on an iPhone including contact information, call histories, text messages, pictures, email, and audio and video files).

385


386

See Gershowitz, supra note 382, at 40-41 (noting that “no matter what theoretical similarities” may exist between a device like an iPhone and an object like a cigarette package, “the former stores tremendously more information and in a very different way”). Gershowitz treated iPhones differently than a “conventional cell phone,” for the same reasons. Id. at 40, 45.

387

Park, 2007 WL 1521573, at *8.

388

Declan McCullagh, Police push for warrantless searches of cell phones, Cnet.com, P 8, Feb. 18, 2010, http:// news.cnet.com/8301-13578_3-10455611-38.html.

389

Press Release, Kingston Technology Co., Inc., Flash Memory Card offers 16 GB capacity for mobile phones, P 1 (Feb. 26, 2009), available at http://news.thomasnet.com/fullstory/556272; Press Release, SanDisk, SanDisk Doubles Storage Capacity for Mobile Phones and Portable Devices With Introduction of 64GB iNAND Embedded Flash Drives, P 2 (Jan. 7, 2008),


44

THE SEARCH INCIDENT TO ARREST EXCEPTION..., 43 Creighton L. Rev.... available at http://www.sandisk.com/about-sandisk/press-room/press-releases/2010/2010-02-15-sandisk-doubles-storage-capacityfor-mobile-phones-and-portable-devices-with-introduction-of-64gb-inand-.

390

See, e.g., United States v. Mercado-Nava, 486 F. Supp. 2d 1271, 1278-79 (D. Kan. 2007) (finding search of cell phones justified as search incident to arrest in reasoning that the “need to preserve evidence is underscored where evidence may be lost due to the dynamic nature of the information stored on and deleted from cell phones”); United States v. Santillan, 571 F. Supp. 2d 1093, 1102-03 (D. Ariz. 2008) (concluding search of cell phone was permissible search incident to arrest reasoning officers had valid concern arrestee's cell phone could destroy evidence located on cell phone's recent contact's lists); United States v. Murphy, 552 F.3d 405, 411, 412 (4th Cir. 2009) (concluding no error made by district court in denying motion to suppress contents of arrestee's cell phone citing manifest need to preserve evidence that permits officers to retrieve information from cell phones seized incident to arrest); see Productivity Portfolio, Deleting Cell Phone Data Before Upgrading Phones, Sept. 9, 2009, P 3, http:// www.timeatlas.com/Cell_Phones/General/ Deleting_Cell_Phone_Data_Before_ Upgrading_Phones (noting GSM cell phones store address-book data on SIM cards); GSM World, Market Data Summary, Oct. 19, 2009, P 2, http:// www.gsmworld.com/newsroom/market-data/market_data_summary.htm (noting that there are 299,057,084 users of GSM technology in the United States and Canada as of October 2009).

391

Productivity Portfolio, supra note 389, P 6; see Christa Miller, The Mobile Device Investigator's Toolbox,, Officer.com, Nov. 2008, P 1-2, 15, http://www.officer.com/print/Law-Enforcement-Technology/The-mobile-device-INVESTIGATORS-TOOLBOX/1$44226 (describing various tools at police disposal for retrieving information from cell phones). Cell phones are worse about storing seemingly-deleted data than computers due to the type of memory cell phones use. Productivity Portfolio, supra note 389, P 6.

392


393


394

Id. Gersowitz explained that law enforcement could find bank statements accessed via saved passwords on a website on an iPhone or personal and potentially incriminating information on MySpace or Facebook webpages. Id.

395

United States v. Park, No. CR 05-375 SI, 2007 WL 1521573, at *8 (N.D. Cal. May 23, 2007) (citations omitted).

396

Press Release, Apple, Apple's App Store Downloads Top Two Billion: More Than 85,000 Apps Now Available For iPhone & iPod Touch, P 1, 3 (Sept. 28, 2009), available at http://www.apple.com/pr/library/2009/09/28appstore.html.

397

See ConsumerReports.org, Cell Phones and Services Buying Guide, P 1, 6, http://www.consumerreports.org/cro/electronicscomputers/phones-mobile-devices/cell-phones-services/cell-phone-service-buying-advice/cell-phone-service-features/features.htm (last visited Feb. 5, 2010) (noting “[t]oday's phones come equipped with many useful calling and multimedia features, including a media player, camera, Web browsing, child-location, and call-management services” and that “[a]ll phones have some type of location-based technology.”); Press Release, Apple, Apple Announces the New iPhone 3GS - The Fastest and Most Powerful iPhone Yet, P 1, 5 (June 8, 2009), available at http://www.apple.com/pr/library/2009/06/08iphone.html; Jarice Hanson, 24/7: How the Internet and Cell Phones Change the Way We Live, Work, and Play 29 (Praeger Publishers 2007).

398

See, e.g., United States v. Finley, 477 F.3d 250, 259-60 (5th Cir. 2007) (citations omitted) (upholding search of cell phone incident to arrest reasoning the permissible scope of a search incident to arrest encompasses containers found on an arrestee's person); United States v. Deans, 549 F. Supp. 2d 1085, 1093-94 (D. Minn. 2008) (citations omitted) (same reasoning scope of search incident to arrest of vehicle extends to containers in passenger compartment of vehicle where cell phones at issue were discovered); United States v. McCray, No. CR408-231, 2009 WL 29607, at *2, 4 (S.D. Ga. Jan. 5, 2009) (same reasoning that the Supreme Court repeatedly recognized law enforcement's right to search address books, wallets, and similar items on an arrestee's person).

399

See, e.g., Finley, 477 F.3d at 259-60 (citations omitted) (upholding search of cell phone incident to arrest reasoning the permissible scope of a search incident to arrest encompasses containers found on an arrestee's person but failing to explain why or if cell phones should be treated as containers); United States v. Deans, 549 F. Supp. 2d 1085, 1093-94 (D. Minn. 2008) (citations omitted) (same reasoning scope of search incident to arrest of vehicle extends to containers in passenger compartment of vehicle where cell phones at issue were discovered but failing to discuss why a cell phone should fit the Belton decision's container classification even when noting that the Belton decision was decided long before long before the widespread use of cell phones); United States v. McCray,


45

THE SEARCH INCIDENT TO ARREST EXCEPTION..., 43 Creighton L. Rev.... No. CR408-231, 2009 WL 29607, at *2, 4 (S.D. Ga. Jan. 5, 2009) (same reasoning that the Supreme Court repeatedly recognized law enforcement's right to search address books, wallets, and similar items on an arrestee's person but failing to explain why cell phones are similar to such items).

400

James X. Dempsey, Digital Search & Seizure: Updating Privacy Protections To Keep Pace With Technology, Practising Law Institute, 935 PLI/Pat. 543, 551 (2008).

401

Id.; see Montejo v. Louisiana, 556 U.S. --, 129 S. Ct. 2079, 2093 (2009) (Alito, J., concurring) (noting that the Supreme Court of the United States “had no compunction about casting aside [the] 28 year old bright-line rule” from Belton-that police may always search the passenger compartment of a vehicle incident to the arrest of a recent occupant of the vehicle).

402

Dempsey, supra note 399.

403

United States v. Park, No. CR 05-375 SI, 2007 WL 1521573, at *8 (N.D. Cal. May 23, 2007); see Suzanne Choney, Is 2010 the year of wireless congestion?, Msnbc.com, P 3, Jan. 4, 2010, http://www.msnbc.msn.com/ id/34634571/ns/technology_and_sciencetech_and_gadgets// (explaining that cell-phone network congestion has been caused by “nearly 280 million Americans' increasing reliance on cell phones.”); Gershowitz, supra note 382, at 46 (arguing that applying the Supreme Court's bright-line rules to the context of iPhones is undesirable).

404

See United States v. Taylor, 656 F. Supp. 2d 998, 1002 (E.D. Mo. 2009) (saying that it stands to reason that cases that relied on New York v. Belton, 453 U.S. 454 (1981), to validate searches incident to arrest should be reexamined in light of Arizona v. Gant, 556 U.S. --, 129 S. Ct. 1710 (2009)).

405

556 U.S. --, 129 S. Ct. 1710 (2009).

406


407

See, e.g., United States v. Valdez, No. 06-CR-336, 2008 WL 360548, at *4 (E.D. Wis. Feb. 8, 2008) (concluding search of cell phone incident to arrest was lawful); United States v. Young, No. 07-4213, 2008 WL 2076380, at *3 (4th Cir, May 15, 2008) (per curiam), cert. denied,--U.S. --, 129 S. Ct. 514 (2008) (concluding police officers properly accessed text messages on arrestee's cell phone pursuant to arrest); People v. Diaz, 165 Cal. App. 4th 732, 734 (Cal. Ct. App. 2008) (holding police officer's actions in retrieving text messages from arrestee's cell phone were lawful as a valid search incident to arrest); see infra notes 413-494 and accompanying text.

408

See, e.g., United States v. Finley, 477 F.3d 250, 259-60 (5th Cir. 2007) (concluding search incident to arrest of cell phone was lawful); United States v. Deans, 549 F. Supp. 2d 1085, 1093-94 (D. Minn. 2008) (same); United States v. Murphy, 552 F.3d 405, 411-12 (4th Cir. 2009) (same). The United States Court of Appeals for the Fourth Circuit decided Murphy on January 15, 2009, approximately three months after the Supreme Court of the United States decided Arizona v. Gant, 556 U.S. --, 129 S. Ct. 1710 (2009), on April 21, 2009. Murphy, 552 F.3d at 405; Gant, 129 S. Ct. at 1710. Only a handful of courts have invalidated searches of cell phones incident to arrest prior to Gant. See, e.g., United States v. Park, No. CR 05-375, 2007 WL 1521573, at *1 (N.D. Cal. May 23, 2007) (suppressing information seized from cell phone during search incident to arrest); United States v. Morales-Ortiz, 376 F. Supp. 2d 1131, 1142 (2004) (determining that neither the search incident to arrest exception nor exigent circumstances applied to justify the search of a cell phone when the cell phone was not carried on the arrestee's person but was found on the kitchen counter of the arrestee's residence that officers searched). After Gant, several courts have invalidated searches of cell phones incident to arrest. See, e.g., State v. Smith, 920 N.E.2d 949, 955 (Ohio 2009) (holding that police must first procure a search warrant before they may search a cell phone incident to arrest); United States v. Quintana, 594 F. Supp. 2d 1291, 1300-01 (M.D. Fla. 2008) (suppressing data seized from cell phone incident to arrest when neither justification for search incident to arrest exception were present); United States v. McGhee, No. 8:09CR31, slip op., 2009 WL 2424104, at *3 (D. Neb. July 21, 2009) (same).

409


410

Adam M. Gershowitz, The iPhone Meets the Fourth Amendment, 56 UCLA L. Rev. 27, 30 (2008); see James J. Tomkovicz, Divining and Designing the Future of the Search Incident to Arrest Doctrine: Avoiding Instability, Irrationality, and Infidelity, 2007 U. Ill. L.


46

THE SEARCH INCIDENT TO ARREST EXCEPTION..., 43 Creighton L. Rev.... Rev. 1417, 1473 (2007) (noting that Chimel v. California, 395 U.S. 752 (1969), set the current state of search incident to arrest law and that the rule steadily moved in the opposite direction thereafter); see infra notes 416-23 and accompanying text.

411

See infra notes 424-40 and accompanying text; Gershowitz, supra note 409, at 35.

412


413

Compare Finley, 477 F.3d at 260 (upholding denial of motion to suppress text messages seized from search of cell phone search incident to arrest), with Quintana, 594 F. Supp. 2d at 1300-01 (granting motion to suppress data seized from cell phone search incident to arrest in light of Arizona v. Gant, 556 U.S. --, 129 S. Ct. 1710 (2009)).

414

453 U.S. 454 (1981).

415

556 U.S. --, 129 S. Ct. 1710 (2009).

416


417

Adam M. Gershowitz, The iPhone Meets the Fourth Amendment, 56 UCLA L. Rev. 27, 30, 35 (2008); James J. Tomkovicz, Divining and Designing the Future of the Search Incident to Arrest Doctrine: Avoiding Instability, Irrationality, and Infidelity, 2007 U. Ill. L. Rev. 1417, 1441 (2007); Montejo v. Louisiana, 556 U.S. --, 129 S. Ct. 2079, 2093 (2009) (Alito, J., concurring). Gershowitz also noted that, while technology and society drastically changed in recent decades, “the search incident to arrest rule has remained static.” Gershowitz, supra, at 31. According to Tomkovicz, the Supreme Court consistently, albeit modestly, increased the scope of police authority to conduct automatic searches incident to lawful arrests. Tomkovicz, supra, at 1441. Finally, in Montejo, Justice Alito criticized the dissenting opinion in Montejo, which invoked the “antiquity” in Michigan v. Jackson, 475 U.S. 625 (1986), that “a simple, bright-line rule should weigh in favor of its retention.” 129 S. Ct. at 2093.

418

New York v. Belton, 453 U.S. 454, 460 (1981); see Arizona v. Gant, 556 U.S. --, 129 S. Ct. 1710, 1717 (2009) (noting that the holding in Belton “was based in large part on our assumption ‘that articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within the area into which an arrestee might reach.”’) (quoting Belton, 453 U.S. at 460)). Justice William J. Brennan criticized the assumption in his dissent in Belton, stating that the majority's holding in Belton rested on the “fiction ... that the interior of a car is always within the immediate control of an arrestee who has recently been in the car.” Belton, 453 U.S. at 466 (Brennan, J., dissenting).

419

See Gant, 556 U.S. --, 129 S. Ct. at 1718-19 (noting that a broad reading of Belton would permit a search incident to every arrest of a recent occupant and that Justice Brennan's reading of the majority's decision in Belton permitting such a search predominated in lower courts since Belton).

420

395 U.S. 752 (1969).

421

Gant, 129 S. Ct. at 1719; Thornton v. United States, 541 U.S. 615, 624 (2004) (O'Connor, J., concurring in part); see Tomkovicz, supra note 416, at 1427 (noting that the source of current search incident to arrest law came from the Warren Court's “landmark decision” in Chimel v. California, 395 U.S. 752 (1969)). In her concurring opinion in Thornton, Justice O'Connor noted that the concern regarding lower courts' treatment of the ability to search a vehicle incident to the arrest of a recent occupant of the vehicle was a “direct consequence of Belton's shaky foundation” and that the approach offered by Justice Scalia in Thornton was “built on firmer ground.” Thornton, 541 U.S. at 624-25.

422

Gant, 129 S. Ct. at 1719; see id. at 1716 (stating the search incident to arrest exception does not apply if “both justifications for the search incident to arrest exception are absent.”). The Supreme Court further explained that reading Belton broadly to authorize a vehicle search incident to every arrest of a recent occupant would “untether the rule from the justifications underlying the Chimel exception.” Id. at 1719. Thus, the Supreme Court rejected the broad reading of Belton. Id.

423

Compare Gant, 129 S. Ct. at 1719 (rejecting a broad reading of Belton that would authorize a search incident to every arrest of a recent occupant of the vehicle), with United States v. Finley, 477 F.3d 250, 260-61 (5th Cir. 2007) (citations omitted) (reasoning that the scope of a search incident to arrest extends to any containers found on an arrestee's person at the time of the arrest in concluding


47

THE SEARCH INCIDENT TO ARREST EXCEPTION..., 43 Creighton L. Rev.... that the search of an arrestee's cell phone was lawful incident to his arrest). It is also significant to note that, in light of the Supreme Court of the United States' decision in Gant, the California Supreme Court granted review in People v. Diaz, 165 Cal. App. 4th 732, 734, 738 (Cal. Ct. App. 2008), in which the California Court of Appeal for the Second District reasoned that it considered cell phones similar to purses, wallets, and the like in holding that the search of a cell phone incident to arrest was lawful. Diaz, 165 Cal. App. 4th at 734, 738; People v. Diaz, 196 P.3d 220 (2008).

424

United States v. Taylor, 656 F. Supp. 2d 998, 1002 (E.D. Mo. 2009).

425

556 U.S. --, 129 S. Ct. 1710 (2009).

426

See Arizona v. Gant, 556 U.S. --, 129 S. Ct. 1710, 1716 (2009) (stating that the search incident to arrest exception does not apply if “both justifications for the search incident to arrest exception are absent.”). One Fourth-Amendment commentator has also observed that, because of Gant, the Chimel decision has finally returned to its roots after 28 years. John Wesley Hall, A Great Reawakening, Champion, June 2009, 33-Jun Champion 5, 6.

427

395 U.S. 752 (1969).

428

See Chimel v. California, 395 U.S. 752, 762-63 (1969) (stating a search incident to arrest is reasonable in order to ensure officer safety and preserve evidence); Gant, 129 S. Ct. at 1714, 1716 (citing United States v. Robinson, 414 U.S. 218, 230-34 (1973); Chimel, 395 U.S. at 763) (same).

429

453 U.S. 454 (1981).

430

New York v. Belton, 453 U.S. 454, 461 (quoting United States v. Robinson, 414 U.S. 218, 235 (1973)).

431

Gant, 129 S. Ct. at 1716.

432

Compare Gant, 129 S. Ct. at 1716 (stating the search incident to arrest exception does not apply when both justifications for the exception of ensuring officer safety and preserving evidence are absent), with Belton, 453 U.S. at 461 (explaining the authority to search incident to arrest does not depend on the probability that weapons or evidence may be found and justifies searching even when containers could hold neither evidence nor weapons) (quoting Robinson, 414 U.S. at 235).

433


434

United States v. Wall, No. 08-60016-CR, 2008 WL 5381412, at *3 (S.D. Fla. Dec. 22, 2008).

435

See United States v. Chadwick, 433 U.S. 1, 15 n.9 (1977) (indicating officers should open luggage and disarm any immediately dangerous instrumentality such as explosives that luggage may contain); Bryan Andrew Stillwagon, Bringing An End to Warrantless Searches of Cell Phones, 42 Ga. L. Rev. 1165, 1196-97 (2008) (noting that cell phones are distinguishable from items such as rifle cases, briefcases, and purses as cell phones only store electronic components and do not contain weapons).

436

See, e.g., United States v. Murphy, 552 F. 3d 405, 411-12 (4th Cir. 2009) (citing the “‘manifest need ... to preserve evidence”’ in concluding that district court committed no error in refusing to suppress contents of cell phone searched incident to arrest); United States v. Young, No. 07-4213, 2008 WL 2076380, at *3 (4th Cir, May 15, 2008) (per curiam), cert. denied,-- U.S. --, 129 S. Ct. 514 (2008) (reasoning “officers had no way of knowing whether the text messages would automatically delete themselves or be preserved” in concluding that officers permissibly accessed text messages in cell phone pursuant to arrest); United States v. MercadoNava, 486 F. Supp. 2d 1271, 1278 (D. Kan. 2007) (stating need to preserve evidence is underscored when evidence could be lost due to “the dynamic nature of the information stored on and deleted from cell phones” and finding search lawful as a result).

437

See Stillwagon, supra note 434, at 1196 (noting that any possibility an arrestee may use a cell phone to harm an officer can be avoided by simply seizing the cell phone). Justice Scalia also observed during oral arguments for the Gant decision that, “if you're going to use [the preservation-of-evidence] rationale you have to link the reason for the arrest with the likelihood that there would be any evidence found in the car that would support the arrest.” Transcript of Oral Argument at 22, Arizona v. Gant, 556 U.S. --, 129 S. Ct. 1710 (No. 07-542).


48


438

Murphy, 552 F.3d at 411-12 (quotation omitted) (upholding search of cell phone incident to arrest citing “the manifest need to preserve evidence”); United States v. Parada, 289 F. Supp. 2d 1291, 1303-04 (D. Kan. 2003) (concluding law enforcement agents had authority to search cell phone's incoming phone call records to prevent the destruction of evidence); Mercado-Nava, 486 F. Supp. 2d at 1278-79 (finding state troopers' search of arrestee's cell phone was justified as search incident to arrest reasoning that “the need to preserve evidence is underscored where evidence may be lost due to the dynamic nature” of information stored on cell phones); see infra notes 438-40 and accompanying text.

439

Compare Declan McCullagh, Police push for warrantless searches of cell phones, Cnet.com, P 8, Feb. 18, 2010, http:// news.cnet.com/8301-13578_3-10455611-38.html (noting 32-gigabyte storage space available in latest version of Apple's iPhone-the iPhone 3GS), and Press Release, Kingston Technology Co., Inc., Flash Memory Card offers 16 GB capacity for mobile phones, P 1 (Feb. 26, 2009), available at http://news.thomasnet.com/fullstory/556272 (offering memory card for cell phones allowing for 16 gigabytes of storage space translating to approximately 9,000 images and 16 hours of video), and Press Release, SanDisk, SanDisk Doubles Storage Capacity for Mobile Phones and Portable Devices With Introduction of 64GB iNAND Embedded Flash Drives, P 2 (Jan. 7, 2008), available at http://www.sandisk.com/about-sandisk/press-room/press-releases/2010/2010-02-15-sandisk-doublesstorage-capacity-for-mobile-phones-and-portable-devices-with-introduction-of-64gb-inand- (announcing new cell-phone memory card with 64 gigabytes of storage space), with Young, 2008 WL 4527980, at*3 (concluding officers permissibly accessed text messages on cell phone incident to arrest by reasoning that “officers had no way of knowing whether the text messages would automatically delete themselves or be preserved.”). The United States District Court for the District of Arizona in United States v. Santillan, 571 F. Supp. 2d 1093 (D. Ariz. 2008), similarly reasoned that searching a cell phone is necessary to perverse evidence as more incoming calls to the defendant's phone could have deleted prior call records, and agents had good reason to believe other suspects had been contacting the defendant. Santillan, 571 F. Supp.2d at 1102-03. However, the court in Santillan also relied on fact that the arresting agent in Santillan observed the defendant using the cell phone at issue when the officer saw the arrestee's suspicious behavior that led to the defendant's arrest. Id. at 1097.

440

See United States v. Quintana, 594 F. Supp. 2d 1291, 1300-01 (M.D. Fla. 2009) (suppressing information gleaned from cell phone incident to arrest when the search was not supported by either ensuring officer safety or preserving evidence relating to the crime of arrest); United States v. McGhee, No. 8:09CR31, slip op., 2009 WL 2424104, at *3 (D. Neb. July 21, 2009) (same).

441

Compare Gant, 129 S. Ct. at 1716 (stating that when both justifications for the search incident to arrest exception are absent the rule does not apply), with Quintana, 549 F. Supp.2d at 1300-01 (invalidating search of cell phone incident to arrest when both justifications for search incident to arrest rule were absent), and McGhee, 2009 WL 2424014, at *3 (same), and State v. Smith, 920 N.E.2d 949, 955 (Ohio 2009) (same).

442

556 U.S. --, 129 S. Ct. 1710 (2009).

443

Arizona v. Gant, 556 U.S. --, 129 S. Ct. 1710, 1719 (2009).

444

Gant, 129 S. Ct. at 1719 (citing United States v. Thornton, 541 U.S. 615, 632 (2004) (Scalia, J., concurring).

445

Id. at 1714-15.

446

Id. at 1719.

447

Id. at 1715.

448

Arizona v. Gant, 556 U.S. --, 129 S. Ct. 1710, 1719 (2009); see Gant, 129 S. Ct. at 1716 (citation omitted) (noting the purposes of a search incident to arrest of protecting arresting officers and safeguarding evidence of the arresting offense and explaining that “[i]f there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search-incident-to-arrest exception are absent and the rule does not apply.”).

449

Id.

450

541 U.S. 615 (2004)


49


451

Gant, 129 S. Ct. at 1719 (quoting United States v. Thornton, 541 U.S. 615, 632 (2004) (Scalia, J., concurring) (concluding that “circumstances unique to the vehicle context justify a search incident to a lawful arrest when it ‘reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.”’).

452

Thornton, 541 U.S. at 632.

453

Id.

454

Id.

455

See id. at 617, 619, 632 (explaining he would affirm the decision below by the United States Court of Appeals for the Fourth Circuit that concluded the police officer's search of Thornton's vehicle was reasonable).

456

See, e.g., United States v. Quintana, 594 F. Supp. 2d 1291, 1300 (M.D. Fla. 2009) (2009) (suppressing information gleaned from cell phone when a police officer searched the photo album of the arrestee's cell phone and the crime of arrest was for driving with a suspended license); United States v. McGhee, No. 8:09CR31, slip op., 2009 WL 2424104 (D. Neb. July 21, 2009) (suppressing information obtained from cell phone when the crime of arrest stemmed from a drug conspiracy that occurred ten months prior to the time when the police officers effectuated the arrestee's arrest and searched the arrestee's cell phone).

457

See supra notes 424-40, 442-55 and accompanying text.

458

See, e.g., Adam M. Gershowitz, The iPhone Meets the Fourth Amendment, 56 UCLA L. Rev. 26, 49 (2008) (stating that if officers make an arrest “for possession of drugs with intent to distribute, it would make sense to search his text messages for further evidence of the crime, since that function is commonly used in conjunction with drug sales.”); United States v. Santillan, 571 F. Supp.2d 1093, 1097, 1102-03 (D. Ariz. 2008) (concluding search incident to arrest of cell phone was permissible after agent observed arrestee talking on cell phone during events that led agent to conclude defendant was likely spotter for drug-smuggling activity and was using cell phone to communicate with occupants of trucks seen driving nearby that appeared modified to smuggle drugs).

459

See Gershowitz, supra note 457 (stating officers could search a cell phone incident to arrest as functions such as text messaging are commonly used in drug sales); Quintana, 594 F. Supp. 2d at 1300 (noting that “[w]here a defendant is arrested for drug-related activity, police may be justified in searching the contents of a cell phone for evidence related to the crime of arrest”); Santillan, 571 F. Supp.2d at 1100-01 (citations omitted) (stating cell phones are recognized tools of the drug-dealing trade).

460

See Santillan, 571 F. Supp.2d at 1097, 1102-03 (concluding search incident to arrest of cell phone was permissible after agent observed arrestee talking on cell phone during events that led agent to conclude defendant was likely spotter for drug-smuggling activity and was using cell phone to communicate with occupants of trucks seen driving nearby that appeared modified to smuggle drugs).

461

See Gershowitz, supra note 457 (explaining that “[i]f police could only search for evidence related to the crime of arrest, most traffic stops would not permit searches of an iPhone's contents.”); Gant, 129 S. Ct. at 1719 (saying when a recent occupant of a vehicle is arrested for a traffic violation “there will be no reasonable basis to believe the vehicle contains relevant evidence.”); see also Knowles v. Iowa, 525 U.S. 113, 114, 118 (1998) (declining to extend bright-line rule of United States v. Robinson, 414 U.S. 218 (1973), giving authority to conduct a full field search incident to arrest to a situation in which an individual was cited for speeding but not arrested and the officer conducted a full search of the vehicle).

462


463

Arizona v. Gant, 556 U.S. --, 129 S. Ct. 1710, 1719 (2009) (citation omitted).

464

See United States v. Arriaza, 641 F. Supp. 2d 526, 535 (E.D. Va. 2009) (citation omitted) (explaining that “although the Supreme Court did not squarely elucidate what it meant by ‘circumstances unique to the vehicle content”’ in its Gant opinion, “the Supreme Court's citation in Gant to Justice Scalia's Thornton concurrence makes clear that the unique circumstances are the mobility and reduced expectation of privacy justifications that similarly animate the automobile exception.”)

465

Arriaza, 641 F. Supp. 2d at 535 (citing Thornton v. United States, 541 U.S. 615, 631 (2004) (Scalia, J., concurring)).


50


466

Thornton, 541 U.S. at 631 (citing Wyoming v. Houghton, 526 U.S. 295, 303 (1999); United States v. Rabinowitz, 339 U.S. 56, 73 (1950) (Frankfurter, J., dissenting)).

467

See Quon v. Arch Wireless Operating Co., 529 F.3d 892, 905 (9th Cir. 2008) (finding reasonable expectation of privacy in text messages stored on cell phone); United States v. Finley, 477 F.3d 250, 259 (2007) (concluding defendant had a reasonable expectation of privacy in text messages and call records on his cell phone).

468

See, e.g., United States v. Quintana, 549 F. Supp.2d 1291, 1300-01 (M.D. Fla. 2009) (invalidating search of cell phone incident to arrest when it was unreasonable for officer to believe evidence of the arresting offense-a traffic violation-would be found on the arrestee); United States v. McGhee, No. 8:09CR31, slip op., 2009 WL 2424014, at *3 (D. Neb. July 21, 2009) (same when events that formed the basis for the arrest occurred months before police effected the arrest); compare Thornton, 541 U.S. at 631 (explaining that in the context of vehicles owners have a reduced expectation of privacy and law enforcement have a heightened need to search based on ready mobility of vehicles), with Quon, 529 F.3d at 905 (finding reasonable expectation of privacy in digital contents of cell phone), and Finley, 477 F.3d at 259 (same).

469

See supra notes 424-55, 457-60, 462-67 and accompanying text.

470

556 U.S. --, 129 S. Ct. 1710 (2009).

471

See, e.g., State v. Smith, 920 N.E.2d 949, 955 (Ohio 2009) (holding law enforcement may not search a cell phone incident to arrest without first obtaining a search warrant); United States v. Quintana, 594 F. Supp. 2d 1291, 301 (M.D. Fla. 2009) (determining information gleaned from an arrestee's cell phone should be suppressed); United States v. McGhee, No. 8:09CR31, slip op., 2009 WL 2424104, at *3 (D. Neb. July 21, 2009) (determining police officers were not justified in performing a warrantless search of an arrestee's cell phone incident to arrest); see infra notes 473-79, 481-86, 488-92, 494-96 and accompanying text.

472

920 N.E.2d 949 (Ohio 2009).

473


474

594 F. Supp. 2d 1291 (M.D. Fla. 2009).

475

No. 8:09CR31, slip op., 2009 WL 2424104 (D. Neb. July 21, 2009).

476

Compare United States v. Thornton, 541 U.S. 615, 632 (2004) (Scalia, J., concurring) (determining that searches made under the authority of New York v. Belton, 453 U.S. 454 (1981), should be limited “to cases where it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.”), and Arizona v. Gant, 556 U.S. --, 129 S. Ct. 1710, 1719 (2009) (concluding that law enforcement may search a vehicle incident to the arrest of a recent occupant of the vehicle when there is a reasonable basis to believe evidence relevant to the arresting offense may be found inside the vehicle), with United States v. Quintana, 594 F. Supp. 2d 1291, 1300 (M.D. Fla. 2009) (suppressing evidence gleaned from the arrestee's cell phone incident to his arrest for driving with a suspended license when the search of the cell phone “had nothing to do with...the preservation of evidence related to the crime of arrest.”), and United States v. McGhee, No. 8:09CR31, slip op., 2009 WL 2424104, at *3 (D. Neb. July 21, 2009) (suppressing evidence gleaned from the arrestee's cell phone when “it was not reasonable for the [arresting police] officers to believe a search of [the arrestee]'s cell phone would produce evidence related to the crime for which he was arrested.”); see supra notes 441-68 and accompanying text; see infra notes 481-86, 488-92 and accompanying text.

477

State v. Smith, 920 N.E.2d 949, 955 (Ohio 2009).

478

453 U.S. 454 (1981).

479

Smith, 920 N.E.2d at 954 (quoting Belton, 453 U.S. at 460 n. 4).

480

Id. at 955. According to the Ohio Supreme Court, neither the call records nor the phone numbers seized from the arrestee's cell phone were subject to imminent destruction, and searching the cell phone was not necessary to ensure officer safety. Id.


51


481


482

United States v. Quintana, 594 F. Supp. 2d 1291, 1295 (M.D. Fla. 2009). Although Quintana was decided before the Supreme Court issued its opinion in Arizona v. Gant, 556 U.S. --, 129 S. Ct. 1710 (2009), the Florida District Court clearly articulated its decision with Gant heavily in mind, discussing the oral argument in the Gant case in-depth and deciding the case around the Supreme Court's reasoning given during oral argument. See Quintana, 594 F. Supp. 2d at 1300 (noting specific statements made by Justice Stevens and Justice Scalia during oral argument for Gant case and distinguishing facts at issue from the rationales given during oral argument in Gant).

483

Id. at 1295.

484

Id.

485

Id.

486

Id. at 1300.

487

Id. at 1300-01. The court also observed that, when the arresting offense is for drug-related activity, there was a reasonable probability that data stored in the device was evidence of the arresting offense. Id. at 1299 (quotation omitted).

488


489

United States v. McGhee, No. 8:09CR31, slip op., 2009 WL 2424104, at *3 (D. Neb. July 21, 2009).

490

McGhee, 2009 WL 2424104, at *3.

491

Id.

492

Id. Before giving the discussion that the cell phone did not present any risk to the officers, the court cited to the Gant opinion, which explained that “‘[i]f there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search incident to arrest exception are absent and the rule does not apply.”’ Id. (quoting Arizona v. Gant, 556 U.S. --, 129 S. Ct. 1710, 1716 (2009)).

493

Id.

494


495

See, e.g., United States v. Finley, 477 F.3d 250, 260-61 (5th Cir. 2007) (upholding search of cell phone performed incident to arrest reasoning that a cell phone is a container under Belton); United States v. Deans, 549 F. Supp. 2d 1085, 1093-94 (D. Minn. 2008) (same). Only a handful of courts have invalidated searches of cell phones incident to arrest prior to Gant. See, e.g., United States v. Park, No. CR 05-375 SI, 2007 WL 1521573, at *1 (N.D. Cal. May 23, 2007) (suppressing information seized from cell phone during search incident to arrest); United States v. Morales-Ortiz, 376 F. Supp. 2d 1131, 1142 (2004) (determining that neither the search incident to arrest exception nor exigent circumstances applied to justify search of cell phone when the cell phone was not carried on the arrestee's person but was found on the kitchen counter of a residence officers searched).

496

See, e.g., State v. Smith, 920 N.E.2d 949, 955 (Ohio 2009) (holding that police may not search a cell phone without a warrant under search incident to arrest exception); United States v. Quintana, 594 F. Supp. 2d 1291, 1300-01 (M.D. Fla. 2008) (suppressing data seized from cell phone incident to arrest when neither justification for search incident to arrest exception were present); United States v. McGhee, No. 8:09CR31, slip op., 2009 WL 2424104, at *3 (D. Neb. July 21, 2009) (same).

497

Compare Quintana, 594 F. Supp. 2d at 1300-01 (discussing Gant in depth and employing reasoning from Gant that search of cell phone did not seek to preserve evidence of arresting offense and “had nothing to do with officer safety” in ultimately suppressing photo album gleaned from search of arrestee's cell phone), with Finley, 477 F.3d at 259-60 (citing United States v. Belton, 453 U.S. 454, 460-61 (1981); United States v. Robinson, 414 U.S. 218, 223-24, 235 (1973)) (citation omitted) (relying on authority Belton


52

THE SEARCH INCIDENT TO ARREST EXCEPTION..., 43 Creighton L. Rev.... and Robinson allowing search of containers found on the person of an arrestee as primary reasoning for justifying search of text messages on arrestee's cell phone).

498

Bryan Andrew Stillwagon, Bringing An End To Warrantless Cell Phone Searches, 42 Ga. L. Rev. 1165, 1194-95 (2008); see United States v. Deans, 549 F. Supp. 2d 1085, 1094 (D. Minn. 2008) (noting prior Supreme Court case law on the search incident to arrest exception did not specifically address searches of technological devices such as cell phones).

499

United States v. Park, No. CR 05-375 SI, 2007 WL 1521573, at *8 (N.D. Cal. May 23, 2007); James X. Dempsey, Digital Search & Seizure: Updating Privacy Protections To Keep Pace With Technology, Practicing Law Institute, 935 PLI/Pat. 543, 547 (2008); see YouraMedia, Stats on Cell Phone Use in U.S., at 1 (June 20, 2009), available at http:// www.youra.com/media/images/prsmsstats.pdf (calculating 271,000,000 current cell-phone subscribers in the United States as of January 2009).

500

Stillwagon, supra note 497.

501

See Orin S. Kerr, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L. Rev. 801, 804-05 (2004) (challenging the “popular view” that the Fourth Amendment “should be interpreted broadly in response to technological change” and arguing that “considerations of doctrine, history, and function tend to counsel against an aggressive judicial role in the application of the Fourth Amendment to developing technologies.”); but see Orin S. Kerr, Digital Evidence and the New Criminal Procedure, 105 Colum. L. Rev. 279, 280 (2005) (arguing that “the use of computers in criminal activity has popularized a new form of evidence, digital evidence,” and that new methods of gathering digital evidence should lead to reforms in criminal procedure law regulating the collection of digital evidence).

502

See Dempsey, supra note 498, at 551 (explaining that the analysis for courts and legislatures when dealing with emerging technologies must take into account that “rules developed for older forms of communication and information handling would be devastating to privacy if applied to the new forms of communication and new ways of storing information that have become central to our lives.”); see also Quon v. Arch Wireless Operating Co., 529 F.3d 892, 905 (9th Cir. 2008) (finding reasonable expectation of privacy in information stored on cell phone) (citation omitted).

503

See Adam M. Gershowitz, The iPhone Meets the Fourth Amendment, 56 UCLA L. Rev. 27, 31, 46 (2008) (noting doubt in courts restraining themselves “by applying an ill-fitting bright-line rule to the iPhone” in particular).

504

Id. at 57-58.

505

Id. at 30; see also New York v. Belton, 453 U.S. 454, 459-60 (1981) (issuing workable rule relying on “straightforward” and “easily applied” rule set forth in United States v. Robinson, 414 U.S. 218, 235 (1973), in order to provide a “single, familiar standard” to guide police).

506

453 U.S. 454 (1981).

507

556 U.S. --, 129 S. Ct. 1710 (2009).

43 CRLR 1157 End of Document



53

SMARTPHONE SEARCHES INCIDENT TO ARREST, 68 J. Mo. B. 36

68 J. Mo. B. 36 Journal of the Missouri Bar January-February, 2012 Feature SMARTPHONE SEARCHES INCIDENT TO ARREST H. Morley Swingle 1 Copyright © 2011 by The Missouri Bar; H. Morley Swingle Pursuant to the search incident to arrest doctrine, police officers have long been authorized to search the pockets, purses, wallets and other containers found on the person of suspects they have arrested. Courts are split, however, as to whether the reasonableness standard of the Fourth Amendment allows an arresting officer to rummage through the massive and often personal contents of a cell phone or smartphone seized incident to an arrest.

Introduction On a cold March morning in 2008, a public school teacher was arrested for driving while intoxicated. The arresting officer patted him down pursuant to a search incident to arrest and found a cell phone in his pocket. The officer opened the phone's photograph folder and discovered pictures of the schoolteacher and his naked girlfriend in “sexually compromising positions.” 2 Delighted with his find, the officer radioed other officers not involved in the arrest to come look at the photos for their “enjoyment.” 3 Can it happen? It did, in Virginia. In a civil rights case brought by the schoolteacher against the police officer, a federal court ruled that the officer was protected by qualified immunity since the scope of a search incident to arrest of a smartphone is still an open question under the law of search and seizure. 4 In the majority of jurisdictions, the search of the contents of a cell phone on the person of an arrestee is allowed as a valid search incident to arrest. 5 In a minority of jurisdictions, it has been held to be an unreasonable search. 6 No Missouri appellate court has yet ruled upon the issue.

The Fourth Amendment All warrantless searches are governed by the Fourth Amendment, which assures people the right “to be secure in their persons, houses, papers and effects against unreasonable searches and seizures.” 7 Reasonableness is the key. In the context of searches incident to a valid arrest, it has long been the rule that the area within the “wingspan” or “grab area” of the person being arrested may be searched, as well as the contents of his pockets and any containers on his person. This full search of the arrestee and the area within his immediate reach at the time of the arrest may be made without regard to any specific exigency or the seriousness of the offense, and regardless of any probability that the search will yield a weapon or evidence of a crime. 8 The U. S. Supreme Court in United States v. Robinson 9 and Chimel v. California 10 established this “bright-line rule” in order to make the law easy to understand and apply. 11 The rationale for the rule makes sense in that a person might have something in his pockets that could be used as a weapon against the officers, or that might constitute evidence that could be surreptitiously destroyed or discarded before the officers got the suspect to the stationhouse. Under this traditional analysis, searches incident to arrest have been extended to things like purses, 12 wallets, 13 pagers, 14 address books, 15 briefcases, 16 cigarette packages, 17 aspirin


1


bottles, 18 film canisters, 19 gunshot residue testing 20 and fingernail scrapings. 21 As long as the suspect *37 was validly arrested, pursuant to either probable cause or an arrest warrant, 22 the search of his person and any containers on his person is fair game.

Smartphone Ubiquity and Capabilities The beauty of the Fourth Amendment is that, by its use of the word “unreasonable,” it remains adaptable to the times. When 38-year-old James Madison worked on his first draft of the Fourth Amendment 200 years ago, he could not possibly have envisioned a time when a person would have in his pocket a device that could be used not only to communicate with other people, but to store thousands of photographs, e-mails, text messages, personal correspondence, medical records, addresses of family members and friends, plus records of recent phone calls made and received and Internet sites visited. In fact, an iPhone has enough memory to store more than “220,000 copies of the complete text of Lewis Carroll's Alice in Wonderland.” 23 If Madison were alive today, he would undoubtedly own one. The use of cell phones and smart-phones has increased by leaps and bounds. Until the mid-1990s, cell phones were merely portable telephones. 24 In that decade “Nokia introduced the first cell phone that was also a ‘hand-held’ computer.” 25 Now, many cell phones are actually mini-computers, known as “smartphones” and “store address books, calendars, voicemails, ... text messages, ... photos, music, movies, e-mails ..., Internet history, ... social networking profiles,” financial records, word processing applications, GPS location navigation records and personal notations. 26 As of June 2010, there were nearly 293 million cell phone subscribers in the United States, 27 “almost ten times the number in 1994.” 28 Experts estimate that by 2013 half of the cell phone users will carry smartphones. 29 The U. S. Supreme Court recently observed: “Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification.” 30 Is it reasonable to allow police officers to rummage through a citizen's personal data simply because he has been arrested and happens to have his smartphone in his pocket at the time of his arrest? The issue will face more and more courts. So far, cases have come down on both sides.

Courts Approving Smartphone Searches Incident to Arrest The most frequently cited case involving a search of a cell phone is United States v. Finley. 31 In this 2007 case, the court held it reasonable to search the text messages and call records of a cell phone incident to an arrest. The Finley court considered a cell phone just another type of container, and “[t]he permissible scope of a search incident to a lawful arrest extends to containers found on the arrestees person.” 32 This has become the viewpoint in the majority of jurisdictions considering the issue. 33 Existing case law strongly suggests that police officers may even unlock a password-protected phone seized during an arrest. 34

Courts Disallowing Smartphone Searches Incident to Arrest In 2009, the Supreme Court of Ohio issued the most clear-cut case holding that a search of a smartphone incident to an arrest is unreasonable under the Fourth. 35 In State v. Smith, the court held that because a smartphone allows for high-speed Internet access and is capable of storing “tremendous amounts of private data,” it is unlike other containers for the purposes of Fourth Amendment analysis. 36 Because of the large amount of personal information in a modern cell phone, its user has a high expectation of privacy in its contents; accordingly, “[o]nce the cell phone is in police custody, the state has satisfied its immediate


2


interest in collecting and preserving evidence and ... must then obtain a warrant before intruding into the phone's contents.” 37 A minority of other courts has reached the same result. 38

*38 Applying Arizona v. Gant to Smartphone Searches Although a case involving the search of a smartphone incident to an arrest has not yet made it to the U. S. Supreme Court, it seems likely the Court might apply to such searches the same rule recently articulated for searches of occupants of automobiles incident to an arrest. 39 Prior to 2009, the U. S. Supreme Court, in New York v. Beltort, 40 drew a “bright-line” around the interior compartment of a car, holding that if an occupant of a car was arrested, the passenger compartment of the car could be searched incident to that arrest, whether or not the arrestee was still within lunging distance of the car, and regardless of the type of crime for which the subject was being arrested. It was a simple rule, easy to apply on the street and in the courtroom. In Arizona v. Gant, 41 the Court rescinded that particular bright-line, holding that when an occupant of an automobile has been arrested, his car cannot be searched if he is no longer in a position to grab something in the car, with the only exception being that when officers have reason to believe that evidence of the specific crime for which they arrested him might be in the car, they can search it for evidence related to the arrest. The Court in Gant explained its reasoning for scaling back the scope of a search of a car incident to arrest: It is particularly significant that Belton searches authorize police officers to search not just the passenger compartment but every purse, briefcase, or other container within that space. A rule that gives police the power to conduct such a search whenever an individual is caught committing a traffic offense, when there is no basis for believing evidence of the offense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals. 42 Certainly, the threat of police officers rummaging through the contents of a cell phone belonging to a person who has merely committed a traffic offense is just as serious a threat to privacy as rummaging through the contents of a car.

The Gant “evidence-related-to-crime-of-arrest” analysis provides a workable framework to apply to searches of smartphones incident to arrest. 43 Using an objective standard, if the officers have reasonable grounds to suspect that evidence of the crime for which they just arrested the individual might be in the phone, they could search it without a warrant. Otherwise, the phone's contents would be off limits unless a judge found that probable cause existed for the issuance of a search warrant to examine the contents of the phone, or unless one of the other traditional exceptions to the search warrant requirement applied. Other possible exceptions potentially applicable to warrantless searches of cell phones include exigent circumstances, 44 the automobile exception, 45 the inventory exception, 46 “the inevitable-discovery doctrine,” 47 plain view, 48 and consent. 49 Examples of the application of the Gant test to searches incident to arrest are easy to imagine, and in some cases have already been litigated. An officer who has arrested a drug dealer for a just-completed drug sale would have reasonable suspicion to think that telephone records, emails and even photographs of illegal drugs and accomplices might be in the phone. 50 For example, a federal court recently held that the Gant limitations on a search incident to arrest of an occupant of a vehicle, if applied to cell phones, would allow officers who have arrested a drug dealer to search his cell phone for evidence related to his drug-dealing. 51 On the other hand, another court ruled that while it would be reasonable to think evidence of the crime of arrest might be present in the cell phone when arresting a suspect for a just-completed drug sale, the lapse of 10 months between the date of the crime and the


3


time of arrest, caused by a lengthy grand jury investigation, made it unlikely that evidence pertaining to the old drug sale would still be in the phone; hence, a search of the phone incident to arrest was improper. 52 The California Court of Appeals recently held it lawful to search a car and the cell phone found inside it for evidence of drug use incident to the defendant's arrest for driving under the influence of drugs. In regard to the cell phone, it was reasonable to suspect that it might “contain text messages related to acquiring and offering drugs,” or “might have identified the controlled substance” involved, or amounting to admissions “as to what [the driver] had done that night.” 53 As with recent drug sales and drug use, it is also reasonable for an arresting officer to believe that a recently-arrested child pornographer might well have images of naked children in his phone; that a child molester just arrested for trying to lure an under-aged victim to meet him in a park might have text messages and e-mails relating to this victim or other victims in his phone; that a murder suspect placed under arrest might have in his phone photographs, texts or e-mails connecting him to the victim; that a person arrested for texting while driving might have text messages in his phone proving that he had just been using it; or that a man arrested for stalking a woman would have photographs, messages or other information pertaining to her in his phone. *39 Conversely, a suspect arrested for driving while revoked would be unlikely to have evidence pertaining to his crime in his cell phone. For example, in United States v. Quintana, the court held that the cell phone of a suspect arrested for driving while suspended could not be searched incident to the arrest, explaining: Where a [suspect] is arresred for drug-related activity, police may be justified in searching the contents of a cell phone for evidence related to the crime of the arrest, even if the presence of such evidence is improbable. In this case, however, Defendant was arrested for driving with a suspended license. The search of the contents of Defendants cell phone had nothing to do with officer safety or the preservation of evidence related to the crime of arrest. 54 The same analysis would seem to apply to a routine alcohol-related DWI arrest.

Likewise, it is hard to imagine how a person arrested for shoplifting, passing bad checks or jaywalking would be likely to have evidence relating to the crime of arrest in his phone. In each case, the test is an objective one, based on the totality of the circumstances. When the officer has articulable suspicion that evidence of the crime of arrest is in the phone, he may conduct a warrantless search incident to the arrest. Otherwise, he must wait and apply for a search warrant, and let a neutral and detached magistrate make the decision as to whether probable cause exists to search the contents of the smartphone. Application of the Arizona v. Gant analysis to searches of cell phones incident to arrest would allow police to promptly seize relevant evidence in specific cases while still protecting the privacy rights of most citizens in most cases.

Exigent Circumstances Exigent circumstances have allowed officers to conduct warrantless searches of cell phones they have seized 55 and to answer ringing cell phones in their custody. 56 As technology continues to develop, the exigent circumstances exception will probably play a greater role in searches of smart-phones immediately after arrest. This is because many new phones, such as the iPhone, have remote-access wipe programs, allowing the data in the telephone to be deleted almost instantaneously from a remote


4


location. 57 Such a feature would allow one drug dealer to wipe the data out of his coconspirators telephone as soon as he realizes that his companion has been arrested. In these situations, exigent circumstances should allow officers to access the data without delaying to get a search warrant. 58 In more than one *40 case, a search of a cell phones address book and call history incident to arrest has been upheld precisely because of this remote-access wipe capability. 59 The issue may become complicated even more by the emerging use of Faraday bags, which are small lightweight bags into which police officers can place seized cell phones to prevent them from being remotely wiped. 60 While these bags might prevent data inside the phone from being remotely wiped, they would not prevent data being stored in a “cloud” or other location from being destroyed, so exigent circumstances may still apply.

Conclusion When dealing with new technology, the U. S. Supreme Court is often hesitant to paint new rules with a broad brush, precisely because technology changes so quickly. 61 What is reasonable in one decade can become unreasonable in another. For the time being, however, it seems that the best approach regarding searches of smart-phones under the Fourth Amendment is to hold that they are off limits unless the arresting officer can articulate reasonable suspicion to believe that evidence pertaining to the crime for which the suspect was arrested is in the phone. Otherwise, they must not be searched unless one of the other exceptions to the warrant requirement exists 62 or unless the officer has taken the time and trouble to get a search warrant.

Footnotes 1 Mr. Swingle is the prosecuting attorney for Cape Girardeau County, Missouri. He is a member of the Supreme Court of Missouri's Committee on Procedure in Criminal Cases and a 1980 graduate of the University of Missouri-Columbia School of Law. He carries an iPhone.

2

Newhard v. Borden, 649 F.Supp.2d 440, 444 (W.D. Va. 2009).

3

Id. at 444.

4

Newhard v. Borders, 649 F.Supp.2d 440 (W.D. Va. 2009).

5

See United States v. Curtis, 635 F.3d 704 (5rh Cir. 2011); United States v. Pineda-Areola, 372 F. App'x 661 (7th Cir. 2010); United States v. Fuentes, 368 F. App'x 95 (11th Cir. 2010); Silvan W. v. Briggs, 309 F. App'x 216 (10th Cir. 2009); United States v. Murphy, 552 F.3d 405 (4th Cir. 2009); United States v. Young, 278 F. App'x 242 (4th Cir. 2008); United States v. Finley, 477 F.3d 250 (5th Cir. 2007); United States v. Gomez, No. 11-20304-CR, 2011 WL 3841071 (S.D. Fla. Aug. 31, 2011); United States v. Hill, No. CR 10-00261 JSW, 2011 WL 90130 (N.D. Cal. Jan. 10, 2011); United States v. Salgado, No. 1:09-CR-454-CAP-ECS-5, 2010 WL 3062440 (N.D. Ga. June 12, 2010); United States v. Faller, 681 F.Supp.2d 1028 (E.D. Mo. 2010); United States v. Wurie, 612 F. Supp.2d 104 (D. Mass. 2009); United States v. McCray, No. CR408-231, 2009 WL 29607 (S.D. Ga. Jan. 5, 2009); United States v. Gates, No. 08-42-P-H, 2008 WL 5382285 (D. Me. Dec. 19, 2008); United States v. Santillan, 571 F.Supp.2d 1093 (D. Ariz. 2008); United States v Deans, 549 F.Supp.2d 1085 (D. Minn. 2008); United States v. Valdez, No. 06-CR-336, 2008 WL 360548 (E.D. Wis. Feb. 8, 2008); United States v. Curry, No. 07-100-P-H, 2008 WL 219966 (D. Me. Jan. 23, 2008); United States v. Dennis, No. 07-008DLB, 2007 WL 3400500 (E.D. Ky. Nov. 13, 2007); United States v. Lottie, No. 3:07-cr-51-AS, 2007 WL 4722439 (N.D. Ind. Oct. 12, 2007); United States v. Mercado-Nava, 486 F.Supp.2d 1271 (D. Kan. 2007); United States v. Brookes, No. CRIM 2004-0154, 2005 WL 1940124 (D. V.I. June 16, 2005); United States v. Cote, No. 03CR271, 2005 WL 1323343 (N.D. Ill. May 26, 2005); People v. Diaz, 244 P.3d 501 (Cal. 2011); Fawdry v. State, 70 So.3d 626 (Fla. Dist. Ct. App. 2011); Smallwood v. State, 61 So.3d 448 (Fla. Dist. Ct. App 2011); State v. Nix, 237 P.3d 842 (Or. Ct. App. 2010); State v. Wilkerson, 683 S.E.2d 174 (N.C. 2009); State v. Harris, No. 1 CA-CR 07-0810, 2008 WL 4368209 (Ariz. Ct. App. Sept. 23, 2008).


5


6

See United States v. McGhee,, No. 8:09CR31, 2009 WL 2424104 (D. Neb. July 21, 2009); United States v. Quintana, 594 F.Supp.2d 1291 (M.D. Fla. 2009); United States v. Wall, No. 08-60016-CR, 2008 WL 5381412 (S.D. Fla. Dec. 22, 2008); United States v. Park, No. CR 05-375 SI, 2007 WL 1521573 (N.D. Cal. May 23, 2007); State v. Smith, 920 N.E.2d 949 (Ohio 2009).

7

U.S. CONST. amend. IV.

8

United States v. Robinson, 414 U.S. 218, 236 (1973).

9

Id.

10

395 U.S. 752 (1969).

11

Adam M. Gershowitz, The iPhone Meets the Fourth Amendment, 56 UCLA L. REV. 27, 45 (2008).

12

State v. Greene, 785 S.W2d 574 (Mo. App. W.D. 1990); State v. Woods, 637 S.W2d 113 (Mo. App. E.D. 1982).

13

United States v. Rodriguez, 995 F.2d 776 (7th Cir. 1993).

14


15

United States v. Holzman, 871 F.2d 1496 (9th Cir. 1989).

16

United States v. Valiant, 873 F.2d 205 (8th Cir. 1989).

17


18

Daniels v. State, 416 So.2d 760 (Ala. Crim.App. 1982).

19

State v. Greene, 785 S.W.2d 574 (Mo. App. W.D. 1990).

20

State v. Howell, 524 S.W.2d 11 (Mo. banc 1975).

21

State v. Magnotti, 502 A.2d 404 (Conn. 1985).

22

Virginia v. Moore, 553 U.S. 164 (2008).

23

Chelsea Oxton, Note, The Search Incident to Arrest Exception Plays Catch Up: Why Police May No Longer Search Cell Phones Incident to Arrest Without a Warrant, 43 CREIGHTON L. REV. 1157, 1162 (2010).

24

Jana L. Knott, Is There An App For That? Reexamining the Doctrine of Search Incident to Lawful Arrest in the Context of Cell Phones, 35 OKLA. CITY U. L. REV. 445, 454 (2010).

25

Id.

26

Knott at 455.

27

Ashley B. Snyder, Comment, The Fourth Amendment and Warrantless Cell Phone Searches: When Is Your Cell Phone Protected? 46 WAKE FOREST L. REV. 155, 162 (2011).

28

Knott at 453.

29

Daniel Zamani, There's An Amendment For That: A Comprehensive Application of Fourth Amendment Jurisprudence to Smart Phones, 38 HASTINGS CONST. L.Q. 169, 170 (2010).

30

City of Ontario, Cal. v. Quon, 130 S. Ct. 2619, 2630 (2010).

31

477 F.3d 250 (5th Cir. 2007).


6


32

Id. at 260.

33

See note 5.

34

Adam M. Gershowitz, Password Protected? Can a Password Save Your Cell Phone from a Search Incident to Arrest? 96 IOWA L. REV. 1125, 1150 (2011).

35

State v. Smith, 920 N.E.2d 949 (Ohio 2009).

36

Id. at 954.

37

Id. at 955.

38

See note 6.

39

See Ben E. Stewart, Note, Cell Phone Searches Incident to Arrest: A New Standard Based on Arizona v. Gant, 99 KY. L.J. 579 (2011); Gershowitz, note 34 at 1145; Justin M. Wolcott, Comment, Are Smartphones Like Footlockers or Crumpled Up Cigarette Packages? Applying the Search Incident to Arrest Doctrine to Smartphones in South Carolina Courts, 61 S.C. L. REV. 843, 864 (2010); Mark L. Mayakis, Comment, Cell Phone--A “Weapon” of Mass Discretion, 33 CAMPBELL L. REV. 151, 167-168 (2010); Smallwood v. State, 61 So.3d 448, 462 (Fla. Disc. Ct. App. 2011); United States v. McGhee, No. 8:09CR31, 2009 WL 2424104 (D. Neb. July 21, 2009).

40

453 U.S. 454 (1981).

41

129 S. Ct. 1710 (2009).

42

Gant, 129 S. Ct. at 1720.

43

See generally Knott, note 24 at 461-480.

44

See notes 55 to 60 and accompanying text.

45

United States v. Cole, No. L09-CR-412-ODE-RGV, 2010 WL 3211027 (N.D. Ga. May 12, 2010); United States v. James, No. 1:06CR134 CDP, 2008 WL 1925032 (E.D. Mo. Apr. 29, 2008); People v. Nottoli, 130 Cal. Rptr. 3d 884 (Cal. Ct. App. 2011); Hawkins v. State, 704 S.E.2d 886 (Ga. Ct. App. 2010).

46

United States v. Flores, 122 F.Supp.2d 491 (S.D. N.Y. 2000) (inventory of cell phone contents improper).

47

United States v. Chappell, No. 09-139, 2010 WL 1131474 at n. 12 (D. Minn. Jan. 12, 2010); United States v. Faller, 681 F.Supp.2d 1028 (E.D. Mo. 2010); United States v. Santillan, 571 F. Supp.2d 1093 (D. Ariz. 2008); United States v. Morales-Ortiz, 376 F.Supp.2d 1131 (D. N.M. 2004).

48

United States v. Gomez, No. 11-20304-CR, 2011 WL 3841071 (S.D. Fla. Aug. 31, 2011) (plain view applies to number on caller ID of ringing phone); United States v. Davis, 787 F.Supp.2d 1165 (D. Or. 2011) (plain view does not justify searching contents of cell phone).

49

United States v. Coates, 685 F.Supp.2d 551 (M.D. Pa. 2010) (consent valid); United States v. Zavala, 541 F.3d 562 (5th Cir. 2008) (consent invalid).

50

See United States v. Fuentes, 368 FApp'x 95 (11th Cir. 2010) (interpreting Gantto permit the search of a vehicle and cell phones incident to a drug-related arrest).

51

United States v. Gomez, No. 11-20304-CR, 2011 WL 3841071 (S.D. Fla. Aug. 31, 2011).

52

United States v. McGhee, No. 8:09CR31, 2009 WL 2424104 (D. Neb. July 21, 2009).


7


53

People v. Nottoli, 130 Cal. Rptr. 3d 884, 906 (Cal. Ct. App. 2011).

54

United States v. Quintana, 594 F.Supp.2d 1291, 1300 (M.D. Fla. 2009).

55

United States v. Santillan, 571 F. Supp.2d 1093 (D. Ariz. 2008); United States v. Lottie, No. 3;07-cr-51-AS, 2007 WL 4722439 (N.D. Ind. Oct. 12, 2007). But see United States v. Wall, No. 08-60016-CR, 2008 WL 5381412 (S.D. Fla. Dec. 22, 2008).

56

United States v. Gomez, No. 11-20304-CR, 2011 WL 3841071 (S.D. Fla. Aug. 31, 2011); State v. Carroll, 778 N.W.2d 1 (Wis. 2010).

57

Snyder, note 27 at 164. But see Zamani, note 29 at 196-197 (arguing that a knowledgeable police officer could put the smartphone in a mode that would not allow it to be wiped and still have time to apply for a search warrant).

58

See United States v. Santillan, 571 F. Supp. 2d 1093, 1101 (D. Ariz. 2008); United States v. Parada, 289 F.Supp.2d 1291, 1303-04 (D. Kan. 2003); State v. Carroll, 778 N.W.2d 1 (Wis. 2010); Snyder, note 27 at 174-180.

59

United States v. Salgado, No. 1:09-CR-454-CAP-ECS-5, 2010 WL 3062440 (N.D. Ga. June 12, 2010); United States v. Valdez, No. 06-CR-336, 2008 WL 360548 (E.D. Wis. Feb. 8, 2008).

60

Mark Sutton, Faraday Bags Help Secure Seized Mobile Devices, ITP.NET (Aug. 26, 2011), http://www.itp.net/585942-faraday-bagshelp-secure-seized-mobilc-devices

61

City of Ontario, Cal. v. Quon, 130 S. Ct. 2619, 2629 (2010) (“The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in sociery has become clear.”).

62

See Marjorie A. Shields, Validity of Search of Wireless Communication Devices, 62 A.L.R.6th 161 (2011).

68 JMOB 36 End of Document



8

IS THERE AN APP FOR THAT? REEXAMINING THE..., 35 Okla. City U. L....

35 Okla. City U. L. Rev. 445 Oklahoma City University Law Review Summer 2010 Notes IS THERE AN APP FOR THAT? REEXAMINING THE DOCTRINE OF SEARCH INCIDENT TO LAWFUL ARREST IN THE CONTEXT OF CELL PHONES Jana L. Knott a1 Copyright (c) 2010 Oklahoma City University; Jana L. Knott Introduction Imagine that Cindy, a mother of two, is driving her truck down the streets of a small town in Texas. With her in the front seat of the truck are her two children, a three-year-old son and five-year-old daughter. Neither Cindy nor her two children are wearing their seatbelts. An officer, who had previously stopped Cindy for a similar violation that resulted in a verbal warning, observes the seatbelt violations as Cindy's truck pulls up to a stop sign. The officer turns on his lights, approaches the truck, and orders Cindy to pull over. After approaching the vehicle, the officer asks to see Cindy's driver's license and insurance documentation, which Texas state law requires her to carry. Inadvertently, Cindy has left her purse on the kitchen counter, which contains both her driver's license and insurance *446 documentation. She informs the officer that she does not have the proper documentation, and the officer asks her to step out of the truck. The officer explains to Cindy that because of her prior verbal warning for the same seatbelt offense, as well as her failure to produce the correct documentation, he must place her under arrest immediately. The officer handcuffs Cindy, and to be sure she is not carrying any weapons, he searches Cindy's person pursuant to the lawful arrest. The officer finds no weapons, but notices that Cindy, like millions of other Americans, is carrying her cell phone in her back pocket. He retrieves the cell phone from Cindy's back pocket, but rather than securing the cell phone in his patrol car where it is out of Cindy's control, the officer begins to scroll through the contents of the phone to make sure Cindy has not been doing anything else illegal. The officer first browses Cindy's recent call history, which reveals that she has called a man named “Joe,” twenty-seven times in the last two weeks. The officer knows that “Joe” is not Cindy's husband. He then begins to scroll through both Cindy's personal e-mail account and her work e-mail account, which are accessible on her phone without entering a password. The e-mails reveal nothing of a criminal nature; however, Cindy works as a physician's assistant at a local hospital, and several e-mails in her work account contain confidential information of one of her patients, “Sue Smith.” The officer reads the e-mail, along with most of “Sue Smith's” medical history, and then continues to browse through Cindy's phone. The officer then looks through Cindy's text messages, scrolls through her photographs, pulls up her Internet browsing history, checks Cindy's Facebook page, scrolls through her calendar, and listens to some personal thoughts Cindy has recorded in her voice memos. The search of the phone takes less than ten minutes, and the officer finds nothing incriminating. By this time, Cindy's friend has heard about her arrest and has arrived to pick up the children. The officer subsequently places Cindy in the police car and takes her to the station where she is charged with driving without her seatbelt fastened, failing to secure her children in seatbelts, driving without a license, and failing to provide proof of insurance. Cindy pleads no contest to the charges and pays a $50.00


1


fine; however, she is outraged by the officer's search of her cell phone pursuant to the arrest. Not only is she concerned that some of her own very private and personal information has been revealed, but she is also worried that the confidential information of *447 some of her patients has been seriously compromised. 1 Under the current search incident to lawful arrest doctrine, the officer in the above hypothetical has not violated any laws. When an individual is arrested for any crime, be it a minor traffic offense, a drug crime, or murder, officers are permitted to conduct a search of the person and the area in his or her immediate control to protect officer safety and prevent the destruction of evidence. 2 In the past ten years, most courts have failed not only to recognize and adapt to the unique and rapid advancements in cell-phone technology but have also disregarded the fact that cell phones can now store massive amounts of private information. Courts have generally, without question or further research, continued to allow warrantless and suspicionless searches of cell phones, so long as the individual has been lawfully placed under arrest. This Note argues that because of the ability of today's cell phones to store massive amounts of private information, courts should reexamine the doctrine of search incident to lawful arrest in the context of cell phones. Rather than relying on outdated precedent and analogizing cell phones to previous objects with which courts have dealt, courts should formulate new rules to deal with this issue. Specifically, courts should focus on whether the original justifications of the search incident to lawful arrest doctrine actually apply to today's cell phone, and if not, whether the suspect's cell phone actually contains evidence of the crime for which the suspect was arrested. Part I of this Note briefly discusses the history of the search incident to lawful arrest doctrine and how courts have applied that doctrine to electronic devices including both cell phones and pagers. Part II describes the problems with allowing warrantless and suspicionless searches of cell phones pursuant to lawful arrest, demonstrates the importance of the issue, and explains why past approaches are inadequate. Part III proposes two new approaches, following the Supreme Court's recent discussion of search incident to lawful arrest in Arizona v. Gant, for courts to consider when dealing with this issue in the future.

*448 I. Background Law: A History of the Modern Search Incident to Lawful Arrest Doctrine A. The Doctrine Itself: Rationalizing Warrantless Searches Incident to Lawful Arrest The Fourth Amendment protects individuals against unreasonable searches and seizures. 3 The Court has held that a search conducted without a warrant is per se unreasonable, subject only to a few specifically established and well-delineated exceptions. 4 One of those exceptions to the general rule is searches conducted incident to lawful arrest. 5 In Chimel v. California, the Court held that pursuant to a lawful arrest, officers may conduct a full search of the arrested person and a more limited search of “the area ‘within his immediate control,”’ or the “grab area,” without a warrant. 6 The Court stated that the justifications for permitting searches incident to lawful arrest included officer safety and the prevention of destruction of evidence. 7 Up until about ten years ago, courts had little trouble applying the search incident to lawful arrest doctrine to possessions found either on the person or within the person's control because courts could easily categorize most possessions under precedent. 8 However, with the rapid rise in cell-phone technology and cell-phone usage by the general American public, courts have recently been faced with the difficult task of deciding how cell phones should be treated under the doctrine of search incident to lawful arrest.


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*449 B. From Pagers to Cell Phones: How Courts Have Treated Searches of Electronic Devices Incident to Lawful Arrest The Supreme Court has not addressed the issue of whether officers may search the contents of a cell phone as a search incident to arrest, and only one circuit and one state court appear to have addressed the issue. 9 However, starting with pagers and now extending to cell phones, courts that have addressed this issue generally agree that search incident to lawful arrest applies to any and all portable electronic devices. Courts have generally validated searches of pagers incident to lawful arrest because pagers present the possibility of destruction of evidence if not searched immediately upon arrest. In United States v. Ortiz, the Seventh Circuit held “that law enforcement officers [had] the authority to immediately ‘search’ or retrieve, incident to a valid arrest, information from a pager in order to prevent its destruction as evidence.” 10 Likewise, in United States v. Hunter, the Fourth Circuit held that “[b]ecause of the finite nature of a pager's electronic memory, incoming pages may destroy currently stored telephone numbers in a pager's memory. . . . [Therefore, t]he retrieval of telephone numbers from [the defendant's] pager was justified by the need to preserve evidence.” 11 Likewise, courts have validated searches of cell phones incident to lawful arrest on several different theories. Most courts authorize the search of cell phones incident to lawful arrest on the idea that the immediate search prevents destruction of evidence that may possibly be contained in the phone. For example, in United States v. Mercado-Nava, the District of Kansas upheld the “search of cell phones and their electronic contents on [the] basis of exigent circumstances where ‘the function and limitation of the cell-phone technology . . . motivated the investigating agents to conduct an immediate search of the phones, rather than seek a warrant.”’ 12 Similarly, in United States v. Valdez, the Eastern *450 District of Wisconsin upheld the search of the cell phone incident to lawful arrest because the investigating officer knew that call histories on cell phones could be deleted or lost, so there was a legitimate concern about destruction of evidence. 13 Additionally, some courts have treated cell phones like closed containers to validate searches of cell phones. For example, the Fifth Circuit, in United States v. Finley, approved the search of the cell phone incident to lawful arrest because “[t]he permissible scope of a search incident to a lawful arrest extends to containers found on the arrestee's person.” 14 Additionally, the District of Massachusetts, in United States v. Wurie, held that there was “no principled basis for distinguishing a warrantless search of a cell phone from the search of other types of personal containers found on a defendant's person that fall within . . . exceptions to the Fourth Amendment's reasonableness requirements.” 15 Likewise, some courts validate the search of cell phones because of their similarities with pagers. In United States v. Brookes, the District of the Virgin Islands held that the cell phone could be searched because the “[d]efendant's pager and cell phone were seized upon [the] [d]efendant's arrest [,] and the numbers from the devices were obtained soon thereafter.” 16 The Court made no distinction between the pager and the cell phone and relied only on precedent that allowed the search of a pager incident to lawful arrest. 17 Likewise, the Fifth Circuit in Finley, held that the officer was permitted to search the cell phone pursuant to the arrest because the retrieval of information from a cell phone was analogous to the retrieval of information from a pager. 18 Some courts have approved searches of cell phones incident to lawful arrest analogizing searches of wallets and address books to cell phones because they contain similar information. In United States v. Cote, the Northern District of Illinois stated that “[s]earches of items such as wallets and address books, which [are] analogous to Cote's *451 cellular phone since they would contain similar information, have long been held valid when made incident to [lawful] arrest.” 19


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Other courts have relied solely on the fact that the arrest was lawful, so the search of the cell phone was also lawful pursuant to search incident to lawful arrest. For instance, in United States v. Mendoza, the Eighth Circuit conducted no subsequent analysis of the unique nature of a cell phone and its contents, but rather, it held that based on the lawful arrest alone, the contents of the cell phone could be searched. 20 The Eastern District of Kentucky, in United States v. Dennis, likewise upheld the search of the cell phone stating that “[t]here is nothing to indicate that the Sixth Circuit would treat the retrieval of information from a cell phone differently than it treats other evidence gathered in a search incident to arrest.” 21 Although most courts have generally allowed searches of cell phones incident to lawful arrest, some courts have expressed concern about these warrantless searches and have invalidated them on several different theories. A few courts have recognized the technological capabilities of cell phones and have invalidated searches of cell phones incident to lawful arrest reasoning that the justifications of Chimel simply do not apply in the context of cell phones. 22 For example, in United States v. Wall, the Southern District of Florida held that the warrantless search of the cell phone incident to lawful arrest was unlawful because “the [g]overnment failed to establish that the text messages at issue would have been destroyed absent [the agent's] intervention.” 23 Therefore, the government did not satisfy Chimel's destruction of evidence rationale. Likewise, in State v. Smith, the Ohio Supreme Court held that the warrantless search of the cell phone performed incident to lawful arrest was “unnecessary for the safety of law-enforcement officers and there [were] no[t] exigent circumstances.” 24 Finally, in United States v. Park, the Northern District *452 of California suppressed the contents of the cell phone expressing concern that not only were the justifications of Chimel not present when the phone was searched at the station house, but that cell phones also store “immense amounts of private information,” and officers should have obtained a warrant before searching the cell phone. 25 Similarly, courts have invalidated searches of cell phones incident to lawful arrest on the reasoning that the search of the cell phone not only went beyond the justifications of Chimel but also bore no relation to the crime in which the suspect was arrested. In United States v. Quintana, the defendant was arrested for driving with a suspended license, and upon arrest, the officer began searching the phone for evidence “related to the odor of marijuana emanating from the vehicle.” 26 The Middle District of Florida suppressed the information obtained from the cell phone stating: Where a defendant is arrested for drug-related activity, police may be justified in searching the contents of a cell phone for evidence related to the crime of arrest . . . . In this case, however, Defendant was arrested for driving with a suspended license. The search of the contents of Defendant's cell phone had nothing to do with officer safety or the preservation of evidence related to the crime of arrest. 27

Although numerous courts have addressed the issue of whether to allow the search of pagers and cell phones incident to lawful arrest, the reasoning behind the courts' decisions varies substantially. Likewise, even though courts in the past may have only had to deal with the issue on occasion, the ever increasing number of cell phone users and the rapid advancements in cell-phone technology will force courts, in the future, to decide the issue on a much more frequent basis.

*453 II. Searching Cell Phones Incident to Lawful Arrest: A Cause for Concern A. Increasing the Frequency: How the Exponential Growth in Cell-Phone Use and the Rapid Advancements in CellPhone Technology Make Cell Phones Unique


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The issue of whether law enforcement can search a person's cell phone incident to lawful arrest has become a serious concern with the recent and overwhelming increase in cell-phone use. The Western District of Pennsylvania 28 recently discussed the pervasiveness of cell phones, stating: As of December, 2006, there were over 233 million cellular phone subscribers in the United States, almost ten times the number in 1994. Our individual cell phones now come with us everywhere: not only on the streets, but in (a) business, financial, medical and other offices; (b) restaurants, theaters and other venues of leisure activity; (c) churches, synagogues and other places of religious affiliation; and (d) our homes and those of our family members, friends, and personal and professional associates. 29

Furthermore, in 2004, the United States Census Bureau issued a press release stating that the number of cell phone subscribers in the United States increased almost 300% from 1995 to 2003. 30 Likewise, *454 other sources indicate that by 2008, eightyfive percent of Americans owned a cell phone, 31 and by 2009, the approximate number of cell-phone users in the United States was approaching 260 million. 32 If cell phones only included telephonic capabilities, these numbers would not be so concerning. Telephones have long been widely used by the general public, and courts have dealt adequately with searches of such. 33 However, today's cell phones are not simply capable of only making phone calls. They have been transformed into mini-personal computers with the ability to store massive amounts of private information. In the early to mid 1990s, cell phones were thought of simply as telephones that could be taken anywhere. In the late 1990s, however, that idea began to crumble as Nokia introduced the first cell phone that was also a “hand-held” computer. 34 The idea behind cell phones quickly switched from telephonic capabilities to data storage capabilities. 35 Cell phones soon began merging with personal digital assistants creating instruments like the BlackBerry and eventually began incorporating cameras so that people were able to “take, send, and receive images by e-mail.” 36 Shortly thereafter, cell-phone capabilities increased to “delivering ring tones, image capturing, text messaging, gaming, [and] e-mail.” 37 When prices dropped in the early 2000s, the cell phone began being marketed to the public rather than for business purposes only. 38 Cell phones have now become “highly mobile communications devices that *455 perform an array of functions ranging from that of a simple digital organizer to that of a low-end personal computer.” 39 Today, cell phones store everything from address books, calendars, voicemail, and text messages to photos, music, movies, e-mail accounts, Internet history, and social networking profiles. 40 Additionally, some of today's smart phones even include word processing applications, GPS navigation, and built-in projectors. 41 Even those cell phones not considered “smart phones” are capable of storing massive amounts of information and can be equipped with an address book, a call log, text messaging capabilities, a camera, e-mail, and Internet. 42 Even the most basic types of cell phones now support voice and text messaging and contain address and date book functions. 43 The Ohio Supreme Court noted: [I]n today's advanced technological age many “standard” cell phones include a variety of features above and beyond the ability to place phone calls. Indeed, like [defendant's] phone, many cell phones give users the ability to send text messages and take pictures. Other modern “standard” cell phones can also store and transfer data and allow users to connect to the Internet. . . . [B]asic cell phones in today's world have a wide variety of possible functions. 44


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*456 With the rapid advancements in cell phone technology, cell phones have quickly become a storehouse of sorts for holding such information as private correspondence, photographs, personal thoughts, and in some cases even the personal information of others. 45 Although information of this nature can now be stored electronically, in the past such information has traditionally been stored in one's home office or desk and given protection by the Fourth Amendment. Specifically, the Fourth Amendment not only guarantees that people will be secure in their “persons,” “houses,” and “effects,” but also expressly ensures that people will be secure in their “papers.” 46 As Judge Kozinski suggests in his dissent in United States v. Seljan: The reference to papers is not an accident; it's not a scrivener's error. It reflects the Founders' deep concern with safeguarding the privacy of thoughts and ideas--what we might call freedom of conscience--from invasion by the government. . . . . . . [T]he Founders were as concerned with invasions of the mind as with those of the body, the home or personal property-which is why they gave papers equal rank in the Fourth Amendment litany. . . . .... . . . Papers contain people's most personal information . . . “sealed up in silence, not to be broke, but with their own heartstrings,” so that “some men would rather die” than submit to having their papers searched. 47

Additionally, categorizing the contents of a cell phone as “papers” not only implicates the Fourth Amendment but could also raise serious First Amendment concerns. Judge Kozinski, again in Seljan, turned to the Founders: *457 The Founding generation recognized that the seizure of private papers . . . undermines freedom of speech. . . . [T]he chill on speech that would result from failing to protect personal correspondence . . . would . . . “compel every one in self-defense to write even to his dearest friends with the cold and formal severity with which he would write to his wariest opponents or his most implacable enemies.” 48

Thus, in considering whether to allow a warrantless search of a cell phone pursuant to lawful arrest, courts should recognize that if the contents of cell phones are considered “papers,” the warrantless search of a cell phone pursuant to lawful arrest raises not only Fourth Amendment issues, but also implicates serious First Amendment concerns. This further demonstrates the need for special protection of cell phones to prevent the warrantless searches of cell phones incident to lawful arrest. 49

B. Outdated Precedent and Poor Analysis: Why Prior Approaches Fail to Resolve the Issue 1. Closed Containers In New York v. Belton, the Supreme Court defined a container as an “object capable of holding another object.” 50 The Court's discussion of “containers,” in Belton, focused on items physically capable of holding other objects, for instance glove compartments, consoles, “luggage, boxes, bags, clothing, and the like.” 51 Although electronic content stored in a cell phone is likely not what the Court had in mind when it defined container, some courts have reasoned that a cell phone is a container because it holds the phone's contents. 52


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*458 In Finley, the government argued that as in United States v. Chan, 53 where the numbers in a pager's memory were analogous to the contents of a closed container, the contents of the cell phone at issue were likewise analogous to the contents of a closed container. 54 Thus, the contents of the container could be searched upon lawful arrest to ensure officer safety and prevent the destruction of evidence. 55 The defendant in Finley conceded the fact that cell-phone contents were analogous to a closed container's contents, so the court concluded, without examination, that the contents of the cell phone could be searched and retrieved incident to lawful arrest based on the precedent case of Chan. 56 Likewise, in Smith, the State of Ohio argued that the defendant's cell phone was analogous to a closed container, like a wallet or purse, and therefore, its contents could be searched incident to lawful arrest. 57 However, the Ohio Supreme Court rejected the State's and Finley's reasoning concluding that this reasoning “fails to consider the Supreme Court's definition of ‘container’ in Belton, which implies that the container must actually have a physical object within it.” 58 The court also noted that “[e]ven the more basic models of modern cell phones are capable of storing a wealth of digitized information wholly unlike any physical object found within a closed container.” 59 Likewise, the American Civil Liberties Union, in its amicus curiae brief for the defendant in Smith, argued: Belton . . . imagined containers holding physical objects. But cell phones, like computers, are not storage bins for objects. What they hold is electronic data, and police can[not] identify that data simply by lifting a lid and peering inside. Rather, to access the data, it must be manipulated. Buttons must be pressed, perhaps passwords entered. The search is more *459 intrusive tha[n] lifting a lid or pulling a zipper, likely to reveal more tha[n] people want and reasonably expect will be private. 60

Additionally, unlike briefcases, purses, glove compartments, wallets, or rifle cases, which may actually contain “weapons [or] instruments of escape” 61 and would put officer safety at risk, cell phones contain electronic information only, which cannot be used to harm an officer. 62 Therefore, the justification of officer safety fails “when . . . used to rationalize searches” of cell phones incident to lawful arrest. 63 Finally, even though cell phones are increasingly becoming similar to personal computers, and a number of courts have treated computers like closed containers, treating cell phones and computers as closed containers presents a variety of practical problems that courts are forced, unnecessarily, to sort out. For instance, courts are faced with having to decide whether the entire computer itself is a closed container or whether the individual folders or files are the closed container. The Tenth Circuit recognized the practical difficulty in applying a rule of this nature. In United States v. Walser, 64 the Tenth Circuit observed: The advent of the electronic age and . . . the development of desktop computers that are able to hold the equivalent of a library's worth of information, go beyond the established categories of constitutional doctrine. Analogies to other physical objects, such as dressers or file cabinets, do not often inform the situations we now face as judges when applying search and seizure law. 65

*460 2. Analogizing to Prior Technology


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At the heart of the problem of why past approaches are inadequate in solving this issue is the fact that cell-phone technology is different from previous portable electronic device technology with which courts have dealt. 66 The Southern District of Florida, in Wall, characterized the issue stating the following: The technological developments that have occurred in the last decade . . . are significant. Previously, there was legitimate concern that by waiting minutes or even seconds to check the numbers stored inside a pager an officer ran the risk that another page may come in and destroy the oldest number being stored. . . . Text messages on cell phones are not stored in the same manner. 67

Courts have slowly begun recognizing the ability of cell phones to store massive amounts of information, unlike the pagers and PDAs of the 1990s. In Park, the Northern District of California invalidated the warrantless search of defendant's cell phone stating that “modern cell[] phones have the capacity for storing immense amounts of private information.” 68 Additionally, in Smith, the Ohio Supreme Court stated that “[e]ven the more basic models of modern cell phones are capable of storing a wealth of digitized information . . . . [S]o-called smart phones, which allow for high-speed Internet access are capable of storing tremendous amounts of private data.” 69 Finally, in United States v. Zavala, the Fifth Circuit stated that “cell phones contain a wealth of private information, including emails, text messages, call histories, address books, and subscriber numbers.” 70 *461 Therefore, as the Tenth Circuit suggested in Walser, rather than relying on outdated precedent and making analogies that simply do not work, courts should shift their focus to the unique storage capabilities of cell phones. By considering the type and amount of information stored on cell phones, how the information is stored, and the ever increasing number of citizens who carry cell phones, courts, in formulating rules, will not only be able to adequately protect the privacy rights of individuals, but also better adapt to the rapid advancements of technology.

III. What Can be Done to Prevent Warrantless Searches of Cell Phones Incident to Lawful Arrest?Two Possible Approaches Following the Supreme Court's Decision in Arizona v. Gant In the Court's last term, it revisited the search incident to lawful arrest doctrine in Arizona v. Gant. 71 Although the case dealt with a search of an automobile incident to lawful arrest, 72 the Court's discussion of the search incident to lawful arrest doctrine could lend guidance to lower courts when dealing with the warrantless search of a cell phone incident to lawful arrest. In its discussion, the Court first held that the justifications of officer safety and prevention of destruction of evidence, set out in Chimel, must be present for the search incident to lawful arrest doctrine to apply. 73 The Court then held that when the justifications of Chimel are not present, as when a suspect is secured in the back of a police car, the police could search the passenger compartment of the car only if they had “reason[] to believe evidence relevant to the crime of arrest might be found in the [car].” 74 In applying the Gant holding to the context of cell phones, the first approach would require officers to obtain a warrant before searching a cell phone incident to lawful arrest. The second approach would allow officers to search a cell phone seized incident to lawful arrest only if the *462 officers have reason to believe that evidence of the crime of arrest could be found in the cell phone. Undoubtedly, the first approach is most consistent with Fourth Amendment jurisprudence and the current search incident to lawful arrest doctrine; however, either approach is likely a far superior alternative to ignoring the issue completely and rationalizing warrantless cell-phone searches on outdated precedent and unavailing analogies.


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A. The Justifications of Chimel in the Context of Cell Phones: Requiring Officers to Obtain a Warrant Before Searching a Cell Phone Incident to Lawful Arrest 1. Relying on the Destruction of Evidence: How Courts Have Created a Legal Fiction to Allow Cell Phone Searches Incident to Lawful Arrest 75 Requiring officers to obtain a warrant before searching a cell phone seized incident to lawful arrest is the first approach a court could take in deciding the issue of searches of cell phones incident to lawful arrest. Following the first prong of the Court's holding in Gant, a rule of this nature requires a court to analyze the issue under the original justifications of the search incident to lawful arrest doctrine set out in Chimel. 76 In Chimel, police arrested the defendant pursuant to an arrest warrant for the burglary of a coin shop. 77 Police did not obtain a search warrant for the defendant's home, but rather, searched the home “on the basis of *463 the lawful arrest.” 78 Subsequently, they seized numerous items, including coins, which were later used at trial to convict the defendant. 79 The Supreme Court held that when an arrest is made, police may search the person arrested and the “area into which an arrestee might reach in order to grab a weapon or evidentiary items.” 80 The Court stated that the justifications for this holding were to protect officer safety during the arrest and to prevent the destruction of evidence. 81 In the context of cell phones, the justification of officer safety simply does not apply. The Court in Chimel intended to protect officers from physical danger such as guns, knives, and other weapons. Indeed the Court stated: When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. . . . [T]he area into which an arrestee might reach in order to grab a weapon . . . must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. 82

Although it is true that a person could physically use the cell phone to strike an officer, cell phones are generally not considered weapons that threaten officer safety. When the cell phone is seized from the suspect concern for officer safety is no longer an issue. Therefore, the justification of officer safety does not exist in the context of cell phones. Because the justification of officer safety simply does not apply in the context of cell phones, the issue cuts to whether cell phones present the possibility of destruction of evidence. Courts have generally been reluctant to concede the idea that cellphone technology is vastly different from previous electronic devices and that cell phones do not present the possibility of destruction of evidence that pagers once did. *464 However, as one commentator points out, this reluctance by courts has actually developed into more of a “legal fiction,” wholly lacking in credibility. 83 Most courts that continue to adhere to the destruction of evidence rationale justify their decision on the “dynamic nature of the information stored on and deleted from cell phones.” 84 However, unlike pagers, cell phone storage is not “based on a platform of first-in-first-out storage of numbers.” 85 Rather, the immense storage capacity of modern cell phones allows information to remain on the phone for weeks and months at a time even while the phone continues to receive new calls, text messages, or e-mails. 86


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To put this immense storage capacity in perspective, one article revealed that today's smart phones are capable of storing up to thirty-two gigabytes of information. 87 As this article suggests, thirty-two gigabytes of information is enough “to hold the entire ‘Lord of the Rings' trilogy . . . capture 17 hours of video . . . create and edit Word documents . . . bring [to the phone] real, spoken, turn-by-turn GPS navigation . . . [and] hold 176 app [lications].” 88 Another commentator has found that most smart phones and standard cell phones also often include storage or memory cards capable of holding up to twelve gigabytes of information. 89 This is the equivalent of “1,500 songs, 3,600 photos, and 24.5 hours of video.” 90 Today, even the most basic cell phones are capable of storing anywhere from fourteen megabytes of information 91 to eight gigabytes of information. 92 *465 On top of the storage capabilities of cell phones, an additional safeguard to prevent the destruction of evidence on cell phones comes from the storage of records by cell-phone companies. If, for some reason, information is irretrievable from the phone itself, phone companies, almost universally, keep call and text messaging records so that information from the phone can later be retrieved. For example, AT&T not only keeps the call logs of each cell-phone user on an account but also keeps records indicating the numbers to which all text messages were sent. 93 Although little research is available showing exactly how long phone companies keep their records, one author weighing in on the subject indicated that Sprint “keep[s] [text messages] for about two weeks,” 94 and that “[t]hat's standard practice in the industry.” 95 With the advancements in cell-phone technology and the preservation of call and text-messaging records by phone companies, the destruction of evidence rationale simply does not apply to cell phones as it did to earlier electronic devices such as pagers. Although it is very true that suspects could delete crucial evidence from the phone before it has been seized by officers, the seizure of the phone by law enforcement prevents this possibility. After the phone has been seized, officers have ample time to secure a warrant before any information contained in the phone or the phone company's records would be deleted. 96 Therefore, the destruction of evidence justification does not apply in the context of cell phones. With neither of the original justifications of Chimel applicable to cell phones, officers should be required to secure a warrant to search a cell phone once it has been seized incident to a suspect's lawful arrest. *466 2. United States v. Wall and State v. Smith: Providing an Example for Other Courts to Follow While a number of lower courts have addressed the issue of whether cell phones can be searched incident to lawful arrest, only two courts appear to have focused their analysis on how the original Chimel justifications apply in the context of cell phones. 97 In Wall, the defendant was arrested after DEA agents witnessed him and a co-defendant participate in a drug transaction. 98 Pursuant to the lawful arrest, agents performed a search of the defendant's person and the truck. 99 Found on the defendant's person were two cell phones, which a DEA agent subsequently searched during the booking process and which revealed incriminating text messages. 100 The government sought to introduce the text messages at trial, and the defendant moved to suppress them as a violation of the Fourth Amendment. 101 In the court's analysis of the issue of “whether an exception to the Fourth Amendment warrant requirement permits law enforcement to search the information stored on a cell phone without a warrant,” 102 the Southern District of Florida first began by recognizing that most relevant case law dealt with the search of pagers. 103 The court then discussed the justifications for searches incident to lawful arrest. First, the court refused to allow the justification for officer safety stating that “[t]he content of a text message on a cell phone presents no danger of physical harm to the


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arresting officers or others.” 104 The court then found that the justification regarding destruction of evidence was likewise not satisfied. 105 Without trying to analogize cell phones to any other type of object or device in which courts have dealt, the court found that based on the evidence presented, the government could not bear its burden of proving that an exigency existed for the search of the cell phone. The court suppressed the information obtained *467 from the phone stating: Once Wall was in the custody of police officers, and the phones were removed from his possession, he could no longer exercise any control over them. Thus, the threat that messages would be destroyed was extinguished once law enforcement gained sole custody over the phones. . . . . . . A search of the electronic memory of a cell phone does not properly fit within the scope of . . . a search incident to an arrest. The DEA policy o[f] rummaging through cell phones during the booking process cannot immunize an otherwise unconstitutional search. . . . This finding is made based on the Government's own witness Agent Newsome, who stated that text messages will be retained in the memory of a cell phone until the user deletes them. 106

Similarly, in Smith, the defendant was arrested on drug-related charges and was subsequently searched by police. 107 The search produced a cell phone, located in the defendant's pocket, which police placed in the cruiser while continuing to search the residence for evidence. 108 Testimony revealed that part of the search of the cell phone took place when officers returned to the station to book the suspect. Officers confirmed, based on call records, that the phone had been used to conduct the drug transaction. 109 The defendant moved to suppress the evidence, arguing that the warrantless search of the cell phone was a violation of his Fourth Amendment rights. 110 In the court's analysis of the issue of whether the Fourth Amendment prohibits the warrantless search of the contents of a cell phone incident to lawful arrest, the Ohio Supreme Court first addressed how a cell phone should be characterized. 111 The court discussed recent courts' analogies of cell phones to closed containers, citing Chan 112 and United States v. *468 David, 113 but refused to adopt this analogy holding that a “cell phone is not a closed container for purposes of a Fourth Amendment analysis.” 114 The court then went on to recognize the unique nature of a cell phone, stating: Given their unique nature as multifunctional tools, cell phones defy easy categorization. . . . . . . They are more intricate and multifunctional than traditional address books, yet they are still, in essence, phones, which makes them distinguishable from laptop computers . . . . [T]heir ability to store large amounts of private data gives their users a reasonable and justifiable expectation of a higher level of privacy in the information they contain. 115

The court went on to hold that “[o]nce the cell phone is in police custody, the state has satisfied its immediate interest in collecting and preserving evidence and can take preventive steps to ensure that the data found on the phone is neither lost nor erased.” 116 The court rejected the state's argument that the cell phone presented a need to preserve evidence, concluding that the state failed to make any showing that exigent circumstances existed. 117 The court went on to conclude: [E]ven if one accepts the premise that the call records on Smith's phone were subject to imminent permanent deletion, the state failed to show that it would be unable to obtain call records from the cell phone service provider, which might possibly maintain such records as part of its normal operating procedures. 118


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While courts may be reluctant to require officers to obtain a warrant before searching the contents of a cell phone incident to lawful arrest, Wall and Smith provide a road map for courts to follow in conducting their analysis. Rather than relying on outdated precedent and ineffective analogies, Wall and Smith focus on the unique nature of today's cell *469 phone as it applies to the original justifications of the search incident to lawful arrest doctrine. 3. How This Rule Affects Courts, Law Enforcement and the General Public: Implications of Requiring Officers to Obtain a Warrant Before Searching a Cell Phone Incident to Lawful Arrest a. Courts A rule requiring officers to obtain a warrant before searching a cell phone seized incident to lawful arrest provides courts, applying the rule after the fact, with a bright-line rule consistent with Fourth Amendment jurisprudence and the modern search incident to lawful arrest doctrine. Additionally, a rule of this nature allows a court to play its intended role-- neutral and detached magistrate 119 --which the Court in Chimel 120 stressed: [T]he Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade [the] privacy in order to enforce the law. 121

Finally, requiring a warrant before officers search a cell phone allows courts to determine whether probable cause actually exists to search the phone 122 and ensures the satisfaction of the particularity requirement of the Fourth Amendment. 123 *470 b. Law Enforcement A rule requiring officers to obtain a warrant before searching a cell phone seized incident to lawful arrest also provides law enforcement with an easy-to-apply, bright-line rule. With a rule like this in place, law enforcement can adequately prepare to apply for a warrant immediately after seizure of the cell phone. Likewise, such a rule provides officers with notice that courts are not likely to accept preservation of evidence or exigency arguments, and a warrant should, in almost all cases, be obtained before searching the phone. Additionally, this type of rule does not require officers to make on-the-spot decisions about makes or models of phones and whether a certain type of phone can or cannot be searched. The rule requiring officers to obtain a warrant does not make a distinction between types of cell phones, so the rule's application is simple. Some commentators have recommended that officers be allowed to search older model phones because they hold less, and different, information than today's smart phones. 124 However, forcing officers to make on-the-spot decisions as to whether they can search a particular type or model of phone presents difficulty in applying a rule meant to bring easy application. The Ohio Supreme Court, in Smith, noted this difficulty, stating that “[b]ecause basic cell phones in today's world have a wide variety of possible functions, it would not be helpful to create a rule that requires officers to discern the capabilities of a cell phone before acting accordingly.” 125 Although critics of a rule of this nature argue that the rule makes the process more tedious for officers, requiring such a rule will likely make officers more efficient in the long run. Because the phone will be searched only after a warrant has been obtained, 126 evidence recovered from the phone is less likely to be suppressed at a subsequent trial.


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One example of law enforcement following a rule of this nature, and *471 its lack of negative implications, is United States v. Lemke. In Lemke, the defendant was arrested on charges related to child pornography. 127 Pursuant to the arrest, police recovered an “Apple iPhone . . . from the [d]efendant's person.” 128 Officers secured the phone at the police department while police applied for a warrant to search the phone. 129 The warrant was issued, and a subsequent search of the phone ensued. 130 The defendant's motion to suppress evidence found on the phone was denied because the phone was searched with a warrant, and the warrant was issued upon probable cause. 131 As the above example demonstrates, officers are less likely to have the fruits of the cell-phone search suppressed if they get a warrant before searching the phone upon the lawful arrest. 132 c. General Public Because of the overwhelmingly large number of citizens who carry a cell phone, a rule requiring officers to obtain a warrant before searching a cell phone seized incident to a lawful arrest prevents widespread constitutional violations within the general public. Obtaining a warrant forces officers to allow a neutral third party to assess the Fourth Amendment's requirements of probable cause and particularity. 133 Likewise, a rule of this nature prevents law enforcement from rummaging for evidence of crime, generally and without suspicion, in a cell phone in which members of the general public hold a reasonable expectation of privacy. 134 As the Court stated in Chimel, “The right of *472 privacy [is] . . . too precious to entrust to the discretion of those whose job is detection of crime and the arrest of criminals. And so the Constitution requires a magistrate to pass on the desires of the police before they violate . . . privacy . . . .” 135 While a rule requiring officers to obtain a warrant before searching the contents of a cell phone seized incident to lawful arrest may indeed make the arrest process more tedious for law enforcement, the benefits of the rule outweigh any burden such a rule places on officers. The rule not only provides courts and officers with simple-bright-line application, but also conforms to traditional Fourth Amendment jurisprudence by allowing a neutral and detached magistrate to assess probable cause and prevent officers from rummaging for evidence of crime generally. Such a rule protects the privacy interests of millions of Americans who now carry cell phones on a regular basis.

B. Reason to Believe Evidence of the Offense Will Be Found in the Cell Phone: When the Justifications of Chimel Do Not Apply 1. Limiting the Scope of Cell-Phone Searches Incident to Lawful Arrest: Why Less than Probable Cause Is Better than No Suspicion at All Requiring officers to have reason to believe that evidence of the crime of arrest is contained in the cell phone is another approach that a court could take in deciding the issue of searches of cell phones incident to lawful arrest. Following the second prong of the Court's holding in Gant, a rule of this nature would allow a court to limit the scope of cell phone searches incident to lawful arrest, while at the same time, preserve the government's interest in obtaining evidence and preventing crime. Justice Scalia, in his concurring opinion in Thorton v. United States, 136 advocated for such a rule, and the Court recently adopted such rule in Gant in the context of automobiles. 137 Although a number of commentators have criticized this approach to search incident to lawful *473 arrest because it authorizes a search on less than probable cause, 138 the approach may be at


13


least worthy of a second look in the context of cell phones. One commentator, in arguing for the acceptance of Justice Scalia's approach to search incident to lawful arrest, stated: The real danger today to citizens' rights to be free from unreasonable search and seizure is not that a search . . . following their arrest will be permitted on suspicion less than probable cause, but rather that a search . . . unrelated to the reason for the arrest will occur without any level of suspicion whatsoever. 139

While cell-phone usage, like automobile usage, has become a common activity of the general public, cell phones and automobiles are different for purposes of the Fourth Amendment. 140 The Court in Gant was unclear about whether the reasonto-believe standard could apply outside the automobile context, and indeed, this type of rule would reconceptualize the search incident to lawful arrest doctrine as it relates to cell phones. 141 A rule of this nature would, however, not only limit the scope of searches of cell phones incident to lawful arrest but also limit warrantless rummaging for evidence of crime, generally, in a cell phone's “thousands *474 of pages of data.” 142 As one commentator suggests: If an officer arrested a driver for possession of drugs with intent to distribute, it would make sense to search his text messages for further evidence of the crime, since that function is commonly used in conjunction with drug sales. But it would not seem to be permissible for the officer to search through the arrestee's pictures under the iPhoto function or the history section under his internet browser because such applications likely have nothing to do with drug sales. 143

Furthermore, such a rule would preclude the need to analyze the issue under the Chimel justifications if a court is willing to concede, at the start of its analysis, that cell phones simply do not present the possibility of destruction of evidence or threaten officer safety in any way. 144 The Court recognized a similar approach to the search incident to lawful arrest doctrine in Knowles v. Iowa. 145 In Knowles, law enforcement stopped the defendant for speeding but issued him a citation rather than arresting him. 146 Pursuant to issuing the citation, the officer conducted a full search of the car where he found drugs and drug paraphernalia. 147 The state of Iowa argued that the justifications of the search incident to lawful arrest should be extended to searches incident to citation. 148 The Court refused to extend the doctrine, holding that “where the concern for officer safety is not present . . . and the concern for destruction or loss of evidence is not present at all,” 149 the search cannot be justified. Similarly, the reasoning of Knowles can be carried over to the searches of cell phones incident to lawful arrest. A court, in deciding *475 whether to uphold the warrantless search of a cell phone incident to lawful arrest, could hold that because the justifications of officer safety and destruction of evidence do not exist in the context of cell phones, officers may not search the cell phone incident to lawful arrest unless they have reason to believe that evidence of the crime of arrest will be found in the cell phone. Law enforcement would then be put on notice that it is no longer reasonable for an arresting officer to legitimize the search of the cell phone on the justifications of Chimel, but rather, that the officer must have some suspicion to believe evidence of the crime of arrest will be found on the phone. 2. United States v. Quintana: An Example for Courts to Follow While a number of lower courts have addressed the issue of whether cell phones can be searched incident to lawful arrest, only one court appears to have approached the issue with an “evidence-gathering rationale rather than a . . . rationale of officer safety


14


or destruction of evidence.” 150 In Quintana, the “[d]efendant was arrested for driving with a suspended license and placed in handcuffs.” 151 Without the defendant's permission, the arresting officer removed the cell phone from the defendant's pocket and “began looking through information in the cell phone, including a digital photo album, hoping to find evidence related to the odor of marijuana in [d]efendant's vehicle.” 152 Upon searching the phone, the officer found a photo of what he “characterized as a marijuana ‘grow house.”’ 153 At trial, the defendant moved to suppress the evidence obtained from the search of the cell phone. 154 In its analysis of the issue, the Middle District of Florida first cited Chimel and its original justifications for searches incident to lawful arrest. 155 However, the court dismissed the *476 idea that the officer's search of the phone was justified by a need to preserve evidence on the phone stating that “[t]his type of search is not justified by the twin rationales of Chimel and pushes the search-incidentto-arrest doctrine beyond its limits.” 156 Rather, the court focused its analysis on whether the officer was justified in searching the defendant's phone for a crime other than the one in which he was arrested. 157 The court found that because the defendant was arrested for driving with a suspended license, the officer was not justified in searching the phone for evidence relating to the marijuana odor. 158 The court relied on oral argument from what was then the forthcoming case of Gant, 159 where Justice Scalia stated that “‘if you're going to use [the preservation-of-evidence] rationale you have to link the reason for the arrest with the likelihood that there would be any evidence found in the car that would support the arrest.”’ 160 The Quintana court concluded that “Justice Scalia seemed skeptical that law enforcement could arrest someone and then ‘rummage around for evidence of a different crime.”’ 161 Quintana's use of Gant in the context of cell phones appears to indicate that courts would be willing to examine, or at least discuss, the holding of Gant as it relates to cell phones. *477 3. How This Rule Affects Courts, Law Enforcement, and the General Public: Implications of Requiring an EvidenceBased Rationale a. Courts A rule allowing officers to search a cell phone incident to lawful arrest if they have reason to believe evidence of the offense of arrest will be found in the phone prevents courts from having to fashion a completely new rule based on the technology of cell phones. 162 With such a rule, the focus is less on the type of phone, the features of a particular phone, or whether the phone is a smart phone or a basic cell phone, but rather the focus for courts is whether the officer had reason to believe that evidence of crime would be stored in the phone. For example, rather than the government having to present testimony related to cell-phone technology and what applications the phone included, the government could present testimony by law enforcement officers regarding whether certain crimes were more or less likely to be furthered using certain applications in a cell phone. This would allow a court to decide if the particular officer had reason to believe evidence of the crime would be found on the phone. Additionally, this type of rule leaves open for interpretation the meaning of “reason to believe.” The Court, in Gant, did not define what it meant by reason to believe. While courts apply probable cause and reasonable suspicion standards, it is not clear where reason to believe fits on this spectrum. 163 So while this rule does prevent courts from having to fashion a rule around ever-changing technology, such a rule implicates difficult, undefined standards, rather than simple bright-line rule application.


15


b. Law Enforcement A rule allowing officers to search a cell phone incident to lawful arrest, if they have reason to believe evidence of the offense of arrest will be found in the phone, has several implications for law enforcement *478 officials in charge of applying the rule. First, rather than requiring police to first obtain a warrant for any search of the cell phone, a rule of this nature allows police to search cell phones incident to the arrest in limited circumstances, which can present issues surrounding the scope of the search. Cell phones, like computers, present problems with the plain view exception to the warrant requirement. Judge Kozinski summarized this problem in a recent Ninth Circuit case: 164 There is no way to be sure exactly what an electronic file contains without somehow examining its contents . . . . But electronic files are generally found on media that also contain thousands or millions of other files among which the sought-after data may be stored or concealed. By necessity, government efforts to locate particular files will require examining a great many other files to exclude the possibility that the sought-after data are concealed there. Once a file is examined, however, the government may claim . . . that its contents are in plain view and, if incriminating, the government can keep it. 165

The Ninth Circuit dealt with this problem by fashioning a rule that required “the government [to] . . . forswear reliance on the plain view doctrine or any similar doctrine [which] would allow it to retain data to which it has gained access only because it was required to segregate seizable from non-seizable data.” 166 Arguably, a similar rule could be fashioned within the evidencebased rationale for cell phones and search incident to lawful arrest. Specifically, the government would be required to waive use of the plain-view doctrine before conducting a search of the cell phone incident to a suspect's lawful arrest. Additionally, with a rule of this nature law enforcement will be *479 forced to make on-the-spot decisions about whether there is reason to believe that evidence of the crime of arrest could be found in the phone. The rule lacks easy application because it is not a bright-line rule either completely allowing or disallowing the search of the cell phone. But law enforcement officers are likely capable of deciding whether there is reason to believe that evidence of the crime exists in the phone just in the way they are capable of deciding whether reasonable suspicion exists to suspect that a person is armed and dangerous and should be frisked pursuant to a lawful stop. 167 c. General Public A rule allowing officers to search a cell phone incident to lawful arrest if they have reason to believe evidence of the offense of arrest will be found in the phone has several implications for the general public as well. First, such a rule undoubtedly provides more protection than current case law provides individuals carrying cell phones. As discussed earlier, one commentator has argued that even though this type of rule would allow a search of the cell phone on less than probable cause, allowing the search of the cell phone simply because a lawful arrest took place protects rights of citizens even less. 168 Similarly, such a rule prevents law enforcement from rummaging for evidence of crime, generally and without any suspicion, in a cell phone in which members of the general public hold a reasonable expectation of privacy. The Court in Gant expressed its concern with rummaging around for evidence of crime without a warrant: *480 Although we have recognized that a motorist's privacy interest in his vehicle is less substantial than in his home, . . . the former interest is nevertheless important and deserving of constitutional protection. . . . Belton searches authorize police officers to search not just the passenger compartment but every purse,


16


briefcase, or other container within that space. A rule that gives police the power to conduct such a search whenever an individual is caught committing a traffic offense, when there is no basis for believing evidence of the offense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals. Indeed, the character of that threat implicates the central concern underlying the Fourth Amendment--the concern about giving police officers unbridled discretion to rummage at will among a person's private effects. 169 Rather than allowing “unbridled” police discretion, this rule requires officers to have reason to believe that evidence of the crime of arrest exists in the phone and prevents them from rummaging through the contents of the phone with hopes of finding evidence of any crime. 170

Conclusion Because of the ability of today's cell phones to store massive amounts of private information, courts must reexamine the search incident to lawful arrest doctrine in the context of cell phones. In formulating new rules, courts should focus on whether the original justifications of the search incident to lawful arrest doctrine actually apply to cell phones and, if not, consider shifting their focus to limiting the scope of searches of cell phones incident to lawful arrest. Admittedly, the rules proposed in this Note may make the arrest process more tedious for law enforcement and will force courts to analyze and decide difficult Fourth Amendment privacy issues. However, the alternatives to these proposals, ignoring the issue completely and rationalizing warrantless searches on mere legal fiction, are simply unacceptable. The Fourth Amendment ensures that people will be secure in their “persons, houses, papers and effects.” This right *481 can only be overcome by specific and well-delineated exceptions. Although the search incident to lawful arrest exception to the warrant requirement can be rationalized in most other situations, the justifications of the doctrine fail to exist in the context of cell phones. Because today's cell phones electronically embody people's private papers and because the number of cell-phone users continues to increase, courts will be forced to decide the issue on a much more frequent basis. Although Congress and state legislatures may eventually weigh in on the issue, courts of the United States must be adequately prepared to uphold the Fourth Amendment to the Constitution and protect the privacy rights of millions of American citizens who carry cell phones.

Footnotes a1 Jana Knott is a third-year law student at Oklahoma City University School of Law and currently serves as the Managing Editor for the Oklahoma City University Law Review. She expresses appreciation to her husband and parents for their continuing support. A special thank you to Professors Emma Rolls and Shannon Roesler for all their time, encouragement, and insightful comments in the writing of this Note.

1

This hypothetical is a variation on the facts of Atwater v. City of Lago Vista, 532 U.S. 318 (2001).

2

Chimel v. California, 395 U.S. 752, 76263 (1969).

3


4

Katz v. United States, 389 U.S. 347, 357 (1967).

5

Chimel, 395 U.S. at 76263.


17


6

Id. at 763.

7

Id. After the decision in Chimel, the Court also had to deal with the issue of contemporaneousness of the search incident to lawful arrest. See United States v. Edwards, 415 U.S. 800 (1974); United States v. Chadwick, 433 U.S. 1 (1977). While these cases do not come into the analysis if the search of the cell phone was contemporaneous with the arrest, courts may have to rely upon the reasoning of these cases with searches of cell phones not considered contemporaneous with the arrest.

8

See generally United States v. Molinaro, 877 F.2d 1341 (7th Cir. 1989) (categorizing a wallet under precedent); United States v. Johnson, 846 F.2d 279 (5th Cir. 1988) (categorizing a briefcase under precedent).

9

See generally United States v. Finley, 477 F.3d 250 (5th Cir. 2007); State v. Smith, 920 N.E.2d 949 (Ohio 2009).

10

United States v. Ortiz, 84 F.3d 977, 984 (7th Cir. 1996).

11

United States v. Hunter, No. 96-4259, 1998 WL 887289, at *34 (4th Cir. Oct. 29, 1998).

12

United States v. Mercado-Nava, 486 F. Supp. 2d 1271, 1278 (D. Kan. 2007) (quoting United States v. Zamora, No. 1:05 CR 250 WSD, 2006 WL 418390, at *4 (N.D. Ga. Feb. 21, 2006)).

13

United States v. Valdez, No. 06-CR-336, 2008 WL 360548, at *23 (E.D. Wis. Feb. 8, 2008).

14

United States v. Finley, 477 F.3d 250, 260 (5th Cir. 2007).

15

United States v. Wurie, 612 F. Supp. 2d 104, 110 (D. Mass. 2009).

16

United States v. Brookes, No. CRIM 2004-0154, 2005 WL 1940124, at *3 (D.V.I. June 16, 2005).

17

Id. (citing United States v. Lynch, 908 F. Supp. 284 (D.V.I. 1995) (upholding the search of a pager incident to a lawful arrest)).

18

Finley, 477 F.3d at 260 (citing United States v. Ortiz, 84 F.3d 977, 984 (7th Cir. 1996)).

19

United States v. Cote, No. 03CR271, 2005 WL 1323343, at *6 (N.D. Ill. May 26, 2005) (mem.) (citing United States v. Rodriguez, 995 F.2d 776 (7th Cir.1993)).

20

United States v. Mendoza, 421 F.3d 663, 668 (8th Cir. 2005).

21

United States v. Dennis, Criminal No. 07-008-DLB, 2007 WL 3400500 (E.D. Ky. Nov. 13, 2007).

22

See United States v. Wall, No. 08-60016-CR, 2008 WL 5381412 (S.D. Fla. Dec. 22, 2008); State v. Smith, 920 N.E.2d 949 (Ohio 2009); United States v. Park, No. CR 05-375 SI, 2007 WL 1521573 (N.D. Cal. May 23, 2007).

23

Wall, 2008 WL 5381412, at *4.

24


25

Park, 2007 WL 1521573, at *8-9.

26

United States v. Quintana, 594 F. Supp. 2d 1291, 1300 (M.D. Fla. 2009).

27

Id.

28

In re Application of the United States For an Order Directing a Provider of Elec. Commc'n Serv. to Disclose Records to the Gov't, 534 F. Supp. 2d 585 (W.D. Pa. 2008). The court addressed the issue of whether the government could apply for cell-phone subscriber information from which it could identify an individual's past or present physical location on less than probable cause. Id.

29

Id. at 589 (footnote omitted).


18


30

Press Release, U.S. Census Bureau News, U.S. Cell Phone Use Up More Than 300 Percent, Statistical Abstract Reports (Dec. 9, 2004) (on file with author), available at http://web.archive.org/web/20041216052428/http:// www.census.gov/Press-Release/www/releases/ archives/miscellaneous/003136.html. The press release issued by the United States Census Bureau was based on the Statistical Abstract of the United States 2004-2005. Id. Undoubtedly, cell-phone use has continued to increase since this report was issued in 2004. The New York Times Business section reports that Apple alone, since 2007, has sold more than 37 million iPhones. Apple Inc., N.Y. Times, (updated October 20, 2009), http://topics.nytimes.com/top/news/business/companies/apple_ computer_inc/index.html? inline=nyt-org (last visited Jan. 23, 2010).

31

Daniel McGinn, Last American (Wireless) Virgin, Newsweek, July 21, 2008, at 24.

32

Fabiola Hernandez, Top 5 Countries with Most Cell Phone Subscribers, May 27, 2009, http://www.associatedcontent.com/ article/1764228/top_5_countries_ with_most_cell_phone.html?cat=15 (last visited Jan. 23, 2010).

33

See Katz v. United States, 389 U.S. 347 (1967); Smith v. Maryland, 442 U.S. 735 (1979).

34

Tom Farley, The Cell-Phone Revolution, Am. Heritage Invention & Tech., Winter 2007, at 8, 18. For a more in-depth discussion of the history and development of cell phones, see Bryan Andrew Stillwagon, Note, Bringing an End to Warrantless Cell Phone Searches, 42 Ga. L. Rev. 1165, 1169-74 (2008).

35

See Farley, supra note 34, at 18.

36

Id. at 19.

37

Id.

38

Id.

39

Wayne Jansen & Rick Ayers, Nat'l Inst. of Standards & Tech., Dep't of Commerce, Spec. Pubs. 800-101, Guidelines on Cell Phone Forensics 9-10 (2007), available at http://csrc.nist.gov/publications/nistpubs/800-101/SP800-101.pdf.

40

Joe Nocera, An iPhone To Counter Naysayers, N.Y. Times, June 18, 2009, at B1.

41

See Jansen & Ayers, supra note 39, at 10. See also Kevin J. O'Brien, Trends Emerge at Mobile Phone Convention, N.Y. Times, Feb. 19, 2009, http:// www.nytimes.com/2009/02/19/technology/19iht-gadgets.4.20311726.html.

42

Jenna Worthhan, Giving Your Phone More Oomph: Entrepreneurs Venture Beyond the iPhone With Apps for the Not-QuiteSmartphone Set, N.Y. Times, Jan. 4, 2010, at B1; see also Wayne Jansen & Karen Scarfone, Nat'l Inst. of Standards & Tech., Dep't of Com., Spec. Pubs. 800-124, Guidelines on Cell Phone and PDA Security 14-15 (2008), available at http:// csrc.nist.gov/publications/ nistpubs/800-124/SP800-124.pdf (discussing the classification of cell phones as “basic phones that are primarily simple voice and messaging communication devices; advanced phones that offer additional capabilities and services for multimedia; and smart phones or high-end phones that merge the capabilities of an advanced phone with those of a PDA”).

43

See Jansen & Ayers, supra note 39, at 10.

44

State v. Smith, 920 N.E.2d 949, 954 (Ohio 2009). See also Jansen & Scarfone, supra note 42, at 14 (stating that “[o]ver time, the trend has been for advanced features to appear in more basic phones as new features are added to high-end phones”).

45

For example, many attorneys and doctors now carry BlackBerry-type phones which contain client files. The client files often contain highly private and privileged information only meant for the attorney or doctor to see. If a doctor's cell phone containing client files is searched pursuant to his or her arrest, not only will the doctor's private information be revealed, but also the client's personal information can be obtained from the client file on the phone.

46



19


47

United States v. Seljan, 547 F.3d 993, 101418 (9th Cir. 2008) (Kozinski, J., dissenting) (emphasis added), cert. denied, 129 S. Ct. 1368 (2009).

48

Id. at 1018 (quoting 2 Joseph Story, Commentaries on Equity Jurisprudence 251 (13th ed., Boston: Little, Brown and Co. 1886)).

49

This article seeks only to raise the issue that perhaps the First Amendment should also be considered in future discussions of whether cell phones should be allowed to be searched incident to lawful arrest.

50

New York v. Belton, 453 U.S. 454, 461 n.4 (1981).

51

Id.

52

United States v. Finley, 477 F.3d 250, 260 (5th Cir. 2007). See also United States v. Ortiz, 84 F.3d 977, 984 (7th Cir. 1996) (upholding the search of a pager as incident to lawful arrest and concluding that a pager is analogous to a closed container); United States v. Young, 278 F. App'x 242, 24546 (4th Cir.) (citing Finley and an unpublished Fourth Circuit case, the court held that the contents of the cell phone could be searched), cert. denied, 129 S. Ct. 514 (2008).

53

United States v. Chan, 830 F. Supp. 531, 534 (N.D. Cal. 1993) (holding that a pager is analogous to a closed container).

54


55

Id. at 260 n.6.

56

Id. at 260.

57

Merit Brief for Appellee-State of Ohio at 56, State v. Smith, 920 N.E.2d 949 (Ohio 2009) (No. 2008-1781).

58


59

Id.

60

Merit Brief of Amicus Curiae American Civil Liberties Union of Ohio Foundation, Inc., in Support of Appellant at 6-7, State v. Smith, 920 N.E.2d 949 (Ohio 2009) (No. 2008-1781).

61

See Stillwagon, supra note 34, at 119697. The author argues that these types of containers could legitimately hold weapons or instruments of escape like keys or razor blades, whereas cell phones can hold none of these things. Id.

62

Id.

63

Id. at 1197.

64

United States v. Walser, 275 F.3d 981 (10th Cir. 2001).

65

Id. at 986.

66


67

Id.

68

United States v. Park, No. CR 05-375 SI, 2007 WL 1521573, at *8 (N.D. Cal. May 23, 2007).

69


70

United States v. Zavala, 541 F.3d 562, 577 (5th Cir. 2008). The government argued that running a license check during a traffic stop was analogous to searching a cell phone during an investigative stop. Id. The Fifth Circuit, however, held that the police's search


20

IS THERE AN APP FOR THAT? REEXAMINING THE..., 35 Okla. City U. L.... of Zavala's cell phone was “‘general rummaging in order to discover incriminating evidence.”’ Id. (quoting Florida v. Wells, 495 U.S. 1, 4 (1990)).

71

See generally Arizona v. Gant, 129 S. Ct. 1710 (2009).

72

Id. at 1714. While the Court's holding in Gant specifically encompasses automobiles, the Court was not clear as to whether its discussion of the search incident to lawful arrest doctrine could be applied to objects outside the context of automobiles.

73

Id. at 1719.

74

Id. (quoting Thorton v. United States, 541 U.S. 615, 632 (2004) (Scalia, J., concurring)).

75

Matthew E. Orso, Cellular Phones, Warrantless Searches, and the New Frontier of Fourth Amendment Jurisprudence, 50 Santa Clara L. Rev. 183, 200 (2010). While Orso's argument was in the context of the exigency exception to the warrant requirement, the rationale also applies to the prevention of destruction of evidence justification of the search incident to lawful arrest exception. Id. Orso explained: [C]ourts that allow the search of a cellular phone's contents based on exigent circumstances may be furthering a legal fiction--that an exigency exists merely because the information that police seek is stored on a cellular phone, regardless of whether there is a true risk of losing the information. The simple fact that an item is a cellular phone does not alone create a “now or never” situation in which police must act immediately to preserve evidence of a crime. Id.

76


77

Id. at 753.

78

Id. at 75354.

79

Id. at 754.

80

Id. at 763.

81

Id.

82

Id. at 76263.

83

Orso, supra note 75, at 200.

84

United States v. Mercado-Nava, 486 F. Supp. 2d 1271, 1278 (D. Kan. 2007).

85


86

Id. The DEA agent working the case testified that “if a text message is not deleted by the user, the phone will store it. He further [testified] that his phone contained messages that were at least two months old.” Id.

87

See Nocera, supra note 40, at B1.

88

Id.

89

See Stillwagon, supra note 34, at 1174 n.47 (citing Press Release, SanDisk, SanDisk Announces the 12-Gigabyte MicroSDHC CardThe World's Largest Capacity Card for Mobile Phones (Jan. 7, 2008), available at http:// www.Sandisk.com/Corporate/PressRoom/ PressReleases/PressRelease.aspx?ID=4079).

90

Id.

91

AT&T advertises that the Motorola EM 330, which would be considered a “basic” cell phone, stores up to fourteen megabytes of information on the phone with an additional two gigabytes available through a memory card. AT&T Motorola MOTO (TM) EM330,


21

IS THERE AN APP FOR THAT? REEXAMINING THE..., 35 Okla. City U. L.... http://www.wireless.att.com/cell-phone-service/cell-phones/motorola.jsp (follow “Motorola MOTO (TM) EM330” hyperlink) (last visited Jan. 23, 2010).

92

AT&T advertises that the Sony Ericsson W518a, which would be considered a “basic” cell phone, is capable of holding up to eight gigabytes of information. AT&T, Sony Ericsson W518a, http://www.wireless.att.com/cell-phone-service/cell-phones/ sonyericsson.jsp (follow “Sony Ericsson W518a” hyperlink) (last visited Jan. 23, 2010).

93

AT&T Answer Center, How Can I View My Old Bill/Invoices?, http:// www.wireless.att.com/answer-center/main.jsp? t=solutionTab&solutionId =KB95671 (last visted Jan. 25, 2010).

94

Orso, supra note 75, at 199 n.69 (citing Mike Wendland, Mayor's Texts Weren't Private, but Yours Probably Are, USA Today, Jan. 24, 2008, http://www.usatoday.com/news/nation/2008-01-24-detroit-texts_N.htm).

95

Id.

96

Id. at 199 (arguing that two weeks is more than enough time to secure a warrant).

97

See United States v. Wall, No. 08-60016-CR, 2008 WL 5381412 (S.D. Fla. Dec. 22, 2008); State v. Smith, 920 N.E.2d 949 (Ohio 2009).

98

Wall, 2008 WL 5381412, at *1.

99

Id.

100

Id.

101

Id.

102

Id. at *3.

103

Id.

104

Id.

105

Id. at *4.

106

Id.

107


108

Id.

109

Id.

110

Id. at 951.

111

Id. at 952.

112


113

United States v. David, 756 F. Supp. 1385 (D. Nev. 1991).

114


115

Id. at 955.

116

Id.


22


117

Id. at 956.

118

Id. at 955-56.

119

See generally Coolidge v. New Hampshire, 403 U.S. 443 (1971) (holding that a warrant must be issued by a neutral and detached magistrate).

120

Although the Court in Chimel spoke in the context of the home, the Court's words are applicable to items such as cell phones that store such a wealth of private information, similar to homes.

121


122

See generally Shadwick v. City of Tampa, 407 U.S. 345 (1972) (stating that “[t]he warrant traditionally has represented an independent assurance that a search and arrest will not proceed without probable cause to believe that a crime has been committed and that the person or place named in the warrant is involved in the crime”).

123


124

See Orso, supra note 75, at 192-93. The author differentiates between “coding information” and “content-based information,” the former of which would be able to be searched by officers on the spot without a warrant if “courts continue their regular practice of upholding warrantless searches of cellular phones.” Id. at 193.

125


126

Although defendants may still argue that the warrant itself was invalid, defendants are less likely to argue that the fruit of the warrantless search should be suppressed on the basis of the search of the cell phone incident to lawful arrest.

127

United States v. Lemke, Criminal No. 08-216(1) (DWF/RLE), 2008 WL 4999246, at *1 (D. Minn. Nov. 19, 2008).

128

Id. at *7.

129

Id.

130

Id.

131

Id. at *19.

132

For another example, see Defendant Wall's First Particularized Motion to Suppress Evidence and Statements and Brief in Support at 20, United States v. Wall, No. 08-60016-CR, 2008 WL 5381412 (S.D. Fla. Apr. 25, 2008) (citing United States v. Klinger, Criminal No. 07-437 (1) (RHK/AJB), 2008 WL 482357 (D. Minn. Feb. 19, 2008)).

133


134

Although the Supreme Court has not addressed the issue of whether a person has a reasonable expectation of privacy in the contents of his or her cell phone, a few Circuit Courts do appear to be in favor of finding a reasonable expectation of privacy in the contents of a cell phone. See generally United States v. Finley, 477 F.3d 250 (5th Cir. 2007) (finding a reasonable expectation of privacy in text messages contained in cell phones); Quon v. Arch Wireless Operating Co., 529 F.3d 892 (9th Cir. 2008) (finding a reasonable expectation of privacy in text messages contained in cell phones).

135


136

Thorton v. United States, 541 U.S. 615, 62532 (2004) (Scalia J., concurring).

137

See Arizona v. Gant, 129 S. Ct. 1710 (2009).


23


138

Edwin J. Butterfoss, Bright Line Breaking Point: Embracing Justice Scalia's Call for the Supreme Court to Abandon an Unreasonable Approach to Fourth Amendment Search and Seizure Law, 82 Tul. L. Rev. 77, 77 (2007).

139

Id. at 81.

140

For example, in Gant, Justice Stevens specifically states that “a motorist's privacy interest in his vehicle is less substantial than in his home.” Gant, 129 S. Ct. at 1720. However, cell phones, arguably, contain the same private information that homes contain; therefore, the expectation of privacy in a cell phone would not be substantially less than in a home. If a rule of this nature were to be adopted, a court would need to address how this rule could be applied notwithstanding the fact that cell phones do not likely present a reduced expectation of privacy as do automobiles.

141

Adam M. Gershowitz, The iPhone Meets the Fourth Amendment, 56 UCLA L. Rev. 27, 49 (2008). Throughout most of the Court's opinion in Gant, it discusses its rule in the context of automobiles. However, the Court also expresses a greater concern about the Belton rule, which could be applied outside the context of automobiles: “[T]he character of that threat implicates the central concern underlying the Fourth Amendment--the concern about giving police officers unbridled discretion to rummage at will among a person's private effects.” Gant, 129 S. Ct. at 1720. Essentially, this concern can also be applied to warrantless and suspicionless searches of cell phones.

142

Id.

143

Id. (footnote omitted). Gershowitz's article was written before the Supreme Court's decision in Gant, which led the author to conclude that Scalia's view was simply “unlikely [to be] adopt[ed].” Id. However, Gershowitz did recognize the possibility that Scalia's position could “someday command a majority,” and indeed it did with the holding in Gant. Id.

144

See Chimel v. California, 395 U.S. 752 (1969).

145

See Knowles v. Iowa, 525 U.S. 113 (1998).

146

Id. at 114.

147

Id.

148

Id. at 117.

149

Id. at 119.

150

See Butterfoss, supra note 138, at 103.

151

United States v. Quintana, 594 F. Supp. 2d 1291, 1295 (M.D. Fla. 2009). Upon stopping the car, the officer noticed the smell of “raw marijuana emanating from the vehicle.” Id. at 1294. After smelling the marijuana, the arresting officer radioed for backup, received consent to search the defendant's vehicle for marijuana, where he found none, and then received a dispatch that the defendant's license was suspended, which prompted the defendant's subsequent arrest. Id. at 129495.

152

Id. at 129596.

153

Id. at 1296.

154

Id. at 1294.

155

Id. at 12991300.

156

Id. at 1300.

157

Id. at 12991300.

158

Id. at 1300.


24


159

Id.

160

Id. (quoting Transcript of Oral Argument at 22, Arizona v. Gant, 128 S. Ct. 1443 (2009) (No. 07-542)).

161

Id. (quoting Transcript of Oral Argument at 22, Gant, 128 S. Ct. 1443 (No. 07-542)). The Quintana court relied heavily on Justice Scalia's concurring opinion in Thorton. It is not exactly clear from Justice Scalia's opinion in Thorton if he would be willing to extend his analysis to the context of cell phones. While he discusses the approach as “a return to the broader sort of search incident to arrest that we allowed before Chimel,” he specifically states that this broader approach was “limited, of course, to searches of motor vehicles, a category of ‘effects' which give rise to a reduced expectation of privacy.” Thorton v. United States, 541 U.S. 615, 631 (2004) (Scalia, J., concurring) (emphasis added). Additionally, the Quintana court, after rejecting the idea that the Chimel justifications apply to cell phones, failed to explain how the rule in Gant could be extended to cell phones when cell phones do not present the exigency that automobiles do, and when people do not have a reduced expectation of privacy in cell phones as they do in automobiles.

162


163

A court willing to consider a rule of this type could require officers to have probable cause to suspect that evidence of the crime of arrest will be found in the phone. This would eliminate the difficult task of defining reason to believe and would likely be more consistent with Fourth Amendment jurisprudence.

164

United States v. Comprehensive Drug Testing, Inc., 579 F.3d 989 (9th Cir. 2009).

165

Id. at 100405.

166

Id. at 998. Factually, Comprehensive Drug Testing is different from a scenario where a person is arrested and the officer searches the phone on the spot without a warrant. In Comprehensive Drug Testing, the Government acted under the authority of a warrant to search certain computers. Id. However, the Ninth Circuit's arguments regarding plain view and electronic information can be analogized to cell phone searches incident to lawful arrest, especially if one views cell phones as increasingly similar to computers.

167

See Terry v. Ohio, 392 U.S. 1 (1968) (holding that reasonable suspicion must be present to stop a person and that the person can then only be frisked if there is reasonable suspicion that the person is armed and dangerous). However, law enforcement would only be able to decide if the reason-to-believe standard is met after courts have defined that standard.

168

Butterfoss, supra note 138, at 9899. [The] greatest threat to citizens' Fourth Amendment protections against unreasonable searches and seizures ... is not searches that take place based on individualized suspicion less than probable cause but arbitrary searches authorized on no suspicion whatsoever. Thus, Justice Scalia's requirement of suspicion--even suspicion less than probable cause--is a step forward in the protection of citizens' rights, not a step back. Id.

169

Arizona v. Gant, 129 S. Ct. 1710, 1720 (2009) (internal citations omitted).

170


35 OKCULR 445 End of Document



25

U.S. v. Flores-Lopez, 670 F.3d 803 (2012) 55 Communications Reg. (P&F) 701

670 F.3d 803 United States Court of Appeals, Seventh Circuit. UNITED STATES of America, Plaintiff–Appellee, v. Abel FLORES–LOPEZ, Defendant–Appellant. No. 10–3803. | Argued Jan. 25, 2012. | Decided Feb. 29, 2012. Synopsis Background: Defendant was convicted in the United States District Court for the Southern District of Indiana, William T. Lawrence, J., of drug and related offenses. Defendant appealed.

[Holding:] The Court of Appeals, Posner, Circuit Judge, held that looking in cellular telephone found on defendant's person to identify its telephone number was valid warrantless search incident to arrest.

Affirmed.

laptop or desktop computer, tablet, or other type of computer (whether called a “computer” or not) can be searched without a warrant—for a modern cell phone is a computer. Law enforcement authorities had reason to believe that the defendant was a supplier of illegal drugs to another drug dealer, Alberto Santana–Cabrera, who in turn had a retail customer who unbeknownst to him was a paid police informant. The informant, after ordering a pound of methamphetamine from Santana–Cabrera (a large quantity —the informant's hope was that it would induce Santana– Cabrera's supplier to attend the sale, thus enabling the police to land a bigger fish), overheard a phone conversation between Santana–Cabrera and the defendant in which the latter said he would deliver the meth that had been ordered to a garage, where the sale would take place. The police were listening in on the conversation remotely and arrested Santana–Cabrera in the garage and the defendant in front of it. The defendant had driven a truck containing the meth to the garage, and together with Santana–Cabrera had carried the meth into the garage to await a fourth person (actually an undercover agent), who was to bring the cash for the deal. Upon arresting the defendant and Santana–Cabrera, officers searched the defendant and his truck and seized a cell phone from the defendant's person and two other cell phones from the truck. The defendant admitted that the cell phone found on his person was his but denied that the other cell phones were.

Attorneys and Law Firms *804 Joshua J. Minkler (argued), Attorney, Office of the United States Attorney, Indianapolis, IN, for Plaintiff– Appellee. Jonathan W. Garlough (argued), Attorney, Foley & Lardner LLP, Chicago, IL, Thomas L. Shriner, Jr., Attorney, Foley & Lardner LLP, Milwaukee, WI, for Defendant–Appellant. Before BAUER, POSNER, and ROVNER, Circuit Judges. Opinion POSNER, Circuit Judge. This appeal requires us to consider the circumstances in which the search of a cell phone is permitted by the Fourth Amendment even if the search is not authorized by a warrant. Lurking behind this issue is the question whether and when a

He was tried together with Santana–Cabrera and both were convicted of drug and related offenses. The defendant was sentenced to 10 years in prison. Their appeals were consolidated, but we are deciding Santana–Cabrera's appeal in a separate order, also issued today. At the scene of the drug sale and arrests, an officer searched each cell phone for its telephone number, which the government later used to subpoena three months of each cell phone's call history from the telephone company. At trial the government sought to introduce the call history into evidence. The history included the defendant's overheard phone conversation with Santana–Cabrera along with many other calls between the defendant and his coconspirators. After a brief *805 hearing the judge overruled the defendant's objection, which however was limited to the call history of the cell phone that he admitted was his, since he denied owning or having used the other cell phones.


1


The defendant argues that the search of his cell phone was unreasonable because not conducted pursuant to a warrant. The phone number itself was not incriminating evidence, but it enabled the government to obtain such evidence from the phone company, and that evidence, the defendant argues, was the fruit of an illegal search and was therefore inadmissible. [1] Building on the definition in New York v. Belton, 453 U.S. 454, 460 n. 4, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), of a container as “any object capable of holding another object,” the government responds, with support in case law, see, e.g., United States v. Murphy, 552 F.3d 405, 410–12 (4th Cir.2009); United States v. Finley, 477 F.3d 250, 259–60 (5th Cir.2007); cf. United States v. Ortiz, 84 F.3d 977, 984 (7th Cir.1996) (pager); United States v. Thomas, 114 F.3d 403, 404 n. 2 (3d Cir.1997) (dictum) (same); but see State v. Smith, 124 Ohio St.3d 163, 920 N.E.2d 949, 953–54 (2009), that any object that can contain anything else, including data, is a container. A diary is a container—and not only of pages between which a razor blade or a sheet of LSD could be concealed, a possibility that justifies the police in turning each page. It is also a container of information, as is a cell phone or other computer. And since a container found on the person of someone who is arrested may be searched as an incident to the arrest even if the arresting officers don't suspect that the container holds a weapon or contraband, and thus without any justification specific to that container, United States v. Robinson, 414 U.S. 218, 236, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), the government urges that a cell phone seized as an incident to an arrest can likewise be freely searched. This is a fair literal reading of the Robinson decision. But the Court did not reject the possibility of categorical limits to the rule laid down in it. Suppose the police stop a suspected drug dealer and find a diary, but a quick look reveals that it is a personal diary rather than a record of drug transactions, yet the officers keep on reading. A court might say that acquiring information known to be unrelated to the crime of which the person being arrested is suspected is an intrusion beyond the scope of Robinson's rule. A modern cell phone is in one aspect a diary writ large. Even when used primarily for business it is quite likely to contain, or provide ready access to, a vast body of personal data. The potential invasion of privacy in a search of a cell phone is greater than in a search of a “container” in a conventional

sense even when the conventional container is a purse that contains an address book (itself a container) and photos. Judges are becoming aware that a computer (and remember that a modern cell phone is a computer) is not just another purse or address book. “[A]nalogizing computers to other physical objects when applying Fourth Amendment law is not an exact fit because computers hold so much personal and sensitive information touching on many private aspects of life.... [T]here is a far greater potential for the ‘intermingling’ of documents and a consequent invasion of privacy when police execute a search for evidence on a computer.” United States v. Lucas, 640 F.3d 168, 178 (6th Cir.2011); see also United States v. Walser, 275 F.3d 981, 986 (10th Cir.2001); United States v. Carey, 172 F.3d 1268, 1275 (10th Cir.1999); cf. United States v. Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1175–77 (9th Cir.2010); *806 United States v. Otero, 563 F.3d 1127, 1132 (10th Cir.2009). An iPhone application called iCam allows you to access your home computer's webcam so that you can survey the inside of your home while you're a thousand miles away. “iCam— Webcam Video Streaming,” http://itunes.apple.com/us/app/ icam-webcam-video-streaming/id296273730?mt=8 (visited Feb. 6, 2012, as were the other web sites that we cite in this opinion). At the touch of a button a cell phone search becomes a house search, and that is not a search of a “container” in any normal sense of that word, though a house contains data. A complication in this case is that, remarkably, the record does not indicate the brand, model, or year of the defendant's cell phone, so we do not know how dumb or smart it is. But does that matter? Even the dumbest of modern cell phones gives the user access to large stores of information. For example, the “TracFone Prepaid Cell Phone,” sold by Walgreens for $14.99, includes a camera, MMS (multimedia messaging service) picture messaging for sending and receiving photos, video, etc., mobile web access, text messaging, voicemail, call waiting, a voice recorder, and a phonebook that can hold 1000 entries. Walgreens, “TracFone Prepaid Cell Phone,” www.walgreens. com/store/c/tracfone– prepaid–cell–phone/ID=prod6046552–product. Given the modern understanding that a warrant is presumptively required for a search—though actually the text of the Fourth Amendment limits searches pursuant to warrants, see references in United States v. Sims, 553 F.3d 580, 582–83 (7th Cir.2009), and requires of searches without a warrant only that they be reasonable—the authority to


2


search a person incident to an arrest, without a warrant, requires justification. The usual justification offered is “the need [of the arresting officers] to disarm and to discover evidence,” United States v. Robinson, supra, 414 U.S. at 235, 94 S.Ct. 467, or, more exactingly, evidence that the defendant or his accomplices might destroy, discard, or conceal. Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The restrictions on searching without a warrant are relaxed when police arrest the driver or passenger of a moving vehicle. They can search the passenger compartment even if they have no reason to think they'll find any evidence, provided that “the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 1719, 173 L.Ed.2d 485 (2009). But in this case the arrest, and the search of the cell phone found on the defendant's person, took place after he had parked and left his vehicle, and so any special rules applicable to searches when police stop a vehicle and arrest an occupant are inapplicable. In some cases, a search of a cell phone, though not authorized by a warrant, is justified by police officers' reasonable concerns for their safety. One can buy a stun gun that looks like a cell phone. Best Stun Gun, “Cell Phone Stun Guns —Security Products in Disguise,” www.beststungun.com/ cell-phone-stun-gun. html; Safety Products Unlimited, “The Cell Phone Stun Gun,” www.safetyproduc tsunlimited.com/ cell_phone_stun_gun.html. But the defendant's cell phone, once securely in the hands of an arresting officer, endangered no one. It did, however, contain evidence or leads to evidence —as the officers knew was likely because they knew from their informant that as is typical of drug dealers the defendant had used cell phones to talk to Santana–Cabrera and other coconspirators. But was there any urgency about searching the cell phone for its phone number? Yet even if there wasn't, that bit *807 of information might be so trivial that its seizure would not infringe the Fourth Amendment. In United States v. Concepcion, 942 F.2d 1170, 1172–73 (7th Cir.1991), police officers tested the keys of a person they had arrested on various locks to discover which door gave ingress to his residence, and this we said was a search—and any doubts on that score have been scotched by United States v. Jones, –––U.S. ––––, 132 S.Ct. 945, 949, 181 L.Ed.2d 911 (2012), which holds that attaching a GPS device to a vehicle is a search because “the Government physically occupied private

property for the purpose of obtaining information.” But we went on to hold in Concepcion that a minimally invasive search may be lawful in the absence of a warrant, even if the usual reasons for excusing the failure to obtain a warrant are absent, a holding that is implied by Robinson and survives Jones, which declined to decide whether the search entailed in attaching a GPS device requires a warrant. Id. at 954. [2] So opening the diary found on the suspect whom the police have arrested, to verify his name and address and discover whether the diary contains information relevant to the crime for which he has been arrested, clearly is permissible; and what happened in this case was similar but even less intrusive, since a cell phone's phone number can be found without searching the phone's contents, unless the phone is password-protected—and on some cell phones even if it is. On an iPhone without password protection two steps are required to get the number: touching the “settings” icon and then the “phone” icon. On a Blackberry only one step is required: touching the “phone” icon. Moreover, the phone company knows a phone's number as soon as the call is connected to the telephone network; and obtaining that information from the phone company isn't a search because by subscribing to the telephone service the user of the phone is deemed to surrender any privacy interest he may have had in his phone number. Smith v. Maryland, 442 U.S. 735, 742– 43, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). We are quite a distance from the use of the iCam to view what is happening in the bedroom of the owner of the seized cell phone. It's not even clear that we need a rule of law specific to cell phones or other computers. If police are entitled to open a pocket diary to copy the owner's address, they should be entitled to turn on a cell phone to learn its number. If allowed to leaf through a pocket address book, as they are, United States v. Rodriguez, 995 F.2d 776, 778 (7th Cir.1993), they should be entitled to read the address book in a cell phone. If forbidden to peruse love letters recognized as such found wedged between the pages of the address book, they should be forbidden to read love letters in the files of a cell phone. There is an analogy (implied in United States v. Mann, 592 F.3d 779 (7th Cir.2010), and cases discussed there) to the requirement that wiretaps “minimize the interception of communications not otherwise subject to interception.” 18 U.S.C. § 2518(5); Scott v. United States, 436 U.S. 128, 130–43, 98 S.Ct. 1717,


3


56 L.Ed.2d 168 (1978); United States v. Mansoori, 304 F.3d 635, 645–49 (7th Cir.2002). But set all this to one side and assume that justification is required for police who have no warrant to look inside a cell phone even if all they're looking for and all they find is the phone number. The government emphasizes the danger of “remote wiping.” Instant wiping, called “local wiping,” as by pressing a button on the cell phone that wipes its contents and at the same time sends an emergency alert to a person previously specified, see, e.g., Andrew *808 Quinn, “U.S. Develops ‘Panic Button’ for Democracy Activists,” Mar. 25, 2011, www.reuters.com/article/2011/03/25/ us-rights-usa-technology- id USTRE72O6DH20110325; BlackBerry, “Set Maximum Password Attempts IT Policy Rule,” http://docs.blackberry.com/en/admin/ deliverables/4222/Set_ Maximum_ Password_Attempts_204136_11.jsp, was not a danger in this case once the officers seized the cell phone. But remote-wiping capability is available on all major cellphone platforms; if the phone's manufacturer doesn't offer it, it can be bought from a mobile-security company. See, e.g., “Find My iPhone,” www.apple.com/iphone/builtin-apps/find-my-iphone.html; “McAfee Mobile Security for Android,” www.mcafeemobilesecurity.com; “Kaspersky Mobile Security 9,” http://usa.kaspersky.com/productsservices/home-computer-security/mobile-security. Wiped data may be recoverable in a laboratory, but that involves delay. According to Apple, a person with a “jailbroken” iPhone (that is, a “self-hacked” iPhone, modified by its owner to enlarge its functionality or run unauthorized applications) could enable anonymous phone calls to be made, a capability that Apple claims “would be desirable to drug dealers.” David Kravets, “iPhone Jail-breaking Could Crash Cellphone Towers, Apple Claims,” Wired, July 28, 2009, www.wired.com/threatlevel/2009/07/jailbreak/. Apple would like the “jailbreaking” of its phones made illegal, so it is not a disinterested commentator on the use of its phones by those dealers. See, e.g., Adam Cohen, “The iPhone Jailbreak: A Win against Copyright Creep,” Time U.S., July 28, 2010, www.time.com/time/nation/article/0,8599,2006956,00.html. Other conspirators were involved in the distribution of methamphetamine besides Santana–Cabrera and the defendant, and conceivably could have learned of the arrests

(they might even have been monitoring the transaction with the informant in the garage from afar) and wiped the cell phones remotely before the government could obtain and execute a warrant and conduct a search pursuant to it for the cell phone's number; and conceivably the defendant might have had time to warn them before the cell phone was taken from him, giving them time to wipe it. “Conceivably” is not “probably”; but set off against the modest benefit to law enforcement of being able to obtain the cell phone's phone number immediately was only a modest cost in invasion of privacy. Armed with that number the officers could obtain the call history at their leisure, and the defendant does not deny that if the number was lawfully obtained the subpoenaing of the call history from the phone company was also lawful and the history thus obtained could therefore properly be used in evidence against him. The defendant argues that the officers could have eliminated any possibility of remote wiping just by turning off the cell phone. Without power a cell phone won't be connected to the phone network and so remote wiping will be impossible. See, e.g., T–Mobile, “Mobile Security FAQs,” http://support.t–mobile.com/docs/DOC–1852; “MobileMe: Troubleshooting, Find My iPhone,” http://support.apple.com/ kb/TS2734. But a “roving bug” installed in the phone could record everything that the phone's microphone could pick up even though the phone was turned off (because “turning off” a cell phone often just means a reduction in power—a kind of electronic hibernation). United States v. Tomero, 471 F.Supp.2d 448, 450 and n. 2 (S.D.N.Y.2007); Nicole Perlroth, “Traveling Light in a Time of Digital Thievery,” New York Times, Feb. 11, 2012, p. A1, www.nytimes.com/2012/02/11/technology/electronicsecurity-a-worry-in-an-age-of-digital-espionage.html; Vic Walter & Krista Kjellman, *809 “Can You Hear Me Now?,” ABC News, Dec. 5, 2006, http://abcnews.go. com/blogs/ headlines/2006/12/can_you_hear_me/. What we said in Ortiz about pagers is broadly applicable to cell phones: “The contents of some pagers also can be destroyed merely by turning off the power or touching a button. See, e.g., United States v. Meriwether, 917 F.2d 955, 957 (6th Cir.1990). Thus, it is imperative that law enforcement officers have the authority to immediately ‘search’ or retrieve, incident to a valid arrest, information from a pager in order to prevent its destruction as evidence.” United States v. Ortiz, supra, 84 F.3d at 984.


4


And if the phone is either turned off or powered down to a level at which it appears to be turned off, the police can't obtain information from it, even its phone number, knowledge of which as we said is minimally invasive of privacy. The alternative to searching the cell phone forthwith or turning it off (really turning it off—not just powering it down) is to place it in a “Faraday bag” or “Faraday cage” (essentially an aluminum-foil wrap) or some equivalent, which isolates the cell phone from the phone network and from Bluetooth and wireless Internet signals. See, e.g., Department of Justice, Computer Crime and Intellectual Property Section, “Awareness Brief: Find My iPhone” (June 18, 2009); Cindy Murphy, “Cellular Phone Evidence: Data Extraction and Documentation,” http:// mobileforensics.files.wordpress. com/2010/07/cell–phone– evidence–extraction–process–development–1–1–8.pdf. (Faraday bags or cages are found in consumer products such as microwave ovens to keep the microwaves in, and in coaxial cables to keep interfering radio signals out.) It is also possible to “mirror” (copy) the entire cell phone contents, to preserve them should the phone be remotely wiped, without looking at the copy unless the original disappears. See Keir Thomas, “Is Smartphone Security Good Enough?,” PCWorld, Apr. 20, 2011, www.pcworld. com/businesscenter/article/225771/ is_smartphone_security_good_enough.html; American Civil Liberties Union of Michigan, “ACLU Seeks Records about State Police Searches of Cellphones,” Apr. 13, 2011, www.aclumich.org/issues/privacy–and– technology/2011–04/1542; Cellebrite, “UFED Ultimate,” www.cellebrite. com/mobile-forensics-products/forensicsproducts/ufed-ultimate.html. [3] We said it was conceivable, not probable, that a confederate of the defendant would have wiped the data from the defendant's cell phone before the government could obtain a search warrant; and it could be argued that the risk of destruction of evidence was indeed so slight as to be outweighed by the invasion of privacy from the search. But the “invasion,” limited as it was to the cell phone's number, was also slight. And in deciding whether a search is properly incident to an arrest and therefore does not require a warrant, the courts do not conduct a cost-benefit analysis, with the invasion of privacy on the cost side and the risk of destruction of evidence (or of an assault on the arresting officers) on the benefit side of allowing the immediate search. Toting up costs and benefits is not a feasible undertaking to require of police officers conducting a search incident to an arrest.

Thus, even when the risk either to the police officers or to the existence of the evidence is negligible, the search is allowed, United States v. Robinson, supra, 414 U.S. at 235, 94 S.Ct. 467, provided it's no more invasive than, say, a frisk, or the search of a conventional container, such as Robinson's cigarette pack, in which heroin was found. If instead of a frisk it's a strip search, the risk to the officers' safety or to the preservation of evidence of crime must be greater to justify the search. Campbell v. Miller, *810 499 F.3d 711, 717 (7th Cir.2007), citing Mary Beth G. v. City of Chicago, 723 F.2d 1263, 1273 (7th Cir.1983). Looking in a cell phone for just the cell phone's phone number does not exceed what decisions like Robinson and Concepcion allow. We need not consider what level of risk to personal safety or to the preservation of evidence would be necessary to justify a more extensive search of a cell phone without a warrant, especially when we factor in the burden on the police of having to traipse about with Faraday bags or mirrorcopying technology and having to be instructed in the use of these methods for preventing remote wiping or rendering it ineffectual. We can certainly imagine justifications for a more extensive search. The arrested suspect might have prearranged with coconspirators to call them periodically and if they didn't hear from him on schedule to take that as a warning that he had been seized, and to scatter. Or if conspirators buy prepaid SIM (subscriber identity module) cards, each of which assigns a different phone number to the cell phone in which the card is inserted, and replace the SIM card each day, a police officer who seizes one of the cell phones will have only a short interval within which to discover the phone numbers of the other conspirators. See Adrian Chen, “The Mercenary Techie Who Troubleshoots for Drug Dealers and Jealous Lovers,” Gawker, Jan. 25, 2012, http://gawker.com/5878862/. (This is provided the phone number is on the SIM card; in some iPhones, for example, it is not.) The officer who doesn't make a quick search of the cell phone won't find other conspirators' phone numbers that are still in use. But these are questions for another day, since the police did not search the contents of the defendant's cell phone, but were content to obtain the cell phone's phone number. AFFIRMED.


5


Parallel Citations 55 Communications Reg. (P&F) 701 End of Document



6

U.S. v. Robinson, 414 U.S. 218 (1973) 94 S.Ct. 467, 38 L.Ed.2d 427, 66 O.O.2d 202

94 S.Ct. 467 Supreme Court of the United States UNITED STATES, Petitioner, v. Willie ROBINSON, Jr. No. 72—936. | Argued Oct. 9, 1973. | Decided Dec. 11, 1973. Defendant was convicted before the United States District Court for the District of Columbia, of possession and facilitation of concealment of heroin and he appealed. The United States Court of Appeals, District of Columbia Circuit, 145 U.S.App.D.C. 46, 447 F.2d 1215, remanded for evidentiary hearing. On rehearing en banc, the Court of Appeals, 153 U.S.App.D.C. 114, 471 F.2d 1082, reversed judgment of conviction and certiorari was granted. The Supreme Court, Mr. Justice Rehnquist, held that where officer had probable cause to arrest defendant for operating motor vehicle after revocation of his operator's permit and effected a full-custody arrest, search of defendant's person without a search warrant, inspection of crumpled cigarette package found on defendant's person and seizure of heroin capsules found in the package were permissible.

drug offense. The Court of Appeals reversed on the ground that the heroin had been obtained as a result of a search in violation of the Fourth Amendment. Held: In the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment. Pp. 471—477. (a) A search incident to a valid arrest is not limited to a frisk of the suspect's outer clothing and removal of such weapons as the arresting officer may, as a result of such frisk, reasonably believe and ascertain that the suspect has in his possession, and the absence of probable fruits or further evidence of the particular crime for which the arrest is made does not narrow the standards applicable to such a search. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 distinguished. Pp. 473 —474; 476—477. (b) A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment and a search incident to the arrest requires no additional justification, such as the probability in a particular arrest situation that weapons or evidence would in fact be found upon the suspect's person; and whether or not there was present one of the reasons supporting the authority for a search of the person incident to a lawful arrest need not be litigated in each case. Pp. 476—477.

Reversed. Mr. Justice Powell filed a concurring opinion. See 94 S.Ct. 494. Mr. Justice Marshall filed a dissenting opinion in which Mr. Justice Douglas and Mr. Justice Brennan joined.

(c) Since the custodial arrest here gave rise to the authority *219 to search, it is immaterial that the arresting officer did not fear the respondent or suspect that he was armed. P. 477. 153 U.S.App.D.C. 114, 471 F.2d 1082, reversed.

Attorneys and Law Firms *218 **468 Syllabus

*

Having, as a result of a previous check of respondent's operator's permit, probable cause to arrest respondent for driving while his license was revoked, a police officer made a full-custody arrest of respondent for such offense. In accordance with prescribed procedures, the officer made a search of respondent's **469 person, in the course of which he found in a coat pocket a cigarette package containing heroin. The heroin was admitted into evidence at the District Court trial, which resulted in respondent's conviction for a

Allan A. Tuttle, Raleigh, N.C., for petitioner. Joseph V. Gartlan, Jr., Washington, D.C., for respondent. Opinion Mr. Justice REHNQUIST delivered the opinion of the Court. Respondent Robinson was convicted in United States District Court for the District of Columbia of the possession and facilitation of concealment of heroin in violation of 26 U.S.C.


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s 4704(a) (1964 ed.), and 21 U.S.C. s 174 (1964 ed.). He was sentenced to concurrent terms of imprisonment for these offenses. On his appeal to the Court of Appeals for the District of Columbia Circuit, *220 that court first remanded the case to the District Court for an evidentiary hearing concerning the scope of the search of respondent's person which had occurred at the time of his arrest. 145 U.S.App.D.C. 46, 447 F.2d 1215 (1971). The District Court made findings of fact and conclusions of law adverse to respondent, and he again appealed. This time the Court of Appeals en banc reversed the judgment of conviction, holding that the heroin introduced in evidence against respondent had been obtained as a result of a search which violated the Fourth Amendment to the United States Constitution. 153 U.S.App.D.C. 114, 471 F.2d 1082 (1972). We granted certiorari, 410 U.S. 982, 93 S.Ct. 1500, 36 L.Ed.2d 177 (1973), and set the case for argument together with Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456, also decided today. On April 23, 1968, at approximately 11 p.m., Officer Richard Jenks, a 15-year veteran of the District of Columbia Metropolitan Police Department, observed the respondent driving a 1965 Cadillac near the intersection of 8th and C Streets, N.E., in the District of Columbia. Jenks, as a result of previous investigation following a check of respondent's operator's permit four days earlier, determined there was reason to **470 believe that respondent was operating a motor vehicle after the revocation of his operator's permit. This is an offense defined by statute in the District of Columbia which carries a mandatory minimum jail term, a mandatory minimum fine, or both. D.C.Code Ann. s 40— 302(d) (1967). Jenks signaled respondent to stop the automobile, which respondent did, and all three of the occupants emerged from the car. At that point Jenks informed respondent that he was under arrest for ‘operating after revocation and obtaining a permit by misrepresentation.’ It was assumed by the Court of Appeals, and is conceded by the respondent here, that Jenks had *221 probable cause to arrest respondent, and that he effected a fullcustody arrest. 1 In accordance with procedures prescribed in police department instructions, 2 Jenks then began to search *222 respondent. He explained at a subsequent **471 hearing that he was ‘face-to-face’ with the respondent, and ‘placed (his) hands on (the respondent), my right-hand to his *223

left breast like this (demonstrating) and proceeded to pat him down thus (with the right hand).’ During this patdown, Jenks felt an object in the left breast pocket of the heavy coat respondent was wearing, but testified that he ‘couldn't tell what it was' and also that he ‘couldn't actually tell the size of it.’ Jenks then reached into the pocket and pulled out the object, which turned out to be a ‘crumpled up cigarette package.’ Jenks testified that at this point he still did not know what was in the package: ‘As I felt the package I could feel objects in the package but I couldn't tell what they were. . . . I knew they weren't cigarettes.’

The officer then opened the cigarette pack and found 14 gelatin capsules of white powder which he thought to be, and which later analysis proved to be, heroin. Jenks then continued his search of respondent to completion, feeling around his waist and trouser legs, and examining the remaining pockets. The heroin seized from the respondent was admitted into evidence at the trial which resulted in his conviction in the District Court. [1] The opinion for the plurality judges of the Court of Appeals, written by Judge Wright, the concurring opinion of Chief Judge Bazelon, and the dissenting opinion of Judge Wilkey, concurred in by three judges, gave careful and comprehensive treatment to the authority of a police officer to search the person of one *224 who has been validly arrested and taken into custody. We conclude that the search conducted by Jenks in this case did not offend the limits imposed by the Fourth Amendment, and we therefore reverse the judgment of the Court of Appeals.

I It is well settled that a search incident to a lawful arrest is a traditional exception to the warrant requirement of the Fourth Amendment. This general exception has historically been formulated into two distinct propositions. The first is that a search may be made of the person of the arrestee by virtue of the lawful arrest. The second is that a search may be made of the area within the control of the arrestee. Examination of this Court's decisions shows that these two propositions have been treated quite differently. The validity of the search of a person incident to a lawful arrest has


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been regarded as settled from its first enunciation, and has remained virtually unchallenged until the present case. The validity of the second proposition, while likewise conceded in principle, has been subject to differing interpretations as to the extent of the area which may be searched. Because the rule requiring exclusion of evidence obtained in violation of the Fourth Amendment was first enunciated in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), it is understandable that virtually all of this Court's search-and-seizure law has been **472 developed since that time. In Weeks, the Court made clear its recognition of the validity of a search incident to a lawful arrest: ‘What then is the present case? Before answering that inquiry specifically, it may be well by a process of exclusion to state what it is not. It is not an assertion of the right on the part of the *225 Government, always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime. This right has been uniformly maintained in many cases. 1 Bishop on Criminal Procedure, s 211; Wharton, Crim.Plead. and Practice, 8th ed., s 60; Dillon v. O'Brien and Davis, 16 Cox C.C. 245.’ Id., at 392, 34 S.Ct. at 344.

Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925), decided 11 years after Weeks, repeats the categorical recognition of the validity of a search incident to lawful arrest: ‘The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted.’ Id., at 30, 46 S.Ct. at 5.

Throughout the series of cases in which the Court has addressed the second proposition relating to a search incident to a lawful arrest—the permissible area beyond the person of the arrestee which such a search may cover—no doubt has been expressed as to the unqualified authority of the arresting authority to search the person of the arrestee. E.g., Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927); Go-Bart Co. v. United

States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931); United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877 (1932); Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947); Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948); United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950); Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964); Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). In Chimel, where the Court overruled Rabinowitz and Harris as to the area *226 of permissible search incident to a lawful arrest, full recognition was again given to the authority to search the person of the arrestee: ‘When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction.’ 395 U.S., at 762—763, 89 S.Ct. at 2040.

Three years after the decision in Chimel, supra, we upheld the validity of a search in which heroin had been taken from the person of the defendant after his arrest on a weapons charge, in Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), saying: ‘Under the circumstances surrounding Williams' possession of the gun seized by Sgt. Connolly, the arrest on the weapons charge was supported by probable cause, and the search of his person and of the car incident to that arrest was lawful’ Id., at 149, 92 S.Ct. at 1925.

Last Term in Cupp v. Murphy, 412 U.S. 291, 295, 93 S.Ct. 2000, 2003, 36 L.Ed.2d 900 (1973), we again reaffirmed the traditional statement of the authority to search incident to a valid arrest. **473 Thus the broadly stated rule, and the reasons for it, have been repeatedly affirmed in the decisions of this Court since Weeks v. United States, supra, nearly 60 years ago. Since the statements in the cases speak not simply in terms of an exception to the warrant requirement, but in terms of an affirmative authority to search, they clearly imply that such


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searches also meet the Fourth Amendment's requirement of reasonableness. *227 II In its decision of this case, the Court of Appeals decided that even after a police officer lawfully places a suspect under arrest for the purpose of taking him into custody, he may not ordinarily proceed to fully search the prisoner. He must, instead, conduct a limited frisk of the outer clothing and remove such weapons that he may, as a result of that limited frisk, reasonably believe and ascertain that the suspect has in his possession. While recognizing that Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), dealt with a permissible ‘frisk’ incident to an investigative stop based on less than probable cause to arrest, the Court of Appeals felt that the principles of that case should be carried over to this probable-cause arrest for driving while one's license is revoked. Since there would be no further evidence of such a crime to be obtained in a search of the arrestee, the court held that only a search for weapons could be justified. Terry v. Ohio, supra, did not involve an arrest for probable cause, and it made quite clear that the ‘protective frisk’ for weapons which it approved might be conducted without probable cause. Id., at 21—22, 24—25, 88 S.Ct. at 1879—1880, 1881—1882. This Court's opinion explicitly recognized that there is a ‘distinction in purpose, character, and extent between a search incident to an arrest and a limited search for weapons.’ ‘The former, although justified in part by the acknowledged necessity to protect the arresting officer from assault with a concealed weapon, Preston v. United States, 376 U.S. 364, 367 (84 S.Ct. 881, 883, 11 L.Ed.2d 777) (1964), is also justified on other grounds, ibid., and can therefore involve a relatively extensive exploration of the person. A search for weapons in the absence of probable cause to arrest, however, must, like any other search, be strictly circumscribed by the exigencies *228 which justify its initiation. Warden v. Hayden, 387 U.S. 294, 310 (87 S.Ct. 1642, 1652, 18 L.Ed.2d 782) (1967) (Mr. Justice Fortas, concurring). Thus it must be limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby, and may realistically be characterized as something less than a ‘full’ search, even though it remains a serious intrusion.

‘. . . An arrest is a wholly different kind of intrusion upon individual freedom from a limited search for weapons, and the interests each is designed to serve are likewise quite different. An arrest is the initial stage of a criminal prosecution. It is intended to vindicate society's interest in having its laws obeyed, and it is inevitably accompanied by future interference with the individual's freedom of movement, whether or not trial or conviction ultimately follows. The protective search for weapons, on the other hand, constitutes brief, though far from inconsiderable, intrusion upon the sancity of the person.’ Id., at 25—26, 88 S.Ct., at 1882 (footnote omitted).

Terry, therefore, affords no basis to carry over to a probablecause arrest the limitations this Court placed on a stop-andfrisk search permissible without probable cause. The Court of Appeals also relied on language in Peters v. New York, 392 U.S. 40, 66, 88 S.Ct. 1889, 1904, 20 L.Ed.2d 917 (1968), a companion case to Terry. There the Court held that the police officer **474 had authority to search Peters because he had probable cause to arrest him, and went on to say: ‘(T)he incident search was obviously justified ‘by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the *229 destruction of evidence of the crime.’ Preston v. United States, 376 U.S. 364, 367 (84 S.Ct. 881, 11 L.Ed.2d 777) (1964). Moreover, it was reasonably limited in scope by these purposes. Officer Lasky did not engage in an unrestrained and thorough-going examination of Peters and his personal effects.' Id., at 67, 88 S.Ct., at 1905.

It is, of course, possible to read the second sentence from this quotation as imposing a novel limitation on the established doctrine set forth in the first sentence. It is also possible to read it as did Mr. Justice Harlan in his opinion concurring in the result: ‘The second possible source of confusion is the Court's statement that ‘Officer Lasky did not engage in an unrestrained and thorough-going examination of Peters and his personal effects.’ (392 U.S., at 67, 88 S.Ct.), at 1905. Since the Court found probable cause to arrest Peters, and since an officer arresting on probable cause is entitled to make a very full incident search, I assume that this is merely a factual


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observation. As a factual matter, I agree with it.' Id., at 77, 88 S.Ct., at 1909 (footnote omitted).

We do not believe that the Court in Peters intended in one unexplained and unelaborated sentence to impose a novel and far-reaching limitation on the authority to search the person of an arrestee incident to his lawful arrest. While the language from Peters was quoted with approval in Chimel v. California, 395 U.S., at 764, 89 S.Ct. at 2040, it is preceded by a full exposition of the traditional and unqualified authority of the arresting officer to search the arrestee's person. Id., at 763, 89 S.Ct. at 2040. We do not believe that either Terry or Peters, when considered in the light of the previously discussed statements of this Court, justified the sort of limitation upon that authority which the Court of Appeals fashioned in this case. *230 III Virtually all of the statements of this Court affirming the existence of an unqualified authority to search incident to a lawful arrest are dicta. We would not, therefore, be foreclosed by principles of stare decisis from further examination into history and practice in order to see whether the sort of qualifications imposed by the Court of Appeals in this case were in fact intended by the Framers of the Fourth Amendment or recognized in cases decided prior to Weeks. Unfortunately such authorities as exist are sparse. Such common-law treatises as Blackstone's Commentaries and Holmes' Common Law are simply silent on the subject. Pollock and Maitland, in their History of English Law, describe the law of arrest as ‘rough and rude’ before the time of Edward I, but do not address the authority to search incident to arrest. 2 F. Pollock & F. Maitland, The History of English Law ,582 (2d ed. 1909). The issue was apparently litigated in the English courts in Dillon v. O'Brien, 16 Cox C.C. 245 (Exch. Ireland, 1887), cited in Weeks v. United States, supra, There Baron Palles said: ‘But the interest of the State in the person charged being brought to trial in due course necessarily extends, as well to the preservation of material evidence of his guilt or innocence, as to his custody for the purpose of trial. His custody is of no value if the law is powerless to prevent the abstraction or destruction of this evidence, without which a

trial would be no more than an empty form. But if there be a right to production or preservation of this evidence, I cannot see how it **475 can be enforced otherwise than by capture.’ Id., at 250.

*231 Spalding v. Preston, 21 Vt. 9 (1848), represents an early holding in this country that evidence may be seized from one who is lawfully arrested. in Closson v. Morrison, 47 N.H. 482 (1867), the Court made the following statement: ‘(W)e think that an officer would also be justified in taking from a person whom he had arrested for crime, any deadly weapon he might find upon him, such as a revolver, a dirk, a knife, a sword cane, a slung shot, or a club, though it had not been used or intended to be used in the commission of the offence for which the prisoner had been arrested, and even though no threats of violence towards the officer had been made. A due regard for his own safety on the part of the officer, and also for the public safety, would justify a sufficient search to ascertain if such weapons were carried about the person of the prisoner, or were in his possession, and if found, to seize and hold them until the prisoner should be discharged, or until they could be otherwise properly disposed of. Spalding v. Preston, 21 Vt. 9, 16. ‘So we think it might be with money or other articles of value, found upon the prisoner, by means of which, if left in his possession, he might procure his escape, or obtain tools, or implements, or weapons with which to effect his escape. We think the officer arresting a man for crime, not only may, but frequently should, make such searches and seizures; that in many cases they might be reasonable and proper, and courts would hold him harmless for so doing, when he acts in good faith, and from a regard to his own or the public safety, or the security of his prisoner.’ Id., at 484—485.

*232 Similarly, in Holker v. Hennessey, 141 Mo. 527, 42 S.W. 1090 (1897), the Supreme Court of Missouri said: ‘Generally speaking, in the absence of a statute, an officer has no right to take any property from the person of the prisoner except such as may afford evidence of the crime charged, or means of identifying the criminal, or may be helpful in making an escape.’ Id., at 539, 42 S.W., at 1093.


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Then Associate Judge Cardozo of the New York Court of Appeals summarized his understanding of the historical basis for the authority to search incident to arrest in these words: ‘The basic principle is this: Search of the person is unlawful when the seizure of the body is a trespass, and the purpose of the search is to discover grounds as yet unknown for arrest or accusation (citation omitted). Search of the person becomes lawful when grounds for arrest and accusation have been discovered, and the law is in the act of subjecting the body of the accused to its physical dominion. ‘The distinction may seem subtle, but in truth it is founded in shrewd appreciation of the necessities of government. We are not to strain an immunity to the point at which human nature rebels against honoring it in conduct. The peace officer empowered to arrest must be empowered to disarm. If he many disarm, he may search, lest a weapon be concealed. The search being lawful, he retains what he finds if connected with the crime.’ People v. Chiagles, 237 N.Y. 193, 197, 142 N.E. 583, 584 (1923).

While these earlier authorities are sketchy, they tend to support the broad statement of the authority to *233 search incident to arrest found in the successive decisions of this Court, rather than the restrictive one which was applied by the Court of Appeals in this case. The scarcity of case law before Weeks is doubtless due in part to the fact that the exclusionary rule there enunciated had been first adopted only 11 years earlier in Iowa; but it would seem to be also **476 due in part to the fact that the issue was regarded as well settled. 3 The Court of Appeals in effect determined that the only reason supporting the authority for a full search incident to lawful arrest was the possibility of discovery of evidence or fruits. 4 Concluding that there could be no evidence or fruits in the case of an offense such as that with which respondent was charged, it held that any protective search would have to be limited by the conditions laid down in Terry for a search upon less than probable cause to arrest. Quite apart from the fact that Terry clearly recognized the distinction between the two types of searches, and that a different rule governed one than governed the other, we find additional reason to disagree with the Court of Appeals. *234 [2] The justification or reason for the authority to search incident to a lawful arrest rests quite as much on the

need to disarm the suspect in order to take him into custody as it does on the need to preserve evidence on his person for later use at trial. Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925); Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960). The standards traditionally governing a search incident to lawful arrest are not, therefore, commuted to the stricter Terry standards by the absence of probable fruits or further evidence of the particular crime for which the arrest is made. [3] Nor are inclined, on the basis of what seems to us to be a rather speculative judgment, to qualify the breadth of the general authority to search incident to a lawful custodial arrest on an assumption that persons arrested for the offense of driving while their licenses have been revoked are less likely to possess dangerous weapons than are those arrested for other crimes. 5 It is scarcely open to doubt that the danger to an officer is far greater in the case of the extended exposure which *235 follows the taking of a suspect into custody and transporting him to the police station than in the case of the relatively fleeting contact resulting from the typical Terrytype stop. This is an adequate basis for treating all custodial arrests alike for purposes of search justification. **477 [4] [5] But quite apart from these distinctions, our more fundamental disagreement with the Court of Appeals arises from its suggestion that there must be litigated in each case the issue of whether or not there was present one of the reasons supporting the authority for a search of the person incident to a lawful arrest. We do not think the long line of authorities of this Court dating back to Weeks, or what we can glean from the history of practice in this country and in England, requires such a case-by-case adjudication. A police officer's determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search. The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest


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requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.

*236 IV The search of respondent's person conducted by Officer Jenks in this case and the seizure from him of the heroin, were permissible under established Fourth Amendment law. While through, the search partook of none of the extreme or patently abusive characteristics which were held to violate the Due Process Clause of the Fourteenth Amendment in Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). Since it is the fact of custodial arrest which gives rise to the authority to search, 6 it is of no moment that Jenks did not indicate any subjective fear of the respondent or that he did not himself suspect that respondent was armed. 7 Having in the course of a lawful search come upon the crumpled package of cigarettes, he was entitled to inspect it; and when his inspection revealed the heroin capsules, he was entitled to seize them as ‘fruits, instrumentalities, or contraband’ probative of criminal conduct. Harris v. United States, 331 U.S., at 154—155, 67 S.Ct., at 1103—1104; Warden v. Hayden, 387 U.S. 294, 299, 307, 87 S.Ct. 1642, 1646, 1650 (1967); Adams v. Williams, 407 U.S., at 149, 92 S.Ct., at 1924. *237 The judgment of the Court of Appeals holding otherwise is reversed. Reversed. *238 Mr. Justice MARSHALL, with whom Mr. Justice DOUGLAS and Mr. Justice BRENNAN join, dissenting. Certain fundamental principles have characterized this Court's Fourth Amendment jurisprudence over the years. Perhaps the most basic of these **478 was expressed by Mr. Justice Butler, speaking for a unanimous Court in GoBart Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931): ‘There is no formula for the determination of reasonableness. Each case is to be decided on its own facts and circumstances.’ Id., at 357, 51 S.Ct., at 158. As we recently held: ‘The constitutional validity of a warrantless search is preeminently the sort of question which can only

be decided in the concrete factual context of the individual case.’ Sibron v. New York, 392 U.S. 40, 59, 88 S.Ct. 1889, 1901, 20 L.Ed.2d 917 (1968). And the intensive, at times painstaking, case-by-case analysis characteristic of our Fourth Amendment decisions bespeaks our ‘jealous regard for maintaining the integrity of individual rights.’ *239 Mapp v. Ohio, 367 U.S. 643, 647, 81 S.Ct. 1684, 1687, 6 L.Ed.2d 1081 (1961). See also Weeks v. United States, 232 U.S. 383, 393, 34 S.Ct. 341, 344, 58 L.Ed.2d 652 (1914). In the present case, however, the majority turns its back on these principles, holding that ‘the fact of the lawful arrest’ always establishes the authority to conduct a full search of the arrestee's person, regardless of whether in a particular case ‘there was present one of the reasons supporting the authority for a search of the person incident to a lawful arrest.’ Ante, at 477. The majority's approach represents a clear and marked departure from our long tradition of case-by-case adjudication of the reasonableness of searches and seizures under the Fourth Amendment. I continue to believe that ‘(t)he scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances.’ Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). Because I find the majority's reasoning to be at odds with these fundamental principles, I must respectfully dissent. I On April 19, 1968, Officer Richard Jenks stopped a 1965 Cadillac driven by respondent at the intersection of 9th and U Streets, N.W., in the District of Columbia, for what was called a ‘routine spot check.’ At that time, Officer Jenks examined respondent's temporary operator's permit, automobile registration card, and Selective Service classification card. Although he permitted respondent to go on his way, Officer Jenks pursued a discrepancy he had noted between the ‘1938’ date of birth given on the operator's permit and the ‘1927’ date of birth given on the Selective Service card. A check of police traffic records showed that an operator's *240 permit issued to one Willie Robinson, Jr., born in 1927, had been revoked, and that a temporary operator's permit had subsequently been issued to one Willie Robinson, born in 1938. The pictures on the revoked permit


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and on the application for the temporary permit were of the same man—the person stopped by Jenks for the routine check on April 19. Having investigated the matter himself in this fashion, it is clear that Officer Jenks had probable cause to believe that respondent had violated a provision of the District of Columbia Motor Vehicle Code making it unlawful for any person to operate a motor vehicle in the District during the period for which his operator's permit is revoked. D.C.Code Ann. s 40—302(d) (1967). Four days later, on April 23, 1968, while on duty in their patrol car, Officer Jenks and his partner saw respondent driving the same vehicle. They pulled up behind respondent's car and signaled it to stop. From all indications in the record, respondent immediately complied and brought his car to a stop alongside the curb, the officers parking their patrol car immediately behind his. Respondent got out of his car and walked back toward the patrol car. **479 Both Officer Jenks and his partner got out of the patrol car and started toward respondent's car. Officer Jenks asked respondent for his permit and registration card and, when shown the same permit respondent had given him four days earlier, informed respondent that he was under arrest for operating a motor vehicle after revocation of his operator's permit. Jenks then began to search respondent. His normal procedure in conducting a search of an arrestee would be to ‘have him spread-eagle over a wall or something of that nature.’ But in Jenks' own words, ‘I think almost every search is different. It depends on the man's size and the nature of the crime.’ Since he had a substantial *241 height and weight advantage over respondent, and because the arrest was only for a traffic offense, Jenks chose instead to conduct the search face to face, in contrast to his normal practice. The first step in the search was for Jenks to place both his hands on respondent's chest and begin to pat him down. During this patdown, Jenks felt something in the left breast pocket of respondent's heavy overcoat. Jenks later testified that he could not immediately tell what was in the pocket. The record does indicate, however, that the object did not feel like a gun and that Jenks had no particular indication it was a weapon of any kind. 1 Nonetheless, he reached into the pocket and took the object out. It turned out to be a crumpledup cigarette package.

With the package now in his hands, Jenks could feel objects inside but could not tell what they were. It does not appear that Jenks had any reason to believe, or did in fact believe, that the objects were weapons of any sort. He nevertheless opened up the package and looked inside, thereby finding the gelatin capsules of heroin which were introduced against respondent at his trial for the possession and facilitation of concealment of heroin. II Mr. Justice Jackson, writing for the Court in Johnson v. United States, 333 U.S. 10, 13—14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948), explained: ‘The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies *242 law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. . . . When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.’

See also Coolidge v. New Hampshire, 403 U.S. 443, 449, 91 S.Ct. 2022, 2029, 29 L.Ed.2d 564 (1971). The majority's fear of overruling the ‘quick ad hoc judgment’ of the police officer is thus inconsistent with the very function of the Amendment —to ensure that the quick ad hoc judgments of police officers are subject to review and control by the judiciary. In the vast majority of cases, the determination of when the right of privacy must reasonably yield to the right of search is required to be made by a neutral judicial officer before the search is conducted. See Katz v. United States, 389 U.S. 347, 356—357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967); Agnello v. United States, 269 U.S. 20, 33, 46 S.Ct. 4, 6, 70 L.Ed. 145 (1925). The Constitution requires that ‘the


8


deliberate, impartial **480 judgment of a judicial officer . . . be interposed between the citizen and the police. . . .’ Wong Sun v. United States, 371 U.S. 471, 481—482, 83 S.Ct. 407, 414, 9 L.Ed.2d 441 (1963). The requirement that the police seek prior approval of a search from a judicial officer is, no doubt, subject to ‘a few specifically established and well-delineated exceptions.’ Katz v. United States, supra, 389 U.S., at 357, 88 S.Ct. at 514; including searches of a moving vehicle, Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); searches in certain exigent circumstances, Warden v. Hayden, 387 U.S. 294, 298—299, 87 S.Ct. 1642, 1645—1646, 18 L.Ed.2d 782 (1967); McDonald v. United States, 335 U.S. 451, 454—455, 69 S.Ct. 191, 192—193, 93 L.Ed. 153 (1948); and searches incident to a lawful *243 arrest, Agnello v. United States, supra; Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). But because an exception is invoked to justify a search without a warrant does not preclude further judicial inquiry into the reasonableness of that search. It is the role of the judiciary, not of police officers, to delimit the scope of exceptions to the warrant requirement. ‘(T)he general requirement that a search warrant be obtained is not lightly to be dispensed with, and ‘the burden is on those seeking (an) exemption (from the requirement) to show the need for it . . ..‘‘ Id., at 762, 89 S.Ct., at 2039, quoting United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59 (1951). Exceptions to the warrant requirement are not talismans precluding further judicial inquiry whenever they are invoked, see Coolidge v. New Hampshire, supra, 403 U.S., at 461, 91 S.Ct. at 2035, but rather are ‘jealously and carefully drawn.’ Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514 (1958). Carrying out our mandate of delineating the proper scope of the search-incident-to-arrest exception requires consideration of the purposes of that exception as they apply to the particular search that occurred in this case. See Chimel v. California, supra, 395 U.S., at 762—763, 89 S.Ct., at 2039—2040; Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777 (1964). Yet the majority, rather than focusing on the facts of this case, places great emphasis on the police department order which instructed Officer Jenks to conduct a full search and to examine carefully everything he found whenever making an in-custody arrest. See ante, at 470 and n. 2. But this mode of analysis was explicitly rejected in Sibron v. New York, 392 U.S. 40, 88 S.Ct.

1889, 20 L.Ed.2d 917 (1968). There both the defendant and the State urged that the principal issue before us was the constitutionality of a state statute which authorized the search there in question. We declined, however, to engage in what we viewed ‘as the abstract and unproductive exercise’ of laying the words of the statute next to the Fourth Amendment ‘in an effort to determine whether the two are in some *244 sense compatible.’ Id., at 59, 88 S.Ct., at 1901. ‘Our constitutional inquiry,’ we concluded, ‘would not be furthered here by an attempt to pronounce judgment on the words of the statute. We must confine our review instead to the reasonableness of the searches and seizures which underlie these two convictions.’ Id., at 62, 88 S.Ct., at 1902. The majority also suggests that the Court of Appeals reached a novel and unprecedented result by imposing qualifications on the historically recognized authority to conduct a full search incident to a lawful arrest. Nothing could be further from the truth, as the Court of Appeals itself was so careful to point out. One need not go back to Blackstone's Commentaries, Holmes' Common Law, or Pollock & Maitland in search of precedent for the approach adopted by the Court of Appeals. Indeed, given the fact that that mass production of the automobile did not begin until the early decades of the present century, I find it somewhat puzzling that the majority even **481 looks to these sources for guidance on the only question presented in this case: the permissible scope of a search of the person incident to a lawful arrest for violation of a motor vehicle regulation. The fact is that this question has been considered by several state and federal courts, the vast majority of which have held that, absent special circumstances, a police officer has no right to cnduct a full search of the person incident to a lawful arrest for violation of a motor vehicle regulation. In Barnes v. State, 25 Wis.2d 116, 130 N.W.2d 264 (1964), for example, police officers stopped a car for a brake-light violation. Rather than simply issue a citation, the officers placed the driver under arrest. A full search of the driver's person was then conducted, including shining a flashlight into his overcoat pocket, disclosing a small quantity of marihuana and a package of cigarette papers. The Supreme Court of Wisconsin held *245 the search of the driver's pocket unreasonable. While expressly holding that where a traffic offender is actually arrested, as distinguished from being given a summons, it is reasonable for the arresting officer to search his person for weapons, nevertheless the court held it


9


unreasonable to look inside the driver's overcoat pocket with a flashlight. ‘We cannot conceive,’ the court said, ‘that this aspect of the search was a legitimate search for weapons. . . . We reject the state's contention that any search of the person of one lawfully arrested is a valid search.’ Id., at 126, 130 N.W.2d, at 269. In State v. Curtis, 290 Minn. 429, 190 N.W.2d 631 (1971), police officers stopped a car which had defective tail-lights and which had made an illegal right turn. The officers decided to take the driver down to the station house and searched him for weapons before putting him in the squad car. One of the officers felt the outside of the driver's pockets. As in Robinson's case, the officer ‘detected some object but couldn't tell what it was. It did not feel like a gun or knife.’ Id., at 430, 190 N.W.2d, at 632. ‘Neither officer expressed any concern for his personal safety. There was no testimony that they suspected defendant of any other criminal activity or were aware of any dangerous propensities on his part.’ Id., at 431, 190 N.W.2d, at 633. Nevertheless the officer reached into the pocket, resulting in the discovery of a package of marihuana. The Minnesota Supreme Court held the search unlawful. While recognizing the ‘concern for the injuries and loss of life experienced by police officers in face-to-face confrontations with traffic offenders,’ the court held that ‘the validity of a search for weapons following a traffic arrest depends on whether the officer had reasonable grounds to believe a search was necessary for his own safety or to prevent an escape.’ Id., at 436—437, 190 N.W.2d, at 636, citing *246 Shelton v. State, 3 Md.App. 394, 399, 239 A.2d 610, 613 (1968). Of like import is the decision of the Oregon Supreme Court in State v. O'Neal, 251 Or. 163, 444 P.2d 951 (1968) (en banc). Here defendant's automobile was stopped because it had no rear license plate. When asked to produce an operator's license, the defendant produced a temporary operator's license issued to another person which had expired several years earlier. The officers then arrested defendant and placed him in the back seat of the police car. ‘One of the officers got in the police car and asked the defendant to remove his money from his wallet and give his wallet to the officer. The defendant did so and the officer took papers from the wallet and examined them. When the officer unfolded one piece of paper a half-smoked marijuana cigarette fell out.’ Id., at 164—165, 444 P.2d, at 952. The court held that search unlawful. Again, while recognizing the officer's right to conduct a search incident to arrest in order to protect the

officer and deprive the prisoner of potential means of escape, the court held: ‘The search of the wallet obviously had nothing to do with the officers' **482 safety. The defendant testified that the officers ‘patted him down’ before placing him in the police car. The officers did not remember whether they had or had not. In any event, it is difficult to see how defendant's wallet could have reasonably been believed to have contained a weapon.' Id., at 166, 444 P.2d, at 953.

See also People v. Marsh, 20 N.Y.2d 98, 281 N.Y.S.2d 789, 228 N.E.2d 783 (1967); People v. Superior Court of Los Angeles County, 7 Cal.3d 186, 101 Cal.Rptr. 837, 496 P.2d 1205 (1972); State v. Quintana, 92 Ariz. 267, 376 P.2d 130 (1962) (en banc); People v. Zeigler, 358 Mich. 355, 100 N.W.2d 456 (1960). The Tenth Circuit has likewise stated that it is ‘in complete agreement with the prevailing federal and state authority *247 which condemns the search of persons and automobiles following routine traffic violations.’ United States v. Humphrey, 409 F.2d 1055, 1058 (1969). See also Amador-Gonzalez v. United States, 391 F.2d 308, 315 (CA5 1968) (Wisdom, J.). Accordingly, I think it disingenuous for the Court to now pronounce that what precedents exist on the question ‘tend to support the broad statement of the authority to search incident to arrest found in the successive decisions of this Court, rather than the restrictive one which was applied by the Court of Appeals in this case.' 2 Ante, at 475. It is disquieting, to say the least, to see the Court at once admit that ‘(v)irtually all of the statements of this Court affirming the existence of an unqualified authority to search incident to a lawful arrest are dicta’ and concede that we are presented with an open question on which ‘further examination into history and practice’ would be helpful, yet then conduct an examination *248 into prior practice which is not only wholly superficial, but totally inaccurate and misleading. The majority's attempt to avoid case-by-case adjudication of Fourth Amendment issues is not only misguided as a matter of principle, but is also doomed to fail as a matter of practical application. As the majority itself is well aware, see ante, at 470 n. 1, the powers granted the police in this case are strong ones, subject to potential abuse. Although, in this particular case, Officer Jenks was required by police department regulations to make an in-custody arrest rather


10


than to issue a citation, in most jurisdictions and for most traffic offenses the determination of whether to issue a citation or effect a full arrest is discretionary with the officer. There is always the possibility that a police officer, lacking probable cause to obtain a search warrant, will use a traffic arrest as a pretext to conduct a search. See, e.g., AmadorGonzalez v. United States, supra. I suggest this possibility not to impugn the integrity of our police, but merely to point out that case-by-case adjudication will always be necessary to determine whether a full arrest was effected for purely legitimate reasons or, rather, as a pretext for searching the arrestee. **483 ‘An arrest may not be used as a pretext to search for evidence.’ United States v. Lefkowitz, 285 U.S. 452, 467, 52 S.Ct. 420, 424, 76 L.Ed. 877 (1932). See also Jones v. United States, 357 U.S. at 500, 78 S.Ct. at 1257; Abel v. United States, 362 U.S. 217, 226 and 230, 80 S.Ct. 683, 690 and 692, 4 L.Ed.2d 668 (1960); United States v. Rabinowitz, 339 U.S. 56, 82, 70 S.Ct. 430, 442, 94 L.Ed. 653 (1950) (Frankfurter, J., dissenting). Cf. Chimel v. California, 395 U.S., at 767— 768, 89 S.Ct., at 2042—2043. III The majority states that ‘(a) police officer's determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not *249 require to be broken down in each instance into an analysis of each 3

step in the search.’ Ante, at 477. No precedent is cited for this broad assertion—not surprisingly, since there is none. Indeed, we only recently rejected such ‘a rigid all-or-nothing model of justification and regulation under the Amendment, (for) it obscures the utility of limitations upon the scope, as well as the initiation, of police action as a means of constitutional regulation. This Court has held in the past that a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope.’ Terry v. Ohio, 392 U.S., at 17—18, 88 S.Ct., at 1878. As we there concluded, ‘in determining whether the seizure and search were ‘unreasonable’ our inquiry is a dual one—whether the officer's action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.' Id., at 19—20, 88 S.Ct., at 1879.

As I view the matter, the search in this case divides into three distinct phases: the patdown of respondent's coat pocket; the removal of the unknown object from the *250 pocket; and the opening of the crumpled-up cigarette package. A No question is raised here concerning the lawfulness of the patdown of respondent's coat pocket. The Court of Appeals unanimously affirmed the right of a police officer to conduct a limited frisk for weapons when making an incustody arrest, regardless of the nature of the crime for which the arrest was made. As it said: ‘(I)t would seem clearly unreasonable to expect a police officer to place a suspect in his squad car for transportation to the stationhouse without first taking reasonable measures to insure that the suspect is unarmed. We therefore conclude that whenever a police officer, acting within the bounds of his authority, makes an incustody arrest, he may also conduct a limited frisk of the suspect's outer clothing in order to remove any weapons the suspect may have in his possession.’ 153 U.S.App.D.C. 114, 130, 471 F.2d 1082, 1098 (1972) (footnote omitted; emphasis in original).

**484 B With respect to the removal of the unknown object from the coat pocket, the first issue presented is whether that aspect of the search can be sustained as part of the limited frisk for weapons. The weapons search approved by the Court of Appeals was modeled upon the narrowly drawn protective search for weapons authorized in Terry, which consists ‘of a limited patting of the outer clothing of the suspect for concealed objects which might be used as instruments of assault.’ See Sibron v. New York, 392 U.S., at 65, 88 S.Ct., at 1904. See also Terry, supra, 392 U.S., at 30, 88 S.Ct., at 1884. It appears to have been conceded by the Government below that the removal of the object from respondent's coat pocket exceeded the scope of a Terry frisk for *251 weapons, since, under Terry, an officer may not remove an object from the suspect's pockets unless he has reason to believe it to be a dangerous weapon. 153 U.S.App.D.C., at 121, and n. 9, 471 F.2d, at 1089 and n. 9, citing ALI Model Code of PreArraignment Procedure s 110.2(4) (Proposed Official Draft


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No. 1, 1972). Cf. Sibron v. New York, supra, 392 U.S., at 65, 88 S.Ct., at 1904.

4

In the present case, however, Officer Jenks had no reason to believe and did not in fact believe that the object in respondent's coat pocket was a weapon. He admitted later that the object did not feel like a gun. See n. 1, supra. In fact, he did not really have any thoughts one way or another about what was in the pocket. As Jenks himself testified, ‘I just searched him. I didn't think about what I was looking for. I just searched him.’ Since the removal of the object from the pocket cannot be justified as part of a limited Terry weapons frisk, the question arises whether it is reasonable for a police officer, when effecting an in-custody arrest of a traffic offender, to make a fuller search of the person than is permitted pursuant to Terry. The underlying rationale of a search incident to arrest of a traffic offender initially suggests as reasonable a search whose scope is similar to the protective weapons frisk permitted in Terry. A search incident to arrest, as the majority indicates, has two basic functions: the removal of weapons the arrestee might use to resist arrest or effect an escape, and the seizure of evidence or fruits of the crime for which the arrest is made, so as to prevent their concealment or destruction. See ante, at 476; Chimel v. California, 395 U.S., at 763, 89 S.Ct., at 2040. *252 The Government does not now contend that the search of respondent's pocket can be justified by any need to find and seize evidence in order to prevent its concealment or destruction, for, as the Court of Appeals found, there is no evidence or fruits of the offense with which respondent was charged. The only rationale for a search in this case, then, is the removal of weapons which the arrestee might use to harm the officer and attempt an escape. This rationale, of course, is identical to the rationale of the search permitted in Terry. As we said there, ‘The sole justification of the search in the present situation is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.’ Terry v. Ohio, supra, 392 U.S., at 29, 88 S.Ct., at 1884. Since the underlying rationale of a Terry search and the search of a traffic violator are identical, the Court of Appeals held that the scope of the searches must be the same. And in view of its conclusion that the removal **485 of the object

from respondent's coat pocket exceeded the scope of a lawful Terry frisk, a conclusion not disputed by the Government or challenged by the majority here, the plurality of the Court of Appeals held that the removal of the package exceeded the scope of a lawful search incident to arrest of a traffic violator. The problem with this approach, however, is that it ignores several significant differences between the context in which a search incident to arrest for a traffic violation is made, and the situation presented in Terry. Some of these differences would appear to suggest permitting a more thorough search in this case than was permitted in Terry; other differences suggest a narrower, more limited right to search than was there recognized. The most obvious difference between the two contexts relates to whether the officer has cause to believe that *253 the individual he is dealing with possesses weapons which might be used against him. Terry did not permit an officer to conduct a weapons frisk of anyone he lawfully stopped on the street, but rather, only where ‘he has reason to believe that he is dealing with an armed and dangerous individual. . . .’ 392 U.S., at 27, 88 S.Ct. at 1883. While the policeman who arrests a suspected rapist or robber may well have reason to believe he is dealing with an armed and dangerous person, certainly this does not hold true with equal force with respect to a person arrested for a motor vehicle violation of the sort involved in this case. Nor was there any particular reason in this case to believe that respondent was dangerous. He had not attempted to evade arrest, but had quickly complied with the police both in bringing his car to a stop after being signaled to do so and in producing the documents Officer Jenks requested. In fact, Jenks admitted that he searched respondent face to face rather than in spread-eagle fashion because he had no reason to believe respondent would be violent. While this difference between the situation presented in Terry and the context presented in this case would tend to suggest a lesser authority to search here than was permitted in Terry, other distinctions between the two cases suggest just the opposite. As the Court of Appeals noted, a crucial feature distinguishing the in-custody arrest from the Terry context “is not the greater likelihood that a person taken into custody is armed, but rather the increased likelihood of danger to the officer if in fact the person is armed.” 153 U.S.App.D.C., at 130, 471 F.2d, at 1098, quoting People v. Superior Court


12


of Los Angeles County, 7 Cal.3d, at 214, 101 Cal.Rptr., at 857, 496 P.2d, at 1225 (Wright, C.J., concurring) (emphasis in original). A Terry stop involves a momentary encounter between officer and suspect, while an in-custody arrest places the two in close proximity *254 for a much longer period of time. If the individual happens to have a weapon on his person, he will certainly have much more opportunity to use it against the officer in the in-custody situation. The prolonged proximity also makes it more likely that the individual will be able to extricate any small hidden weapon which might go undetected in a weapons frisk, such as a safety pin or razor blade. In addition, a suspect taken into custody may feel more threatened by the serious restraint on his liberty than a person who is simply stopped by an officer for questioning, and may therefore be more likely to resort to force. Thus, in some senses there is less need for a weapons search in the in-custody traffic arrest situation than in a Terry context; while in other ways, there is a greater need. Balancing these competing considerations in order to determine what is a reasonable warrantless search in the traffic arrest context is a difficult process, one for which there may be no easy analytical guideposts. We are dealing with factors not easily quantified and, therefore, not easily weighed one against the other. And the competing interests we are protecting —the individual's **486 interest in remaining free from unnecessarily intrusive invasions of privacy and society's interest that police officers not take unnecessary risks in the performance of their duties—are each deserving of our most serious attention and do not themselves tip the balance in any particular direction. As will be explained more fully below, I do not think it necessary to solve this balancing equation in this particular case. It is important to note, however, in view of the reasoning adopted by the majority, that available empirical evidence supports the result reached by the plurality of the Court of Appeals, rather than the result reached by the Court today. *255 The majority relies on statistics indicating that a significant percentage of murders of police officers occurs when the officers are making traffic stops. But these statistics only confirm what we recognized in Terry—that ‘American criminals hae a long tradition of armed violence, and every year in this country many law enforcement officers are killed in the line of duty, and thousands more are wounded.’ Terry v. Ohio, supra, 392 U.S., at 23, 88 S.Ct. at 1881. As the very

next sentence in Terry recognized, however, ‘(v)irtually all of these deaths and a substantial portion of the injuries are inflicted with guns and knives.’ Id., at 24, 88 S.Ct. at 1881. The statistics relied on by the Government in this case support this observation. Virtually all of the killings are caused by guns and knives, the very type of weapons which will not go undetected in a properly conducted weapons frisk. 5 It requires more than citation to these statistics, then, to support the proposition that it is reasonable for police officers to conduct more than a Terry-type frisk for weapons when seeking to disarm a traffic offender who is taken into custody. C The majority opinion fails to recognize that the search conducted by Officer Jenks did not merely involve a search of respondent's person. It also included a separate search of effects found on his person. And even were we to assume, arguendo, that it was reasonable for Jenks to remove the object he felt in respondent's pocket, clearly there was no justification consistent with *256 the Fourth Amendment which would authorize his opening the package and looking inside. To begin with, after Jenks had the cigarette package in his hands, there is no indication that he had reason to believe or did in fact believe that the package contained a weapon. More importantly, even if the crumpled-up cigarette package had in fact contained some sort of small weapon, it would have been impossible for respondent to have used it once the package was in the officer's hands. Opening the package, therefore, did not further the protective purpose of the search. Even the dissenting opinion in the Court of Appeals conceded that ‘since the package was now in the officer's possession, any risk of the prisoner's use of a weapon in this package had been eliminated.' 6 **487 153 U.S.App.D.C., at 150, 471 F.2d, at 1118 (Wilkey, J., dissenting). It is suggested, however, that since the custodial arrest itself represents a significant intrusion into the privacy of the person, any additional intrusion by way of opening or examining effects found on the person is not worthy of constitutional protection. But such an approach was expressly rejected by the Court in Chimel. There it *257 was suggested that since the police had lawfully entered petitioner's house to effect an arrest, the additional invasion of privacy stemming from an accompanying search of the


13


entire house was inconsequential. The Court answered: ‘(W)e can see no reason why, simply because some interference with an individual's privacy and freedom of movement has lawfully taken place, further intrusions should automatically be allowed despite the absence of a warrant that the Fourth Amendment would otherwise require.’ 395 U.S., at 766— 767, n. 12, 89 S.Ct. at 2042. The Fourth Amendment preserves the right of ‘the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . ..’ Chimel established the principle that the lawful right of the police to interfere with the security of the person did not, standing alone, automatically confer the right to interfere with the security and privacy of his house. Hence, the mere fact of an arrest should be no justification, in and of itself, for invading the privacy of the individual's personal effects. The Government argues that it is difficult to see what constitutionally protected ‘expectation of privacy’ a prisoner has in the interior of a cigarette pack. One wonders if the result in this case would have been the same were respondent a businessman who was lawfully taken into custody for driving without a license and whose wallet was taken from him by the police. Would it be reasonable for the police officer, because of the possibility that a razor blade was hidden somewhere in the wallet, to open it, remove all the contents, and examine each item carefully? Or suppose a lawyer lawfully arrested for a traffic offense is found to have a sealed envelope on his person. Would it be permissible for the arresting officer to tear open the envelope in order to make sure that it did not contain

a clandestine weapon—perhaps a pin or a razor blade? Cf. *258 Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947); Chimel v. California, supra, 395 U.S., at 758, 89 S.Ct. at 2037. Would it not be more consonant with the purpose of the Fourth Amendment and the legitimate needs of the police to require the officer, if he has any question whatsoever about what the wallet or letter contains, to hold on to it until the arrestee is brought to the precinct station? 7 **488 *259 I, for one, cannot characterize any of these instrusions into the privacy of an individual's papers and effects as being negligible incidents to the more serious intrusion into the individual's privacy stemming from the arrest itself. Nor can any principled distinction be drawn between the hypothetical searches I have posed and the search of the cigarette package in this case. The only reasoned distinction is between warrantless searches which serve legitimate protective and evidentiary functions and those that do not. See Chimel, supra, at 766, 89 S.Ct. at 2041. The search conducted by Officer Jenks in this case went far beyond what was reasonably necessary to protect him from harm or to ensure that respondent would not effect an escape from custody. In my view, it therefore fell outside the scope of a properly drawn ‘search incident to arrest’ exception to the Fourth Amendment's warrant requirement. I would affirm the judgment of the Court of Appeals holding that the fruits of the search should have been suppressed at respondent's trial. Parallel Citations 94 S.Ct. 467, 38 L.Ed.2d 427, 66 O.O.2d 202

Footnotes

* 1

The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499. The Court of Appeals noted that there was a difference in the presentation of the facts in the various proceedings that were conducted in the District Court. Counsel for respondent on appeal stressed that respondent had a record of two prior narcotics convictions, and suggested that Officer Jenks may have been aware of that record through his investigation of criminal records, while Jenks was checking out the discrepancies in the birthdates on the operator's permit and on the Selective Service card that had been given to him for examination when he had confronted the respondent on the previous occasion. Respondent argued below that Jenks may have used the subsequent traffic violation arrest as a mere pretext for a narcotics search which would not have been allowed by a neutral magistrate had Jenks sought a warrant. The Court of Appeals found that Jenks had denied he had any such motive, and for the purposes of its opinion accepted the Government's version of that factual question, since even accepting that version it still found the search involved to be unconstitutional. 153 U.S.App.D.C. 114, 120 n. 3, 471 F.2d 1082, 1088 n. 3. We think it is sufficient for purposes of our decision that respondent was lawfully arrested for an offense, and that Jenks' placing him in custody following that arrest was not a departure from established police department practice. See n. 2, infra. We leave for another day questions which would arise on facts different from these.


14

U.S. v. Robinson, 414 U.S. 218 (1973) 94 S.Ct. 467, 38 L.Ed.2d 427, 66 O.O.2d 202 The Government introduced testimony at the evidentiary hearing upon the original remand by the Court of Appeals as to certain 2 standard operating procedures of the Metropolitan Police Department. Sergeant Dennis C. Donaldson, a Metropolitan Police Department Training Division instructor, testified that when a police officer makes ‘a full custody arrest,’ which he defined at one where an officer ‘would arrest a subject and subsequently transport him to a police facility for booking,’ the officer is trained to make a full ‘field type search’: ‘Q. Would you describe the physical acts the officer is instructed to perform with respect to this filed search in a full custody arrest situation? ‘A. (Sgt. Donaldson). Basically, it is a thorough search of the individual. We would expect in a field search that the officer completely search the individual and inspect areas such as behind the collar, underneath the dollar, the waistband of the trousers, the cuffs, the socks and shoes. Those are the areas we would ask a complete thorough search of. ‘Q. What are the instructions in a field type search situation when an officer feels something on the outside of the garment? ‘A. If it is a full custody arrest and he is conducting a field search, we expect him to remove anything and examine it to determine exactly what it is. ‘THE COURT: That is a fully custody arrest. What is the last part of it? ‘THE WITNESS: In conducting a field search, which is done any time there is a full custody arrest, we expect the officer to examine anything he might find on the subject. ‘THE COURT: Would he do the same thing in a pat-down search? ‘THE WITNESS: If he could determine in his pat-down or frisk by squeezing that it was not, in fact, a weapon that could be used against him, then we don't instruct him to go further. ‘THE COURT: But in a field search, even though he may feel something that he believes is not a weapon, is he instructed to take it out? ‘THE WITNESS: Yes, sir.’ Sergeant Donaldson testified that officers are instructed to examine the ‘contents of all of the pockets' of the arrestee in the course of the field search. It was stated that these standard operating procedures were initiated by the police department '(p)rimarily, for (the officer's) own safety and, secondly, for the safety of the individual he has placed under arrest and, thirdly, to search for evidence of the crime.’ While the officer is instructed to make a full field search of the person of the individual he arrests, he is instructed, and police department regulations provide, that in the case of a fullcustody arrest for driving after revocation, ‘areas beyond (the arrestee's) immediate control should not be searched because there is no probable cause to believe that the vehicle contains fruits, instrumentalities, contraband or evidence of the offense of driving after revocation.’ Those regulations also provide that in the case of some traffic offenses, including the crime of operating a motor vehicle after revocation of an operator's permit, the officer shall make a summary arrest of the violator and take the violator, in custody, to the station house for booking. D.C. Metropolitan Police Department General Order No. 3, series 1959 (Apr. 24, 1959). Such operating procedures are not, of course, determinative of the constitutional issues presented by this case. See T. Taylor, Two Studies in Constitutional Interpretation 44—45 (1969). 3 Taylor suggests that there ‘is little reason to doubt that search of an arrestee's person and premises is as old as the institution of arrest itself.’ Id., at 28. ‘Neither in the reported cases nor the legal literature is there any indication that search of the person of an arrestee, or the premises in which he was taken, was ever challenged in England until the end of the nineteenth century . . . (and) the English courts gave the point short shrift.’ Id., at 29. Where the arrest is made for a crime for which it is reasonable to believe that evidence exists, the Court of Appeals recognizes that 4 ‘warrantless intrusion into the pockets of the arrestee to discover such evidence is reasonable under the ‘search incident’ exception.' 153 U.S.App.D.C., at 127, 471 F.2d, at 1095. The court then states that the officer may use this ‘reasonable (evidentiary) intrusion’ to simultaneously look for weapons. Ibid. Such an assumption appears at least questionable in light of the available statistical data concerning assaults on police officers who 5 are in the course of making arrests. The danger to the police officer flows from the fact of the arrest, and its attendant proximity, stress, and uncertainty, and not from the grounds for arrest. One study concludes that approximately 30% of the shootings of police officers occur when an officer stops a person in an automobile. Bristow, Police Officer Shootings—A Tactical Evaluation, 54 J.Crim.L.C. & P.S. 93 (1963), cited in Adams v. Williams, 407 U.S. 143, 148, 92 S.Ct. 1921, 1924, 32 L.Ed.2d 612 (1972). The Government in its brief notes that the Uniform Crime Reports, prepared by the Federal Bureau of Investigation, indicate that a significant percentage of murders of police officers occurs when the officers are making traffic stops. Brief for the United States 23. Those reports indicate that during January—March 1973, 35 police officers were murdered; 11 of those officers were killed while engaged in making traffic stops. Ibid.


15

U.S. v. Robinson, 414 U.S. 218 (1973) 94 S.Ct. 467, 38 L.Ed.2d 427, 66 O.O.2d 202 The opinion of the Court of Appeals also discussed its understanding of the law where the police officer makes what the court 6 characterized as ‘a routine traffic stop,’ i.e., where the officer would simply issue a notice of violation and allow the offender to proceed. Since in this case the officer did make a full-custody arrest of the violator, we do not reach the question discussed by the Court of Appeals. The United States concedes that ‘in searching respondent, (Officer Jenks) was not motivated by a feeling of imminent danger and was 7 not specifically looking for weapons.’ Brief for the United States 34. Officer Jenks testified, ‘I just searched him (Robinson). I didn't think about what I was looking for. I just searched him.’ As previously noted, Officer Jenks also testified that upon removing the cigarette package from the respondent's custody, he was still unsure what was in the package, but that he knew it was not cigarettes. At the suppression hearing, Officer Jenks was shown a small derringer and was asked, after the gun was placed in a cost pocket, 1 ‘whether or not it feels like the lump you felt in Mr. Robinson's pocket the night you arrested him?’ Jenks answered that the object ‘does not feel the same’ but rather felt ‘harder,’ ‘larger,’ and ‘(m)uch more suspicious.’ Even the Court's attempt to dip into the English common law is selective. The power to conduct a search incident to arrest was 2 litigated in Leigh v. Cole, 6 Cox C.C. 329 (Oxford Circuit 1853), a civil case in which the plaintiff, a lawyer, was stopped while on the road and arrested by defendant superintendent of police. After the plaintiff was taken to the station house, a police constable searched him, at the defendant's direction, and a tobacco box and a piece of paper were taken from him. In instructing the jury, the learned judge stated: ‘With respect to searching a prisoner, there is no doubt that a man when in custody may so conduct himself, by reason of violence of language or conduct, that a police officer may reasonably think it prudent and right to search him, in order to ascertain whether he has any weapon with which he might do mischief to the person or commit a breach of the peace; but at the same time it is quite wrong to suppose that a general rule can be applied to such a case. Even when a man is confined for being drunk and disorderly, it is not correct to say that he must submit to the degradation of being searched, as the searching of such a person must depend upon all the circumstances of the case.’ Id., at 332. The majority's reference to the quick ad hoc judgment of the police officer may be read as an expression of doubt whether this kind 3 of on-the-street policy activity can effectively be controlled by court-imposed standards. This problem was discussed in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), where we recognized ‘the limitations of the judicial function in controlling the myriad daily situations in which policemen and citizens confront each other on the street.’ Id., at 12, 88 S.Ct., at 1875. But as we concluded there, even though ‘(n)o judicial opinion can comprehend the protean variety of the street encounter, . . . courts still retain their traditional responsibility to guard against police conduct . . . which trenches upon personal security without the objective evidentiary justification which the Constitution requires. When such conduct is identified, it must be condemned by the judiciary and its fruits must be excluded from evidence in criminal trials.’ Id., at 15, 88 S.Ct., at 1876. This was also the position of the Police Department itself. Sergeant Donaldson, a Police Department Training Division instructor, 4 testified: ‘If (the officer) could determine in his pat-down or frisk by squeezing that it was not, in fact, a weapon that could be used against him, then we don't instruct him to go further.’ The Uniform Crime Reports prepared by the Federal Bureau of Investigation which are relied on by the majority, see ante, at 476 n. 5 5, indicate that 112 police officers were killed nationwide in 1972. Of these, 108 were killed by firearms. Two of the remaining four were killed with knives, and the last two cases involved a bomb and an automobile. The dissent argued, however, that ‘further inspection of the package was still justifiable as a protective measure. If the package 6 had contained a razor blade, or live bullets, the officer would have been alerted to search Robinson much more thoroughly since the possibility of there being other weapons concealed on his person would increase.’ 153 U.S.App.D.C., at 150, 471 F.2d, at 1118 (emphasis in original). But as Chief Judge Bazelon indicated in his opinion below, this kind of reasoning would render meaningless scope limitations on searches. Were one to accept this logic, for example, it would have been reasonable for the police to search the entire house in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), for if a weapon had been found somewhere in the house, the arresting officer would have been alerted to search Chimel himself more thoroughly, as the possibility of there being other weapons concealed on his person would arguably have increased. Nor would it necessarily have been reasonable for the police to have opened the cigarette package at the police station. The 7 Government argued below, as an alternative theory to justify the search in this case, that when a suspect is booked and is about to be placed in station house detention, it is reasonable to search his person to prevent the introduction of weapons or contraband into the jail facility and to inventory the personal effects found on the suspect. Since respondent's cigarette package would have been removed and opened at the station house anyway, the argument goes, the search might just as well take place in the field at the time of the arrest. This argument fails for two reasons. First, as the Court of Appeals had indicated in its opinion in United States v. Mills, 153 U.S.App.D.C. 156, 472 F.2d 1231 (1972) (en banc), the justification for station house searches is not the booking process itself,


16

U.S. v. Robinson, 414 U.S. 218 (1973) 94 S.Ct. 467, 38 L.Ed.2d 427, 66 O.O.2d 202 but rather the fact that the suspect will be placed in jail. In the District of Columbia, petty offenses of the sort involved in the present case are bailable, and, as the Government stipulated in Mills, the normal procedure is for offenders to be advised of the opportunity to post collateral at the station house and to avoid an inventory search unless they are unable or refuse to do so. Id., at 160—161, 472 F.2d, at 1235—1236. One cannot justify a full search in the field on a subsequent event that quite possibly may never take place. Second, even had it become necessary to place respondent in confinement, it is still doubtful whether one could justify opening up the cigarette package and examining its contents. The purposes of preventing the introduction of weapons or contraband into the jail facility are fully served simply by removing the package from the prisoner. It is argued that the police must inventory effects found on the prisoner in order to avoid a later claim by the prisoner that jail personnel stole his property. But as the Court of Appeals noted in Mills, the police can protect themselves against such claims by means involving a less extreme intrusion on privacy than would be entailed in opening up and examining the contents of all effects found on the person. As an example, the Court of Appeals suggested that the prisoner be given ‘an opportunity, like that accorded someone given a bathhouse locker for temporary use, to ‘check’ his belongings in a sealed envelope, perhaps upon executing a waiver releasing the officer of any responsibility.' Id., at 164 n. 11, 472 F.2d, at 1239 n. 11. The Government also suggested in oral argument before this Court that it would be administratively inconvenient to require a police officer, after removing an object from an arrestee, to told on to the object rather tha to look inside and determine what it contained. Mere administrative inconvenience, however, cannot justify invasion of Fourth Amendment rights. Chimel v. California, supra, 395 U.S., at 768, 89 S.Ct., at 2043. One can no doubt imagine cases where the inconvenience might be so substantial as to interfere with the task of transporting the suspect into custody. While these situations might necessitate a different rule, certainly in this case there would have been no inconvenience whatsoever. Officer Jenks could easily have placed the cigarette package in his own pocket or handed it to his partner to hold onto until they reached the precinct station.

End of Document



17

Chimel v. California, 395 U.S. 752 (1969) 89 S.Ct. 2034, 23 L.Ed.2d 685

89 S.Ct. 2034 Supreme Court of the United States Ted Steven CHIMEL, Petitioner, v. State of CALIFORNIA. No. 770. | Argued March 27, 1969. | Decided June 23, 1969. | Rehearing Denied Oct. 13, 1969. See 90 S.Ct. 36. Burglary prosecution. The Superior Court, Orange County, California, rendered judgment, and defendant appealed. The California Supreme Court, 68 Cal.2d 436, 67 Cal.Rptr. 421, 439 P.2d 333, vacating an opinion of the Court of Appeal at 61 Cal.Rptr. 714, affirmed, and defendant obtained certiorari. The Supreme Court, Mr. Justice Stewart, held that warrantless search of defendant's entire house, incident to defendant's proper arrest in house on burglary charge, was unreasonable as extending beyond defendant's person and area from which he might have obtained either weapon or something that could have been used as evidence against him. Reversed. Mr. Justice White and Mr. Justice Black dissented.

Attorneys and Law Firms **2035 *753 Keith C. Monroe, Santa Ana, Cal., for petitioner. Ronald M. George, Los Angeles, Cal., for respondent. Opinion Mr. Justice STEWART delivered the opinion of the Court. This case raises basic questions concerning the permissible scope under the Fourth Amendment of a search incident to a lawful arrest. The relevant facts are essentially undisputed. Late in the afternoon of September 13, 1965, three police officers arrived at the Santa Ana, California, home of the petitioner with a warrant authorizing his arrest for the burglary of a coin shop. The officers knocked on the door, identified themselves to

the petitioner's wife, and asked if they might come inside. She ushered them into the house, where they waited 10 or 15 minutes until the petitioner returned home from work. When the petitioner entered the house, one of the officers handed him the arrest warrant and asked for permission to ‘look around.’ The petitioner objected, but was advised that *754 ‘on the basis of the lawful arrest,’ the officers would nonetheless conduct a search. No search warrant had been issued. Accompanied by the petitioner's wife, the officers then looked through the entire three-bedroom house, including the attic, the garage, and a small workshop. In some rooms the search was relatively cursory. In the master bedroom and sewing room, however, the officers directed the petitioner's wife to open drawers and ‘to physically move contents of the drawers from side to side so that (they) might view any items that would have come from (the) burglary.’ After completing the search, they seized numerous items—primarily coins, but also several medals, tokens, and a few other objects. The entire search took between 45 minutes and an hour. [1] At the petitioner's subsequent state trial on two charges of burglary, the items taken from his house were admitted into evidence against him, over his objection that they had been unconstitutionally seized. He was convicted, and the judgments of conviction were affirmed by both the California Court of Appeal, 61 Cal.Rptr. 714, and the California Supreme Court, 68 Cal.2d 436, 67 Cal.Rptr. 421, 439 P.2d 333. Both courts accepted the petitioner's contention that the arrest warrant was invalid because the supporting affidavit was set out in conclusory terms, 1 but held that since the arresting officers had procured the warrant ‘in good faith,’ and since in any event they had had sufficient information to constitute probable cause for the petitioner's arrest, that arrest had been lawful. From this conclusion the appellate courts went on to hold that the search of the petitioner's home *755 had been justified, despite the absence of a search warrant, on the ground that it had been incident to a valid arrest. We granted certiorari in order to consider the petitioner's substantial constitutional claims. 393 U.S. 958, 89 S.Ct. 404, 21 L.Ed.2d 372.

Without deciding the question, we proceed on the hypothesis that the California **2036 courts were correct in holding that the arrest of the petitioner was valid under the Constitution. This brings us directly to the question whether


1


the warrantless search of the petitioner's entire house can be constitutionally justified as incident to that arrest. The decisions of this Court bearing upon that question have been far from consistent, as even the most cursory review makes evident. Approval of a warrantless search incident to a lawful arrest seems first to have been articulated by the Court in 1914 as dictum in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, in which the Court stated: ‘What then is the present case? Before answering that inquiry specifically, it may be well by a process of exclusion to state what it is not. It is not an assertion of the right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime.’ Id., at 392, 34 S.Ct., at 344.

That statement made no reference to any right to search the place where an arrest occurs, but was limited to a right to search the ‘person.’ Eleven years later the case of Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, brought the following embellishment of the Weeks statement: ‘When a man is legally arrested for an offense, whatever is found upon his person or in his control which it is unlawful for him to have and which may be used to prove the offense may be seized and held *756 as evidence in the prosecution.’ Id., at 158, 45 S.Ct., at 287. (Emphasis added.)

Still, that assertion too was far from a claim that the ‘place’ where one is arrested may be searched so long as the arrest is valid. Without explanation, however, the principle emerged in expanded form a few months later in Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145—although still by way of dictum: ‘The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted. See Carroll v. United States, 267 U.S. 132, 158, 45 S.Ct. 280, 69 L.Ed. 543; Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 58 L.Ed. 652.’ 269 U.S., at 30, 46 S.Ct., at 5.

And in Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231, two years later, the dictum of Agnello appeared to be the foundation of the Court's decision. In that case federal agents had secured a search warrant authorizing the seizure of liquor and certain articles used in its manufacture. When they arrived at the primises to be searched, they saw ‘that the place was used for retailing and drinking intoxicating liquors.’ Id., at 194, 48 S.Ct., at 75. They proceeded to arrest the person in charge and to execute the warrant. In searching a closet for the items listed in the warrant they came across an incriminating ledger, concededly not covered by the warrant, which they also seized. The Court upheld the seizure of the ledger by holding that since the agents had made a lawful arrest, ‘(t)hey had a right without a warrant contemporaneously to search the place in order to find and seize the things used to carry on the criminal enterprise.’ Id., at 199, 48 S.Ct., at 77. *757 That the Marron opinion did not mean all that it seemed to say became evident, however, a few years later in Go-Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374, and United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877. In each of **2037 those cases the opinion of the Court was written by Mr. Justice Butler, the author of the opinion in Marron. In Go-Bart, agents had searched the office of persons whom they had lawfully arrested, 2 and had taken several papers from a desk, a safe, and other parts of the office. The Court noted that no crime had been committed in the agents' presence, and that although the agent in charge ‘had an abundance of information and time to swear out a valid (search) warrant, he failed to do so.’ 282 U.S., at 358, 51 S.Ct., at 158. In holding the search and seizure unlawful, the Court stated: ‘Plainly the case before us is essentially different from Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231. There, officers executing a valid search warrant for intoxicating liquors found and arrested one Birdsall who in pursuance of a conspiracy was actually engaged in running a saloon. As an incident to the arrest they seized a ledger in a closet where the liquor or some of it was kept and some bills beside the cash register. These things were visible and accessible and in the offender's immediate custody. There was no threat of force or general search or rummaging of the place.’ 282 U.S., at 358, 51 S.Ct., at 158. This limited characterization of Marron was reiterated in Lefkowitz, a case in which the Court held unlawful a search


2


of desk drawers and a cabinet despite the fact that the search had accompanied a lawful arrest. 285 U.S., at 465, 52 S.Ct., at 423.

The limiting views expressed in Go-Bart and Lefkowitz were thrown to the winds, however, in *758 Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399, decided in 1947. In that case, officers had obtained a warrant for Harris' arrest on the basis of his alleged involvement with the cashing and interstate transportation of a forged check. He was arrested in the living room of his four-room apartment, and in an attempt to recover two canceled checks thought to have been used in effecting the forgery, the officers undertook a thorough search of the entire apartment. Inside a desk drawer they found a sealed envelope marked ‘George Harris, personal papers.’ The envelope, which was then torn open, was found to contain altered Selective Service documents, and those documents were used to secure Harris' conviction for violating the Selective Training and Service Act of 1940. The Court rejected Harris' Fourth Amendment claim, sustaining the search as ‘incident to arrest.’ Id., at 151, 67 S.Ct., at 1101. Only a year after Harris, however, the pendulum swung again. In Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663, agents raided the site of an illicit distillery, saw one of several conspirators operating the still, and arrested him, contemporaneously ‘seiz(ing) the illicit distillery.’ Id., at 702, 68 S.Ct. at 1231. The Court held that the arrest and others made subsequently had been valid, but that the unexplained failure of the agents to procure a search warrant—in spite of the fact that they had had more than enough time before the raid to do so—rendered the search unlawful. The opinion stated: ‘It is a cardinal rule that, in seizing goods and articles, law enforcement agents must secure and use search warrants wherever reasonably practicable. * * * This rule rests upon the desirability of having magistrates rather than police officers determine when searches and seizures are permissible and what limitations should be placed upon such activities. * * * To provide the necessary security against unreasonable intrusions upon the private lives of *759 individuals, the framers of **2038 the Fourth Amendment required adherence to judicial processes wherever possible. And subsequent history has confirmed the wisdom of that requirement.

‘A search or seizure without a warrant as an incident to a lawful arrest has always been considered to be a strictly limited right. It grows out of the inherent necessities of the situation at the time of the arrest. But there must be something more in the way of necessity than merely a lawful arrest.’ Id., at 705, 708, 68 S.Ct., at 1232, 1234.

In 1950, two years after Trupiano, 3 came United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653, the decision upon which California primarily relies in the case now before us. In Rabinowitz, federal authorities had been informed that the defendant was dealing in stamps bearing forged overprints. On the basis of that information they secured a warrant for his arrest, which they executed at his one-room business office. At the time of the arrest, the officers ‘searched the desk, safe, and file cabinets in the office for about an hour and a half,’ id., at 59, 70 S.Ct., at 432, and seized 573 stamps with forged overprints. The stamps were admitted into evidence at the defendant's trial, and this Court affirmed his conviction, rejecting the contention that the warrantless search had been unlawful. The Court held that the search in its entirety fell within the principle giving law enforcement authorities ‘(t)he right ‘to search the place where the arrest is made in order to find and seize things connected with the crime * * *. “”’' Id., at 61, 70 S.Ct., at 433. Harris was regarded as ‘ample authority’ for that conclusion. Id., at 63, 70 S.Ct., at 434. The opinion rejected the rule of Trupiano that ‘in seizing goods and articles, law enforcement agents must secure and use search warrants *760 wherever reasonably practicable.’ The test, said the Court, ‘is not whether it is reasonable to procure a search warrant, but whether the search was reasonable.’ Id., at 66, 70 S.Ct., at 435. Rabinowitz has come to stand for the proposition, inter alia, that a warrantless search ‘incident to a lawful arrest’ may generally extend to the area that is considered to be in the ‘possession’ or under the ‘control’ of the person arrested. 4 And it was on the basis of that proposition that the California courts upheld the search of the petitioner's entire house in this case. That doctrine, however, at least in the broad sense in which it was applied by the California courts in this case, can withstand neither historical nor rational analysis. Even limited to its own facts, the Rabinowitz decision was, as we have seen, hardly founded on an unimpeachable


3


line of authority. As Mr. Justice Frankfurter commented in dissent in that case, the ‘hint’ contained in Weeks was, without persuasive justification, ‘loosely turned into dictum and finally elevated to a decision.’ 339 U.S., at 75, 70 S.Ct., at 439. And the approach taken in cases such as Go-Bart, Lefkowitz, and Trupiano was essentially disregarded by the Rabinowitz Court. **2039 [2] Nor is the rationale by which the State seeks here to sustain the search of the petitioner's house supported by a reasoned view of the background and purpose of the Fourth Amendment. Mr. Justice Frankfurter wisely pointed out in his Rabinowitz dissent that the Amendment's proscription of ‘unreasonable searches and seizures' *761 must be read in light of ‘the history that gave rise to the words'—a history of ‘abuses so deeply felt by the Colonies as to be one of the potent causes of the Revolution * * *.’ 339 U.S., at 69, 70 S.Ct., at 436. The Amendment was in large part a reaction to the general warrants and warrantless searches that had so alienated the colonists and had helped speed the movement for independence. 5 In the scheme of the Amendment, therefore, the requirement that ‘no Warrants shall issue, but upon probable cause,’ plays a crucial part. As the Court put it in McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153: ‘We are not dealing with formalities. The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was done not to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade that privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. * * * And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home. We cannot be true to that consititutional requirement and excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative.’ Id., at 455—456, 69 S.Ct., at 193. *762 Even in the Agnello case the Court relied upon the rule the ‘(b)elief, however well founded, that an article sought is concealed in a dwelling house, furnishes no justification for a search of that place without a warrant. And such searches are

held unlawful notwithstanding facts unquestionably showing probable cause.’ 269 U.S., at 33, 46 S.Ct., at 6. Clearly, the general requirement that a search warrant be obtained is not lightly to be dispensed with, and ‘the burden is on those seeking (an) exemption (from the requirement) to show the need for it * * *.’ United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59.

Only last Term in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889, we emphasized that ‘the police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure,’ id., at 20, 88 S.Ct. at 1879, 6 and that ‘(t)he scope of (a) search must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.' **2040 Id., at 19, 88 S.Ct., at 1878. The search undertaken by the officer in that ‘stop and frisk’ case was sustained under that test, because it was no more than a ‘protective * * * search for weapons.’ Id., at 29, 88 S.Ct., at 1884. But in a companion case, Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917, we applied the same standard to another set of facts and reached a contrary result, holding that a policeman's action in thrusting his hand into a suspect's pocket had been neither motivated by nor limited to the objective of protection. 7 Rather, the search had been made in order to find narcotics, which were in fact found. [3] [4] A similar analysis underlies the ‘search incident to arrest’ principle, and marks its proper extent. When an *763 arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee's person and the area ‘within his immediate control’—construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.


4


[5] There is no comparable justification, however, for routinely searching any room other than that in which an arrest occurs—or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself. Such searches, in the absence of well-recognized exceptions, may be made only under the authority of a search

Amendment interests. Under such an unconfined analysis, Fourth Amendment protection in this area would approach the evaporation point. It is not easy to explain why, for instance, it is less subjectively ‘reasonable’ to search a man's house when he is arrested on his front lawn—or just down the street— than it is when he happens to be in the house at the time of

warrant. 8 The ‘adherence to judicial processes' mandated by the Fourth Amendment requires no less.

arrest. 10 As Mr. Justice Frankfurter put it:

This is the principle that underlay our decision in Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777. In that case three men had been arrested in a parked car, which had later been towed to a garage and searched by police. We held that search to have been unlawful under the Fourth Amendment, despite the contention that it had *764 been incidental to a valid arrest. Our reasoning was straightforward: ‘The rule allowing contemporaneous searches is justified, for example, by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime—things which might easily happen where the weapon or evidence is on the accused's person or under his immediate control. But these justifications are absent where a search is remote in time or place from the arrest.’ Id., at 367, 84 S.Ct., at 883. 9 **2041 The same basic principle was reflected in our opinion last Term in Sibron. That opinion dealt with Peters v. New York, No. 74, as well as with Sibron's case, and Peters involved a search that we upheld as incident to a proper arrest. We sustained the search, however, only because its scope had been ‘reasonably limited’ by the ‘need to seize weapons' and ‘to prevent the destruction of evidence,’ to which Preston had referred. We emphasized that the arresting officer ‘did not engage in an unrestrained and thorough going examination of Peters and his personal effects. He seized him to cut short his flight, and he searched him primarily for weapons.’ 392 U.S., at 67, 88 S.Ct., at 1905. [6] It is argued in the present case that it is ‘reasonable’ to search a man's house when he is arrested in it. But that argument is founded on little more than a subjective view regarding the acceptability of certain sorts of police *765 conduct, and not on consideration relevant to Fourth

‘To say that the search must be reasonable is to require some criterion of reason. It is no guide at all either for a jury or for district judges or the police to say that an ‘unreasonable search’ is forbidden—that the search must be reasonable. What is the test of reason which makes a search reasonable? The test is the reason underlying and expressed by the Fourth Amendment: the history and experience which it embodies and the safeguards afforded by it against the evils to which it was a response.' United States v. Rabinowitz, 339 U.S., at 83, 73 S.Ct., at 443 (dissenting opinion). Thus, although ‘(t)he recurring questions of the reasonableness of searches' depend upon ‘the facts and circumstances—the total atmosphere of the case,’ id., at 63, 66, 70 S.Ct., at 434, 435 (opinion of the Court), those facts and circumstances must be viewed in the light of established Fourth Amendment principles. *766 [7] [8] It would be possible, of course, to draw a line between Rabinowitz and Harris on the one hand, and this case on the other. For Rabinowitz involved a single room, and Harris a four-room apartment, while in the case before us an entire house was searched. But such a distinction would be highly artificial. The rationale that allowed the searches and seizures in Rabinowitz and Harris would allow the searches and seizures in this case. No consideration relevant to the Fourth Amendment suggests any point of rational limitation, once the search is allowed to go beyond the area from which the person arrested might obtain weapons or evidentiary items. 11 **2042 The only reasoned distinction is one between a search of the person arrested and the area within his reach on the one hand, and more extensive searches on the other. 12

*767 The petitioner correctly points out that one result of decisions such as Rabinowitz and Harris is to give law enforcement officials the opportunity to engage in searches not justified by probable cause, by the simple expedient of


5


arranging to arrest suspects at home rather than elsewhere. We do not suggest that the petitioner is necessarily correct in his assertion that such a strategy was utilized here, 13 but the fact remains that had he been arrested earlier in the day, at his place of employment rather than at home, no search of his house could have been made without a search warrant. In any event, even apart from the possibility of such police tactics, the general point so forcefully made by Judge Learned Hand in United States v. Kirschenblatt, 2 Cir., 16 F.2d 202, 51 A.L.R. 416, remains: ‘After arresting a man in his house, to rummage at will among his papers in search of whatever will convict him, appears to us to be indistinguishable from what might be done under a general warrant; indeed, the warrant would give more protection, for presumably it must be issued by a magistrate. True, by hypothesis the power would not exist, if the supposed offender were not found on the premises; *768 but it is small consolation to know that one's papers are safe only so long as one is not at home.’ Id., at 203.

Rabinowitz and Harris have been the subject of critical commentary for many years, 14 and have been relied upon less and less in our own decisions. 15 It is **2043 time, for the reasons we have stated, to hold that on their own facts, and insofar as the principles they stand for are inconsistent with those that we have endorsed today, they are no longer to be followed. [9] Application of sound Fourth Amendment principles to the facts of this case produces a clear result. The search here went far beyond the petitioner's person and the area from within which he might have obtained either a weapon or something that could have been used as evidence against him. There was no constitutional justification, in the absence of a search warrant, for extending the search beyond that area. The scope of the search was, therefore, ‘unreasonable’ under the Fourth and Fourteenth Amendments and the petitioner's conviction cannot stand. 16

Reversed. *769 Mr. Justice HARLAN, concurring. I join the Court's opinion with these remarks concerning a factor to which the Court has not alluded.

The only thing that has given me pause in voting to overrule Harris and Rabinowitz is that as a result of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), and Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963), every change in Fourth Amendment law must now be obeyed by state officials facing widely different problems of local law enforcement. We simply do not know the extent to which cities and towns across the Nation are prepared to administer the greatly expanded warrant system which will be required by today's decision; nor can we say with assurance that in each and every local situation, the warrant requirement plays an essential role in the protection of those fundamental liberties protected against state infringement by the Fourteenth Amendment. Thus, one is now faced with the dilemma, envisioned in my separate opinion in Ker, 374 U.S., at 45—46, 83 S.Ct., at 1646, of choosing between vindicating sound Fourth Amendment principles at the possible expense of state concerns, long recognized to be consonant with the Fourteenth Amendment before Mapp and Ker came on the books, or diluting the Federal Bill of Rights in the interest of leaving the States at least some elbow room in their methods of criminal law enforcement. No comparable dilemma exists, of course, with respect to the impact of today's decision within the federal system itself. This federal-state factor has not been an easy one for me to resolve, but in the last analysis I cannot in good conscience vote to perpetuate bad Fourth Amendment law. I add only that this case, together with Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707; North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2089, 23 L.Ed.2d 656, and Simpson v. Rice, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656, all decided *770 today, serve to **2044 point up, as few other cases have, the profound changes that the ‘incorporation doctrine’ has wrought both in the workings of our federal system and upon the adjudicative processes of this Court. Mr. Justice WHITE, with whom Mr. Justice BLACK joins, dissenting. Few areas of the law have been as subject to shifting constitutional standards over the last 50 years as that of the search ‘incident to an arrest.’ There has been a remarkable


6


instability in this whole area, which has seen at least four major shifts in emphasis. Today's opinion makes an untimely fifth. In my view, the Court should not now abandon the old rule. I The modern odyssey of doctrine in this field is detailed in the majority opinion. It began with Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914), where the Court paused to note that the case before it was not. ‘It is not an assertion of the right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime. This right has been uniformly maintained in many cases. * * * Nor is it the case of burglar's tools or other proofs of guilt found upon his arrest within the control of the accused.’ Id., at 392, 34 S.Ct., at 344 (Emphasis added.) This scope of search incident to arrest, extending to all items under the suspect's ‘control,’ was reaffirmed in a dictum in Carroll v. United States, 267 U.S. 132, 158, 45 S.Ct. 280, 287, 69 L.Ed. 543 (1925). Accord, Agnello v. United States, 269 U.S. 20, 30, 46 S.Ct. 4, 5, 70 L.Ed. 145 (1925) (holding that ‘the place where the arrest is made’ may be searched ‘is not to be doubted’). The rule was reaffirmed in Marron v. United States, 275 U.S. 192, 199, 48 S.Ct. 74, 77, 72 L.Ed. 231 (1927), where the Court asserted that authority *771 to search incident to an arrest ‘extended to all parts of the premises used for the unlawful purpose.’ Within five years, this rule was qualified by two Prohibition Act cases, Go-Bart Importing Co. v. United States, 282 U.S. 344, 356—358, 51 S.Ct. 153, 157—158, 75 L.Ed. 374 (1931), and United States v. Lefkowitz, 285 U.S. 452, 463—467, 52 S.Ct. 420, 422—424, 76 L.Ed. 877 (1932). If Go-Bart and Lefkowitz represented a retreat from the rule of Weeks, Carroll, Agnello, and Marron, the vigor of the earlier rule was reaffirmed in Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947), which has, but for one brief interlude, clearly been the law until today. The very next Term after Harries, in Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948), the Court held unjustifiable the seizure of a still incident to the arrest of a man at the still site, even though the still was contraband, had been visible through an open door before entering the premises to be ‘searched,’ and although a crime

was being committed in the officers' presence. Accord, that year, McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153 (1948) (gambling game seen through transom before entry). Less than two years later, however, the Court returned to the Harris rule in United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950), where the Court held that the reasonableness of a search does not depend upon the practicability of obtaining a search warrant, and that the fact of a valid arrest is relevant to reasonableness. Trupiano was pro tanto overruled. Such rapid reversals have occurred before, 1 but they are rare. Here there had **2045 been two about-faces, one following hard upon the other. Justice Frankfurter objected in this language: ‘Especially ought the Court not reenforce needlessly the instabilities of our day by giving fair ground for the belief that Law is the expression of *772 chance—for instance, of unexpected changes in the Court's composition and the contingencies in the choice of successors.’ 339 U.S., at 86, 73 S.Ct., at 444. Since that time, the rule of Weeks, Marron, Harris, and Rabinowitz has clearly been the law. E.g., Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960) (Frankfurter, J., writing for the Court); Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963). 2 II. The rule which has prevailed, but for very brief or doubtful periods of aberration, is that a search incident to an arrest may extend to those areas under the control of the defendant and where items subject to constitutional seizure may be found. The justification for this rule must, under the language of the Fourth Amendment, lie in the reasonableness of the rule. Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889 (1968); Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Klkins v. United States, 364 U.S. 206, 222, 80 S.Ct. 1437, 1446, 4 L.Ed.2d 1669 (1960). The Amendment provides: ‘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


7


searched, and the persons or things to be seized.’

In terms, then, the Court must decide whether a given search is reasonable. The Amendment does not proscribe ‘warrantless searches' but instead it proscribes ‘unreasonable *773 searches' and this Court has never held nor does the majority today assert that warrantless searches are necessarily unreasonable. Applying this reasonableness test to the area of searches incident to arrests, one thing is clear at the outset. Search of an arrested man and of the items within his immediate reach must in almost every case be reasonable. There is always a danger that the suspect will try to escape, seizing concealed weapons with which to overpower and injure the arresting officers, and there is a danger that he may destroy evidence vital to the prosecution. Circumstances in which these justifications would not apply are sufficiently rare that inquiry is not made into searches of this scope, which have been considered reasonable throughout. The justifications which make such a search reasonable obviously do not apply to the search of areas to which the accused does not have ready physical access. This is not enough, however, to prove such searches unconstitutional. The Court has always held, and does not today deny, that when there is probable cause to search and it is ‘impracticable’ for one reason or another to get a search warrant, then a warrantless search may be reasonable. E.g., even Trupiano v. United States, 334 U.S. 699, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948). This is the case whether an arrest was made at the time of the search or not. 3 **2046 This is not to say that a search can be reasonable without regard to the probable cause to believe that seizable items are on the premises. But when there are exigent circumstances, and probable cause, then the search may be made without a warrant, reasonably. An *774 arrest itself may often create an emergency situation making it impracticable to obtain a warrant before embarking on a related search. Again assuming that there is probable cause to search premises at the spot where a suspect is arrested, it seems to me unreasonable to require the police to leave the scene in order to obtain a search warrant when they are already legally there to make a valid arrest, and when there

must almost always be a strong possibility that confederates of the arrested man will in the meanwhile remove the items for which the police have probable cause to search. This must so often be the case that it seems to me as unreasonable to require a warrant for a search of the premises as to require a warrant for search of the person and his very immediate surroundings. This case provides a good illustration of my point that it is unreasonable to require police to leave the scene of an arrest in order to obtain a search warrant when they already have probable cause to search and there is a clear danger that the items for which they may reasonably search will be removed before they return with a warrant. Petitioner was arrested in his home after an arrest whose validity will be explored below, but which I will now assume was valid. There was doubtless probable cause not only to arrest petitioner, but also to search his house. He had obliquely admitted, both to a neighbor and to the owner of the burglarized store, that he had committed the burglary. 4 In light of this, and the fact that the neighbor had seen other *775 admittedly stolen property in petitioner's house, there was surely probable cause on which a warrant could have issued to search the house for the stolen coins. Moreover, had the police simply arrested petitioner, taken him off to the station house, and later returned with a warrant, 5 it seems very likely that petitioner's wife, who in view of petitioner's **2047 generally garrulous nature must have known of the robbery, would have removed the coins. For the police to search the house while the evidence they had probable cause to search out and seize was still there cannot be considered unreasonable. 6 *776 III. This line of analysis, supported by the precedents of this Court, hinges on two assumptions. One is that the arrest of petitioner without a valid warrant 7 was constitutional as the majority assumes; the other is that the police were not required to obtain a search warrant in advance, even though they knew that the effect of the arrest might well be to alert petitioner's wife that the coins had better be removed soon. Thus it is necessary to examine the constitutionality of the arrest since if it was illegal, the exigent circumstances which it created may not, as the consequences of a lawless act, be used to justify the contemporaneous warrantless search. But for the arrest, the warrantless search may not be justified. 8 And if


8


circumstances can justify the warrantless arrest, it would be strange to say that the Fourth Amendment bars the warrantless search, regardless of the circumstances, since the invasion and disruption of a man's life and privacy which stem from his arrest are ordinarily far greater than the relatively minor intrusions attending a search of his premises. Congress has expressly authorized a wide range of officials to make arrests without any warrant in criminal cases. United States Marshals have long had this power, 9 which is also vested in the agents of the Federal *777 Bureau of Investigation, 10 and in the Secret Service 11 and the narcotics law enforcement agency. 12 That warrantless arrest power may apply even when there is time to get a warrant without fear that the suspect may escape is made perfectly clear by the legislative history of he statute granting arrest power to the FBI. In United States v. Coplon, 185 F.2d 629, 633—636, 28 A.L.R.2d 1041 (C.A.2d Cir. 1950), the court held that an arrest and search were invalid because there was an insufficient showing of danger of escape, and therefore there was time to obtain a warrant. The opinion, written by Judge Learned Hand and joined by Judges Swan and Frank, reviewed the common-law power of arrest, which permitted arrests for felonies committed in the past ‘if (the officer) had reasonable ground to suppose that the person arrested had committed the felony.’ However, the court concluded that this power of warrantless arrest had been limited by the congressional requirement that there must be a ‘likelihood of the person escaping **2048 before a warrant can be obtained for his arrest.’ The next month the Congress was moved by this very decision to amend the law, consciously deleting the language upon which Judge Hand had relied so as to make it clear that warrantless arrests were authorized even if there was time to procure a warrant. Act of January 10, 1951, c. 1221, s 1, 64 Stat. 1239; H.R.Rep. No. 3228, 81st Cong., 2d Sess. (1950). 13 Thereupon, the Court of *778 Appeals for the District of Columbia Circuit, passing on the very same arrest which had induced the congressional action, held that this ‘unmistakable’ revision made it clear that there was in the FBI a power to arrest without warrant even when there was time to procure one. For this reason, the court upheld the arrest and contemporaneous search. Coplon v. United States,

89 U.S.App.D.C. 103, 191 F.2d 749 (1951). Certiorari was denied in both Coplon cases. 342 U.S. 920, 926, 72 S.Ct. 362, 363, 96 L.Ed. 688, 690 (1952). Moreover, the statute under which the FBI exercises that power was later said by this Court to state the constitutional standard, Henry v. United States, 361 U.S. 98, 100, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959), since ti requires ‘reasonable grounds to believe that the person to be arrested has committed or is committing’ a felony, 18 U.S.C. s 3052, before a warrantless arrest may be made. And the Court today has declined to review a warrantless arrest under th narcotics agent statute. Jamison v. United States, 395 U.S. 986, 89 S.Ct. 2135, 23 L.Ed.2d 774. See also my dissent in Shipley v. California, 395 U.S. 818, at 821, 89 S.Ct. 2053, at 2055, 23 L.Ed.2d 732. The judgment of Congress is that federal law enforcement officers may reasonably make warrantless arrests upon probable cause, and no judicial experience suggests that this judgment is infirm. Indeed, past cases suggest precisely the contrary conclusion. The validity of federal arrests was long governed by state law, United States v. Di Re, 332 U.S. 581, 589—592, 68 S.Ct. 222, 226—227, 92 L.Ed. 210 (1948), and no requirement that warrants be sought whenever there is time to do so was imposed either by common-law history 14 or by decisions of this Court. This Court has upheld an executive *779 arrest warrant for deportation, permitting the arrest to occur without prior judicial scrutiny, Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960). And this Court has regularly affirmed the validity of warrantless arrests without any indication whatever that there was no time to get a warrant, and indeed where all the circumstances pointed to the opposite conclusion. E.g., Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963); Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959). The lower federal courts have certainly been of the view that warrants are unnecessary even where there is time to obtain them. Dailey v. United States, 261 F.2d 870 (C.A.5th Cir. 1958), cert. denied, 359 U.S. 969, 79 S.Ct. 881, 3 L.Ed.2d 836 (1959) (statutory warrantless arrest by federal narcotics agents); Smith v. United States, 103 U.S.App.D.C. 48, 52, 254 F.2d 751, 755, cert. denied, 357 U.S. 937, 78 S.Ct. 1388, 2 L.Ed.2d 1552 (1958); Mills v. United States, 90 U.S.App.D.C. 365, 196 F.2d 600, cert. **2049 denied 344 U.S. 826, 73 S.Ct. 27, 97 L.Ed. 643 (1952) (sub silentio). In light of the uniformity of judgment of the Congress, past judicial decisions, and common practice rejecting the


9


preoposition that arrest warrants are essential wherever it is practicable to get them, the conclusion is inevitable that such arrests and accompanying searches are reasonable, at least until experience teaches the contrary. It must very often be the case that by the time probable cause to arrest a man is accumulated, the man is aware of police interest in him or for other good reasons is on the verge of flight. Moreover, it will likely be very difficult to determine the probability of his flight. Given this situation, it may be best in all cases simply to allow the arrest if there is probable cause, especially since that issue can be determined very shortly after the arrest. Nor are the stated assumptions at all fanciful. It was precisely these facts which moved the Congress to grant to the FBI the power to arrest without a warrant without any showing of probability of flight. Both the *780 Senate and House committees quoted the letter of the Acting Deputy Attorney General, Peter Campbell Brown, who in asking for the new legislation asserted: ‘Although it is recognized that in any felony case the person to be arrested may attempt to flee, it is also recognized that in any such case in which the defendant is arrested without a warrant in an emergency situation, such defendant may be able to present a rather convincing argument that he did not intend to flee.’ S.Rep. No. 2464, 81st Cong., 2d Sess., 2 (1950); H.R.Rep. No. 3228, 81st Cong., 2d Sess., 2 (1950). Some weight should be accorded this factual judgment by law enforcement officials, adopted by the Congress. IV. If circumstances so often require the warrantless arrest that the law generally permits it, the typical situation will find the arresting officers lawfully on the premises without arrest or search warrant. Like the majority, I would permit the police to search the person of a suspect and the area under his immediate control either to assure the safety of the officers or to prevent the destruction of evidence. And like the majority, I see nothing in the arrest alone furnishing probable cause for a search of any broader scope. However, where as here the existence of probable cause is independently established and would justify a warrant for a broader search for evidence, I would follow past cases and permit such a search to be carried out without a warrant, since the fact of arrest supplies an exigent circumstance justifying police action before the evidence can be removed, and also alerts the suspect to the fact of the search so that he can immediately seek judicial

determination of probable cause in an adversary proceeding, and appropriate redress. This view, consistent with past cases, would not authorize the general search against which the Fourth *781 Amendment was meant to guard, nor would it broaden or render uncertain in any way whatsoever the scope of searches permitted under the Fourth Amendment. The issue in this case is not the breadth of the search, since there was clearly probable cause for the search which was carried out. No broader search than if the officers had a warrant would be permitted. The only issue is whether a search warrant was required as a precondition to that search. It is agreed that such a warrant would be required absent exigent circumstances. 15 I would **2050 hold that the fact of arrest supplies such an exigent circumstance, since the police had lawfully gained entry to the premises to effect the arrest and since delaying the search to secure a warrant would have involved the risk of not recovering the fruits of the crime. The majority today proscribes searches for which there is probable cause and which may prove fruitless unless carried out immediately. This rule will have no added effect whatsoever in protecting the rights of the criminal accused at trial against introduction of evidence seized without probable cause. Such evidence could not be introduced under the old rule. Nor does the majority *782 today give any added protection to the right of privacy of those whose houses there is probable cause to search. A warrant would still be sworn out for those houses, and the privacy of their owners invaded. The only possible justification for the majority's rule is that in some instances arresting officers may search when they have no probable cause to do so and that such unlawful searches might be prevented if the officers first sought a warrant from a magistrate. Against the possible protection of privacy in that class of cases, in wich the privacy of the house has already been invaded by entry to make the arrest—an entry for which the majority does not assert that any warrant is necessary —must be weighed the risk of destruction of evidence for which there is probable cause to search, as a result of delays in obtaining a search warrant. Without more basis for radical change than the Court's opinion reveals, I would not upset the balance of these interests which has been struck by the former decisions of this Court. In considering searches incident to arrest, it must be remembered that there will be immediate opportunity to


10


challenge the probable cause for the search in an adversary proceeding. The suspect has been apprised of the search by his very presence at the scene, and having been arrested, he will soon be brought into contact with people who can explain his rights. As Mr. Justice Brennan noted in a dissenting opinion, joined by The Chief Justice and Justices Black and Douglas, in Abel v. United States, 362 U.S. 217, 249—250, 80 S.Ct. 683, 702, 4 L.Ed.2d 668 (1960), a search contemporaneous with a warrantless arrest is specially safeguarded since ‘(s)uch an arrest may constitutionally be made only upon probable cause, the existence of which is subject to judicial examination, see Henry v. United States, 361 U.S. 98, 100, 80 S.Ct. 168, 169, 4 L.Ed.2d 134, and such an arrest demands the prompt bringing of the person arrested before a judicial officer, where the existence of *783 probable cause is to be inquired into. Fed.Rules Crim.Proc. 5, (a) and (c) * * *. Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479; McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819.’ And since that time the Court has imposed on state and federal officers alike the duty to warn

suspects taken into custody, before questioning them, of their right to a lawyer. **2051 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Orozco v. Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969). An arrested man, by definition conscious of the police interest in him, and provided almost immediately with a lawyer and a judge, is in an excellent position to dispute the reasonableness of his arrest and contemporaneous search in a full adversary proceeding. I would uphold the constitutionality of this search contemporaneous with an arrest since there were probable cause both for the search and for the arrest, exigent circumstances involving the removal or destruction of evidence, and satisfactory opportunity to dispute the issues of probable cause shortly thereafter. In this case, the search was reasonable. Parallel Citations 89 S.Ct. 2034, 23 L.Ed.2d 685

Footnotes

1 2 3 4

5

6 7 8 9

10

The affidavit supporting the warrant is set out in the opinion of the Court of Appeal, 61 Cal.Rptr., at 715—716, n. 1, and the State does not challenge its insufficiency under the principles of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723, and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637. The Court assumed that the arrests were lawful. 282 U.S., at 356, 51 S.Ct., at 157. See also McDonald v. United States, 335 U.S. 451, 69 S.Ct. 191, 93 L.Ed. 153. Decisions of this Court since Rabinowitz have applied the abstract doctrine of that case to various factual situations with divergent results. Compare Ker v. California, 374 U.S. 23, 42, 83 S.Ct. 1623, 1634, 10 L.Ed.2d 726; Abel v. United States, 362 U.S. 217, 80 S.Ct. 683, 4 L.Ed.2d 668; and Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327, with Kremen v. United States, 353 U.S. 346, 77 S.Ct. 828, 1 L.Ed.2d 876 (per curiam). Cf. Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828; Jones v. United States, 357 U.S. 493, 499—500, 78 S.Ct. 1253, 1257—1258, 2 L.Ed.2d 1514. See generally Boyd v. United States, 116 U.S. 616, 624—625, 6 S.Ct. 524, 528—529, 29 L.Ed. 746; Weeks v. United States, 232 U.S. 383, 389—391, 34 S.Ct. 341, 343—344, 58 L.Ed. 652; Davis v. United States, 328 U.S. 582, 603—605, 66 S.Ct. 1256, 1266 —1267, 90 L.Ed. 1453 (dissenting opinion); Harris v. United States, 331 U.S. 145, 157—162, 67 S.Ct. 1098, 1104—1107, 91 L.Ed. 1399 (dissenting opinion); Stanford v. Texas, 379 U.S. 476, 481—482, 85 S.Ct. 506, 509—510, 13 L.Ed.2d 431. See also David v. Mississippi, 394 U.S. 721, 728, 89 S.Ct. 1394, 1398, 22 L.Ed.2d 676; Katz v. United States, 389 U.S. 347, 356— 358, 88 S.Ct. 507, 514—515, 19 L.Ed.2d 576; Warden v. Hayden, 387 U.S. 294, 299, 87 S.Ct. 1642, 1646, 18 L.Ed.2d 782; Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777. Our Sibron opinion dealt with two cases. We refer here to No. 63, involving the appellant Sibron. See infra, at 2041. See Katz v. United States, 389 U.S. 347, 357—358, 88 S.Ct. 507, 514—515, 19 L.Ed.2d 576. Our holding today is of course entirely consistent with the recognized principle that, assuming the existence of probable cause, automobiles and other vehicles may be searched without warrants ‘where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.’ Carroll v. United States, 267 U.S. 132, 153, 45 S.Ct. 280, 285, 69 L.Ed. 543; see Brinegar v. United States, 338 U.S. 160, 69 S.Ct. 1302, 93 L.Ed. 1879. Some courts have carried the Rabinowitz approach to just such lengths. See, e.g., Clifton v. United States, 224 F.2d 329 (C.A.4th Cir.), cert. denied, 350 U.S. 894, 76 S.Ct. 152, 100 L.Ed. 786 (purchaser of illicit whiskey arrested in back yard of seller; search


11

Chimel v. California, 395 U.S. 752 (1969) 89 S.Ct. 2034, 23 L.Ed.2d 685 of one room of house sustained); United States v. Jackson, 149 F.Supp. 937 (D.C.D.C.), rev'd on other grounds, 102 U.S.App.D.C. 109, 250 F.2d 772 (suspect arrested half a block from his rented room; search of room upheld). But see James v. Louisiana, 382 U.S. 36, 86 S.Ct. 151, 15 L.Ed.2d 30 (per curiam). Cf. Mr. Justice Jackson's dissenting comment in Harris: 11 ‘The difficulty with this problem for me is that once the search is allowed to go beyond the person arrested and the objects upon him or in his immediate physical control, I see no practical limit short of that set in the opinion of the Court—and that means to me no limit at all.’ 331 U.S., at 197, 67 S.Ct., at 1120. It is argued in dissent that so long as there is probable cause to search the place where an arrest occurs, a search of that place should 12 be permitted even though no search warrant has been obtained. This position seems to be based principally on two premises: first, that once an arrest has been made, the additional invasion of privacy stemming from the accompanying search is ‘relatively minor’; and second, that the victim of the search may ‘shortly thereafter’ obtain a judicial determination of whether the search was justified by probable cause. With respect to the second premise, one may initially question whether all of the States in fact provide the speedy suppression procedures the dissent assumes. More fundamentally, however, we cannot accept the view that Fourth Amendment interests are vindicated so long as ‘the rights of the criminal’ are ‘protect(ed) * * * against introduction of evidence seized without probable cause.’ The Amendment is designed to prevent, not simply to redress, unlawful police action. In any event, we cannot join in characterizing the invasion of privacy that results from a top-to-bottom search of a man's house as ‘minor.’ And we can see no reason why, simply because some interference with an individual's privacy and freedom of movement has lawfully taken place, further intrusions should automatically be allowed despite the absence of a warrant that the Fourth Amendment would otherwise require. Although the warrant was issued at 10:39 a.m. and the arrest was not made until late in the afternoon, the State suggests that the 13 delay is accounted for by normal police procedures and by the heavy workload of the officer in charge. In addition, that officer testified that he and his colleagues went to the petitioner's house ‘to keep from approaching him at his place of business to cause him any problem there.’ See, e.g., J. Landynski, Search and Seizure and the Supreme Court 87—117 (1966); Way, Increasing Scope of Search Incidental to 14 Arrest, 1959 Wash.U.L.Q. 261; Note, Scope Limitations for Searches Incident to Arrest, 78 Yale L.J. 433 (1969); Note, The Supreme Court 1966 Term, 81 Harv.L.Rev. 69, 117—122 (1967). Cf. Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 220, 88 S.Ct. 1472, 1475, 20 L.Ed.2d 538; Katz v. United States, 389 U.S., 15 at 357—358, n. 20, 88 S.Ct., at 514—515; Warden v. Hayden, 387 U.S., at 299, 87 S.Ct., at 1646; Stoner v. California, 376 U.S. 483, 487, 84 S.Ct. 889, 892, 11 L.Ed.2d 856. But see Cooper v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 791, 17 L.Ed.2d 730; Ker v. California, 374 U.S., at 42, 83 S.Ct., at 1634 (opinion of Clark, J.); cf. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142; Abel v. United States, 362 U.S., at 236—239, 80 S.Ct., at 695—697; Giordenello v. United States, 357 U.S. 480, 488, 78 S.Ct. 1245, 1251, 2 L.Ed.2d 1503. The State has made various subsidiary contentions, including arguments that it would have been unduly burdensome to obtain 16 a warrant specifying the coins to be seized and that introduction of the fruits of the search was harmless error. We reject those contentions as being without merit. Murdock v. Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292 (1943), overruled Jones v. Opelika, 316 U.S. 584, 62 S.Ct. 1 1231, 86 L.Ed. 1691 (1942); Legal Tender Cases, 12 Wall. 457, 20 L.Ed. 287 (1871), overruled Hepburn v. Griswold, 8 Wall. 603, 19 L.Ed. 513 (1870). The majority cites Kremen v. United States, 353 U.S. 346, 77 S.Ct. 828, 1 L.Ed.2d 876 (1957), as suggesting an inconsistency. There, 2 however, in a per curiam opinion the Court merely overturned a general search in which the entire contents of a cabin, which it took 11 pages of fine print for the Court to inventory, were seized. See Abel v. United States, 362 U.S. 217, 239, 80 S.Ct. 683, 697, 4 L.Ed.2d 668 (1960) (Kremen distinguished as a ‘mass seizure’). Even Mr. Justice Frankfurter, joined in dissent in Rabinowitz by Mr. Justice Jackson, admitted that there was an exception to the 3 search-warrant requirement in cases of necessity, and noted that this applied, for example, to vehicles which could readily be moved. 339 U.S. 56, at 73, 70 S.Ct. 430, at 438. Before the burglary of the coin store, petitioner had told its owner that he was planning a big robbery, had inquired about the alarm 4 system in the store, the state of the owner's insurance, and the location of the owner's most valuable coins. Petitioner wandered about the store the day before the burglary. After the burglary, petitioner called the store's owner and accused him of robbing the store himself for the insurance proceeds on a policy which, as petitioner knew, had just been reduced from $50,000 to $10,000 coverage. On being told that the robbery had been sloppy, petitioner excitedly claimed that it had been ‘real professional’ but then denied the robbery. On the night of the robbery itself petitioner declined an invitation to a bicycle ride, saying he was ‘going to knock over a


12

Chimel v. California, 395 U.S. 752 (1969) 89 S.Ct. 2034, 23 L.Ed.2d 685 place’ and that a coin shop was ‘all set.’ After the robbery, he told the same neighbor that he had started to break into the coin shop, but had stopped, and then denied the whole incident. The neighbor had earlier seen stacks of typewriters in petitioner's house. Asked whether they were ‘hot’ petitioner replied, ‘Hotter than a $3 bill.’ On reading a newspaper description of the coin store burglary, the neighbor called the police. There were three officers at the scene of the arrest, one from the city where the coin burglary had occurred, and two from the city 5 where the arrest was made. Assuming that one policeman from each city would be needed to bring the petitioner in and obtain a search warrant, one policeman could have been left to guard the house. However, if he not only could have remained in the house against petitioner's wife's will, but followed her about to assure that no evidence was being tampered with, the invasion of her privacy would be almost as great as that accompanying an actual search. Moreover, had the wife summoned an accomplice, one officer could not have watched them both. A second arrest and search of petitioner's house occurred three days later. It relates to an entirely separate robbery of which petitioner 6 was separately convicted and for which he was concurrently sentenced. Since no evidence was seized in the second search, and since it did not in any way affect petitioner's trial so far as the record discloses, there is no occasion to consider its propriety. An arrest warrant was in fact issued, but it was issued on an inadequate supporting affidavit and was therefore invalid, so that the 7 case must be considered as though no warrant had been issued. This is turn assumes that where it is practicable to obtain a search warrant and the search is not contemporaneous with an arrest, a 8 warrant must be obtained to validate the search. This is the holding of past cases and I do not question it. Act of June 15, 1935, c. 259, s 2, 49 Stat. 378, as amended, 18 U.S.C. s 3053. 9

10 11 12 13 14

15

Act of June 18, 1934, c. 595, 48 Stat. 1008, as amended, 18 U.S.C. s 3052. Act of Sept. 29, 1965, 79 Stat. 890, as amended, 18 U.S.C. s 3056 (1964 ed., Supp. IV). Act of July 18, 1956, as amended, Tit. I, s 104(a), 70 Stat. 570, 26 U.S.C. s 7607(2). Congress' expedition was possible partly because the same change had earlier been approved by a Senatorial committee. S.Rep.No.2464, 81st Cong., 2d Sess. (1950). There was no dispute between the two Coplon courts on this point, since it was well established that even a private person could make a warrantless arrest at common law for a felony which had actually been committed, and a peace officer could make such an arrest if he had reasonable cause to believe the offense had been committed. 1 J. Stephen, A. History of the Criminal Law of England 193 (1883); 2 M. Hale, Pleas of the Crown 71—104 (first American ed. 1847). A search without a warrant ‘can survive constitutional inhibition only upon a showing that the surrounding facts brought it within one of the exceptions to the rule that a search must rest upon a search warant. Jones v. United States, 357 U.S. 493, 499, 78 S.Ct. 1253, 1257, 2 L.Ed.2d 1514; United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59.’ Rios v. United States, 364 U.S. 253, 261, 80 S.Ct. 1431, 1436, 4 L.Ed.2d 1688 (1960); Stoner v. California, 376 U.S. 483, 486, 84 S.Ct. 889, 891, 11 L.Ed.2d 856 (1964). And ‘a search can be incident to an arrest only if it is substantially contemporaneous with the arrest and is confined to the immediate vicinity of the arrest. Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145.’ Stoner v. California, supra, at 486, 84 S.Ct. at 891; James v. Louisiana, 382 U.S. 36, 37, 86 S.Ct. 151, 15 L.Ed.2d 30 (1965). There is thus no question that a warrant to search petitioner's house would have been required had he not been arrested there. In such cases, the officers are not already lawfully on the premises, and there is not so often the same risk of the destruction of evidence nor the necessity to make an immediate search without the delay involved in securing a warrant.

End of Document



13

Arizona v. Gant, 556 U.S. 332 (2009) 129 S.Ct. 1710, 173 L.Ed.2d 485, 77 USLW 4285, 09 Cal. Daily Op. Serv. 4732...

129 S.Ct. 1710 Supreme Court of the United States ARIZONA, Petitioner, v. Rodney Joseph GANT. No. 07–542. | Argued Oct. 7, 2008. | Decided April 21, 2009. Synopsis Background: Defendant was convicted in the Superior Court, Pima County, Clark W. Munger, J., of possession of a narcotic drug for sale and possession of drug paraphernalia. Defendant appealed. The Court of Appeals of Arizona, 202 Ariz. 240, 43 P.3d 188, reversed. The United States Supreme Court granted State's petition for certiorari, and subsequently vacated and remanded. The Court of Appeals of Arizona remanded for evidentiary hearing on legality of warrantless search. On remand, the Superior Court, Pima County, Barbara C. Sattler, Judge Pro Tempore, found no violation. Defendant appealed. The Court of Appeals of Arizona, Brammer, J., 213 Ariz. 446, 143 P.3d 379, reversed. State petitioned for review. The Supreme Court of Arizona, Berch, Vice Chief Justice, 216 Ariz. 1, 162 P.3d 640, affirmed. Certiorari was granted.

Holdings: The Supreme Court, Justice Stevens, held that: [1] search of defendant's vehicle while he was handcuffed in patrol car was unreasonable, and [2] doctrine of stare decisis did not require Supreme Court to adhere to broad reading of its prior decision in New York v. Belton.

Affirmed. Justice Scalia filed concurring opinion. Justice Breyer filed dissenting opinion. Justice Alito filed dissenting opinion in which Chief Justice Roberts and Justice Kennedy joined, and which Justice Breyer joined in part.

**1712 *332 Syllabus * Respondent Gant was arrested for driving on a suspended license, handcuffed, and locked in a patrol car before officers searched his car and found cocaine in a jacket pocket. The Arizona trial court denied his motion to suppress the evidence, and he was convicted of drug offenses. Reversing, the State Supreme Court distinguished New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768—which held that police may search the passenger compartment of a vehicle and any containers therein as a contemporaneous incident of a recent occupant's lawful arrest—on the ground that it concerned the scope of a search incident to arrest but did not answer the question whether officers may conduct such a search once the scene has been secured. Because Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685, requires that a search incident to arrest be justified by either the interest in officer safety or the interest in preserving evidence and the circumstances of Gant's arrest implicated neither of those interests, the State Supreme Court found the search unreasonable. Held: Police may search the passenger compartment of a vehicle incident to a recent occupant's arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search **1713 or that the vehicle contains evidence of the offense of arrest. Pp. 1716 – 1724. (a) Warrantless searches “are per se unreasonable,” “subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576. The exception for a search incident to a lawful arrest applies only to “ the area from within which [an arrestee] might gain possession of a weapon or destructible evidence.” Chimel, 395 U.S., at 763, 89 S.Ct. 2034. This Court applied that exception to the automobile context in Belton, the holding of which rested in large part on the assumption that articles inside a vehicle's passenger compartment are “generally ... within ‘the area into which an arrestee might reach.’ ” 453 U.S., at 460, 101 S.Ct. 2860. Pp. 1716 – 1718. (b) This Court rejects a broad reading of Belton that would permit a vehicle search incident to a recent occupant's arrest


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even if there were no possibility the arrestee could gain access to the vehicle at the time of the search. The safety and evidentiary justifications underlying Chimel 's exception authorize a vehicle search only when there is a reasonable possibility of such access. Although it does not follow from Chimel, circumstances unique to the automobile context also justify a *333 search incident to a lawful arrest when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” Thornton v. United States, 541 U.S. 615, 632, 124 S.Ct. 2127, 158 L.Ed.2d 905 (SCALIA, J., concurring in judgment). Neither Chimel 's reaching-distance rule nor Thornton 's allowance for evidentiary searches authorized the search in this case. In contrast to Belton, which involved a single officer confronted with four unsecured arrestees, five officers handcuffed and secured Gant and the two other suspects in separate patrol cars before the search began. Gant clearly could not have accessed his car at the time of the search. An evidentiary basis for the search was also lacking. Belton and Thornton were both arrested for drug offenses, but Gant was arrested for driving with a suspended license—an offense for which police could not reasonably expect to find evidence in Gant's car. Cf. Knowles v. Iowa, 525 U.S. 113, 118, 119 S.Ct. 484, 142 L.Ed.2d 492. The search in this case was therefore unreasonable. Pp. 1718 – 1720. (c) This Court is unpersuaded by the State's argument that its expansive reading of Belton correctly balances law enforcement interests with an arrestee's limited privacy interest in his vehicle. The State seriously undervalues the privacy interests at stake, and it exaggerates both the clarity provided by a broad reading of Belton and its importance to law enforcement interests. A narrow reading of Belton and Thornton, together with this Court's other Fourth Amendment decisions, e.g., Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201, and United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572, permit an officer to search a vehicle when safety or evidentiary concerns demand. Pp. 1719 – 1721. (d) Stare decisis does not require adherence to a broad reading of Belton. The experience of the 28 years since Belton has shown that the generalization underpinning the broad reading of that decision is unfounded, and blind adherence to its faulty assumption would authorize myriad unconstitutional searches. Pp. 1722 – 1724. 216 Ariz. 1, 162 P.3d 640, affirmed.

STEVENS, J., delivered the opinion of the Court, in which SCALIA, SOUTER, THOMAS, and GINSBURG, JJ., joined. SCALIA, J., filed a concurring opinion. BREYER, J., filed a dissenting opinion. **1714 ALITO, J., filed a dissenting opinion, in which ROBERTS, C.J., and KENNEDY, J., joined, and in which BREYER, J., joined except as to Part II–E.

CERTIORARI TO THE SUPREME COURT OF ARIZONA Attorneys and Law Firms Joseph T. Maziarz, for petitioner. Anthony Yang, for United States as amicus curiae, by special leave of the Court, supporting the petitioner. Thomas F. Jacobs, for respondent. Terry Goddard, Attorney General, Mary R. O'Grady, Solicitor General, Kent E. Cattani, Chief Counsel, Criminal Appeals/ Capital Litigation Section, Joseph T. Maziarz, Assistant Attorney General, Counsel of Record, Criminal Appeals/ Capital Litigation Section, Phoenix, Arizona, for petitioner. Jeffrey T. Green, Isaac Adams, Sidley Austin LLP, Washington, DC, Thomas F. Jacobs, Counsel of Record, Tucson, AZ, for respondent. Terry Goddard, Attorney General, Mary R. O'Grady, Solicitor General, Randall M. Howe, Chief Counsel, Criminal Appeals Section, Counsel of Record, Phoenix, Arizona, Joseph T. Maziarz, Nicholas D. Acedo, Assistant Attorneys General, Criminal Appeals Section, for petitioner. Opinion Justice STEVENS delivered the opinion of the Court. *335 After Rodney Gant was arrested for driving with a suspended license, handcuffed, and locked in the back of a patrol car, police officers searched his car and discovered cocaine in the pocket of a jacket on the backseat. Because Gant could not have accessed his car to retrieve weapons or evidence at the time of the search, the Arizona Supreme Court held that the search-incident-to-arrest exception to the Fourth Amendment's warrant requirement, as defined in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685


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(1969), and applied to vehicle searches in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), did not justify the search in this case. We agree with that conclusion. Under Chimel, police may search incident to arrest only the space within an arrestee's “ ‘immediate control,’ ” meaning “the area from within which he might gain possession of a weapon or destructible evidence.” 395 U.S., at 763, 89 S.Ct. 2034. The safety and evidentiary justifications underlying Chimel 's reaching-distance rule determine Belton 's scope. Accordingly, we hold that Belton does not authorize a vehicle search incident to a recent occupant's arrest after the arrestee has been secured and cannot access the interior of the vehicle. Consistent with the holding in Thornton v. United States, 541 U.S. 615, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004), and following the suggestion in Justice SCALIA's opinion concurring in the judgment in that case, id., at 632, 124 S.Ct. 2127, we also conclude that circumstances unique to the automobile context justify a search incident to arrest when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle.

I On August 25, 1999, acting on an anonymous tip that the residence at 2524 North Walnut Avenue was being used to sell drugs, Tucson police officers Griffith and Reed knocked on the front door and asked to speak to the owner. Gant answered the door and, after identifying himself, stated **1715 that *336 he expected the owner to return later. The officers left the residence and conducted a records check, which revealed that Gant's driver's license had been suspended and there was an outstanding warrant for his arrest for driving with a suspended license. When the officers returned to the house that evening, they found a man near the back of the house and a woman in a car parked in front of it. After a third officer arrived, they arrested the man for providing a false name and the woman for possessing drug paraphernalia. Both arrestees were handcuffed and secured in separate patrol cars when Gant arrived. The officers recognized his car as it entered the driveway, and Officer Griffith confirmed that Gant was the driver by shining a flashlight into the car as it drove by him. Gant parked at the end of the driveway, got out of his car, and

shut the door. Griffith, who was about 30 feet away, called to Gant, and they approached each other, meeting 10–to–12 feet from Gant's car. Griffith immediately arrested Gant and handcuffed him. Because the other arrestees were secured in the only patrol cars at the scene, Griffith called for backup. When two more officers arrived, they locked Gant in the backseat of their vehicle. After Gant had been handcuffed and placed in the back of a patrol car, two officers searched his car: One of them found a gun, and the other discovered a bag of cocaine in the pocket of a jacket on the backseat. Gant was charged with two offenses—possession of a narcotic drug for sale and possession of drug paraphernalia (i.e., the plastic bag in which the cocaine was found). He moved to suppress the evidence seized from his car on the ground that the warrantless search violated the Fourth Amendment. Among other things, Gant argued that Belton did not authorize the search of his vehicle because he posed no threat to the officers after he was handcuffed in the patrol car and because he was arrested for a traffic offense for which no evidence could be found in his vehicle. When asked at the *337 suppression hearing why the search was conducted, Officer Griffith responded: “Because the law says we can do it.” App. 75. The trial court rejected the State's contention that the officers had probable cause to search Gant's car for contraband when the search began, id., at 18, 30, but it denied the motion to suppress. Relying on the fact that the police saw Gant commit the crime of driving without a license and apprehended him only shortly after he exited his car, the court held that the search was permissible as a search incident to arrest. Id., at 37. A jury found Gant guilty on both drug counts, and he was sentenced to a 3–year term of imprisonment. After protracted state-court proceedings, the Arizona Supreme Court concluded that the search of Gant's car was unreasonable within the meaning of the Fourth Amendment. The court's opinion discussed at length our decision in Belton, which held that police may search the passenger compartment of a vehicle and any containers therein as a contemporaneous incident of an arrest of the vehicle's recent occupant. 216 Ariz. 1, 3–4, 162 P.3d 640, 642–643 (2007) (citing 453 U.S., at 460, 101 S.Ct. 2860). The court distinguished Belton as a case concerning the permissible scope of a vehicle search


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incident to arrest and concluded that it did not answer “the threshold question whether the police may conduct a search incident to arrest at all once the scene is secure.” 216 Ariz., at 4, 162 P.3d, at 643. Relying on our earlier decision in Chimel, the court observed that the search-incident-to-arrest exception to the warrant requirement is justified by **1716 interests in officer safety and evidence preservation. 216 Ariz., at 4, 162 P.3d, at 643. When “the justifications underlying Chimel no longer exist because the scene is secure and the arrestee is handcuffed, secured in the back of a patrol car, and under the supervision of an officer,” the court concluded, a “warrantless search of the arrestee's car cannot be justified as necessary to protect the officers at the scene or *338 prevent the destruction of evidence.” Id., at 5, 162 P.3d, at 644. Accordingly, the court held that the search of Gant's car was unreasonable. The dissenting justices would have upheld the search of Gant's car based on their view that “the validity of a Belton search ... clearly does not depend on the presence of the Chimel rationales in a particular case.” Id., at 8, 162 P.3d, at 647. Although they disagreed with the majority's view of Belton, the dissenting justices acknowledged that “[t]he bright-line rule embraced in Belton has long been criticized and probably merits reconsideration.” 216 Ariz., at 10, 162 P.3d, at 649. They thus “add[ed their] voice[s] to the others that have urged the Supreme Court to revisit Belton.” Id., at 11, 163 P.3d, at 650.

exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (footnote omitted). Among the exceptions to the warrant requirement is a search incident to a lawful arrest. See Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 58 L.Ed. 652 (1914). The exception derives from interests in officer safety and evidence preservation that are typically implicated in arrest situations. See United States v. Robinson, 414 U.S. 218, 230–234, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); Chimel, 395 U.S., at 763, 89 S.Ct. 2034. [4] [5] *339 In Chimel, we held that a search incident to arrest may only include “the arrestee's person and the area ‘within his immediate control’—construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” Ibid. That limitation, which continues to define the boundaries of the exception, ensures that the scope of a search incident to arrest is commensurate with its purposes of protecting arresting officers and safeguarding any evidence of the offense of arrest that an arrestee might conceal or destroy. See ibid. (noting that searches incident to arrest are reasonable “in order to remove any weapons [the arrestee] might seek to use” and “in order to prevent [the] concealment or destruction” of evidence (emphasis added)). If there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the searchincident-to-arrest exception are absent and the rule does not apply. E.g., Preston v. United States, 376 U.S. 364, 367–368, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964).

The chorus that has called for us to revisit Belton includes courts, scholars, and Members of this Court who have questioned that decision's clarity and its fidelity to Fourth Amendment principles. We therefore granted the State's petition for certiorari. 552 U.S. 1230, 128 S.Ct. 1443, 170 L.Ed.2d 274 (2008).

In Belton, we considered Chimel 's application to the automobile context. A lone **1717 police officer in that case stopped a speeding car in which Belton was one of four occupants. While asking for the driver's license and registration, the officer smelled burnt marijuana and observed an envelope on the car floor marked “Supergold”—a name he associated with marijuana. Thus having probable cause to believe the occupants had committed a drug offense, II the officer ordered them out of the vehicle, placed them [1] [2] [3] Consistent with our precedent, our under arrest, and patted them down. Without handcuffing the analysis begins, as it should in every case addressing arrestees, 1 the officer “ ‘split them up into four separate areas the reasonableness of a warrantless search, with the basic of the Thruway ... so they would not be in physical touching rule that “searches conducted outside the judicial process, area of each other’ ” and searched the vehicle, including the without prior approval by judge or magistrate, are per pocket of a jacket on the backseat, in which he found cocaine. se unreasonable under the Fourth Amendment—subject 453 U.S., at 456, 101 S.Ct. 2860. only to a few specifically established and well-delineated


4


*340 The New York Court of Appeals found the search unconstitutional, concluding that after the occupants were arrested the vehicle and its contents were “safely within the exclusive custody and control of the police.” State v. Belton, 50 N.Y.2d 447, 452, 429 N.Y.S.2d 574, 407 N.E.2d 420, 423 (1980). The State asked this Court to consider whether the exception recognized in Chimel permits an officer to search “a jacket found inside an automobile while the automobile's four occupants, all under arrest, are standing unsecured around the vehicle.” Brief in No. 80–328, p. i. We granted certiorari because “courts ha[d] found no workable definition of ‘the area within the immediate control of the arrestee’ when that area arguably includes the interior of an automobile.” 453 U.S., at 460, 101 S.Ct. 2860. In its brief, the State argued that the Court of Appeals erred in concluding that the jacket was under the officer's exclusive control. Focusing on the number of arrestees and their proximity to the vehicle, the State asserted that it was reasonable for the officer to believe the arrestees could have accessed the vehicle and its contents, making the search permissible under Chimel. Brief in No. 80–328, at 7–8. The United States, as amicus curiae in support of the State, argued for a more permissive standard, but it maintained that any search incident to arrest must be “ ‘substantially contemporaneous' ” with the arrest—a requirement it deemed “satisfied if the search occurs during the period in which the arrest is being consummated and before the situation has so stabilized that it could be said that the arrest was completed.” Brief for United States as Amicus Curiae in New York v. Belton, O.T.1980, No. 80–328, p. 14. There was no suggestion by the parties or amici that Chimel authorizes a vehicle search incident to arrest when there is no realistic possibility that an arrestee could access his vehicle. After considering these arguments, we held that when an officer lawfully arrests “the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the *341 passenger compartment of the automobile” and any containers therein. Belton, 453 U.S., at 460, 101 S.Ct. 2860 (footnote omitted). That holding was based in large part on our assumption “that articles inside the relatively narrow compass of the passenger compartment of an automobile are in fact generally, even if not inevitably, within ‘the area into which an arrestee might reach.’ ” Ibid.

The Arizona Supreme Court read our decision in Belton as merely delineating “the proper scope of a search of the interior of an automobile” incident to an arrest, **1718 id., at 459, 101 S.Ct. 2860. That is, when the passenger compartment is within an arrestee's reaching distance, Belton supplies the generalization that the entire compartment and any containers therein may be reached. On that view of Belton, the state court concluded that the search of Gant's car was unreasonable because Gant clearly could not have accessed his car at the time of the search. It also found that no other exception to the warrant requirement applied in this case. Gant now urges us to adopt the reading of Belton followed by the Arizona Supreme Court.

III Despite the textual and evidentiary support for the Arizona Supreme Court's reading of Belton, our opinion has been widely understood to allow a vehicle search incident to the arrest of a recent occupant even if there is no possibility the arrestee could gain access to the vehicle at the time of the search. This reading may be attributable to Justice Brennan's dissent in Belton, in which he characterized the Court's holding as resting on the “fiction ... that the interior of a car is always within the immediate control of an arrestee who has recently been in the car.” 453 U.S., at 466, 101 S.Ct. 2860. Under the majority's approach, he argued, “the result would presumably be the same even if [the officer] had handcuffed Belton and his companions in the patrol car” before conducting the search. Id., at 468, 101 S.Ct. 2860. *342 Since we decided Belton, Courts of Appeals have given different answers to the question whether a vehicle must be within an arrestee's reach to justify a vehicle search incident to arrest, 2 but Justice Brennan's reading of the Court's opinion has predominated. As Justice O'Connor observed, “lower court decisions seem now to treat the ability to search a vehicle incident to the arrest of a recent occupant as a police entitlement rather than as an exception justified by the twin rationales of Chimel.” Thornton, 541 U.S., at 624, 124 S.Ct. 2127 (opinion concurring in part). Justice SCALIA has similarly noted that, although it is improbable that an arrestee could gain access to weapons stored in his vehicle after he has been handcuffed and secured in the backseat of a patrol


5


car, cases allowing a search in “this precise factual scenario ... are legion.” Id., at 628, 124 S.Ct. 2127 (opinion concurring in judgment) (collecting cases). 3 Indeed, **1719 some courts have upheld searches *343 under Belton “even when ... the handcuffed arrestee has already left the scene.” 541 U.S., at 628, 124 S.Ct. 2127 (same). [6] Under this broad reading of Belton, a vehicle search would be authorized incident to every arrest of a recent occupant notwithstanding that in most cases the vehicle's passenger compartment will not be within the arrestee's reach at the time of the search. To read Belton as authorizing a vehicle search incident to every recent occupant's arrest would thus untether the rule from the justifications underlying the Chimel exception—a result clearly incompatible with our statement in Belton that it “in no way alters the fundamental principles established in the Chimel case regarding the basic scope of searches incident to lawful custodial arrests.” 453 U.S., at 460, n. 3, 101 S.Ct. 2860. Accordingly, we reject this reading of Belton and hold that the Chimel rationale authorizes police to search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search. 4 [7] Although it does not follow from Chimel, we also conclude that circumstances unique to the vehicle context justify a search incident to a lawful arrest when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” Thornton, 541 U.S., at 632, 124 S.Ct. 2127 (SCALIA, J., concurring in judgment). In many cases, as when a recent occupant is arrested for a traffic violation, there will be no reasonable basis to believe the vehicle contains relevant evidence. See, e.g., *344 Atwater v. Lago Vista, 532 U.S. 318, 324, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001); Knowles v. Iowa, 525 U.S. 113, 118, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998). But in others, including Belton and Thornton, the offense of arrest will supply a basis for searching the passenger compartment of an arrestee's vehicle and any containers therein. [8] Neither the possibility of access nor the likelihood of discovering offense-related evidence authorized the search in this case. Unlike in Belton, which involved a single officer confronted with four unsecured arrestees, the five officers in this case outnumbered the three arrestees, all of whom had

been handcuffed and secured in separate patrol cars before the officers searched Gant's car. Under those circumstances, Gant clearly was not within reaching distance of his car at the time of the search. An evidentiary basis for the search was also lacking in this case. Whereas Belton and Thornton were arrested for drug offenses, Gant was arrested for driving with a suspended license—an offense for which police could not expect to find evidence in the passenger compartment of Gant's car. Cf. Knowles, 525 U.S., at 118, 119 S.Ct. 484. Because police could not reasonably have believed either that Gant could have accessed his car at the time of the search or that evidence of the offense for which he was arrested might have been found therein, the search in this case was unreasonable.

**1720 IV The State does not seriously disagree with the Arizona Supreme Court's conclusion that Gant could not have accessed his vehicle at the time of the search, but it nevertheless asks us to uphold the search of his vehicle under the broad reading of Belton discussed above. The State argues that Belton searches are reasonable regardless of the possibility of access in a given case because that expansive rule correctly balances law enforcement interests, including the interest in a bright-line rule, with an arrestee's limited privacy interest in his vehicle. [9] [10] For several reasons, we reject the State's argument. First, the State seriously undervalues the privacy interests *345 at stake. Although we have recognized that a motorist's privacy interest in his vehicle is less substantial than in his home, see New York v. Class, 475 U.S. 106, 112–113, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986), the former interest is nevertheless important and deserving of constitutional protection, see Knowles, 525 U.S., at 117, 119 S.Ct. 484. It is particularly significant that Belton searches authorize police officers to search not just the passenger compartment but every purse, briefcase, or other container within that space. A rule that gives police the power to conduct such a search whenever an individual is caught committing a traffic offense, when there is no basis for believing evidence of the offense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals. Indeed, the character of that threat implicates the central


6


concern underlying the Fourth Amendment—the concern about giving police officers unbridled discretion to rummage at will among a person's private effects. 5 At the same time as it undervalues these privacy concerns, the State exaggerates the clarity that its reading of Belton provides. Courts that have read Belton expansively are at odds regarding how close in time to the arrest and how proximate *346 to the arrestee's vehicle an officer's first contact with the arrestee must be to bring the encounter within Belton 's purview 6 and whether a search is reasonable when it commences or continues after the arrestee **1721 has been removed from the scene. 7 THE RULE HAS THUS generated a great deal of uncertainty, particularly for a rule touted as providing a “bright line.” See 3 LaFave, § 7.1(c), at 514–524. [11] [12] Contrary to the State's suggestion, a broad reading of Belton is also unnecessary to protect law enforcement safety and evidentiary interests. Under our view, Belton and Thornton permit an officer to conduct a vehicle search when an arrestee is within reaching distance of the vehicle or it is reasonable to believe the vehicle contains evidence of the offense of arrest. Other established exceptions to the warrant requirement authorize a vehicle search under additional circumstances when safety or evidentiary concerns demand. For instance, Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983), permits an officer to search a vehicle's passenger compartment when he has reasonable suspicion that an individual, whether or not the arrestee, is “dangerous” and might access the vehicle *347 to “gain immediate control of weapons.” Id., at 1049, 103 S.Ct. 3469 (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). If there is probable cause to believe a vehicle contains evidence of criminal activity, United States v. Ross, 456 U.S. 798, 820–821, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), authorizes a search of any area of the vehicle in which the evidence might be found. Unlike the searches permitted by Justice SCALIA's opinion concurring in the judgment in Thornton, which we conclude today are reasonable for purposes of the Fourth Amendment, Ross allows searches for evidence relevant to offenses other than the offense of arrest, and the scope of the search authorized is broader. Finally, there may be still other circumstances in which safety or evidentiary interests would justify a search. Cf. Maryland v. Buie, 494 U.S. 325, 334, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990) (holding that, incident to arrest, an officer

may conduct a limited protective sweep of those areas of a house in which he reasonably suspects a dangerous person may be hiding). These exceptions together ensure that officers may search a vehicle when genuine safety or evidentiary concerns encountered during the arrest of a vehicle's recent occupant justify a search. Construing Belton broadly to allow vehicle searches incident to any arrest would serve no purpose except to provide a police entitlement, and it is anathema to the Fourth Amendment to permit a warrantless search on that basis. For these reasons, we are unpersuaded by the State's arguments that a broad reading of Belton would meaningfully further law enforcement interests and justify a substantial intrusion on individuals' privacy. 8

*348 **1722 V [13] [14] Our dissenting colleagues argue that the doctrine of stare decisis requires adherence to a broad reading of Belton even though the justifications for searching a vehicle incident to arrest are in most cases absent. 9 The doctrine of stare decisis is of course “essential to the respect accorded to the judgments of the Court and to the stability of the law,” but it does not compel us to follow a past decision when its rationale no longer withstands “careful analysis.” Lawrence v. Texas, 539 U.S. 558, 577, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003). We have never relied on stare decisis to justify the continuance of an unconstitutional police practice. And we would be particularly loath to uphold an unconstitutional result in a case that is so easily distinguished from the decisions that arguably compel it. The safety and evidentiary interests that supported the search in Belton simply are not present in this case. Indeed, it is hard to imagine two cases that are factually more distinct, as Belton involved one officer confronted by four unsecured arrestees suspected of committing a drug offense and this case involves several officers confronted with a securely detained arrestee apprehended for driving with a suspended license. This case is also distinguishable from Thornton, in which the petitioner was *349 arrested for a drug offense. It is thus unsurprising that Members of this Court who concurred in the judgments


7


in Belton and Thornton also concur in the decision in this case.

10

We do not agree with the contention in Justice ALITO's dissent (hereinafter dissent) that consideration of police reliance interests requires a different result. Although it appears that the State's reading of Belton has been widely taught in police academies and that law enforcement officers have relied on the rule in conducting vehicle searches during the past 28 years, 11 many of these searches were not justified by the reasons underlying the Chimel exception. Countless individuals guilty of nothing more serious than a traffic violation have had their constitutional right to **1723 the security of their private effects violated as a result. The fact that the law enforcement community may view the State's version of the Belton rule as an entitlement does not establish the sort of reliance interest that could outweigh the countervailing interest that all individuals share in having their constitutional rights fully protected. If it is clear that a practice is unlawful, individuals' interest in its discontinuance clearly outweighs any law enforcement “entitlement” to its persistence. Cf. Mincey v. Arizona, 437 U.S. 385, 393, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) (“[T]he mere fact that law enforcement may be made more efficient can never by itself justify disregard of the Fourth Amendment”). The dissent's reference in this regard to the reliance interests cited in Dickerson v. United States, 530 U.S. 428, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000), is misplaced. See post, at 1728. In observing *350 that “Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture,” 530 U.S., at 443, 120 S.Ct. 2326, the Court was referring not to police reliance on a rule requiring them to provide warnings but to the broader societal reliance on that individual right. The dissent also ignores the checkered history of the searchincident-to-arrest exception. Police authority to search the place in which a lawful arrest is made was broadly asserted in Marron v. United States, 275 U.S. 192, 48 S.Ct. 74, 72 L.Ed. 231 (1927), and limited a few years later in Go–Bart Importing Co. v. United States, 282 U.S. 344, 51 S.Ct. 153, 75 L.Ed. 374 (1931), and United States v. Lefkowitz, 285 U.S. 452, 52 S.Ct. 420, 76 L.Ed. 877 (1932). The limiting views expressed in Go–Bart and Lefkowitz were in turn abandoned in Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947), which upheld a search of a four-room

apartment incident to the occupant's arrest. Only a year later the Court in Trupiano v. United States, 334 U.S. 699, 708, 68 S.Ct. 1229, 92 L.Ed. 1663 (1948), retreated from that holding, noting that the search-incident-to-arrest exception is “a strictly limited” one that must be justified by “something more in the way of necessity than merely a lawful arrest.” And just two years after that, in United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950), the Court again reversed course and upheld the search of an entire apartment. Finally, our opinion in Chimel overruled Rabinowitz and what remained of Harris and established the present boundaries of the search-incident-to-arrest exception. Notably, none of the dissenters in Chimel or the cases that preceded it argued that law enforcement reliance interests outweighed the interest in protecting individual constitutional rights so as to warrant fidelity to an unjustifiable rule. The experience of the 28 years since we decided Belton has shown that the generalization underpinning the broad reading of that decision is unfounded. We now know that articles inside the passenger compartment are rarely “within ‘the area into which an arrestee might reach,’ ” *351 453 U.S., at 460, 101 S.Ct. 2860, and blind adherence to Belton 's faulty assumption would authorize myriad unconstitutional searches. The doctrine of stare decisis does not require us to approve routine constitutional violations.

VI [15] Police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee's vehicle will **1724 be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies. The Arizona Supreme Court correctly held that this case involved an unreasonable search. Accordingly, the judgment of the State Supreme Court is affirmed. It is so ordered.

Justice SCALIA, concurring.


8


To determine what is an “unreasonable” search within the meaning of the Fourth Amendment, we look first to the historical practices the Framers sought to preserve; if those provide inadequate guidance, we apply traditional standards of reasonableness. See Virginia v. Moore, 553 U.S. 164, ––––, 128 S.Ct. 1598, 1602–04, 170 L.Ed.2d 559 (2008). Since the historical scope of officers' authority to search vehicles incident to arrest is uncertain, see Thornton v. United States, 541 U.S. 615, 629–631, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004) (SCALIA, J., concurring in judgment), traditional standards of reasonableness govern. It is abundantly clear that those standards do not justify what I take to be the rule set forth in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), and Thornton: that arresting officers may always search an arrestee's vehicle in order to protect themselves from hidden weapons. When an arrest is made in connection with a roadside stop, police virtually always have a less intrusive and more effective means of ensuring their safety—and a means that is virtually *352 always employed: ordering the arrestee away from the vehicle, patting him down in the open, handcuffing him, and placing him in the squad car. Law enforcement officers face a risk of being shot whenever they pull a car over. But that risk is at its height at the time of the initial confrontation; and it is not at all reduced by allowing a search of the stopped vehicle after the driver has been arrested and placed in the squad car. I observed in Thornton that the government had failed to provide a single instance in which a formerly restrained arrestee escaped to retrieve a weapon from his own vehicle, 541 U.S., at 626, 124 S.Ct. 2127; Arizona and its amici have not remedied that significant deficiency in the present case. It must be borne in mind that we are speaking here only of a rule automatically permitting a search when the driver or an occupant is arrested. Where no arrest is made, we have held that officers may search the car if they reasonably believe “the suspect is dangerous and ... may gain immediate control of weapons.” Michigan v. Long, 463 U.S. 1032, 1049, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983). In the no-arrest case, the possibility of access to weapons in the vehicle always exists, since the driver or passenger will be allowed to return to the vehicle when the interrogation is completed. The rule of Michigan v. Long is not at issue here.

Justice STEVENS acknowledges that an officer-safety rationale cannot justify all vehicle searches incident to arrest, but asserts that that is not the rule Belton and Thornton adopted. (As described above, I read those cases differently). Justice STEVENS would therefore retain the application of Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), in the car-search context but would apply in the future what he believes our cases held in the past: that officers making a roadside stop may search the vehicle so long as the “arrestee is within reaching distance of the passenger compartment at the time of the search.” Ante, at 1723. I believe that this *353 standard fails to provide the needed guidance to arresting officers and also leaves much room for manipulation, inviting officers to leave the scene **1725 unsecured (at least where dangerous suspects are not involved) in order to conduct a vehicle search. In my view we should simply abandon the Belton–Thornton charade of officer safety and overrule those cases. I would hold that a vehicle search incident to arrest is ipso facto “reasonable” only when the object of the search is evidence of the crime for which the arrest was made, or of another crime that the officer has probable cause to believe occurred. Because respondent was arrested for driving without a license (a crime for which no evidence could be expected to be found in the vehicle), I would hold in the present case that the search was unlawful. Justice ALITO insists that the Court must demand a good reason for abandoning prior precedent. That is true enough, but it seems to me ample reason that the precedent was badly reasoned and produces erroneous (in this case unconstitutional) results. See Payne v. Tennessee, 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991). We should recognize Belton 's fanciful reliance upon officer safety for what it was: “a return to the broader sort of [evidencegathering] search incident to arrest that we allowed before Chimel.” Thornton, supra, at 631, 124 S.Ct. 2127 (SCALIA, J., concurring in judgment; citations omitted). Justice ALITO argues that there is no reason to adopt a rule limiting automobile-arrest searches to those cases where the search's object is evidence of the crime of arrest. Post, at 1731 (dissenting opinion). I disagree. This formulation of officers' authority both preserves the outcomes of our prior cases and tethers the scope and rationale of the doctrine to the triggering event. Belton, by contrast, allowed searches precisely when its exigency-based rationale was least applicable: The fact of the arrest in the automobile context makes searches on


9


exigency grounds less reasonable, not more. I also disagree with Justice ALITO's conclusory *354 assertion that this standard will be difficult to administer in practice, post, at 1729; the ease of its application in this case would suggest otherwise. No other Justice, however, shares my view that application of Chimel in this context should be entirely abandoned. It seems to me unacceptable for the Court to come forth with a 4– to–1–to–4 opinion that leaves the governing rule uncertain. I am therefore confronted with the choice of either leaving the current understanding of Belton and Thornton in effect, or acceding to what seems to me the artificial narrowing of those cases adopted by Justice STEVENS. The latter, as I have said, does not provide the degree of certainty I think desirable in this field; but the former opens the field to what I think are plainly unconstitutional searches—which is the greater evil. I therefore join the opinion of the Court.

Justice BREYER, dissenting. I agree with Justice ALITO that New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), is best read as setting forth a bright-line rule that permits a warrantless search of the passenger compartment of an automobile incident to the lawful arrest of an occupant—regardless of the danger the arrested individual in fact poses. I also agree with Justice STEVENS, however, that the rule can produce results divorced from its underlying Fourth Amendment rationale. Compare Belton, supra, with Chimel v. California, 395 U.S. 752, 764, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) (explaining that the rule allowing contemporaneous searches is justified by the need to prevent harm to a police officer or destruction of evidence of the crime). For that reason I would look **1726 for a better rule—were the question before us one of first impression. The matter, however, is not one of first impression, and that fact makes a substantial difference. The Belton rule has been followed not only by this Court in Thornton v. United States, 541 U.S. 615, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004), but also by numerous other courts. Principles of stare decisis must apply, and *355 those who wish this Court to change a well-established legal precedent—where, as here, there has been considerable reliance on the legal rule in question—bear a heavy burden. Cf. Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U.S. 877, ––––, 127 S.Ct. 2705, 2719–

21, 168 L.Ed.2d 623 (2007) (BREYER, J., dissenting). I have not found that burden met. Nor do I believe that the other considerations ordinarily relevant when determining whether to overrule a case are satisfied. I consequently join Justice ALITO's dissenting opinion with the exception of Part II–E.

Justice ALITO, with whom THE CHIEF JUSTICE and Justice KENNEDY join, and with whom Justice BREYER joins except as to Part II–E, dissenting. Twenty-eight years ago, in New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), this Court held that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” (Footnote omitted.) Five years ago, in Thornton v. United States, 541 U.S. 615, 124 S.Ct. 2127, 158 L.Ed.2d 905 (2004)—a case involving a situation not materially distinguishable from the situation here—the Court not only reaffirmed but extended the holding of Belton, making it applicable to recent occupants. Today's decision effectively overrules those important decisions, even though respondent Gant has not asked us to do so. To take the place of the overruled precedents, the Court adopts a new two-part rule under which a police officer who arrests a vehicle occupant or recent occupant may search the passenger compartment if (1) the arrestee is within reaching distance of the vehicle at the time of the search or (2) the officer has reason to believe that the vehicle contains evidence of the offense of arrest. Ante, at 1723 – 1724. The first part of this new rule may endanger arresting officers and is truly endorsed by only four Justices; Justice SCALIA joins solely for the purpose of avoiding a “4–to–1–to 4 opinion.” *356 Ante, at 1725 (concurring opinion). The second part of the new rule is taken from Justice SCALIA's separate opinion in Thornton without any independent explanation of its origin or justification and is virtually certain to confuse law enforcement officers and judges for some time to come. The Court's decision will cause the suppression of evidence gathered in many searches carried out in good-faith reliance on well-settled case law, and although the Court purports to base its analysis on the landmark decision in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), the Court's reasoning undermines Chimel. I would follow Belton, and I therefore respectfully dissent.


10


I Although the Court refuses to acknowledge that it is overruling Belton and Thornton, there can be no doubt that it does so. In Belton, an officer on the New York Thruway removed the occupants from a car and placed them under arrest but did not handcuff them. See 453 U.S., at 456, 101 S.Ct. 2860; Brief for Petitioner in New York v. Belton, O.T.1980, No. 80– 328, p. 3. The officer then searched a jacket on the **1727 car's back seat and found drugs. 453 U.S., at 455, 101 S.Ct. 2860. By a divided vote, the New York Court of Appeals held that the search of the jacket violated Chimel, in which this Court held that an arresting officer may search the area within an arrestee's immediate control. See State v. Belton, 50 N.Y.2d 447, 429 N.Y.S.2d 574, 407 N.E.2d 420 (1980). The judges of the New York Court of Appeals disagreed on the factual question whether the Belton arrestees could have gained access to the car. The majority thought that they could not have done so, id., at 452, n. 2, 429 N.Y.S.2d 574, 407 N.E.2d 420, 429 N.Y.S.2d 574, 407 N.E.2d, at 423, n. 2, but the dissent thought that this was a real possibility. Id., at 453, 429 N.Y.S.2d 574, 407 N.E.2d, at 424 (opinion of Gabrielli, J.). Viewing this disagreement about the application of the Chimel rule as illustrative of a persistent and important problem, the Belton Court concluded that “ ‘[a] single familiar *357 standard’ ” was “ ‘essential to guide police officers' ” who make roadside arrests. 453 U.S., at 458, 101 S.Ct. 2860 (quoting Dunaway v. New York, 442 U.S. 200, 213–214, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979)). The Court acknowledged that articles in the passenger compartment of a car are not always within an arrestee's reach, but “[i]n order to establish the workable rule this category of cases requires,” the Court adopted a rule that categorically permits the search of a car's passenger compartment incident to the lawful arrest of an occupant. 453 U.S., at 460, 101 S.Ct. 2860. The precise holding in Belton could not be clearer. The Court stated unequivocally: “[W]e hold that when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that

arrest, search the passenger compartment of that automobile.” Ibid. (footnote omitted). Despite this explicit statement, the opinion of the Court in the present case curiously suggests that Belton may reasonably be read as adopting a holding that is narrower than the one explicitly set out in the Belton opinion, namely, that an officer arresting a vehicle occupant may search the passenger compartment “when the passenger compartment is within an arrestee's reaching distance.” Ante, at 1717 – 1718 (emphasis in original). According to the Court, the broader reading of Belton that has gained wide acceptance “may be attributable to Justice Brennan's dissent.” Ante, at 1718. Contrary to the Court's suggestion, however, Justice Brennan's Belton dissent did not mischaracterize the Court's holding in that case or cause that holding to be misinterpreted. As noted, the Belton Court explicitly stated precisely what it held. In Thornton, the Court recognized the scope of Belton 's holding. See 541 U.S., at 620, 124 S.Ct. 2127. So did Justice SCALIA's separate opinion. See id., at 625, 124 S.Ct. 2127 (opinion concurring in judgment) (“In [Belton] we set forth a bright-line rule for arrests of automobile occupants, holding that ... a search of the whole [passenger] compartment is justified in every case”). So does Justice SCALIA's opinion in the present *358 case. See ante, at 1724 (Belton and Thornton held that “arresting officers may always search an arrestee's vehicle in order to protect themselves from hidden weapons”). This “bright-line rule” has now been interred.

II Because the Court has substantially overruled Belton and Thornton, the Court must explain why its departure from the usual rule of stare decisis is justified. I recognize that stare decisis is not an “inexorable command,” **1728 Payne v. Tennessee, 501 U.S. 808, 828, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991), and applies less rigidly in constitutional cases, Glidden Co. v. Zdanok, 370 U.S. 530, 543, 82 S.Ct. 1459, 8 L.Ed.2d 671 (1962) (plurality opinion). But the Court has said that a constitutional precedent should be followed unless there is a “ ‘special justification’ ” for its abandonment. Dickerson v. United States, 530 U.S. 428, 443, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000). Relevant factors identified in prior cases include whether the precedent has engendered reliance, id.,


11


at 442, 120 S.Ct. 2326, whether there has been an important change in circumstances in the outside world, Randall v. Sorrell, 548 U.S. 230, 244, 126 S.Ct. 2479, 165 L.Ed.2d 482 (2006) (plurality opinion); Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 412, 52 S.Ct. 443, 76 L.Ed. 815 (1932) (Brandeis, J., dissenting), whether the precedent has proved to be unworkable, Vieth v. Jubelirer, 541 U.S. 267, 306, 124 S.Ct. 1769, 158 L.Ed.2d 546 (2004) (plurality opinion) (citing Payne, supra, at 827, 111 S.Ct. 2597), whether the precedent has been undermined by later decisions, see, e.g., Patterson v. McLean Credit Union, 491 U.S. 164, 173–174, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), and whether the decision was badly reasoned. Vieth, supra, at 306, 124 S.Ct. 1769 (plurality opinion). These factors weigh in favor of retaining the rule established in Belton.

A Reliance. While reliance is most important in “cases involving property and contract rights,” Payne, supra, at 828, 111 S.Ct. 2597, the Court has recognized that reliance by law enforcement officers is also entitled to weight. In Dickerson, the Court held that principles of stare decisis “weigh[ed]” heavily *359 against overruling Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), because the Miranda rule had become “embedded in routine police practice.” 530 U.S., at 443, 120 S.Ct. 2326. If there was reliance in Dickerson, there certainly is substantial reliance here. The Belton rule has been taught to police officers for more than a quarter century. Many searches —almost certainly including more than a few that figure in cases now on appeal—were conducted in scrupulous reliance on that precedent. It is likely that, on the very day when this opinion is announced, numerous vehicle searches will be conducted in good faith by police officers who were taught the Belton rule. The opinion of the Court recognizes that “Belton has been widely taught in police academies and that law enforcement officers have relied on the rule in conducting vehicle searches during the past 28 years.” Ante, at 1722 – 1723. But for the Court, this seemingly counts for nothing. The Court states that “[w]e have never relied on stare decisis to justify the continuance of an unconstitutional police practice,” ante, at

1722, but of course the Court routinely relies on decisions sustaining the constitutionality of police practices without doing what the Court has done here—sua sponte considering whether those decisions should be overruled. And the Court cites no authority for the proposition that stare decisis may be disregarded or provides only lesser protection when the precedent that is challenged is one that sustained the constitutionality of a law enforcement practice. The Court also errs in arguing that the reliance interest that was given heavy weight in Dickerson was not “police reliance on a rule requiring them to provide warnings but to the broader societal reliance on that individual right.” Ante, at 1723. The Dickerson opinion makes no reference to “societal reliance,” and petitioner in that case contended that there had been reliance on Miranda because, **1729 among other things, “[f]or nearly thirty-five years, Miranda 's requirements ha[d] shaped law enforcement training [and] police *360 conduct.” See Brief for Petitioner in Dickerson v. United States, O.T.1999, No. 99–5525, p. 33.

B Changed circumstances. Abandonment of the Belton rule cannot be justified on the ground that the dangers surrounding the arrest of a vehicle occupant are different today than they were 28 years ago. The Court claims that “[w]e now know that articles inside the passenger compartment are rarely ‘within “the area into which an arrestee might reach,” ’ ” ante, at 1723 – 1724, but surely it was well known in 1981 that a person who is taken from a vehicle, handcuffed, and placed in the back of a patrol car is unlikely to make it back into his own car to retrieve a weapon or destroy evidence.

C Workability. The Belton rule has not proved to be unworkable. On the contrary, the rule was adopted for the express purpose of providing a test that would be relatively easy for police officers and judges to apply. The Court correctly notes that even the Belton rule is not perfectly clear in all situations. Specifically, it is sometimes debatable whether a search is or is not contemporaneous with an arrest, ante, at 1716 – 1718,


12


but that problem is small in comparison with the problems that the Court's new two-part rule will produce. The first part of the Court's new rule—which permits the search of a vehicle's passenger compartment if it is within an arrestee's reach at the time of the search—reintroduces the same sort of case-by-case, fact-specific decisionmaking that the Belton rule was adopted to avoid. As the situation in Belton illustrated, there are cases in which it is unclear whether an arrestee could retrieve a weapon or evidence in the passenger compartment of a car. Even more serious problems will also result from the second part of the Court's new rule, which requires officers *361 making roadside arrests to determine whether there is reason to believe that the vehicle contains evidence of the crime of arrest. What this rule permits in a variety of situations is entirely unclear.

D Consistency with later cases. The Belton bright-line rule has not been undermined by subsequent cases. On the contrary, that rule was reaffirmed and extended just five years ago in Thornton.

E Bad reasoning. The Court is harshly critical of Belton 's reasoning, but the problem that the Court perceives cannot be remedied simply by overruling Belton. Belton represented only a modest—and quite defensible—extension of Chimel, as I understand that decision. Prior to Chimel, the Court's precedents permitted an arresting officer to search the area within an arrestee's “possession” and “control” for the purpose of gathering evidence. See 395 U.S., at 759–760, 89 S.Ct. 2034. Based on this “abstract doctrine,” id., at 760, n. 4, 89 S.Ct. 2034, the Court had sustained searches that extended far beyond an arrestee's grabbing area. See United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 653 (1950) (search of entire office); Harris v. United States, 331 U.S. 145, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947) (search of entire apartment).

**1730 The Chimel Court, in an opinion written by Justice Stewart, overruled these cases. Concluding that there are only two justifications for a warrantless search incident to arrest—officer safety and the preservation of evidence—the Court stated that such a search must be confined to “the arrestee's person” and “the area from within which he might gain possession of a weapon or destructible evidence.” 395 U.S., at 762–763, 89 S.Ct. 2034. Unfortunately, Chimel did not say whether “the area from within which [an arrestee] might gain possession of a weapon or destructible evidence” is to be measured at the time of *362 the arrest or at the time of the search, but unless the Chimel rule was meant to be a specialty rule, applicable to only a few unusual cases, the Court must have intended for this area to be measured at the time of arrest. This is so because the Court can hardly have failed to appreciate the following two facts. First, in the great majority of cases, an officer making an arrest is able to handcuff the arrestee and remove him to a secure place before conducting a search incident to the arrest. See ante, at 1719, n. 4 (stating that it is “the rare case” in which an arresting officer cannot secure an arrestee before conducting a search). Second, because it is safer for an arresting officer to secure an arrestee before searching, it is likely that this is what arresting officers do in the great majority of cases. (And it appears, not surprisingly, that this is in fact the prevailing practice. 1 ) Thus, if the area within an arrestee's reach were assessed, not at the time of arrest, but at the time of the search, the Chimel rule would rarely come into play. Moreover, if the applicability of the Chimel rule turned on whether an arresting officer chooses to secure an arrestee prior to conducting a search, rather than searching first and securing the arrestee later, the rule would “create a perverse incentive for an arresting officer to prolong the period during which the arrestee is kept in an area where he could pose a danger to the officer.” United States v. Abdul–Saboor, 85 F.3d 664, 669 (C.A.D.C.1996). If this is the law, the D.C. Circuit observed, “the law would truly be, as Mr. Bumble said, ‘a ass.’ ” Ibid. See also United States v. Tejada, 524 F.3d 809, 812 (C.A.7 2008) (“[I]f the police could lawfully have searched the defendant's grabbing radius at the moment of


13


arrest, he has no legitimate complaint if, the better to protect themselves from him, they first put him outside that radius”).

recent occupants, but there is no logical reason why the same rule should not apply to all arrestees.

I do not think that this is what the Chimel Court intended. Handcuffs were in use in 1969. The ability of arresting officers *363 to secure arrestees before conducting a search —and their incentive to do so—are facts that can hardly have escaped the Court's attention. I therefore believe that the Chimel Court intended that its new rule apply in cases in which the arrestee is handcuffed before the search is conducted.

The second part of the Court's new rule, which the Court takes uncritically from Justice SCALIA's separate opinion in Thornton, raises doctrinal and practical problems that the Court makes no effort to address. Why, for example, is the standard for this type of evidence-gathering search “reason to believe” rather than probable cause? And why is this type of search restricted to evidence of the offense of arrest? It is true that an arrestee's vehicle is probably more likely to contain evidence of the crime of arrest than of some other crime, but if reason-to-believe is the governing standard for an evidence-gathering search incident to arrest, it is not easy to see why an officer should not be able to search when the officer has reason to believe that the vehicle in question possesses evidence of a crime other than the crime of arrest.

The Belton Court, in my view, proceeded on the basis of this interpretation of Chimel. Again speaking through Justice Stewart, the Belton Court reasoned that articles in the passenger compartment of a car are “generally, even if not inevitably” within an arrestee's reach. 453 U.S., at 460, 101 S.Ct. 2860. This is undoubtedly true at the time of the arrest of a person who is seated in a car but plainly not true when the person has been removed from the car and placed in handcuffs. Accordingly, the Belton Court must have proceeded **1731 on the assumption that the Chimel rule was to be applied at the time of arrest. And that is why the Belton Court was able to say that its decision “in no way alter[ed] the fundamental principles established in the Chimel case regarding the basic scope of searches incident to lawful custodial arrests.” 453 U.S., at 460, n. 3, 101 S.Ct. 2860. Viewing Chimel as having focused on the time of arrest, Belton 's only new step was to eliminate the need to decide on a case-by-case basis whether a particular person seated in a car actually could have reached the part of the passenger compartment where a weapon or evidence was hidden. For this reason, if we are going to reexamine Belton, we should also reexamine the reasoning in Chimel on which Belton rests.

F The Court, however, does not reexamine Chimel and thus leaves the law relating to searches incident to arrest in a confused and unstable state. The first part of the Court's new two-part rule—which permits an arresting officer to search the area within an arrestee's reach at the time of the search— applies, at least for now, only to vehicle occupants *364 and

Nor is it easy to see why an evidence-gathering search incident to arrest should be restricted to the passenger compartment. The Belton rule was limited in this way because the passenger compartment was considered to be the area that vehicle occupants can generally reach, 453 U.S., at 460, 101 S.Ct. 2860, but since the second part of the new rule is not based on officer safety or the preservation of evidence, the ground for this limitation is obscure. 2

*365 III Respondent in this case has not asked us to overrule Belton, much less Chimel. Respondent's argument rests entirely on an interpretation of Belton that is plainly incorrect, an interpretation that disregards Belton 's explicit delineation of its holding. I would therefore leave any reexamination of our prior precedents for another day, if such a reexamination is to be undertaken **1732 at all. In this case, I would simply apply Belton and reverse the judgment below.

Parallel Citations 129 S.Ct. 1710, 173 L.Ed.2d 485, 77 USLW 4285, 09 Cal. Daily Op. Serv. 4732, 2009 Daily Journal D.A.R. 5611, 21 Fla. L. Weekly Fed. S 781, 47 A.L.R. Fed. 2d 657


14


Footnotes

* 1 2

3

4

5

6

7

8

The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 50 L.Ed. 499. The officer was unable to handcuff the occupants because he had only one set of handcuffs. See Brief for Petitioner in New York v. Belton, O.T.1980, No. 80–328, p. 3 (hereinafter Brief in No. 80–328). Compare United States v. Green, 324 F.3d 375, 379 (C.A.5 2003) (holding that Belton did not authorize a search of an arrestee's vehicle when he was handcuffed and lying facedown on the ground surrounded by four police officers 6–to–10 feet from the vehicle), United States v. Edwards, 242 F.3d 928, 938 (C.A.10 2001) (finding unauthorized a vehicle search conducted while the arrestee was handcuffed in the back of a patrol car), and United States v. Vasey, 834 F.2d 782, 787 (C.A.9 1987) (finding unauthorized a vehicle search conducted 30–to–45 minutes after an arrest and after the arrestee had been handcuffed and secured in the back of a police car), with United States v. Hrasky, 453 F.3d 1099, 1102 (C.A.8 2006) (upholding a search conducted an hour after the arrestee was apprehended and after he had been handcuffed and placed in the back of a patrol car), United States v. Weaver, 433 F.3d 1104, 1106 (C.A.9 2006) (upholding a search conducted 10–to–15 minutes after an arrest and after the arrestee had been handcuffed and secured in the back of a patrol car), and United States v. White, 871 F.2d 41, 44 (C.A.6 1989) (upholding a search conducted after the arrestee had been handcuffed and secured in the back of a police cruiser). The practice of searching vehicles incident to arrest after the arrestee has been handcuffed and secured in a patrol car has not abated since we decided Thornton. See, e.g., United States v. Murphy, 221 Fed.Appx. 715, 717 (C.A.10 2007); Hrasky, 453 F.3d, at 1100; Weaver, 433 F.3d, at 1105; United States v. Williams, 170 Fed.Appx. 399, 401 (C.A.6 2006); United States v. Dorsey, 418 F.3d 1038, 1041 (C.A.9 2005); United States v. Osife, 398 F.3d 1143, 1144 (C.A.9 2005); United States v. Sumrall, 115 Fed.Appx. 22, 24 (C.A.10 2004). Because officers have many means of ensuring the safe arrest of vehicle occupants, it will be the rare case in which an officer is unable to fully effectuate an arrest so that a real possibility of access to the arrestee's vehicle remains. Cf. 3 W. LaFave, Search and Seizure § 7.1(c), p. 525 (4th ed.2004) (hereinafter LaFave) (noting that the availability of protective measures “ensur[es] the nonexistence of circumstances in which the arrestee's ‘control’ of the car is in doubt”). But in such a case a search incident to arrest is reasonable under the Fourth Amendment. See Maryland v. Garrison, 480 U.S. 79, 84, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987); Chimel, 395 U.S., at 760–761, 89 S.Ct. 2034; Stanford v. Texas, 379 U.S. 476, 480–484, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965); Weeks v. United States, 232 U.S. 383, 389–392, 34 S.Ct. 341, 58 L.Ed. 652 (1914); Boyd v. United States, 116 U.S. 616, 624–625, 6 S.Ct. 524, 29 L.Ed. 746 (1886); see also 10 C. Adams, The Works of John Adams 247–248 (1856). Many have observed that a broad reading of Belton gives police limitless discretion to conduct exploratory searches. See 3 LaFave § 7.1(c), at 527 (observing that Belton creates the risk “that police will make custodial arrests which they otherwise would not make as a cover for a search which the Fourth Amendment otherwise prohibits”); see also United States v. McLaughlin, 170 F.3d 889, 894 (C.A.9 1999) (Trott, J., concurring) (observing that Belton has been applied to condone “purely exploratory searches of vehicles during which officers with no definite objective or reason for the search are allowed to rummage around in a car to see what they might find”); State v. Pallone, 2001 WI 77, ¶¶ 87–90, 236 Wis.2d 162, 203– 204, and n. 9, 613 N.W.2d 568, 588, and n. 9 (2000) (Abrahamson, C.J., dissenting) (same); State v. Pierce, 136 N.J. 184, 211, 642 A.2d 947, 961 (1994) (same). Compare United States v. Caseres, 533 F.3d 1064, 1072 (C.A.9 2008) (declining to apply Belton when the arrestee was approached by police after he had exited his vehicle and reached his residence), with Rainey v. Commonwealth, 197 S.W.3d 89, 94–95 (Ky.2006) (applying Belton when the arrestee was apprehended 50 feet from the vehicle), and Black v. State, 810 N.E.2d 713, 716 (Ind.2004) (applying Belton when the arrestee was apprehended inside an auto repair shop and the vehicle was parked outside). Compare McLaughlin, 170 F.3d, at 890–891 (upholding a search that commenced five minutes after the arrestee was removed from the scene), United States v. Snook, 88 F.3d 605, 608 (C.A.8 1996) (same), and United States v. Doward, 41 F.3d 789, 793 (C.A.1 1994) (upholding a search that continued after the arrestee was removed from the scene), with United States v. Lugo, 978 F.2d 631, 634 (C.A.10 1992) (holding invalid a search that commenced after the arrestee was removed from the scene), and State v. Badgett, 200 Conn. 412, 427–428, 512 A.2d 160, 169 (1986) (holding invalid a search that continued after the arrestee was removed from the scene). At least eight States have reached the same conclusion. Vermont, New Jersey, New Mexico, Nevada, Pennsylvania, New York, Oregon, and Wyoming have declined to follow a broad reading of Belton under their state constitutions. See State v. Bauder, 181 Vt. 392, 401, 924 A.2d 38, 46–47 (2007); State v. Eckel, 185 N.J. 523, 540, 888 A.2d 1266, 1277 (2006); Camacho v. State, 119 Nev.


15

Arizona v. Gant, 556 U.S. 332 (2009) 129 S.Ct. 1710, 173 L.Ed.2d 485, 77 USLW 4285, 09 Cal. Daily Op. Serv. 4732... 395, 399–400, 75 P.3d 370, 373–374 (2003); Vasquez v. State, 990 P.2d 476, 488–489 (Wyo.1999); State v. Arredondo, 123 N.M. 628, 636, 944 P.2d 276, 1997–NMCA–081 (Ct.App.), overruled on other grounds by State v. Steinzig, 127 N.M. 752, 987 P.2d 409, 1999–NMCA–107 (Ct.App.); Commonwealth v. White, 543 Pa. 45, 57, 669 A.2d 896, 902 (1995); People v. Blasich, 73 N.Y.2d 673, 678, 543 N.Y.S.2d 40, 541 N.E.2d 40, 43 (1989); State v. Fesler, 68 Or.App. 609, 612, 685 P.2d 1014, 1016–1017 (1984). And a Massachusetts statute provides that a search incident to arrest may be made only for the purposes of seizing weapons or evidence of the offense of arrest. See Commonwealth v. Toole, 389 Mass. 159, 161–162, 448 N.E.2d 1264, 1266–1267 (1983) (citing Mass. Gen. Laws, ch. 276, § 1 (West 2006)). Justice ALITO's dissenting opinion also accuses us of “overrul [ing]” Belton and Thornton v. United States, 541 U.S. 615, 124 S.Ct. 9 2127, 158 L.Ed.2d 905 (2004), “even though respondent Gant has not asked us to do so.” Post, at 1726. Contrary to that claim, the narrow reading of Belton we adopt today is precisely the result Gant has urged. That Justice ALITO has chosen to describe this decision as overruling our earlier cases does not change the fact that the resulting rule of law is the one advocated by respondent. Justice STEVENS concurred in the judgment in Belton, 453 U.S., at 463, 101 S.Ct. 2860, for the reasons stated in his dissenting 10 opinion in Robbins v. California, 453 U.S. 420, 444, 101 S.Ct. 2841, 69 L.Ed.2d 744 (1981), Justice THOMAS joined the Court's opinion in Thornton, 541 U.S. 615, 124 S.Ct. 2127, 158 L.Ed.2d 905, and Justice SCALIA and Justice GINSBURG concurred in the judgment in that case, id., at 625, 124 S.Ct. 2127. Because a broad reading of Belton has been widely accepted, the doctrine of qualified immunity will shield officers from liability 11 for searches conducted in reasonable reliance on that understanding. See Moskovitz, A Rule in Search of a Reason: An Empirical Reexamination of Chimel and Belton, 2002 Wis. L.Rev. 657, 665. 1

2

I do not understand the Court's decision to reach the following situations. First, it is not uncommon for an officer to arrest some but not all of the occupants of a vehicle. The Court's decision in this case does not address the question whether in such a situation a search of the passenger compartment may be justified on the ground that the occupants who are not arrested could gain access to the car and retrieve a weapon or destroy evidence. Second, there may be situations in which an arresting officer has cause to fear that persons who were not passengers in the car might attempt to retrieve a weapon or evidence from the car while the officer is still on the scene. The decision in this case, as I understand it, does not address that situation either.

End of Document



16

READING THE FOURTH AMENDMENT: GUIDANCE FROM..., 85 N.Y.U. L. Rev. 905

85 N.Y.U. L. Rev. 905 New York University Law Review October, 2010 Madison Lecture READING THE FOURTH AMENDMENT: GUIDANCE FROM THE MISCHIEF THAT GAVE IT BIRTH The Honorable M. Blane Michael a1 Copyright (c) 2010 New York University Law Review; The Honorable M. Blane Michael The Supreme Court begins the twenty-first century with increasing use of a cramped approach to Fourth Amendment interpretation. That approach, championed by Justice Scalia, gives determinative weight to outdated common law rules from the framing era in assessing the reasonableness of searches and seizures. In the annual James Madison Lecture, Judge Blane Michael urges a fundamentally different--yet still traditional--approach. He argues that Fourth Amendment interpretation should be guided by the basic lesson learned from the mischief that gave birth to the Amendment in 1791: Namely, there is a need for constitutional protection against intrusive searches of houses and private papers carried out under grants of openended discretion to searching officers. This need for Fourth Amendment protection remains compelling in today's ever more interconnected world. Above all, the Court should not weaken the Fourth Amendment's protection by exclusive use of antiquated common law rules from the framing era.

It is a special privilege for me, as a graduate of the New York University School of Law, to give this year's James Madison Lecture. A chief purpose of this lecture series is “to enhance the appreciation of civil liberty.” 1 Upon recalling this purpose, I thought immediately *906 that the Fourth Amendment--the bulwark of our privacy protection--merits renewed attention and appreciation. The Fourth Amendment consists of two connected clauses. The first guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” 2 The second specifies that “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.” 3 These sound like powerful words, but their vitality is in question today. The digital age is placing our privacy in jeopardy. Technological advances in the way we communicate and store information make us increasingly vulnerable to intrusive searches and seizures. As Chief Judge Kozinski recently observed in an en banc Ninth Circuit decision: “[P]eople now have personal data that are stored [electronically] with that of innumerable strangers. [The government's] [s]eizure of, for example, Google's email servers to look for a few incriminating messages could jeopardize the privacy of millions.” 4 So, my question is this: Can the Fourth Amendment--designed in the musty age of paper--offer any meaningful privacy protection today for personal electronic data? Justice Brandeis, in his venerable dissent in Olmstead v. United States, said that a constitutional provision such as the Fourth Amendment must have the “capacity of adaptation to a changing world.” 5 Using borrowed language, Justice Brandeis emphasized that for a constitutional “principle to be vital[,] [it] must be capable of wider application than the mischief which gave it birth.” 6


1


The pre-revolutionary mischief that gave birth to the Fourth Amendment can provide critical guidance in interpreting the Amendment and ensuring its vitality in a digital world. The early mischief--the British Crown's unbridled power of search--is at the center of the rich history that led to the adoption of the Fourth Amendment. This formative history illustrates the broader purpose of the Amendment: to circumscribe government discretion. In recent years the Supreme Court has often used an interpretive methodology, championed by Justice Scalia, that fails to take account of the Fourth Amendment's animating history. Under Justice Scalia's approach the specific common law rules of the founding era determine *907 whether a search or seizure is unreasonable today. This approach as I will respectfully discuss, is both impractical and cramped, and should be abandoned. We should return to the use of formative history as one of the primary sources in interpreting the Fourth Amendment. This would mean a return to a more traditional analysis that highlights the Amendment's enduring purpose. I will also discuss how history can guide us in applying the Amendment to novel questions arising in our ever more interconnected world.

I I begin by reviewing some of the history behind the Fourth Amendment's inclusion in the Bill of Rights. The Fourth Amendment owes its existence to furious opposition in the American colonies to British search and seizure practices, particularly in the area of customs enforcement. Under English law, customs officials had “almost unlimited authority to search for and seize goods [that were] imported” illegally. 7 The Act of Frauds of 1662 empowered customs officers in England to enter “any house, shop, cellar, warehouse or room, or other place” and to “break open doors, chests, trunks and other package[s]” for the purpose of seizing any “prohibited and uncustomed” goods. 8 The Act of Frauds of 1696 extended the broad enforcement powers in the 1662 Act to customs officers in the colonies, authorizing the officers to conduct warrantless searches at their discretion. 9 The 1662 Act also authorized the use of writs of assistance in customs searches. 10 These court-issued writs empowered customs officers to commandeer anyone--constables and ordinary citizens alike--to help in executing searches and seizures. 11 A writ of assistance, though not technically a warrant, prominently repeated the language of both Acts of Frauds, which empowered a customs officer to search any place on *908 nothing more than his own (subjective) suspicion. 12 Writs of assistance were especially pernicious because they remained in effect for the life of the King or Queen. 13 In the early 1750s the growing threat of war with France 14 “prompted stricter [customs] enforcement” in the colonies as the Crown sought to increase its revenues. 15 To facilitate tougher enforcement, customs officers began obtaining writs of assistance from colonial courts. 16 The use of these writs was controversial, particularly in Boston, where much of the economy depended on trade in smuggled goods. 17 The controversy intensified when King George II died in late 1760, and colonial customs officers had to reapply for writs of assistance to be issued in the name of the new King, George III. 18 In 1761 a group of Boston merchants and citizens represented by James Otis, a highly regarded Massachusetts lawyer, challenged writ applications filed by several customs collectors in the Massachusetts Superior Court. 19 Otis's advocacy in this case, later called The Writs of Assistance Case, 20 galvanized support for what became the Fourth Amendment. Otis argued passionately that the writ of assistance was illegal, calling it an “instrument[ ] of slavery on the one hand, and villainy on the other.” 21 This writ, he declared, “place[d] the liberty of every man in the hands of every petty officer[;]” 22 it was thus “the worst instrument of arbitrary power, the most destructive of English liberty . . . that ever was found in an


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English law-book.” 23 Otis's argument against the writ of assistance pressed two overarching themes that would become the bedrock of the movement against excessive search and seizure power: first, in his words, the “fundamental . . . Privilege of House” 24 --the principle that a person's home is especially private *909 and must be protected from arbitrary government intrusion; and second, the inevitability of abuse when government officials have the sort of unlimited discretion sanctioned by the writ of assistance. Otis's vigorous argument did not persuade the five-member Superior Court, which voted unanimously to issue the challenged writs, 25 but it nonetheless proved a powerful influence. Otis's presentation inspired future president John Adams, then a young lawyer of twenty-five, who attended the hearings 26 and was moved to action. Years later, reflecting on the impact of the case, Adams wrote: Otis was a flame of fire! . . . Every man of a crowded audience appeared to me to go away, as I did, ready to take up arms against writs of assistance. Then and there was the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born. 27

Further inspiration for the Fourth Amendment came later in the 1760s from a set of highly publicized English cases arising out of the King's use of general warrants against his political enemies. The general warrant, which authorized an officer to search unspecified places or to seize unspecified persons, was in common use in both England and the colonies. 28 Typical examples permitted discretionary searches for stolen property or fugitives, 29 but in England the Crown turned to the use of general warrants as a means of silencing its critics. Specifically, general warrants were used to gather evidence for seditious libel prosecutions against the King's detractors. This practice led to the other celebrated cases that helped spawn the Fourth Amendment. The first cases, which I call The North Briton Cases, stemmed from the publication of The North Briton No. 45, an anonymous pamphlet *910 satirizing the King and his policies. 30 Lord Halifax, the Secretary of State, issued a general warrant authorizing government agents, called “messengers[,] to make strict and diligent search for the authors, printers and publishers” of The North Briton No. 45 and, when found, to seize them “together with their papers.” 31 The messengers ransacked houses and printing shops in their searches, arrested forty-nine persons (including the pamphlet's author, Parliament member John Wilkes), and seized incriminating papers--all under a single general warrant. 32 Wilkes and his associates fought back in the civil courts, filing trespass suits against Lord Halifax and the messengers who executed the warrant. Wilkes and the other plaintiffs argued that the general warrant--which was offered as a defense to the trespass claims--was invalid at common law because it failed to name suspects and because it gave “messengers [the discretionary power] to search wherever their [personal] suspicions may chance to fall.” 33 The plaintiffs persuaded the courts to submit the trespass claims to juries, and one jury awarded damages to Wilkes of £4000 against Lord Halifax. 34 This was a substantial sum; £4000 in 1763 is roughly equivalent to £500,000 today. 35 Other targets of the searches received verdicts against the messengers in the range of £200 to £400. 36 More important than the damages awards, however, were the strong judicial pronouncements in The North Briton Cases against the validity of the general warrant, which echoed Otis's denunciation of the writ of assistance. Chief Justice Charles Pratt (later Lord Camden) of the Court of Common Pleas declared: “To enter a man's house by virtue of a nameless warrant, in order to procure evidence, is worse than the Spanish Inquisition; a law under which no Englishman would wish to live an hour; it was a most daring public attack made upon the liberty of the subject.” 37 In a 1765 appeal in one North Briton case, *911 Lord


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Mansfield emphasized that “[i]t is not fit, that the receiving or judging of the information should be left to the discretion of the officer. The magistrate ought to judge; and should give certain directions to the officer.” 38 In the remaining case the Crown targeted John Entick for his publication of The Monitor, a pamphlet alleged to contain seditious libel. 39 Lord Halifax issued a warrant for Entick's arrest, which gave messengers authority to make a general search of Entick's house and to seize any and all papers at their discretion. Like Wilkes, Entick sued the messengers in trespass and won a jury verdict of £300. 40 In upholding the verdict, Lord Camden held that the search was illegal because no law allowed “such a [general] search [as] a means of detecting offenders.” 41 Otherwise, Camden warned, “the secret cabinets and bureaus of every subject in this kingdom [would] be thrown open to the search and inspection of a messenger, whenever the secretary of state shall think fit to charge, or even to suspect, a person . . . of a seditious libel.” 42 In short, as Camden put it, “[p]apers are the owner's goods and chattels: they are his dearest property; and are so far from enduring a seizure, that they will hardly bear an inspection.” 43 The value of the North Briton and Entick opinions in the colonies came from their articulation and support of the same privacy and liberty interests advanced by James Otis in The Writs of Assistance Case. The cases, however, did not end the use of general warrants or writs of assistance, either in England or in the colonies. 44 Thus, a full-throated controversy about the customs writ of assistance, which was regarded as equivalent to a general warrant, 45 persisted until the first shots of the Revolution. 46 Indeed, the First Continental Congress in 1774 included customs searches under general writs of assistance in its list of grievances against Parliament. 47 This controversy left citizens of the new American states with a deep-dyed fear of discretionary searches permitted by general warrants *912 and writs of assistance. 48 By 1789, when James Madison submitted his proposed Bill of Rights to Congress, seven of the thirteen state constitutions already contained provisions with search and seizure protection bearing some resemblance to the Fourth Amendment. 49 Among the most influential was the provision from Massachusetts, which was the first to use the full phrase “unreasonable searches and seizures,” the phrase that is the heart of the Fourth Amendment. 50 The Massachusetts provision had been drafted by none other than John Adams, who remained indelibly impressed by James Otis's argument against the writ of assistance. 51 Thus, the principles that Otis expounded--the fundamental “Privilege of House” and private papers, and the right to be free from discretionary search at “the hands of every petty officer”--profoundly influenced how the Fourth Amendment was understood at the time of its adoption. As I will discuss in more detail, these same historytested principles should inform our understanding of the Amendment today.

II The immediate aim of the Fourth Amendment was to ban general warrants and writs of assistance. To this end, the Amendment's Warrant Clause requires that a warrant “particularly describ[e] the place to be searched, and the persons or things to be seized.” 52 The Supreme Court, however, has never read the Fourth Amendment as simply a prohibition on general warrants. 53 Rather, the Court has consistently given substance to the Amendment's first clause, which guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” 54 In judging whether a search or seizure is unreasonable, the Supreme *913 Court has often looked to the formative history just discussed to inform its interpretation. 55 This practice, I believe, is sound. In recent years, however, Justice Scalia has led the Court to use a more rigid historical methodology--a methodology that fails to take heed of the core principles underlying the Fourth Amendment.


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Justice Scalia set forth his methodology most clearly in his 1999 majority opinion in Wyoming v. Houghton. 56 As he explained, “[i]n determining whether a particular governmental action violates [the Fourth Amendment's unreasonableness] provision, we inquire first whether the action was regarded as an unlawful search or seizure under the common law when the Amendment was framed.” 57 Under this approach if the common law or statutes of the founding era permitted a particular search or seizure, then the analysis is complete; a court is required to hold that the action is reasonable under the Fourth Amendment today. 58 Only when this historical inquiry “yields no answer” is a court permitted to consider what Justice Scalia refers to as “traditional standards of reasonableness.” 59 That is, a court may balance the degree to which the search or seizure intrudes upon an individual's privacy against the degree to which the intrusion is needed to promote legitimate governmental interests. 60 On its face the idea of looking to framing-era common law to determine the scope of Fourth Amendment protections might seem sensible. After all, the heralded search and seizure opinions in the North Briton and Entick cases were English common law decisions that reflected the principles underlying the Fourth Amendment. The problem with Justice Scalia's approach is not its consideration of the common law. The problem is that it gives dispositive weight to the substantive rules that existed in 1791 instead of applying the underlying principles of the Fourth Amendment to modern circumstances. In essence, Justice Scalia freezes in place eighteenth-century rules without considering whether this method is practical or whether these *914 old rules still make sense more than 200 years later. 61 I will offer several reasons why we should reject Justice Scalia's frozencommon-law approach. To begin with, the Fourth Amendment, unlike the Seventh Amendment, makes no reference to the common law anywhere in its text. The Seventh Amendment expressly guarantees a right to civil jury trial “according to the rules of the common law.” 62 The Fourth Amendment, by contrast, affords protection against “unreasonable searches and seizures,” 63 a standard not inherently dictated by 1791 common law rules regarding unlawful searches and seizures. Moreover, any interpretive approach that seeks to arrest the development of the common law and freeze it at a single point in time clashes with the fluid and evolutionary nature of common law. 64 The presumption of continual adaptation and improvement is one of the common law's defining features. 65 As Justice Story, the early American jurist, observed in 1837, the common law is “a system of elementary principles and of general juridical truths, which are continually expanding with the progress of society, and adapting themselves to the gradual changes of trade, and commerce, and the mechanic arts, and the exigencies and usages of the country.” 66 While “certain fundamental maxims . . . are never departed from,” he explained, “others . . . are . . . susceptible of modifications and exceptions, to prevent them from doing manifest wrong and injury.” 67 Freezing the common law of search and seizure as it existed in 1791 in the face of dramatically *915 changed conditions risks precisely this “manifest wrong and injury.” Further, the common law of 1791, which Justice Scalia casually refers to as though it were a single, clearly defined body of rules, was actually derived from a variety of authorities 68 and differed from jurisdiction to jurisdiction. 69 This variation in common law rules among jurisdictions could have a dramatic effect on the resulting search and seizure doctrine. To give just one example, in 1773 the King's Bench in England held an excise officer liable for trespass after he swore out a valid warrant to search a house but found no taxable goods there. 70 Twelve years later the same court reversed course and limited an officer's liability to situations in which he obtained or executed the warrant “maliciously from corrupt motives.” 71 Although the later decision predated the Fourth Amendment by six years, the American legal system was slow to adopt the new rule, with treatises as late as 1824 citing the earlier decision as controlling precedent. 72 Thus, as of 1791 there were two very different liability rules for warranted excise searches that yielded no goods. Justice Scalia's approach does not make clear which one should apply.


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Even when common law rules from 1791 are uniform and readily ascertainable, Justice Scalia's approach has another limitation: It provides little guidance about when and how to analogize from these 1791 rules to searches involving later-developed technologies. While I recognize that drawing analogies is often a feature of interpretation, Justice Scalia's use of analogy is particularly troublesome because it sets the stakes so high. When he deems current and historical practices *916 sufficiently close, he imports the 1791 common law rule wholesale, and that alone determines the reasonableness of the search. Consider, for example, the practice of wiretapping. Justice Black in his dissent in Katz v. United States contended that “wiretapping is nothing more than eavesdropping by telephone.” 73 But is Justice Black's assessment self-evident? The common law imposed general nuisance liability for private individuals who engaged in eavesdropping, 74 but appeared to have no rule when the government sanctioned the eavesdropping. If we view the common law's silence as tacit approval for government-sanctioned eavesdropping, is this necessarily the appropriate rule to apply to government-sanctioned wiretapping? Or consider the 1921 automobile search in Carroll v. United States. 75 Carroll upheld a Prohibition-era warrantless search of a private automobile suspected of transporting bootlegged liquor. In resolving the case, Chief Justice Taft employed a historical approach closely akin to Justice Scalia's. He observed that early Congresses distinguished between searches of “dwelling house[s] or similar place[s]” and searches for goods “concealed in a movable vessel” or ship. 76 Congressional acts from the 1780s and 1790s afforded broader discretion to officers in the latter category, authorizing them to conduct warrantless searches of vessels “in which they [had] reason to suspect” goods “subject to duty” were hidden. 77 Chief Justice Taft reasoned that because an automobile--like a seagoing vessel--permitted the ready movement of contraband, the two “vehicles” would have been treated the same for Fourth Amendment purposes in the founding era. 78 While Justice Taft is surely correct that ships and cars present certain common concerns about the movability of evidence, is it necessarily true that the expectation of privacy is analogous in the two cases? I am not suggesting that Carroll should have come out differently. But Carroll highlights the difficulty in determining when to analogize 1791 search and seizure practices to modern-day ones, and Justice Scalia's approach offers little guidance in this respect. Not only is the frozen-common-law approach impractical, it is also imprudent. Common law search and seizure rules from the *917 founding era were designed to address a very different law enforcement reality than we face today. Because these differences are sufficiently stark, we should not apply founding era rules without considering whether they still make sense. For example, during the framing era there were no professional police forces, and the government's involvement in policing was much more limited than it is today. In the realm of criminal investigation, private parties or the broader community assumed responsibility for the bulk of investigation. Ordinarily, peace officers did not get involved until arrest was imminent. 79 The peace officers were mainly constables who served part-time and frequently called upon private citizens to assist in making arrests. 80 In fact, at common law, private citizens had the same powers of arrest as constables. 81 Today, the organization and reach of official law enforcement is vastly greater. Full-time professional police forces at all levels of government now control criminal investigation and engage in extensive efforts to prevent and reduce crime-- activities that were basically unheard of at the time of the framing. Moreover, these highly professionalized forces are equipped with technology that enables searches unimaginable in 1791. Unsurprisingly, the dramatic differences in law enforcement practices during the framing era led to a fundamentally different set of rules governing the relationship between citizens and law enforcement. Our present concept of official immunity--that an officer is protected from civil liability unless the officer violates a “clearly established” constitutional right--bears little resemblance to framing- *918 era notions of official immunity. 82 At the time of the framing, a court absolved an officer of liability only when he was fulfilling a ministerial duty such as executing a valid search warrant sworn out by someone else. 83 A court could hold the officer liable in trespass if he acted pursuant to his own initiative, for example by swearing out a warrant himself and conducting a search that turned out to be fruitless. 84 The substantial trespass damages assessed against the Crown's


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agents in the North Briton and Entick cases are clear examples of the risk faced by everyday peace officers in conducting discretionary searches. The common law gradually evolved over time to address the significant changes that have occurred in law enforcement practices since the framing era. Remedies for abusive searches are no longer pressed under the law of trespass, but rather under a new body of constitutional tort law. Qualified immunity affords greater protection to officers when they conduct searches. 85 And the exclusionary rule limits the ability of the prosecution to introduce evidence obtained during searches conducted in violation of the Fourth Amendment. 86 Resetting the clock to 1791 and ignoring these changes, as the frozen-common-law approach requires, makes little sense. We should acknowledge that dramatic changes have occurred in the structure and purpose of law enforcement and in the structure and organization of society more broadly. In confronting Fourth Amendment challenges arising from these changes, we should return to an analysis that takes into account the Amendment's formative history and principles. Before pressing this point further, I will briefly consider Justice Scalia's fallback position when the common law of 1791 “yields no answer.” 87 In that instance Justice Scalia requires courts to balance “the degree to which [a search or seizure] intrudes upon an individual's privacy” against “the degree to which it is needed for the promotion *919 of legitimate governmental interests.” 88 My concern here is this: Unmoored from the formative history that led to the Fourth Amendment's adoption, such analyses will give too much weight to the government's legitimate interest in fighting crime or promoting national security and too little weight to the liberty and privacy interests protected by the Amendment. When the government stands before a court and argues--either explicitly or implicitly--that a particular search practice is necessary to guard against terrorist attack, the pressure builds to declare that practice consistent with the Fourth Amendment. To the extent that new threats compel courts to engage in difficult balancing acts, Justice Scalia's approach fails to ensure that courts will give the Amendment's animating principles due weight.

III We should return to the tradition of using the Fourth Amendment's formative history as a basic source in interpreting the Amendment. Supreme Court decisions dating back to Boyd v. United States in 1886 have looked to formative history as a guide. 89 In Boyd Justice Bradley emphasized that to interpret the Fourth Amendment, it is “necessary to recall the contemporary or then-recent history of the controversies on the subject, both in this country and in England.” 90 This rich history sheds a powerful light on the purposes that the Amendment was designed to serve. Perhaps the most famous use of formative history to interpret the Amendment is Justice Brandeis's dissent in the 1928 wiretapping case of Olmstead v. United States. 91 In a 5-4 decision the Olmstead majority held that a wiretapping scheme undertaken by federal agents in violation of state law did not qualify as a search or seizure under the Fourth Amendment. 92 In dissent Justice Brandeis drew heavily from the history of the Fourth Amendment's adoption to determine its purpose. Quoting James Otis's argument in The Writs of Assistance Case, Brandeis insisted that the unrestricted use of wiretaps, like writs of assistance of old, “places the liberty of every man in the hands of every petty officer.” 93 Inspired by Otis, Brandeis added words with similar punch: “As a means of espionage,” Brandeis wrote, “writs of assistance and general warrants are but puny instruments of tyranny *920 and oppression when compared with wire-tapping.” 94 Justice Brandeis thus looked to historical principles and examples to conclude that the Fourth Amendment required strict limitations on official discretion in the search and seizure arena. The 1967 decision in Katz v. United States, which overruled Olmstead and held that wiretapping is a search subject to Fourth Amendment regulation, vindicated Brandeis's conclusion in his Olmstead dissent. 95 Katz emphasized that


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the place or scope of a search cannot be left to the discretion of a government agent. Rather, it must be determined by a neutral and detached magistrate. 96 In addition to Bradley and Brandeis, several other Justices have relied on the formative history of the Fourth Amendment in determining its meaning. One of the most prominent was Justice Frankfurter, who served on the Court from 1939 until 1962. Justice Frankfurter regularly recalled that “[t]he vivid memory by the newly independent Americans of the [Crown's abusive discretionary searches] produced the Fourth Amendment.” 97 Other former Justices who have used the Amendment's formative history as an interpretive guide include Justice Jackson, 98 Justice Stewart, 99 and Chief Justice Burger. 100 Notably, these Justices do not fit into any particular ideological group. *921 More recently, Justice Stevens appeared to be the most receptive to the use of formative history in interpreting the Fourth Amendment. In the 2008 term, Justice Stevens wrote the Court's opinion in Arizona v. Gant, 101 a 5-4 decision that restricts the authority of police to conduct a warrantless vehicle search incident to the arrest of the driver. Justice Stevens wrote: A rule that gives police the power to conduct such a search whenever an individual is caught committing a traffic offense, when there is no basis for believing evidence of the offense might be found in the vehicle, creates a serious and recurring threat to the privacy of countless individuals. 102

Justice Stevens drew on formative history to explain why the Fourth Amendment protected against this threat to privacy. “[T]he character of th[e] threat,” he said, “implicates the central concern underlying the Fourth Amendment?the concern about giving police officers unbridled discretion to rummage at will among a person's private effects.” 103 Justice Stevens supported his reference to history by citing Boyd, 104 the landmark case for using the Amendment's formative history as a guide. Justice Scalia joined the Gant majority, but he wrote a separate concurrence, reiterating his frozen-common-law approach as the method for determining “what is an ‘unreasonable’ search within the meaning of the Fourth Amendment . . . .” 105 With Justice Scalia in Gant's bare majority, the decision does not suggest that the Supreme Court is making a committed return to the use of the Fourth Amendment's historical background as a source to elucidate its meaning. But Gant at least sends a signal that courts can use formative history in interpreting the amendment. I urge us to go further. We should return to the regular use of formative history as a guide. As we have seen, the mischief that gave birth to the Fourth Amendment was the oppressive general search, executed through the use of writs of assistance and general warrants. The lesson from this mischief is that granting unlimited discretion to customs agents and constables inevitably leads to incursions on privacy and liberty--a lesson ably drawn by Otis in The Writs of Assistance Case and expressed by the English judges in the North Briton and Entick cases. The Fourth Amendment was thus adopted for the purpose of checking *922 discretionary police authority, and that historical purpose should be kept in mind. I do not suggest that this history should be the only guide in interpreting the Fourth Amendment. Rather, it should retake its place among other interpretive sources, including text, structure, purpose, and precedent. The Amendment's vivid history can be particularly useful in applying the Amendment to today's challenges and in measuring the consequences of a particular application. As Chief Justice Burger once wrote, the Framers “intended the Fourth Amendment to safeguard fundamental values which would far outlast the specific abuses which give it birth.” 106

IV


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Next, I will discuss how history can guide us in analyzing a new generation of Fourth Amendment issues that arise in our increasingly interconnected world. I will consider questions about privacy expectations in personal files stored online, computer search warrants that pose the risk of being executed as general warrants, and potential threats to privacy presented by government data mining programs.

A. Today we rely on electronic storage instead of “secret cabinets and bureaus” to file much of our private communications and information. Our digital files include correspondence (even love letters), diaries, and personal records of all sorts, from financial to medical. A growing trend is to store files online rather than on the hard drives of personal computers. 107 For example, users of webmail programs, such as Gmail, Yahoo!, and Hotmail, store e-mail messages on their provider's remote server without any permanent storage on a home computer. 108 Online storage allows Internet users to access files from any computer connected to the Internet. 109 But online storage also raises questions about whether we retain any Fourth Amendment privacy interest in files once we store them remotely because they are then technically accessible to the Internet service provider. Whether the Fourth Amendment protects against a police search of a user's online files depends on whether the search would invade *923 the user's reasonable expectation of privacy. 110 If it would, a search warrant based on probable cause is required, subject to limited exceptions. 111 It might seem indisputable that there is a reasonable expectation of privacy in personal files stored online. This assumption, however, runs up against what is sometimes called the third-party doctrine. The Supreme Court has said that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” 112 For example, bank customers have no reasonable expectation of privacy in deposit slips or financial statements provided to a bank, and telephone users have no expectation of privacy in the numbers dialed on a telephone. 113 If strictly applied, the third-party doctrine would foreclose any expectation of privacy in files stored on a provider's server. The doctrine, however, does not appear to be absolute. For example, the Supreme Court has declined to apply it to the results of nonconsensual drug tests performed by a hospital and handed over to the police. 114 And, in United States v. Miller, the case denying Fourth Amendment protection to bank records, the Court drew a distinction between those records and a person's “private papers.” 115 Thus, in evaluating whether there is a privacy interest in personal files stored online, the current framework leaves room for considering other sources of interpretation, including the Fourth Amendment's formative history and contemporary norms and circumstances. 116 *924 Courts have already begun to consider the Fourth Amendment's application in the context of remotely stored e-mails. In Warshak v. United States a Sixth Circuit panel considered whether users who store their e-mails on a provider's server have a reasonable expectation of privacy in the content of their messages. 117 Although the Warshak panel opinion was vacated by an en banc court that ultimately dismissed for want of ripeness, the case underscores the possible tension between the Fourth Amendment's formative history and the third-party doctrine. Warshak was a civil action for injunctive relief arising out of a federal investigation of the plaintiff for mail fraud and related crimes. The government, without any showing of probable cause, obtained a court order directing the plaintiff's Internet service provider to turn over certain of the plaintiff's e-mails that were not protected by the warrant provision of the Electronic Communications Privacy Act. 118 In opposing a preliminary injunction prohibiting the disclosure, the government invoked the third-party doctrine. 119 It argued that because the provider maintaining the server had access to the content of the e-mails, the plaintiff no longer had a reasonable expectation of privacy. 120 Without this expectation of privacy, the government's collection of the e-mails would not constitute a “seizure” within the meaning of the Fourth Amendment. The Sixth Circuit panel disagreed. It upheld a preliminary injunction prohibiting any compelled disclosure by the provider, concluding that the plaintiff retained a reasonable expectation of privacy in the content of his e-mails stored with his service provider. 121 In reaching that conclusion, the panel emphasized that the provider did not inspect or monitor e-mail


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content in the ordinary course of business. 122 The panel appeared to rest its holding on the analogy it drew between e-mails and telephone *925 conversations, noting that the latter have privacy protection under existing Fourth Amendment doctrine. 123 Interestingly, the district court in Warshak had concluded that an e-mail was more like a letter sent through the U.S. Postal Service, which also has Fourth Amendment protection. 124 This view is consistent with a major function of e-mail: It is a highspeed alternative to regular mail. 125 This analogy to traditional letters implicates the Fourth Amendment's formative history. A remote server holding private files arguably fulfills the same function as the “secret cabinets and bureaus” that Lord Camden protected from promiscuous search in the Entick case in 1765. The e-mails within these files can be equated with the private papers of Lord Camden's day. “Papers,” as he said, “are the owner's . . . dearest property.” 126 And today's e-mails and electronic documents are no less dear because they are stored on electronic servers rather than in the secret cabinets and bureaus they have replaced. As these parallels illustrate, the history of the Fourth Amendment can assist in measuring privacy expectations in today's digital world.

B. The Fourth Amendment's formative history is also relevant in evaluating the threat to individual privacy posed by some computer searches, even when executed under a warrant. 127 As history reminds us, a central purpose of the Fourth Amendment is to ban general warrants--warrants that do not specify the place or sphere of a search, thereby granting unrestricted discretion to executing officers. One challenge is to find ways to limit the scope of computer searches under “warrants that are particular on their face” but that turn into “general warrants in practice.” 128 Computer searches can easily turn into “highly invasive search[es] that uncover[ ] a great deal of information *926 beyond the scope of the warrant.” 129 Two factors drive this threat to privacy. The first is the enormous capacity of electronic storage. Today the average hard drive in a personal computer has a storage capacity of about 150 gigabytes, 130 which is roughly equivalent to 75,000,000 pages of text or 250,000 books averaging 300 pages. 131 Second, the information stored on computers is increasingly personal and records detailed accounts of our activities and interests. 132 Courts are grappling with the permissible scope of computer searches. In the search for evidence specified in a warrant, is it reasonable to allow police to search everywhere on a computer, or are limitations required? Some courts have been reluctant to limit police discretion. 133 These courts are concerned that suspects will “tamper [with], hid[e], or destr[oy]” damning computer files. 134 A clever suspect, for example, does not store child pornography in a file labeled “kiddyporn.” As one court noted, it is easy to rename a “sexyteenyboppersxxx.jpg” file as “sundayschoollesson.doc” and to otherwise change the names and extensions on computer files. 135 Sensitive *927 to the potential for camouflage, some judges seem to throw up their hands and give police broad discretion to search computers so long as there is a warrant based on probable cause to search for a single category of evidence. 136 In contrast, the Ninth Circuit, in a recent en banc decision, set forth rules to protect against what it found to be “a serious risk that every warrant for electronic information will become, in effect, a general warrant, rendering the Fourth Amendment irrelevant.” 137 In that case, federal agents used a warrant authorizing the search of a laboratory's computerized drug-testing records on ten professional baseball players to conduct an unlawful general search of the records of hundreds of players. 138 The Ninth Circuit assumed that the ability of wrongdoers to hide, encrypt, or compress electronic data makes overly broad seizure “an inherent [and sometimes necessary] part of the electronic search process.” 139 But instead of throwing up its hands,


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the court determined that the following privacy safeguards are required for issuing and administering search warrants for computer information. First, magistrate judges should insist that the government waive reliance on the plain view exception in electronic search cases. 140 Second, a “warrant application should normally include” a search protocol “designed to uncover only the information for which [the government] has probable cause.” 141 Finally, seized information that the government has no probable cause to collect must be segregated and quarantined by government personnel not involved in the investigation or by an independent third party. 142 The Tenth Circuit has also attempted to prevent general searches of computers, apparently concluding that overly broad searches and seizures are not inevitable. Unlike the Ninth Circuit, the Tenth Circuit *928 focuses on the Fourth Amendment's particularity requirement, holding that a warrant must affirmatively limit the scope of a computer search by particularly describing either specific files or specific file formats that contain evidence of the federal crime suspected to have been committed. 143 Should the police knowingly exceed the warrant's scope--for example, by searching for images when the warrant is for written information--any unspecified evidence found must be suppressed. 144 The Ninth and Tenth Circuit decisions, which protect against general searches of computers in different ways, are ultimately consistent with the Fourth Amendment's formative history. They illustrate that while history does not dictate any particular solution, it does suggest that there are constitutional limits on police discretion in the scope and execution of warrants for computer searches.

C. Finally, I want to mention government data mining programs that create electronic databases of personal information about U.S. citizens--information that the government then analyzes to identify suspicious patterns of behavior. 145 Data mining technologies threaten the privacy once afforded by “the inherent inefficiency of government agencies [that] analyz[ed widely dispersed] paper, rather than aggregated, computer records.” 146 The government has used agency data mining programs to help detect waste and for various law enforcement *929 purposes since at least the 1990s. 147 Following the attacks of September 11, 2001, the government expanded efforts to acquire information and explored ways to combine all of the available information into “a single massive database.” 148 One notorious example is the never-implemented Total Information Awareness (TIA) program conceived at the Department of Defense. 149 The program's Orwellian implications were captured by its original logo: “an ‘all-seeing’ eye atop of a pyramid looking down over the globe, accompanied by the Latin phrase scientia est potentia (knowledge is power).” 150 TIA sought to compile and link vast amounts of electronic information, including credit card transactions, travel information, telephone records, and video feeds from airport surveillance cameras. This information would then have been filtered through software that constantly monitored for suspicious patterns. 151 The program's managers represented that the program would amass only transactional data that the government could access under existing law. 152 But the government can claim lawful access to enormous quantities of information simply by invoking the third-party doctrine. 153 We disclose “a vast amount of personal information to a vast array of [third-party] demanders.” 154 And technology companies routinely “record the Web *930 sites [we] visit, the ads [we] click on, [and] even the words [we] enter in search engines.” 155 Compiling this information into one huge database could provide government agents with access to a reasonably complete profile of any person who is singled out. 156


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Congress withdrew funding for TIA because of concerns about the privacy of U.S. citizens. 157 It is nevertheless instructive to consider the privacy implications of a TIA-type program. Suppose a government agency compiles and constantly updates a massive database of transactional information on U.S. citizens that includes records of consumer activity, subject headers on domestic e-mails, Web site visits, and real-time information about where cell phones are located. The program stipulates that assigned agents may use the data to investigate potential criminal- or terrorism-related activity. Suppose further that an agent, based purely on subjective suspicion, targets a particular individual and pores through all data relating to that individual for evidence of a crime or suspicious activity. If there was a Fourth Amendment challenge to the breadth of agent discretion to access and use the data, the government could argue that there is no reasonable expectation of privacy in transactional information collected from third parties, and that it is free to use the database for any investigative or strategic purpose. 158 But does the history of the Fourth Amendment offer any guidance here? I believe history suggests that we ought to ask whether the data mining program has the character of a general warrant because of the agent's unbridled discretion to choose his or her target and to rummage through large quantities of personal information about that target. We should ask the question James Otis would ask if he were here today: Does the agent's unchecked authority to scour the data place “the liberty [or privacy rights] of every [person] in the hands of every petty officer[?]” 159

*** In concluding, I recognize that I have not provided ready answers to the challenging new questions that test the reach of the Fourth Amendment. But that was not my purpose. I have simply attempted *931 to make the case that the mischief--the threat to liberty and privacy--that led to the inclusion of the Fourth Amendment in the Bill of Rights has not disappeared; it has only changed in form. Thus, in confronting contemporary questions, it is more important than ever to use the Fourth Amendment's formative history, which confirms the Amendment's broader purpose of limiting government discretion. This is no time for outdated common law rules from the founding era to control and restrict the meaning of the Fourth Amendment. As Justice Black firmly declared in the first Madison Lecture nearly fifty years ago: “I cannot agree with those who think of the Bill of Rights as an 18th Century straightjacket, unsuited for this age. It is old but not all old things are bad.” 160

Footnotes a1 Copyright © 2010 by M. Blane Michael, Judge, United States Court of Appeals for the Fourth Circuit. An earlier version of this lecture was delivered as the James Madison Lecture at the New York University School of Law on October 20, 2009. I thank several of my clerks, Joshua Carpenter, Joshua Berman, Patrick Bocash, Elizabeth Canter, and Demian Ordway, and my two assistants, Sandra Hanning and Carolyn Young, for their invaluable help on this project. I also thank my wife, Mary Anne, who was a faithful advisor on matters of style.

1

Norman Dorsen, Introduction to The Unpredictable Constitution 4 (Norman Dorsen ed. 2002).

2


3

Id.

4

United States v. Comprehensive Drug Testing, Inc., 579 F.3d 989, 1005 (9th Cir. 2009) (en banc).

5

277 U.S. 438, 472 (1928) (Brandeis, J., dissenting).

6

Id. at 473 (quoting Weems v. United States, 217 U.S. 349, 373 (1910)).


12


7

William J. Stuntz, The Substantive Origins of Criminal Procedure, 105 Yale L.J. 393, 404 (1995).

8

Act of Frauds of 1662, 12 Car. 2, c. 11 § V(2) (Eng.), reprinted in 8 Danby Pickering, The Statutes at Large 78, at 81 (London, Bentham 1763).

9

See Act of Frauds of 1696, 5 W. & M., c. 22 § VI (Eng.), reprinted in 9 Danby Pickering, The Statutes at Large 428, at 430 (London, Bentham 1764); see also William Cuddihy & B. Carmon Hardy, A Man's House Was Not His Castle: Origins of the Fourth Amendment to the United States Constitution, 37 Wm. & Mary Q. 371, 380-81 (1980); Stuntz, supra note 7, at 404-05.

10

Act of Frauds of 1662, 12 Car. 2, c. 11 § V, reprinted in, Pickering, supra note 8, at 80-81.

11

M.H. Smith, The Writs of Assistance Case 29 (1978); Stuntz, supra note 7, at 405.

12

See Stuntz, supra note 7, at 405 (describing broad scope of authority under writs of assistance); see also Smith, supra note 11, at 375, 559-61 (providing examples of Massachusetts writs of assistance from this period).

13

Stuntz, supra note 7, at 405.

14

The Seven Years War began in 1756. The Columbia Encyclopedia 2484 (5th ed. 1993).

15


16

Id.

17

See id. (noting that because actions to enforce “trade rules” were infrequent, “rampant and blatant [violations]” created economy “grounded on an illegal trade”).

18

See id. at 406; Smith, supra note 11, at 130, 142-43.

19

See Smith, supra note 11, at 131-32, 232, 316 (noting that Otis was first to challenge writ of assistance even though court had been issuing such writs for years).

20

See id. at 6.

21

Id. app. J at 552.

22

Id. app. J at 553.

23

Id. app. J at 552.

24

Id. app. I at 544.

25

Tracey Maclin, The Complexity of the Fourth Amendment: A Historical Review, 77 B.U. L. Rev. 925, 946-47 (1997).

26

Smith, supra note 11, at 234.

27

Letter from John Adams to William Tudor (March 29, 1817) in 10 The Works of John Adams 247-48 (Boston, Little Brown & Co. 1856). Some commentators have suggested that Adams overstated the immediate impact of Otis's argument. See Stuntz, supra note 7, at 406 n.56 (citing two sources questioning “contemporaneous importance” of argument).

28

See Cuddihy & Hardy, supra note 9, at 387 (explaining that many “English methods of search and seizure,” including general warrants, were “as common in the colonies as in the mother country”).

29

While general warrants to search for fugitives and stolen property were among the most common, these warrants were used for a variety of searches and seizures. See William J. Cuddihy, The Fourth Amendment: Origins And Original Meaning 602-1791 at 232 (2009) (listing examples of general warrants); Cuddihy & Hardy, supra note 9, at 387 n.78 (same). According to William Cuddihy,


13

READING THE FOURTH AMENDMENT: GUIDANCE FROM..., 85 N.Y.U. L. Rev. 905 “[t]he general warrant, or something resembling it, was the usual protocol of search and arrest everywhere in colonial America, excepting Massachusetts after 1756.” Cuddihy, supra, at 236.

30

Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547, 563 n.21 (1999).

31


32

Cuddihy & Hardy, supra note 9, at 385.

33

Wilkes v. Wood, (1763) 98 Eng. Rep. 489, 498 (K.B.).

34


35

Today's sum is calculated according to relative purchasing power. See MeasuringWorth, Purchasing Power of British Pounds from 1264 to Present, http://www.measuringworth.com/ppoweruk/.

36

Nelson B. Lasson, The History and Development of the Fourth Amendment to the United States Constitution, in 55 The John Hopkins University Studies in Historical and Political Science 211, 254-55 (1937).

37

Huckle v. Money, (1763) 95 Eng. Rep. 768, 769 (K.B.); see also Davies, supra note 30, at 563 n.21 (providing summary of cases dealing with general warrants from this period).

38

Money v. Leach, (1765) 97 Eng. Rep. 1075, 1088 (K.B.).

39

See Davies, supra note 30, at 563 n.21.

40

Entick v. Carrington, (1765) 19 How. St. Tr. 1029 (C.P.) (Eng.).

41

Id. at 1073.

42

Id. at 1063.

43

Id. at 1066.

44

See Davies, supra note 30, at 566-67 (discussing Parliament's passage of Townshend Act of 1767, which reauthorized writs of assistance for customs searches in colonies).

45

Id. at 561.

46

See id. at 566-67 & nn.26-27 (discussing public controversy over general writs and noting increasing frequency of colonial judges' refusal to issue such writs to customs officials notwithstanding statutory authorization).

47

Id. at 567, 603-04.

48

See George C. Thomas, III, Time Travel, Hovercrafts, and the Framers: James Madison Sees the Future and Rewrites the Fourth Amendment, 80 Notre Dame L. Rev. 1451, 1463 (2005) (“[T]he experience with British rule left the Framers terrified of general searches.”).

49

Id. at 1465 & n.63.

50

Davies, supra note 30, at 684 (quoting Mass. Const. of 1780, pt. 1, art. XIV).

51

Id. at 685.

52



14


53

See e.g., Boyd v. United States, 116 U.S. 616, 633-35 (1886) (applying Fourth Amendment's unreasonable search and seizure clause to invalidate court-ordered production of documents). Some scholars endorse a reading of the Fourth Amendment that would limit it to a ban on general warrants. See, e.g., Gerard V. Bradley, The Constitutional Theory of the Fourth Amendment, 38 DePaul L. Rev. 817, 833-55 (1989). Thomas Davies also concludes that the original understanding was limited to this narrow purpose, but he argues that changed circumstances make it infeasible and undesirable to apply this understanding to modern cases. See Davies, supra note 30, at 736-50.

54

U.S. Const. amend. IV (emphasis added).

55

See infra Part III.

56

526 U.S. 295 (1999). For an excellent summary of how Justice Scalia gradually developed and adopted this approach, see David A. Sklansky, The Fourth Amendment and Common Law, 100 Colum. L. Rev. 1739, 1745-1761 (2000).

57

Houghton, 526 U.S. at 299; see also Virginia v. Moore, 128 S. Ct. 1598, 1602 (2008) (opinion of Scalia, J.) (“We look to the statutes and common law of the founding era to determine the norms that the Fourth Amendment was meant to preserve.”).

58

Houghton, 526 U.S. at 299-300.

59

Id. In other cases Justice Scalia has said that the reasonableness balancing test applies “where there was no clear practice, either approving or disapproving the type of search at issue, at the time the constitutional provision was enacted.” Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652-53 (1995) (opinion of Scalia, J.).

60

Houghton, 526 U.S. at 300.

61

The “freezes in place” characterization is drawn from Payton v. New York. 445 U.S. 573, 591 n.33 (1980) (“[T]his Court has not simply frozen into constitutional law those law enforcement practices that existed at the time of the Fourth Amendment's passage.”).

62

U.S. Const. amend. VII (emphasis added).

63

U.S. Const. amend. IV (emphasis added).

64

Joseph Story explained that “the common law is not in its nature and character an absolutely fixed, inflexible system, like the statute law, providing only for cases of a determinate form, which fall within the letter of the language, in which a particular doctrine or legal proposition is expressed.” Joseph Story, Codification of the Common Law, in The Miscellaneous Writings of Joseph Story 698, 702 (Lawbook Exchange 2000) (1852) [hereinafter Story, Codification of the Common Law].

65

Id. at 702-04 (providing examples of common law judges revising historic rules to comport with “principles of natural justice”); Joseph Story, Progress of Jurisprudence, in The Miscellaneous Writings of Joseph Story, supra note 64, at 198, 207 [hereinafter Story, Progress of Jurisprudence] (“The common law had its origin in ignorant and barbarous ages; it abounded with artificial distinctions and crafty subtleties, partly from the scholastic habits of its early clerical professors, and partly from its subserviency to the narrow purposes of feudal polity.”); see also Joseph Story, Commentaries on the Constitution of the United States § 80, at 65-66 (Boston, Hilliard, Gray, & Co. 1833) (discussing introduction of common law into colonies and noting, among other features, that “it has expanded with our wants”).

66

Story, Codification of the Common Law, supra note 64, at 702.

67

Id.

68

See Sklansky, supra note 56, at 1794-1795 (describing common law of eighteenth century as “an amalgam of cases, statutes, commentary, custom, and fundamental principles”).

69

The degree of variation between the common law of the different states in 1791 was sufficient to lead Justice Story to conclude that the “common law” explicitly incorporated into the Seventh Amendment must be English common law and “not the common law of any individual state.” United States v. Wonson, 28 F. Cas. 745, 750 (C.C.D. Mass. 1812) (No. 16,750) (Story, Circuit J.). In an 1821


15

READING THE FOURTH AMENDMENT: GUIDANCE FROM..., 85 N.Y.U. L. Rev. 905 address to the Suffolk Bar in Boston, Justice Story expressed consternation over the degree to which the common law of the various states had receded from a “common standard” of uniformity. Story, Progress of Jurisprudence, supra note 65, at 213.

70

Bostock v. Saunders, (1773) 95 Eng. Rep. 1141 (K.B.).

71

Cooper v. Boot, (1785) 99 Eng. Rep. 911, 916 (K.B.) (Lord Mansfield, J.).

72

E.g. 7 Nathan Dane, A General Abridgment and Digest of American Law § 2, at 244-46 (Boston, Cummings, Hilliard & Co. 1824); see also Fabio Arcila, Jr., In the Trenches: Searches and the Misunderstood Common-Law History of Suspicion and Probable Cause, 10 U. Pa. J. Const. L. 1, 46-48 & nn.165 & 176 (2007) (citing 5 Nathan Dane, A General Abridgment and Digest of American Law § 11, at 559 (Boston, Cummings, Hilliard & Co. 1824)). Davies points out that Cooper v. Boot was not actually published until at least 1801. See Davies, supra note 30, at 561 n.19.

73

Katz v. United States, 389 U.S. 347, 366 (1967) (Black, J., dissenting).

74

“Eaves-droppers, or such as listen under walls or windows, or the eaves of a house, to hearken after discourse, and thereupon to frame slanderous and mischievous tales, are a common nusance, and presentable at the court-leet: or are indictable at the sessions, and punishable by fine and finding sureties for the good behaviour.” 4 William Blackstone, Commentaries *169.

75

267 U.S. 132 (1925) (opinion of Taft, C.J.).

76

Id. at 151.

77

Id. at 150-51 (quoting Act of July 31, 1789, ch. 5, 1 Stat. 29, 43 (1789)).

78

Id. at 153.

79

Stuntz, supra note 7, at 407-08 & n.59. Indeed, peace officers had few responsibilities apart from responding to private complaints. Davies, supra note 30, at 620. A limited number of what Davies calls “complainantless crimes” did exist, but Davies contends that these crimes were regarded as less serious than the drug offenses that constitute the bulk of today's complainantless crimes. Id.

80

Davies, supra note 30, at 620-21.

81

Id. at 629. An eighteenth-century treatise confirmed that official authority was limited, stating that “it seems difficult to find any Case, wherein a Constable is impowered to arrest a Man for a Felony committed or attempted, in which a private Person might not as well be justified in doing it ....” Id. (quoting 2 William Hawkins, A Treatise of the Pleas of the Crown 80 (Arno Press 1972) (1726)). Indeed, according to Davies, the common law in 1791 recognized only three justifications for a warrantless arrest, and all three could be invoked either by officers or by private persons making what we would now call a “citizen's arrest.” Davies, supra note 30, at 629. Notably, the warrantless arrest standard at common law differs from today's arrest standard primarily in that today's standard requires only “probable cause” that a crime has been committed, whereas the common law standard required a “felony in fact.” Id. at 632-33. This “felony in fact” requirement was also incorporated into the warrant standards at common law. Before an arrest warrant could be issued, a complainant was required to make a sworn accusation that a crime had “in fact” been committed. Id. at 651-52.

82

Davies notes that “because the common-law understanding was that an officer ceased to have any official status if he exceeded his lawful authority, the Framers conceived of unlawful acts by officers as personal trespasses, not as government illegality (which is why they never considered an exclusionary rule).” Thomas Y. Davies, The Fictional Character of Law-and-Order Originalism: A Case Study of the Distortions and Evasions of Framing-Era Arrest Doctrine in Atwater v. Lago Vista, 37 Wake Forest L. Rev. 239, 403 (2002).

83

Davies, supra note 30, at 652.

84

Id.

85

See Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992) (“Officials are not liable for bad guesses in gray areas; they are liable for transgressing bright lines.”).


16


86

1 Wayne R. LaFave, Search and Seizure § 1.6, at 186 (4th ed. 2004) (“In the typical case, the impact of the exclusionary rule is to bar from use at trial evidence obtained by an unreasonable search and seizure.”).

87

Wyoming v. Houghton, 526 U.S. 295, 299-300 (1999).

88

Id. at 300.

89

116 U.S. 616 (1886).

90

Id. at 624-25.

91

277 U.S. 438 (1928).

92

Id. at 466.

93

Id. at 474 (Brandeis, J., dissenting).

94

Id. at 476.

95

389 U.S. 347, 359 (1967).

96

Id. at 356-57.

97

Frank v. Maryland, 359 U.S. 360, 363 (1959); see also United States v. Rabinowitz, 339 U.S. 56, 69-70 (1950) (Frankfurter, J., dissenting) (“[The Fourth Amendment is] not to be read as [it] might be read by a man who knows English but has no knowledge of the history that gave rise to the words.... One cannot wrench ‘unreasonable searches' from the text and context and historic content of the Fourth Amendment.”); Davis v. United States, 328 U.S. 582, 605 (1946) (Frankfurter, J., dissenting) (“If the purpose of its framers is to be respected, the meaning of the Fourth Amendment must be distilled from contemporaneous history.”).

98

United States v. Di Re, 332 U.S. 581, 595 (1948) (“[T]he forefathers, after consulting the lessons of history, designed our Constitution to place obstacles in the way of a too permeating police surveillance, which they seemed to think was a greater danger to a free people than the escape of some criminals from punishment.”).

99

Chimel v. California, 395 U.S. 752, 760-61 (1969) (“[T]he [Fourth] Amendment's proscription of ‘unreasonable searches and seizures' must be read in light of ‘the history that gave rise to the words'?a history of ‘abuses so deeply felt by the Colonies as to be one of the potent causes of the Revolution ....”’ (quoting Rabinowitz, 339 U.S. at 69)); Stanford v. Texas, 379 U.S. 476, 480-85 (1965) (discussing at length history of Fourth Amendment and framers' goal of eliminating “arbitrary power” granted by general warrants and “[t]he hated writs of assistance”).

100

United States v. Chadwick, 433 U.S. 1, 7-8 (1977) (“It cannot be doubted that the Fourth Amendment's commands grew in large measure out of the colonists' experience with the writs of assistance and their memories of the general warrants formerly in use in England.”).

101

129 S. Ct. 1710 (2009).

102

Id. at 1720.

103

Id.

104

Id. at 1720 n.5 (citing Boyd v. United States, 116 U.S. 616 (1886)).

105

Id. at 1724 (Scalia, J., concurring).

106

United States v. Chadwick, 433 U.S. 1, 9 (1977).


17


107

Brett Burney, Storing Your Firm's Data ‘In the Cloud,’ Law Tech. News, Apr. 2, 2009, available at http:// www.law.com/jsp/ lawtechnologynews/PubArticleLTN.jsp?id=1202429581722.

108

Achal Oza, Amend the ECPA: Fourth Amendment Protection Erodes as E-Mails Get Dusty, 88 B.U. L. Rev. 1043, 1050-54 (2008).

109

Burney, supra note 107.

110

See Smith v. Maryland, 442 U.S. 735, 740 (1979) (“Consistently with Katz, this Court uniformly has held that the application of the Fourth Amendment depends on whether the person invoking its protection can claim a ‘justifiable,’ a ‘reasonable,’ or a ‘legitimate expectation of privacy’ that has been invaded by government action.”).

111

See Arizona v. Gant, 129 S. Ct. 1710, 1716 (2009) (noting “basic rule” that warrantless searches “are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions” (internal quotation marks omitted)).

112

Smith, 442 U.S. at 743-44.

113

Id. (upholding use of pen register to record telephone numbers dialed), superseded by statute, Electronic Communications Privacy Act of 1986, Pub. L. No. 99-508, § 3121, 100 Stat. 1848, 1868 (1986) (current version at 18 U.S.C. § 3121 (2006)); United States v. Miller, 425 U.S. 435, 443 (1976) (upholding subpoena to bank to turn over documents to police), superseded by statute, Financial Institutions Regulatory and Interest Rate Control Act of 1978, Pub. L. No. 95-630, § 1110, 92 Stat. 3641, 3703 (codified as amended at 12 U.S.C. § 3410 (2006)).

114

See Ferguson v. City of Charleston, 532 U.S. 67, 78 (2001) (holding that Fourth Amendment was violated when state hospital ran drug test on pregnant patient without consent and gave results to law enforcement).

115

425 U.S. at 440 (citing Boyd v. United States, 116 U.S. 616, 622 (1886)).

116

California v. Greenwood, 486 U.S. 35, 51 & n.3 (1988) (Brennan, J., dissenting) (noting that courts look at “understandings that are recognized and permitted by society” and “general social norms” (internal citations omitted)).

117

490 F.3d 455 (6th Cir. 2007), vacated, Warshak v. United States, 532 F.3d 521 (6th Cir. 2008) (en banc).

118

Id. at 460; see also Electronic Communications Privacy Act of 1986, Pub. L. No. 99-508, 100 Stat. 1848 (codified as amended in scattered sections of 18 U.S.C.) (extending government restrictions on wiretaps of telephone calls to include transmissions of electronic data by computer). 18 U.S.C. § 2703(a) provides some statutory protections to stored communications, including the requirement that the government obtain a warrant based upon probable cause to access communications stored for one hundred eighty days or less. The government can compel disclosure of e-mails stored for longer than one hundred eighty days by obtaining a court order supported by “specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication ... are relevant and material to an ongoing criminal investigation.” § 2703(d).

119

Warshak, 490 F.3d at 468-69.

120

Id.

121

Id. at 471.

122

Id. at 475.

123

Id. at 469-71.

124

Warshak v. United States, No. 1:06-CV-357, 2006 WL 5230332, at *4-5 (S.D. Ohio July 21, 2006).


18


125

See Brigid Schulte, So Long, Snail Shells; Mail Volume Expected To Decline; U.S. Postal Service Adapts by Pulling Collection Boxes, Wash. Post, July 25, 2009, at A1 (“Snail mail is a dying enterprise because Americans increasingly pay bills online, send Evites for parties [and otherwise communicate electronically].”).

126

Entick v. Carrington, (1765) 19 How. St. Tr. 1029, 1066 (C.P.) (Eng.).

127

Police generally need a warrant to search a personal computer or, as often occurs, a mirror image of the computer's hard drive. See United States v. Payton, 573 F.3d 859, 861-62 (9th Cir. 2009) (holding that absent special circumstances, search of computer not expressly authorized by warrant is not reasonable search).

128

Orin S. Kerr, Searches and Seizures in a Digital World, 119 Harv. L. Rev. 531, 565 (2005).

129

Id. at 566.

130

John Seal, Computers Need Maintenance To Avoid Problems, Jupiter Courier (Jupiter, Fl.), Feb. 15, 2009, at A11. Another recent article reported that the average desktop computer has a storage capacity of 109 gigabytes. Derek Haynes, Comment, Search Protocols: Establishing the Protections Mandated by the Fourth Amendment Against Unreasonable Searches and Seizures in the World of Electronic Evidence, 40 McGeorge L. Rev. 757, 763 (2009). An earlier article represented that as of 2005, computer hard drives generally had storage capacities of about 80 gigabytes, which is roughly equivalent to 40,000,000 pages of text. Kerr, supra note 128, at 542.

131

See Kerr, supra note 128, at 542 (observing that 80 gigabytes can store approximately 40,000,000 pages of text).

132

See id. at 565; see also Payton, 573 F.3d at 861-62 (“There is no question that computers are capable of storing immense amounts of information and often contain a great deal of private information. Searches of computers therefore often involve a degree of intrusiveness much greater in quantity, if not different in kind, from searches of other containers.”).

133

See, e.g., United States v. Williams, 592 F.3d 511, 521-22 (4th Cir. 2010) (upholding seizure of child pornography during computer search for evidence of harassment because officer had lawful right to view each file momentarily to determine whether or not it was within warrant's scope); United States v. Miranda, 325 F. App'x 858, 860 (11th Cir. 2009) (same when warrant was for evidence of counterfeiting); United States v. Hanna, No. 07-CR-20355, 2008 WL 2478330, at *6-7 (E.D. Mich. June 17, 2008) (rejecting argument that computer search should have been limited to particular search protocol because “[c]omputer files are easy to disguise or rename”); United States v. Maali, 346 F. Supp. 2d 1226, 1245-47 (M.D. Fla. 2004) (upholding blanket search of all computer files without search protocol because “the lack of a detailed computer ‘search strategy’ does not render the warrant deficient”); Wisconsin v. Schroeder, 2000 WI App 128, PP 12-14, 237 Wis. 2d 575, PP 12-14, 613 N.W.2d 911, PP 12-14 (concluding that police were free to open all user-created files systematically to look for evidence identified in warrant application since “it would [otherwise] be all too easy for defendants to hide computer evidence”).

134

United States v. Hunter, 13 F. Supp. 2d 574, 583 (D. Vt. 1998).

135

United States v. Hill, 322 F. Supp. 2d 1081, 1091 (C.D. Cal. 2004).

136

See, e.g., Miranda, 325 F. App'x at 859-60 (denying suppression of child pornography files discovered pursuant to computer search for counterfeiting files); Hill, 322 F. Supp. 2d at 1090-91 (rejecting alternate search methodologies because possibility of camouflage would render them ineffective); Rosa v. Virginia, 628 S.E.2d 92, 94-97 (Va. Ct. App. 2006) (denying suppression of child pornography files discovered pursuant to computer search for files relating to distribution of controlled substances).

137

United States v. Comprehensive Drug Testing, Inc., 579 F.3d 989, 1004 (9th Cir. 2009) (en banc).

138

Id. at 993.

139

Id. at 1006.


19


140

Id. at 997-98, 1006. Orin Kerr would limit the plain view exception by having courts suppress any evidence discovered that is outside the scope of a warrant for the search of a computer unless such evidence is otherwise admissible. Kerr, supra note 128, at 571-84.

141

Comprehensive Drug Testing, 579 F.3d at 1000, 1006. The Tenth Circuit has indicated that in some circumstances the police must adopt a search protocol designed to limit their search to files likely to contain evidence specified in the warrant. See United States v. Brooks, 427 F.3d 1246, 1251-52 (10th Cir. 2005).

142

Comprehensive Drug Testing, 579 F.3d at 1000, 1006.

143

See United States v. Riccardi, 405 F.3d 852, 862 (10th Cir. 2005) (“Our case law therefore suggests that warrants for computer searches must affirmatively limit the search to evidence of specific federal crimes or specific types of material.”); United States v. Carey, 172 F.3d 1268, 1272-73 (10th Cir. 1999) (holding that officers exceeded warrant's scope when warrant specified search for “documentary evidence” and officers searched image files). Although United States v. Carey emphasizes the importance of specifying the format of the evidence sought, more recent case law in the Tenth Circuit indicates that format is simply one factor to be weighed when assessing particularity. See Brooks, 427 F.3d at 1252 (noting that courts, when assessing particularity for computer search warrants, should look to: “(1) the object of the search, (2) the types [or format] of files that may reasonably contain those objects, and (3) whether officers actually expand the scope of the search upon locating evidence of a different crime”).

144

Carey, 172 F.3d at 1273, 1276. In Carey the Tenth Circuit focused on the officer's subjective intent to exceed the warrant's scope. Kerr has criticized this “subjective approach,” arguing that an officer's subjective intent may be difficult to determine. Kerr, supra note 128, at 578-79.

145

Daniel J. Solove, Data Mining and the Security-Liberty Debate, 75 U. Chi. L. Rev. 343, 343 (2008) (describing data mining and its use by government to identify criminal patterns of behavior); U.S. Gen. Accounting Office, Report No. GAO-04-548, Data Mining: Federal Efforts Cover a Wide Range of Uses 2-3 (2004) [hereinafter Data Mining] (same).

146

Data Mining, supra note 145, at 6.

147

See George Cahlink, Data Mining Taps the Trends, Gov't Executive, Oct. 2000, at 85, available at http:// www.govexec.com/tech/ articles/1000managetech.htm (describing history of data mining and increasing use by wide array of government agencies).

148

Larry Greenemeier, Data Grab: The Feds Want Data for Security and Crime Fighting, and Businesses Have What They Need. The Trick Is Knowing What To Share and Where To Draw the Line, Information Week, June 5, 2006, at 23, 26.

149

See Data Mining: Know-alls, Economist, Sept. 27, 2008, at 73; Cynthia L. Webb, Total Information Dilemma, WashingtonPost.com, May 27, 2004, http://www.washingtonpost.com/wp-dyn/articles/A60986-2004May27.html (describing critical reaction to Total Information Awareness project).

150

Jeffrey W. Seifert, Cong. Research Serv., Data Mining and Homeland Security: An Overview 7 (2008), available at http:// www.fas/ org/sgp/crs/intel/RL31798.pdf.

151

Adam Clymer, Congress Agrees To Bar Pentagon from Terror Watch of Americans, N.Y. Times, Feb. 12, 2003, at A1.

152

Info. Awareness Office, Def. Advanced Research Projects Agency, Report to Congress Regarding the Terrorism Information Awareness Program: In Response to Consolidated Appropriations Resolution, 2003, Pub. L. No. 108-7, Division M, § 111(b), at 14 (2003), available at http:// epic.org/privacy/profiling/tia/may03_report.pdf.

153

See LaFave, supra note 86, § 2.7(b) at 744 (noting that despite “‘enormous quantity of personal information”’ collected and maintained by “‘banks, telephone companies, hospitals, doctors' offices, [and] credit bureaus,”’ courts “have not been receptive to the assertion that the subjects of this information are at all protected by the Fourth Amendment against [its search and seizure by government]” (quoting Note, Government Access to Bank Records, 83 Yale L.J. 1439, 1439 (1974))).

154

Richard A. Posner, Privacy, Surveillance, and Law, 75 U. Chi. L. Rev. 245, 248 (2008).


20


155

Adam Cohen, The Already Big Thing on the Internet: Spying on Users, N.Y. Times, Apr. 5, 2008, at A16.

156

See Greenemeier, supra note 148, at 26.

157

Seifert, supra note 150, at 6-7.

158

Susan W. Brenner, The Fourth Amendment in an Era of Ubiquitous Technology, 75 Miss. L.J. 1, 59 (2005).

159

See Smith, supra note 11, app. J at 553 (excerpting Otis's argument that general warrants are illegal because of overbroad scope).

160

Hugo L. Black, The Bill of Rights, 35 N.Y.U. L. Rev. 865, 879 (1960).

85 NYULR 905 End of Document



21

U.S. v. Finley, 477 F.3d 250 (2007) 72 Fed. R. Evid. Serv. 377

477 F.3d 250 United States Court of Appeals, Fifth Circuit. UNITED STATES of America, Plaintiff–Appellee, v. Jacob Pierce FINLEY, Defendant–Appellant. No. 06–50160.

|

Jan. 26, 2007.

Synopsis Background: Defendant was convicted in the United States District Court for the Western District of Texas, Robert A. Junell, J., of aiding and abetting possession with intent to distribute a controlled substance. Defendant appealed.

Holdings: The Court of Appeals, King, Circuit Judge, held that: [1] defendant's simple possession of methamphetamine in a pill bottle was not a lesser included offense of possession with intent to distribute methamphetamine in a cigarette package; [2] defendant had standing to challenge the search of his cell phone; [3] officers could search of defendant's cell phone incident to his arrest; [4] jury was not required to disregard remarks made by police officers in recording of defendant's pretrial interview in which they accused defendant of being untruthful; and [5] evidence of defendant's prior methamphetamine purchases from codefendant and past distribution of narcotics was admissible to show defendant's motive and intent.

Affirmed.

Attorneys and Law Firms *253 Joseph H. Gay, Jr., Mark Randolph Stelmach (argued), Asst. U.S. Attys., San Antonio, TX, for U.S.

Thomas S. Morgan (argued), Law Office of Thomas S. Morgan, Midland, TX, for Finley. Appeal from the United States District Court for the Western District of Texas. Before KING, WIENER, and CLEMENT, Circuit Judges. Opinion KING, Circuit Judge: Defendant-appellant Jacob Pierce Finley appeals his conviction on one count of aiding and abetting possession with intent to distribute a controlled substance (methamphetamine) in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. He argues, inter alia, that the district court erred by not instructing the jury as to simple possession of methamphetamine and by denying his motion to suppress text messages and call records recovered in a warrantless, postarrest search of his cell phone. For the reasons that follow, we AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND On August 19, 2005, officers with the Midland, Texas Police Department (“MPD”), working in conjunction with the Drug Enforcement Administration (“DEA”), conducted a controlled purchase of methamphetamine from Mark Brown. Amy Stratton, a cooperating source acting under the direction of the MPD, called Brown to arrange a methamphetamine deal. Stratton and Brown agreed that Stratton would purchase approximately six grams of methamphetamine for $600. Brown requested that Stratton travel to his residence to buy the narcotics, but at the direction of the police Stratton informed Brown that she was at a truck stop in Midland and that she had no transportation to get to Brown's home. Brown agreed to meet Stratton at the truck stop. The police drove Stratton to the truck stop and gave her $600 in marked bills. Brown asked defendant-appellant Jacob Pierce Finley to drive him to the truck stop, and Finley agreed to do so. Driving his white Southwest Plumbing van—Southwest Plumbing was Finley's uncle's company and was also Finley's employer—Finley picked Brown up at Brown's residence and drove him to the truck stop. Once they arrived, Stratton


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approached the van's passenger side where Brown was sitting. Stratton gave Brown the $600 in marked bills, and Brown gave Stratton a cigarette package. Tucked inside the clear wrapper surrounding the cigarette package was a plastic bag containing a white crystalline substance; laboratory analysis of this substance later revealed that it was a 3.1–gram mixture containing 1.4 grams of pure methamphetamine. *254 Finley then drove away from the truck stop; neither he nor Brown ever exited the van while there. MPD officers waiting nearby performed a traffic stop on the van approximately three to five miles from the truck stop. Once Finley and Brown were detained, the police searched the van and found the same marked bills used in the transaction in a trash can located between the driver's and passenger's seats. The police also found two medicine bottles in the trash can, one with an orange cap and the other with a white cap. In the orange-capped bottle were five small plastic bags, two of which contained a white crystalline substance; laboratory analysis of this substance later revealed that in total it was a 2.6–gram mixture that included 1.5 grams of pure methamphetamine. The white-capped bottle had a label with the name “Finley” on it. In this bottle were a small, homemade, glass smoking pipe with methamphetamine residue in it and a small piece of straw that could be used to snort methamphetamine. Also inside the bottle was a plastic bag containing a white crystalline substance; laboratory analysis of the substance revealed that it was 1.6 grams of dimethyl sulfone, a substance similar in appearance to methamphetamine that methamphetamine dealers commonly use to “cut” or add bulk to pure methamphetamine. The police arrested Finley and Brown at the scene of the traffic stop. They searched Finley's person and seized a cell phone that was located in his pocket. The phone belonged to Southwest Plumbing and had been issued to Finley for work, but Finley was permitted to use the phone for personal purposes as well. MPD officers transported Finley and Brown to Brown's residence, where other MPD officers and DEA agents were conducting a search pursuant to a warrant. 1 DEA Special Agent Dean Cook and MPD Sergeant Russell interviewed Finley outside the home. Finley admitted to some past cocaine and methamphetamine use, including some

methamphetamine he received from Brown three days prior. He also admitted to getting his friends marijuana from Brown on numerous occasions. But he denied any involvement in the sale of methamphetamine to Stratton. During the questioning, an MPD officer handed Finley's cell phone to Special Agent Cook. Special Agent Cook searched through the phone's call records and text messages; several of the text messages appeared to him to be related to narcotics use and trafficking. 2 After Special Agent Cook and Sergeant Russell confronted Finley with some of the text messages, Finley averred that most of the messages referred to marijuana, not methamphetamine, *255 and he admitted to distributing marijuana at least once. The grand jury charged Brown and Finley in a onecount indictment with possession with intent to distribute methamphetamine, aided and abetted by each other, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Brown pleaded “guilty” pursuant to a plea agreement. Finley pleaded “not guilty” and proceeded to a jury trial. The government argued at trial that Finley knowingly drove Brown to the truck stop so that Brown could sell methamphetamine to Stratton and that Finley therefore aided and abetted Brown's possession with intent to distribute methamphetamine. Finley's defense was that, even though he in fact aided and abetted Brown, he did not do so knowingly because he did not know that the purpose of the trip to the truck stop was to sell methamphetamine. Brown testified that during the approximately six-month period prior to his arrest, he was in daily contact with Finley. Brown also testified that Finley had purchased methamphetamine from him five to ten times and that Finley distributed some of the methamphetamine he bought from Brown. Brown alleged that on August 19, 2005, Finley contacted him to purchase methamphetamine, that Brown told Finley he needed a ride to the truck stop to drop off methamphetamine, and that Finley agreed to give him a ride in exchange for a little extra methamphetamine. According to Brown's testimony, when Finley picked him up he gave Finley 0.3 grams of methamphetamine, which included 0.1 extra grams in exchange for the ride. On cross examination, Brown acknowledged that after his arrest he told MPD


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officers, inter alia, that he asked Finley to take him to the truck stop to purchase cigarettes. Finley testified that Brown asked him for a ride to get some cigarettes and that he agreed to take him to the truck stop. He averred that he had not known of the real purpose for the trip until after the drug transaction had occurred. The jury convicted Finley, and he now appeals.

II. LESSER–INCLUDED–OFFENSE INSTRUCTION Finley first contends that the district court erred in refusing his request for a lesser-included-offense instruction. Finley requested that the jury be permitted to consider, in addition to possession with intent to distribute, the lesser offense of simple possession of a controlled substance. The district court denied Finley's request.

[3] [4] A lesser-included-offense instruction “is not proper where, on the evidence presented, the factual issues to be resolved by the jury are the same as to both the lesser and greater offenses.” Sansone v. United States, 380 U.S. 343, 349, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965). It is only proper where the additional element required for the greater offense is actually in dispute. Id. Otherwise, the jury would effectively be permitted “to determine the punishment to be imposed, a duty Congress has traditionally left to the judge.” Id. at 350 n. 6, 85 S.Ct. 1004.

B. Standard of Review [5] [6] We review the district court's determination on the first prong of the above two-part test (whether the lesser offense is included in the greater offense) de novo. See Harrison, 55 F.3d at 167. We review the court's determination on the second prong (whether a jury could rationally acquit on the greater offense yet convict on the lesser) for abuse of discretion. See id.

A. Background Rule 31(c)(1) of the Federal Rules of Criminal Procedure provides that “[a] defendant may be found guilty of ... an offense necessarily included in the offense charged.” The defendant is afforded this protection “to prevent juries from improperly resolving their doubts in favor of conviction when one or more of the elements of the charged offense remain unproven, but the defendant seems plainly guilty of some offense.” United States v. Harrison, 55 F.3d 163, 166 (5th Cir.1995) (quoting United States v. Browner, 889 F.2d 549, 551 (5th Cir.1989)).

C. Analysis [7] Finley asserts that the first prong is satisfied because simple possession of a controlled substance is a lesser included offense of possession with intent to distribute. He argues that the second prong is satisfied because (1) a jury could rationally have acquitted him of possession with intent to distribute had it believed Finley's testimony that he did not know the purpose of the truck-stop trip and disbelieved Brown's testimony to the contrary and (2) a jury could also have rationally convicted him of simple possession of methamphetamine if, based on the methamphetamine found in the pill bottles, it had believed Brown's testimony that he [1] [2] A defendant is entitled to a lesser-included-offense gave Finley methamphetamine in the van and disbelieved instruction if (1) the elements of the lesser offense are a Finley's testimony that none of the methamphetamine in the subset of the elements of the charged offense and (2) the van belonged to him. evidence at trial is such that a jury could rationally find the defendant guilty of the lesser offense yet acquit him of the We need not address Finley's argument under the second greater. Id. (quoting Browner, 889 F.2d at 550–51). “While prong because he mistakenly assumes under the first prong a defendant's request for a lesser included offense charge that simple possession of the methamphetamine in the pill should be freely granted, there must be a rational *256 basis bottle is a lesser included offense of possession with intent to for the lesser charge and it cannot serve merely as ‘a device for distribute the methamphetamine in the cigarette package. It is [the] defendant to invoke the mercy-dispensing prerogative not; they are two separate, independent offenses. of the jury.’ ” United States v. Collins, 690 F.2d 431, 438 (5th Cir.1982) (quoting United States v. Sinclair, 444 F.2d 888, “One offense is necessarily included in another if it is 890 (D.C.Cir.1971)). impossible to commit the greater without also having


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committed the lesser.” 3 CHARLES ALAN WRIGHT, NANCY J. KING, & SUSAN R. KLEIN, FEDERAL PRACTICE AND PROCEDURE § 515 (3d ed.2004). “This rule is an application of the familiar Blockburger elements test, which the [Supreme] Court has adopted to determine when offenses are the ‘same’ under the Double Jeopardy Clause.” Id.; see also Rutledge v. United States, 517 U.S. 292, 297, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996). [8] It is well established that, in the abstract, simple possession of a controlled substance under 21 U.S.C. § 844(a) is a lesser included offense of possession with intent to distribute under 21 U.S.C. § 841(a)(1). United States v. Lucien, 61 F.3d 366, 372–74 (5th Cir.1995). But under the Blockburger rule, possession with intent to distribute and simple possession constitute only one offense only where “the same act or transaction constitutes a violation” of both § 841(a)(1) and § 844(a). Rutledge, 517 U.S. at 297, 116 S.Ct. 1241 (emphasis added) (quoting *257 Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932)). If, however, the greater offense of possession with intent to distribute and the lesser offense of simple possession arise out of two separate acts, and not “the same act or transaction,” then the lesser offense is not included in the greater. See Blockburger, 284 U.S. at 301–03, 52 S.Ct. 180 (holding that two unlawful sales of narcotics to the same purchaser on consecutive days constituted two offenses, punishable separately). In United States v. Johnson, the defendant was convicted of one count of possession of amphetamine in violation of § 844(a) and a separate count of possession with intent to distribute amphetamine in violation of § 841(a) (1) and 18 U.S.C. § 2. 977 F.2d 1360, 1373 (10th Cir.1992). The defendant argued that his multiple convictions for amphetamine possession violated the Double Jeopardy Clause because they arose out of a single course of conduct. Id. at 1371. But the court disagreed. The court acknowledged that “as to a single cache of drugs, simple possession under § 844(a) is a lesser included offense of possession with intent to distribute under § 841(a)(1).” Id. at 1373 (emphasis added) (citing Brown v. Ohio, 432 U.S. 161, 169, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); United States v. Burns, 624 F.2d 95 (10th Cir.1980)). But it reasoned that the situation in that case differed because the amphetamine was found in two separate stashes and each stash was intended for a different purpose or transaction; one stash was intended for personal use and the

other for distribution. See id. at 1373–74. Each stash therefore constituted a different criminal transaction. Id. at 1374. We agree with Johnson's rationale. Applying it to the facts of this case, the methamphetamine in the cigarette package and the methamphetamine in the pill bottle were two separate caches of drugs; one was intended for distribution to Stratton at the truck stop, and the other was intended for some other purpose. Each stash therefore constituted a separate violation of the narcotics laws. The government chose to prosecute Finley for the violation arising from the methamphetamine in the cigarette package only and not the methamphetamine in the pill bottle. 3 The lesser included offense of *258 possession with intent to distribute the methamphetamine in the cigarette package would be simple possession of the same stash of methamphetamine. But Finley's argument rests solely on the methamphetamine in the pill bottle; he does not contend, nor did he before the trial court, that he is entitled to a lesser-included-offense instruction on simple possession of the methamphetamine in the cigarette package. Even if he did, on the evidence presented at trial, a jury could not rationally have convicted Finley of simple possession of this cache of methamphetamine and yet have acquitted him of possession with intent to distribute it. This is because the only issue at trial was Finley's knowledge of Brown's plan—i.e., whether Finley drove Brown to the truck stop knowing of Brown's plan or did so completely unwittingly. 4 If Finley knew beforehand that the purpose of the trip to the truck stop was to distribute methamphetamine, then he is criminally liable for the greater offense of possession with intent to distribute; if Finley did not know this, then he is liable for neither the greater offense of possession with intent to distribute nor the lesser offense of simple possession. The additional element required for a conviction on the greater offense—here, intent to distribute the methamphetamine in the cigarette package—was not in dispute, and Finley was therefore not entitled to an instruction on the lesser offense. See Sansone, 380 U.S. at 349, 85 S.Ct. 1004.

III. WARRANTLESS SEARCH OF CELL PHONE


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Finley next contends that the call records and text messages recovered during the search of his cell phone should have been suppressed.

A. Standing [9] The government suggests that Finley lacks standing to challenge the search of the cell phone. The government asserts that Finley did not have a reasonable expectation of privacy in the cell phone because it was a business phone issued to him by his uncle's business. We disagree.

Finley had standing to contest the search. We review this conclusion de novo. Id. The government concedes that Finley had a possessory interest in the cell phone and that his use of the phone weighs in favor of his right to challenge the search. The sole basis for the government's argument appears to be that Finley's employer, not Finley, had a property interest in the phone and that Finley should have expected the employer to read the

messages on the phone after he returned it to the employer. 5 But a property interest in the item searched is only one factor in the analysis, and lack thereof is not dispositive. See, e.g., [10] [11] In determining whether a defendant has a Mancusi v. DeForte, 392 U.S. 364, 368, 88 S.Ct. 2120, 20 reasonable expectation of privacy sufficient to contest the L.Ed.2d 1154 (1968) (“[C]apacity to claim the protection of validity of a search, we inquire “(1) whether the defendant is the [Fourth] Amendment depends not upon a property right able to establish an actual, subjective expectation of privacy in the invaded place but upon whether the area was one in with respect to the place being searched or items being which there was a reasonable expectation of freedom from seized, and (2) whether that expectation of privacy is one governmental intrusion.”); see also Cardoza–Hinojosa, 140 which society would recognize as reasonable.” United States F.3d at 615 (“[N]o one of [the Ibarra] factors is necessarily v. Cardoza–Hinojosa, 140 F.3d 610, 614 (5th Cir.1998) decisive ....”). (quoting United States v. Kye Soo Lee, 898 F.2d 1034, 1037– 38 (5th Cir.1990)). The factors we consider include The district court did not clearly err in finding that Finley had a right to exclude others from using the phone. That Finley's whether the defendant has a [property employer could have read the text messages once he returned or] possessory interest in the thing the phone does not imply that a person in Finley's position seized or the place searched, whether should not have reasonably expected to be free from intrusion he has a right to exclude others from both the government and the general public. Further, the from that place, whether he has government stipulated that Finley's employer permitted him exhibited a subjective expectation of to use the phone for his own personal purposes. And we see privacy that it *259 would remain no error in the district court's finding that Finley took normal free from governmental intrusion, precautions to maintain his privacy in the phone, despite the whether he took normal precautions government's protestation that the phone was not password to maintain privacy[,] and whether he protected. In these circumstances, we conclude that Finley was legitimately on the premises. had a reasonable expectation of privacy in the call records Id. at 615 (quoting United States v. Ibarra, 948 F.2d 903, 906 and text messages on the cell phone and that he therefore has (5th Cir.1991) (first alteration in original)). standing to challenge the search. The district court found that, although Finley's employer issued him the cell phone, Finley nonetheless maintained a property interest in the phone, had a right to exclude others from using the phone, exhibited a subjective expectation of privacy in the phone, and took normal precautions to maintain his privacy in the phone. We review these findings for clear error. Id. at 613 (citing United States v. Kelley, 981 F.2d 1464, 1467 (5th Cir.1993)). The district court also determined that

B. Search Incident to Lawful Arrest [12] [13] [14] [15] Although Finley has standing to challenge the retrieval of the call records and text messages from his cell phone, we conclude that the search was lawful. It is well settled that “in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.” United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427


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(1973). Police officers are not constrained to search only for weapons or instruments of escape on the arrestee's person; they may also, without *260 any additional justification, look for evidence of the arrestee's crime on his person in order to preserve it for use at trial. See id. at 233–34, 94 S.Ct. 467. The permissible scope of a search incident to a lawful arrest extends to containers found on the arrestee's person. United States v. Johnson, 846 F.2d 279, 282 (5th Cir.1988) (per curiam); see also New York v. Belton, 453 U.S. 454, 460–61, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) (holding that police may search containers, whether open or closed, located within arrestee's reach); Robinson, 414 U.S. at 223–24, 94 S.Ct. 467 (upholding search of closed cigarette package on arrestee's person).

methamphetamine. Special Agent Cook and Sergeant Russell confronted Finley with a text message on his phone that read, “Call Mark I need a 50.” Finley told them that “50” referred to an ounce (fifty dollars' worth) of marijuana, not methamphetamine. Special Agent Cook and Sergeant Russell challenged Finley's assertion that an ounce of marijuana costs fifty dollars. The following exchange then occurred: Sgt Russell: I'll tell you what, you better start telling the truth. Finley: I'm telling the truth, sir. Sgt Russell: No you['re] not. SA Cook: No you['re] not telling us the truth.

[16] Finley concedes that the officers' post-arrest seizure of his cell phone from his pocket was lawful, but he argues that, since a cell phone is analogous to a closed container, 6 the police had no authority to examine the phone's contents without a warrant. He relies on Walter v. United States, 447 U.S. 649, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980), for this proposition. Walter, however, is inapposite because in that case no exception to the warrant requirement applied, see id. at 657, 100 S.Ct. 2395, whereas here no warrant was required since the search was conducted pursuant to a valid custodial arrest, see Robinson, 414 U.S. at 235, 94 S.Ct. 467. Special Agent Cook was therefore permitted to search Finley's cell phone pursuant to his arrest. 7 Cf. United States v. Ortiz, 84 F.3d 977, 984 (7th Cir.1996) (upholding retrieval of information from pager as search incident to arrest). The district court correctly denied Finley's motion to suppress 8 the call records and text messages retrieved from his cell phone.

A recording of the interview and a transcript of the recording were admitted at trial. At the charge conference, Finley requested that the court instruct the jury to disregard Special Agent Cook's and Sergeant Russell's comments about Finley's veracity. The district court denied Finley's request, reasoning that the officers were simply trying to get the most accurate statement possible from their interview of Finley and that the statements were not being offered to bolster the evidence or to accuse Finley at trial.

2. Standard of Review [17] We review a properly preserved challenge to jury instructions for abuse of discretion. United States v. Daniels, 281 F.3d 168, 183 (5th Cir.2002) (citing United States v. Huynh, 246 F.3d 734, 738 (5th Cir.2001)). But when the issue was not properly raised before the district court, our review is for plain error. Id. (citing United States v. Caucci, 635 F.2d 441, 447 (5th Cir. Unit B Jan.1981)).

IV. FINLEY'S POST–ARREST INTERVIEW A. Police Statements Challenging Finley's Truthfulness Finley contends that the district court abused its discretion by denying his request *261 for a limiting instruction regarding a witness's comment on his veracity.

1. Background During the course of Finley's post-arrest interview at Brown's residence, Finley initially denied that he had ever distributed

At the time the recording and transcript were admitted into evidence, Finley did not object on the basis that the statements improperly permitted one witness to opine on the veracity of another. The government argues that our review is consequently for plain error only. But Finley did request later at the charge conference that the jury be instructed to disregard any comments about Finley's veracity. We need not resolve, however, whether Finley preserved his argument


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because, as we explain below, even under an abuse-ofdiscretion standard we discern no reversible error.

3. Analysis Relying on United States v. Freitag, Finley maintains that a limiting instruction was necessary because the transcript of the interview involved a witness discussing the veracity of the accused. See 230 F.3d 1019, 1024 (7th Cir.2000) (“Because credibility questions are for the jury, it is improper to ask one witness to comment on the veracity of the testimony of another witness.” (citing United States v. Cole, 41 F.3d 303, 308 (7th Cir.1994); United States v. Sullivan, 85 F.3d 743, 749–50 (1st Cir.1996))). Finley also relies on United States v. Dotson, 799 F.2d 189 (5th Cir.1986), which discusses the propriety of offering opinion evidence to impeach the credibility of a witness at trial. But these cases are inapposite because the challenge to Finley's truthfulness occurred in a pretrial interview, not at trial during a witness's testimony. 9 [18] The district court did not abuse its discretion by denying Finley's request to *262 instruct the jury to disregard Special Agent Cook's and Sergeant Russell's remarks. Special Agent Cook and Sergeant Russell certainly accused Finley of being untruthful, but it was done in the context of police questioning, and the jury was permitted to hear the comments in their context. The jury would certainly have understood that the officers investigating Finley would not have believed him, and the jury would not have afforded those officers' remarks in the context of the interview any more weight than they would have afforded the fact that the government also disbelieved him and decided to prosecute him. Cf. Dubria v. Smith, 224 F.3d 995, 1001–02 & n. 2 (9th Cir.2000) (en banc) (concluding in habeas review that trial court did not err by refusing to redact portions of a tape and transcript wherein a detective, inter alia, made statements of disbelief of the defendant's story in the context of pretrial police questioning because the questions and comments placed the defendant's answers in context, there was nothing in the detective's statements that suggested evidence or theories of the case that were not presented at trial, and the jury would give the statements “no more weight than they would the fact [the defendant] was charged by the prosecutor with murder or that the prosecutor clearly also disbelieved [the defendant]”). 10

B. Rule 404(b) Evidence

1. Background [19] Finley finally contends that the district court erred by admitting evidence of his prior drug use and distribution. During Finley's interview with Special Agent Cook and Sergeant Russell, Finley admitted that he had used methamphetamine he received from Brown on two prior occasions: once in high school 11 and once three days prior to his arrest. He also admitted to cocaine use once in high school. He admitted to getting his friends marijuana from Brown so many times that he “couldn't count,” and he said that on one of those occasions, two to three weeks earlier, the bag from Brown that was supposed to contain entirely marijuana had some small shards of methamphetamine in the bottom. Finley objected to the inclusion of these statements in the recording and transcript of his interview. Additionally, Brown testified that during the approximately six months prior to his arrest, he had sold Finley methamphetamine five to ten times and that Finley had distributed some of this methamphetamine; Finley objected to this testimony as well. The district court overruled Finley's objections, concluding that the evidence was admissible under Rule 404(b) of the Federal Rules of Evidence, although the court did give the jury a limiting instruction prior to the recording of the interview being played for the jury and again in the jury charge.

2. Standard of Review [20] We review a district court's decision to admit Rule 404(b) evidence in a criminal case under a heightened abuseof-discretion standard. United States v. Jackson, 339 F.3d 349, 354 (5th Cir.2003) *263 (citing United States v. Wisenbaker, 14 F.3d 1022, 1028 (5th Cir.1994)). Even if the district court abused its discretion, reversal is not proper if the error was harmless. Id. (citing United States v. Torres, 114 F.3d 520, 526 (5th Cir.1997)).

3. Analysis [21] Evidence of other crimes, wrongs, or acts is admissible “as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” FED.R.EVID. 404(b). We analyze the admissibility of evidence under Rule 404(b) in a two-step inquiry. “First, it must be determined that the extrinsic offense evidence is relevant to an issue other than the defendant's character. Second, the evidence must possess probative value that is


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not substantially outweighed by its undue prejudice and must meet the other requirements of [R]ule 403.” United States v. Beechum, 582 F.2d 898, 911 (5th Cir.1978) (en banc). Evidence of Finley's past methamphetamine purchases from Brown and his past distributions of narcotics were relevant to show Finley's motive and intent. The central issue at trial was whether Finley intended to aid and abet Brown's methamphetamine distribution to Stratton by driving Brown to the truck stop. Finley's recent assistance in Brown's distribution of narcotics was relevant to show Finley's intent to assist him on the day of the sale at the truck stop. And evidence of Finley's recent use of methamphetamine he bought or received from Brown was relevant to show Finley's motive—i.e., he agreed to drive Brown to the truck stop in exchange for extra methamphetamine. Moreover, the district court did not err by concluding that any undue prejudice did not substantially outweigh the evidence's probative value.

and cocaine use was not admissible to show defendant's knowledge that his car contained marijuana); United States v. Jimenez, 613 F.2d 1373, 1376 (5th Cir.1980) (reviewing a conviction for heroin distribution and concluding that undue prejudice substantially outweighed probative value of evidence of cocaine possession one year later). But we conclude on these facts that any error was harmless. There was more than sufficient proof of Finley's guilt absent this evidence, and any harm was minimized by the court's two admonishments to the jury to consider the evidence for very limited purposes only. See United States v. Taylor, 210 F.3d 311, 318 (5th Cir.2000) (“[P]rejudicial effect [of Rule 404(b) evidence] may be minimized by a proper jury instruction.”).

V. CONCLUSION For the foregoing reasons, Finley's conviction is AFFIRMED.

[22] The district court may, however, have abused its discretion by admitting evidence of Finley's cocaine and methamphetamine use while he was in high school. Cf. United States v. McDonald, 905 F.2d 871, 875 (5th Cir.1990) (concluding that evidence of defendant's past speed

Parallel Citations 72 Fed. R. Evid. Serv. 377

Footnotes

1 2

3

An MPD detective had already obtained the warrant based on two prior August 2005 controlled methamphetamine transactions between Brown and Stratton. Finley was not involved in either of these previous transactions. For example, an incoming text message stated, “Call Mark I need a 50.” Special Agent Cook, who was qualified as an expert in narcotics trafficking and in the investigation of narcotics, testified at trial that “50” probably refers to fifty dollars' worth of some narcotic. Another incoming message asked, “So u wanna get some frozen agua[?]” Special Agent Cook testified that “frozen agua” likely referred to “ice,” a common term for methamphetamine. And an outgoing text message asked, “Any chance I could use ur digitals real quik[?]” Special Agent Cook testified that “digitals” probably referred to digital scales, which narcotics dealers commonly use to weigh their goods. There were several other text messages seemingly related to narcotics use and trafficking that were admitted into evidence and that Special Agent Cook discussed at trial. We recognize that the indictment's language was general; it did not specifically refer to the methamphetamine in the cigarette package and did not by its language exclude the drugs in the pill bottle. But the government's theory of the case was that, by driving Finley to the truck stop knowing that the purpose was for methamphetamine distribution, Finley aided and abetted Brown's possession with intent to distribute the methamphetamine in the cigarette package. And the arguments presented at trial made it clear to both the jury and the judge that Finley was on trial for the methamphetamine sold to Stratton and not for the methamphetamine in the pill bottle. For example, in his closing argument, Finley's counsel told the jury: They've got to prove to you that Jacob [Finley] in his mind knew what was going on when Mark Brown delivered [the methamphetamine]. .... It's not what is in the orange bottle. There is no evidence of any intent to distribute that. It's what was given—sold to Amy Stratton. ....


8

U.S. v. Finley, 477 F.3d 250 (2007) 72 Fed. R. Evid. Serv. 377 Now, we know [Finley] is only accused of this one delivery to Amy Stratton. There is no evidence that the methamphetamine in that orange prescription bottle, the orange cap, involved intent to distribute at all. There is no evidence of that. Nor on the residue, the little tiny traces, in the one with the white cap. Counsel for the government did discuss the pill bottles found in Finley's van, but she did so only to demonstrate Finley's knowledge of Brown's methamphetamine dealing and to question Finley's credibility. The government never asserted that the jury could convict Finley on the basis of the methamphetamine in the orange-capped pill bottle or that Finley intended to distribute this methamphetamine. During her closing argument, counsel for the government framed the issue as follows: 4 The only question in this case is: Did the Defendant know what was going on on August 19th of 2005? That's the only question for you to decide because it is undisputed that he participated in the possession with intent to distribute on August 19th of 2005. The only question is his knowledge. That's what you are going to have to decide. Likewise, in his opening statement, Finley's counsel presented the issue as follows: [W]hat is this case about? It's about what was in Jacob Finley's mind .... ... Did he know beyond a reasonable doubt that Mark Brown was about to deliver methamphetamine to Amy Stratton, this lady, this informant? Did he know a drug transaction was about to occur? Although the district court found that Finley had a property interest in the phone, it appears that Finley's interest was possessory only 5 and that his employer had the property interest in the phone. Finley cites United States v. Chan, 830 F.Supp. 531, 534 (N.D.Cal.1993) (analogizing numbers in pager's memory to contents of 6 closed container). Although Finley relies on this case, the Chan court concluded that police officers may, incident to the defendant's arrest, retrieve numbers from the memory of a pager seized from the defendant's person. See id. at 535–36. The fact that the search took place after the police transported Finley to Brown's residence does not alter our conclusion. Cf. United 7 States v. Edwards, 415 U.S. 800, 803, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974) (“[S]earches and seizures that could be made on the spot at the time of arrest may legally be conducted later when the accused arrives at the place of detention.”). In general, as long as the administrative processes incident to the arrest and custody have not been completed, a search of effects seized from the defendant's person is still incident to the defendant's arrest. United States v. Ruigomez, 702 F.2d 61, 66 (5th Cir.1983) (citing Edwards, 415 U.S. at 804, 94 S.Ct. 1234). Although the police had moved Finley, the search was still substantially contemporaneous with his arrest and was therefore permissible. Likewise, United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977) is inapplicable. Chadwick held that, [o]nce law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest. 433 U.S. at 15, 97 S.Ct. 2476 (emphasis added). Finley's cell phone does not fit into the category of “property not immediately associated with [his] person” because it was on his person at the time of his arrest. Although Finley initially advanced his arguments in a motion in limine, the district court treated the motion as a motion to suppress, 8 and Finley orally moved to suppress the contents of the cell phone at the pretrial conference. Special Agent Cook testified at trial, but he did not opine on the witness stand that Finley was untruthful. Sergeant Russell did not 9 testify. Finley mischaracterizes Dubria's analysis. He asserts that the statements were permissible in that case only because the error was 10 cured by the judge's limiting instructions. But the Dubria court did not rely on the limiting instructions as the basis for its holding. Instead, after concluding that there was no error, the court stated that “even if” it was error to admit the tapes and transcripts without redacting the detective's accusatory statements, any error was cured by the limiting instructions. 224 F.3d at 1002. Finley was at least a year out of high school. 11

End of Document



9

U.S. v. Chadwick, 433 U.S. 1 (1977) 97 S.Ct. 2476, 53 L.Ed.2d 538

97 S.Ct. 2476 Supreme Court of the United States UNITED STATES, Petitioner, v. Joseph A. CHADWICK et al., Respondents. No. 75-1721. | Argued April 26, 1977. | Decided June 21, 1977. Appeal was taken by the United States from order of the United States District Court for the District of Massachusetts, 393 F.Supp. 763, granting motions of defendants to suppress evidence. The Court of Appeals for the First Circuit affirmed, 532 F.2d 773, and certiorari was granted. The Supreme Court, Mr. Chief Justice Burger, held that: (1) the warrant clause is not limited in its protection only to dwellings and other specifically designated locales; (2) by placing personal effects inside a double-locked footlocker, defendants manifested an expectation that the contents would remain free from public examination, no less than one who locks the doors of his home against intrusion, and there being no exigency, it was unreasonable for Government to conduct search of footlocker without the safeguards that a judicial warrant provides, even where agents lawfully seized the footlocker at the time of the arrest of its owners and there was probable cause to believe that it contained contraband; (3) footlocker's mobility did not justify dispensing with the added protections of the warrant clause, by analogy to the “automobile exception,” once federal agents had seized the footlocker and had safely transferred it to federal building under their exclusive control, and (4) warrantless search of luggage or other property seized at the time of an arrest cannot be justified as incident to that arrest either if the search is remote in time or place from the arrest or if no exigency exists. Affirmed. Mr. Justice Brennan, filed a concurring opinion. Mr. Justice Blackmun with whom Mr. Justice Rehnquist joined, filed a dissenting opinion.

**2478 Syllabus * *1 When respondents arrived by train in Boston from San Diego, they were arrested at their waiting automobile by federal narcotics agents, who had been alerted that respondents were possible drug traffickers. A double-locked footlocker, which respondents had transported on the train and which the agents had probable cause to believe contained narcotics, had been loaded in the trunk of the automobile. Respondents, together with the automobile and footlocker, which was admittedly under the agents' exclusive control, were then taken to the Federal Building in Boston. An hour and a half after the arrests the agents opened the footlocker without respondents' consent or a search warrant and found large amounts of marihuana in it. Respondents were subsequently indicted for possession of marihuana with intent to distribute it. The District Court granted their pretrial motion to suppress the marihuana obtained from the footlocker, holding that warrantless searches are per se unreasonable under the Fourth Amendment unless they fall within some established exception to the warrant requirement, and that the footlocker search was not justified under either the “automobile exception” or as a search incident to a lawful arrest; the Court of Appeals affirmed. Held: Respondents were entitled to the protection of the Warrant Clause of the Fourth Amendment, with the evaluation *2 of a neutral magistrate, before their privacy interests in the contents of the footlocker were invaded. Pp. 2481-2486. **2479 (a) A fundamental purpose of the Fourth Amendment is to safeguard individuals from unreasonable government invasions of legitimate privacy interests, and not simply those interests inside the four walls of the home. Pp. 2481-2483. (b) By placing personal effects inside a double-locked footlocker, respondents manifested an expectation that the contents would remain free from public examination, and no less than one who locks the doors of his home against intruders, one who safeguards his personal possessions in this manner is due the protection of the Fourth Amendment's Warrant Clause; since there was no exigency calling for an immediate search, it was unreasonable for the Government to conduct the search without the safeguards a judicial warrant provides. P. 2483.


1


(c) The footlocker search was not justified under the “automobile exception,” since a person's expectations of privacy in personal luggage are substantially greater than in an automobile. In this connection, the footlocker's mobility did not justify dispensing with a search warrant, because once the federal agents had seized the footlocker at the railroad station and safely transferred it to the Federal Building under their exclusive control, there was not the slightest danger that it or its contents could have been removed before a valid search warrant could be obtained. Pp. 2483-2485. (d) Nor was the footlocker search justified as a search incident to a lawful arrest, where the search was remote in time or place from the arrest and no exigency existed, the search having been conducted more than an hour after the federal agents had gained exclusive control of the footlocker and long after respondents were securely in custody. Pp. 2485-2486. 1 Cir., 532 F.2d 773, affirmed.

Attorneys and Law Firms A. Raymond Randolph, Jr., Deputy Sol. Gen., Washington, D. C., for petitioner. *3 Martin G. Weinberg, Boston, Mass., for respondents. Opinion Mr. Chief Justice BURGER delivered the opinion of the Court. We granted certiorari in this case to decide whether a search warrant is required before federal agents may open a locked footlocker which they have lawfully seized at the time of the arrest of its owners, when there is probable cause to believe the footlocker contains contraband. (1) On May 8, 1973, Amtrak railroad officials in San Diego observed respondents Gregory Machado and Bridget Leary load a brown footlocker onto a train bound for Boston. Their suspicions were aroused when they noticed that the trunk was unusually heavy for its size, and that it was leaking talcum power, a substance often used to mask the odor of marihuana

or hashish. Because Machado matched a profile used to spot drug traffickers, the railroad officials reported these circumstances to federal agents in San Diego, who in turn relayed the information, together with detailed descriptions of Machado and the footlocker, to their counterparts in Boston. When the train arrived in Boston two days later, federal narcotics agents were on hand. Though the officers had not obtained an arrest or search warrant, they had with them a police dog trained to detect marihuana. The agents identified Machado and Leary and kept them under surveillance as they claimed their suitcases and the footlocker, which had been *4 transported by baggage cart from the train to the departure area. Machado and Leary lifted the footlocker from the baggage cart, placed it on the floor and sat down on it. The agents then released the dog near the footlocker. Without alerting respondents, the dog signaled the presence of a controlled substance inside. Respondent Chadwick then joined Machado and Leary, and they engaged an attendant to move the footlocker outside to Chadwick's waiting automobile. Machado, Chadwick, and the attendant together lifted the 200-pound footlocker into the trunk of the car, while Leary waited in the front seat. At that **2480 point, while the trunk of the car was still open and before the car engine had been started, the officers arrested all three. A search disclosed no weapons, but the keys to the footlocker were apparently taken from Machado. Respondents were taken to the Federal Building in Boston; the agents followed with Chadwick's car and the footlocker. As the Government concedes, from the moment of respondents' arrests at about 9 p. m., the footlocker remained under the exclusive control of law enforcement officers at all times. The footlocker and luggage were placed in the Federal Building, where, as one of the agents later testified, “there was no risk that whatever was contained in the footlocker trunk would be removed by the defendants or their associates.” App. 44. The agents had no reason to believe that the footlocker contained explosives or other inherently dangerous items, or that it contained evidence which would lose its value unless the footlocker were opened at once. Facilities were readily available in which the footlocker could have been stored securely; it is not contended that there was any exigency calling for an immediate search. At the Federal Building an hour and a half after the arrests, the agents opened the footlocker and luggage. They did not obtain


2


respondents' consent; they did not secure a search warrant. The footlocker was locked with a padlock and a *5 regular trunk lock. It is unclear whether it was opened with the keys taken from respondent Machado, or by other means. Large amounts of marihuana were found in the footlocker. 1 Respondents were indicted for possession of marihuana with intent to distribute it, in violation of 21 U.S.C. s 841(a)(1), and for conspiracy, in violation of 21 U.S.C. s 846. Before trial, they moved to suppress the marihuana obtained from the footlocker. In the District Court, the Government sought to justify its failure to secure a search warrant under the “automobile exception” of Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), and as a search incident to the arrests. Holding that “(w)arrantless searches are per se unreasonable, subject to a few carefully delineated and limited exceptions,” the District Court rejected both justifications. 393 F.Supp. 763, 771 (Mass.1975). The court saw the relationship between the footlocker and Chadwick's automobile as merely coincidental, and held that the doublelocked, 200-pound footlocker was not part of “the area from within which (respondents) might gain possession of a weapon or destructible evidence.” Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969). A divided Court of Appeals for the First Circuit affirmed the suppression of the seized marihuana. The court held that the footlocker had been properly taken into federal custody after respondents' lawful arrest; it also agreed that the agents had probable cause to believe that the footlocker contained a controlled substance when they opened it. But probable cause alone was held not enough to sustain the warrantless search. *6 On the premise that warrantless searches are per se unreasonable unless they fall within some established exception to the warrant requirement, the Court of Appeals agreed with the District Court that the footlocker search was not justified either under the “automobile exception” or as a search incident to a lawful arrest. The Court of Appeals then responded to an argument, suggested by the Government for the first time on appeal, that movable personalty lawfully seized in a public place should be subject to search without a warrant **2481 if there exists probable cause to believe it contains evidence of a crime. Conceding that such personalty shares some characteristics of mobility which support warrantless automobile searches, the court nevertheless concluded that a rule permitting a search

of personalty on probable cause alone had not yet “received sufficient recognition by the Supreme Court outside the automobile area, or generally, for us to recognize it as a valid exception to the fourth amendment warrant requirement.” 532 F.2d 773, 781 (1976). We granted certiorari, 429 U.S. 814, 97 S.Ct. 54, 50 L.Ed.2d 74 (1976). We affirm. (2) [1] [2] In this Court the Government again contends that the Fourth Amendment Warrant Clause protects only interests traditionally identified with the home. 2 Recalling the colonial writs of assistance, which were often executed in searches of private dwellings, the Government claims that the Warrant Clause was adopted primarily, if not exclusively, in response to unjustified intrusions into private homes on the authority of general warrants. The Government argues there is no evidence that the Framers of the Fourth Amendment intended *7 to disturb the established practice of permitting warrantless searches outside the home, or to modify the initial clause of the Fourth Amendment by making warrantless searches supported by probable cause per se unreasonable.

Drawing on its reading of history, the Government argues that only homes, offices, and private communications implicate interests which lie at the core of the Fourth Amendment. Accordingly, it is only in these contexts that the determination whether a search or seizure is reasonable should turn on whether a warrant has been obtained. In all other situations, the Government contends, less significant privacy values are at stake, and the reasonableness of a government intrusion should depend solely on whether there is probable cause to believe evidence of criminal conduct is present. Where personal effects are lawfully seized outside the home on probable cause, the Government would thus regard searches without a warrant as not “unreasonable.” We do not agree that the Warrant Clause protects only dwellings and other specifically designated locales. As we have noted before, the Fourth Amendment “protects people, not places,” Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967); more particularly, it protects people from unreasonable government intrusions into their legitimate expectations of privacy. In this case, the Warrant Clause makes a significant contribution to that


3


protection. The question, then, is whether a warrantless search in these circumstances was unreasonable.

3

(3) It cannot be doubted that the Fourth Amendment's commands grew in large measure out of the colonists' experience *8 with the writs of assistance and their memories of the general warrants formerly in use in England. These writs, which were issued on executive rather than judicial authority, granted sweeping power to customs officials and other agents of the King to search at large for smuggled goods. Though the authority to search granted by the writs was not limited to the home, searches conducted pursuant to them often were carried out in private residences. See generally **2482 Stanford v. Texas, 379 U.S. 476, 481-485, 85 S.Ct. 506, 509-511, 13 L.Ed.2d 431 (1965); Marcus v. Search Warrant, 367 U.S. 717, 724-729, 81 S.Ct. 1708, 1712-1714, 6 L.Ed.2d 1127 (1961); Frank v. Maryland, 359 U.S. 360, 79 S.Ct. 804, 3 L.Ed.2d 877 (1959). Although the searches and seizures which deeply concerned the colonists, and which were foremost in the minds of the Framers, were those involving invasions of the home, it would be a mistake to conclude, as the Government contends, that the Warrant Clause was therefore intended to guard only against intrusions into the home. First, the Warrant Clause does not in terms distinguish between searches conducted in private homes and other searches. There is also a strong historical connection between the Warrant Clause and the initial clause of the Fourth Amendment, which draws no distinctions among “persons, houses, papers, and effects” in safeguarding against unreasonable searches and seizures. See United States v. Rabinowitz, 339 U.S. 56, 68, 70 S.Ct. 430, 445, 94 L.Ed. 653 (1950) (Frankfurter, J., dissenting). Moreover, if there is little evidence that the Framers intended the Warrant Clause to operate outside the home, there is no evidence at all that they intended to exclude from protection of the Clause all searches occurring outside the home. The absence of a contemporary outcry against warrantless searches in public places was because, aside from searches incident to arrest, such warrantless searches were not a large issue in colonial America. Thus, silence in the historical record tells us little about the Framers' attitude toward application of the Warrant Clause to the search of

the Framers were men who focused on the wrongs of that day but who intended the Fourth Amendment to safeguard fundamental values which would far outlast the specific abuses which gave it birth. [3] Moreover, in this area we do not write on a clean slate. Our fundamental inquiry in considering Fourth Amendment issues is whether or not a search or seizure is reasonable under all the circumstances. Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967). The judicial warrant has a significant role to play in that it provides the detached scrutiny of a neutral magistrate, which is a more reliable safeguard against improper searches than the hurried judgment of a law enforcement officer “engaged in the often competitive enterprise of ferreting out crime.” Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948). Once a lawful search has begun, it is also far more likely that it will not exceed proper bounds when it is done pursuant to a judicial authorization “particularly describing the place to be searched and the persons or things to be seized.” Further, a warrant assures the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search. Camara v. Municipal Court, 387 U.S. 523, 532, 87 S.Ct. 1727, 1732, 18 L.Ed.2d 930 (1967).

Just as the Fourth Amendment “protects people, not places,” the protections a judicial warrant offers against erroneous *10 governmental intrusions are effective whether applied in or out of the home. Accordingly, we have held warrantless searches unreasonable, and therefore unconstitutional, in a variety of settings. 5 A century ago, Mr. **2483 Justice Field, speaking for the Court, included within the reach of the Warrant Clause printed matter traveling through the mails within the United States: “Letters and sealed packages of this kind in the mail are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles. The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be. Whilst in the mail, they can only be opened and examined under like warrant, issued upon similar oath or affirmation, particularly describing the thing to be seized, as is required when papers are subjected to search in

respondents' *9 footlocker. 4 What we do know is that


4


one's own household.” Ex parte Jackson, 96 U.S. 727, 733, 24 L.Ed. 877 (1878). We reaffirmed Jackson in United States v. Van Leeuwen, 397 U.S. 249, 90 S.Ct. 1029, 25 L.Ed.2d 282 (1970), where a search warrant was obtained to open two packages which, on mailing, the sender had declared contained only coins. Judicial warrants have been required for other searches conducted outside the home. E. g., Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (electronic interception of conversation in public telephone booth); Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) (automobile on private *11 premises); Preston v. United States, 376 U.S. 364, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964) (automobile in custody); United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951) (hotel room); G. M. Leasing Corp. v. United States, 429 U.S. 338, 97 S.Ct. 619, 50 L.Ed.2d 530 (1977) (office); Mancusi v. DeForte, 392 U.S. 364, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968) (office). These cases illustrate the applicability of the Warrant Clause beyond the narrow limits suggested by the Government. They also reflect the settled constitutional principle, discussed earlier, that a fundamental purpose of the Fourth Amendment is to safeguard individuals from unreasonable government invasions of legitimate privacy interests, 6 and not simply those interests found inside the four walls of the home. Wolf v. Colorado, 338 U.S. 25, 27, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782 (1949). [4] In this case, important Fourth Amendment privacy interests were at stake. By placing personal effects inside a double-locked footlocker, respondents manifested an expectation that the contents would remain free from public examination. No less than one who locks the doors of his home against intruders, one who safeguards his personal possessions in this manner is due the protection of the Fourth Amendment Warrant Clause. There being no exigency, it was unreasonable for the Government to conduct this search without the safeguards a judicial warrant provides.

(4) The Government does not contend that the footlocker's brief contact with Chadwick's car makes this an automobile search, **2484 but it is argued that the rationale of our automobile *12 search cases demonstrates the reasonableness of

permitting warrantless searches of luggage; the Government views such luggage as analogous to motor vehicles for Fourth Amendment purposes. It is true that, like the footlocker in issue here, automobiles are “effects” under the Fourth Amendment, and searches and seizures of automobiles are therefore subject to the constitutional standard of reasonableness. But this Court has recognized significant differences between motor vehicles and other property which permit warrantless searches of automobiles in circumstances in which warrantless searches would not be reasonable in other contexts. Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925); Preston v. United States, supra, 376 U.S., at 366-367, 84 S.Ct., at 882-883; Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). See also South Dakota v. Opperman, 428 U.S. 364, 367, 96 S.Ct. 3092, 3095, 49 L.Ed.2d 1000 (1976). Our treatment of automobiles has been based in part on their inherent mobility, which often makes obtaining a judicial warrant impracticable. Nevertheless, we have also sustained “warrantless searches of vehicles . . . in cases in which the possibilities of the vehicle's being removed or evidence in it destroyed were remote, if not nonexistent.” Cady v. Dombrowski, 413 U.S. 433, 441-442, 93 S.Ct. 2523, 2528, 37 L.Ed.2d 706 (1973); accord, South Dakota v. Opperman, supra, 428 U.S., at 367, 96 S.Ct., at 3095; see Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975); Chambers v. Maroney, supra ; Cooper v. California, 386 U.S. 58, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967). [5] The answer lies in the diminished expectation of privacy which surrounds the automobile: “One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one's residence or as the repository of personal effects. . . . It travels public thoroughfares where both its occupants and its contents are in plain view.” Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 2469, 41 L.Ed.2d 325 (1974) (plurality opinion).

Other factors reduce automobile privacy. “All States require *13 vehicles to be registered and operators to be licensed. States and localities have enacted extensive and detailed codes regulating the condition and manner in which motor vehicles may be operated on public streets and highways.” Cady v. Dombrowski, supra, 413 U.S., at 441, 93 S.Ct., at 2528. Automobiles periodically undergo official inspection,


5


which he might gain possession of a weapon or destructible evidence.” Chimel v. California, 395 U.S., at 763, 89 S.Ct., at 2040. See also Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). [8] [9] Such searches may be conducted without a warrant, The factors which diminish the privacy aspects of an and they may also be made whether or not there is probable automobile do not apply to respondents' footlocker. Luggage cause to believe that the person arrested may have a weapon contents are not open to public view, except as a condition to a or is about to destroy evidence. The potential dangers lurking border entry or common carrier travel; nor is luggage subject in *15 all custodial arrests make warrantless searches of to regular inspections and official scrutiny on a continuing items within the “immediate control” area reasonable without basis. Unlike an automobile, whose primary function is requiring the arresting officer to calculate the probability that transportation, luggage is intended as a repository of personal weapons or destructible evidence may be involved. United effects. In sum, a person's expectations of privacy in personal States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d luggage are substantially greater than in an automobile. 427 (1973); Terry v. Ohio, supra. However, warrantless [6] [7] Nor does the footlocker's mobility justify searches of luggage or other property seized at the time of dispensing with the added protections of the Warrant Clause. an arrest cannot be justified as incident to that arrest either Once the federal agents had seized it at the railroad station and if the “search is remote in time or place from the arrest,” had safely transferred it to the Boston Federal Building under Preston v. United States, 376 U.S., at 367, 84 S.Ct., at 883, their exclusive control, there was not the slightest danger that or no exigency exists. Once law enforcement officers have the footlocker or its contents could have been removed before reduced luggage or other personal property not immediately a valid search warrant could be obtained. 7 The **2485 associated with the person of the arrestee to their exclusive initial seizure and detention of the footlocker, the validity control, and there is no longer any danger that the arrestee of which respondents do not contest, were sufficient to might gain access to the property to seize a weapon or destroy guard against any risk that evidence might be lost. With evidence, a search of that property is no longer an incident of the footlocker safely immobilized, it was unreasonable to the arrest. 9 undertake the additional and greater intrusion of a search

and they are often taken into police custody in the interests of public safety. South Dakota v. Opperman, supra, 428 U.S., at 368, 96 S.Ct., at 3096.

without a warrant. 8

*14 Finally, the Government urges that the Constitution permits the warrantless search of any property in the possession of a person arrested in public, so long as there is probable cause to believe that the property contains contraband or evidence of crime. Although recognizing that the footlocker was not within respondents' immediate control, the Government insists that the search was reasonable because the footlocker was seized contemporaneously with respondents' arrests and was searched as soon thereafter as was practicable. The reasons justifying search in a custodial arrest are quite different. When a custodial arrest is made, there is always some danger that the person arrested may seek to use a weapon, or that evidence may be concealed or destroyed. To safeguard himself and others, and to prevent the loss of evidence, it has been held reasonable for the arresting officer to conduct a prompt, warrantless “search of the arrestee's person and the area ‘within his immediate control’ construing that phrase to mean the area from within

[10] [11] [12] Here the search was conducted more than an hour after federal agents had gained exclusive control of the footlocker and long after respondents were securely in **2486 custody; the search therefore cannot be viewed as incidental to the arrest or as justified by any other exigency. Even though on this record the issuance of a warrant by a judicial officer was reasonably predictable, a line must be drawn. In our view, when no exigency is shown to support the need for an immediate search, the Warrant Clause places the line at the point where the property to be searched comes under the exclusive dominion of police authority. Respondents were therefore entitled to the protection of the Warrant Clause with the *16 evaluation of a neutral magistrate, before their privacy interests in the contents of the footlocker were invaded. 10

Accordingly, the judgment is Affirmed.


6


Mr. Justice BRENNAN, concurring.

concerning the proper consequences *18 of custodial arrest. Accordingly, I dissent from the judgment.

I fully join THE CHIEF JUSTICE's thorough opinion for the Court. I write only to comment upon two points made by my Brother BLACKMUN's dissent. First, I agree wholeheartedly with my Brother BLACKMUN that it is “unfortunate” that the Government in this case “sought . . . to vindicate an extreme view of the Fourth Amendment.” Post, at 2486. It is unfortunate, in my view, not because this argument somehow “distract(ed)” the Court from other more meritorious arguments made by the Government these arguments are addressed and convincingly rejected in the Court's opinion but because it is deeply distressing that the Department of Justice, whose mission is to protect the constitutional liberties of the people of the United States, should even appear to be seeking to subvert them by extreme and dubious legal arguments. It is gratifying that the Court today unanimously rejects the Government's position. Second, it should be noted that while Part II of the dissent suggests a number of possible alternative courses of action that the agents could have followed without violating the Constitution, no decision of this Court is cited to support the constitutionality of these courses, but only some decisions of Courts of Appeals. Post, at 2489-2490 nn. 4 and 5. In my view, it is not at all obvious that the agents could *17 legally have searched the footlocker had they seized it after Machado and Leary had driven away with it in their car 1 or “at the time and place of the arrests.” 2 Mr. Justice BLACKMUN, with whom Mr. Justice REHNQUIST joins, dissenting. I think it somewhat unfortunate that the Government sought a reversal in this case primarily to vindicate an extreme view of the Fourth Amendment that would restrict the protection of the Warrant Clause to private dwellings and a few other “high privacy” areas. I reject this argument for **2487 the reasons stated in Parts (2) and (3) of the Court's opinion, with which I am in general agreement. The overbroad nature of the Government's principal argument, however, has served to distract the Court from the more important task of defining the proper scope of a search incident to an arrest. The Court fails to accept the opportunity this case presents to apply the rationale of recent decisions and develop a clear doctrine

I One line of recent decisions establishes that no warrant is required for the arresting officer to search the clothing and effects of one placed in custodial arrest. The rationale for this was explained in United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973): “A police officer's determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search. The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.” Id., at 235, 94 S.Ct., at 477.

Accord, Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973). Under this doctrine, a search of personal effects need not be contemporaneous with the arrest, and indeed may be delayed a number of hours while the suspect remains in lawful custody. United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974). A second series of decisions concerns the consequences of custodial arrest of a person driving an automobile. The car *19 may be impounded and, with probable cause, its contents (including locked compartments) subsequently examined without a warrant. Texas v. White, 423 U.S. 67, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975); Cady v. Dombrowski, 413 U.S. 433, 439-448, 93 S.Ct. 2523, 2527-2531, 37 L.Ed.2d 706 (1973); Chambers v. Maroney, 399 U.S. 42, 47-52, 90 S.Ct.


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1975, 1979-1981, 26 L.Ed.2d 419 (1970). Moreover, once a car has been properly impounded for any reason, the police may follow a standard procedure of inventorying its contents without any showing of probable cause. South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976).

rejected by a magistrate. But a countervailing consideration is that a warrant would be routinely forthcoming in the vast majority of situations where the property has been seized in conjunction with the valid arrest of a person in a public place. I therefore doubt that requiring the authorities to go through the formality of obtaining a warrant in this situation would have much practical effect in protecting Fourth Amendment

I would apply the rationale of these two lines of authority and hold generally that a warrant is not required to seize and search any movable property in the possession of a person properly arrested in a public place. A person arrested in a public place is likely to have various kinds of property with him: items inside his clothing, a briefcase or suitcase, packages, or a vehicle. In such instances the police cannot very well leave the property on the sidewalk or street while they go to get a warrant. The items may be stolen by a passerby or removed by the suspect's confederates. Rather than requiring the police to “post a guard” over such property, I think it is surely reasonable for the police to take the items along to the station with the arrested person.

values. 1

In the present case the Court of Appeals held, and respondents do not contest, that it was proper for the federal agents to seize the footlocker and take it to their office. Given the propriety of seizing the footlocker, **2488 there is some reason to believe that the subsequent search a fortiori was permissible. See Chambers v. Maroney, 399 U.S., at 51-52, 90 S.Ct., at 1981. I acknowledge, however, that impounding the footlocker without searching it would have been a less intrusive alternative in this case. The police could have waited to conduct their search until after a warrant had been obtained. Nevertheless, the mere fact that a warrant could have been obtained while the footlocker was safely impounded does not necessarily make the warrantless search unreasonable. See, e. g., *20 United States v. Edwards, 415 U.S., at 805, 94 S.Ct., at 1238; Cardwell v. Lewis, 417 U.S. 583, 595-596, 94 S.Ct. 2464, 2471-2472, 41 L.Ed.2d 325 (1974) (plurality opinion). As the Court in Robinson recognized, custodial arrest is such a serious deprivation that various lesser invasions of privacy may be fairly regarded as incidental. An arrested person, of course, has an additional privacy interest in the objects in his possession at the time of arrest. To be sure, allowing impoundment of those objects pursuant to arrest, but requiring a warrant for examination of their contents, would protect that incremental privacy interest in cases where the police assessment of probable cause is subsequently

I believe this sort of practical evaluation underlies the Court's decision permitting clothing, personal effects, and automobiles to be searched without a warrant as an incident of arrest, even though it would be possible simply to impound these items until a warrant could be obtained. The Court's opinion does not explain why a wallet carried in the arrested person's clothing, but not the footlocker in the present case, is subject to “reduced expectations of privacy caused by *21 the arrest.” Ante, at 2486 n. 10. Nor does the Court explain how such items as purses or briefcases fit into the dichotomy. 2 Perhaps the holding in the present case will be limited in the future to objects that are relatively immobile by virtue of their size or absence of a means of propulsion. It is also possible that today's decision will not have much impact because other doctrines often will be available to sustain warrantless searches of objects in police custody. As the Court acknowledges, ante, at 2485 n. 9, no warrant is necessary when the authorities suspect the object they have impounded has dangerous contents. Moreover, police may establish a routine procedure of inventorying the contents of any container taken into custody, for reasons of security and property conservation. Cf. **2489 South Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). Law enforcement officers should not be precluded from conducting an inventory search when they take a potential “Trojan horse” into their office. Finally, exigent circumstances may often justify an immediate search of property seized in conjunction with an arrest, in order to facilitate the apprehension of confederates or the termination of continuing criminal activity. Cf. Warden v. Hayden, 387 U.S. 294, 298-300, 87 S.Ct. 1642, 1645-1646, 18 L.Ed.2d 782 (1967). Since one of the preceding special circumstances is likely to be available in most instances, and since the suspect's expectations of privacy are properly abated by the fact of arrest itself, it would be better, in my view, to adopt a clearcut


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rule permitting property seized in conjunction with a valid arrest in a public place to be searched without a warrant. *22 Such an approach would simplify the constitutional law of criminal procedure without seriously derogating from the values protected by the Fourth Amendment's prohibition of unreasonable searches and seizures. 3 II The approach taken by the Court has the perverse result of allowing fortuitous circumstances to control the outcome of the present case. The agents probably could have avoided having the footlocker search held unconstitutional either by delaying the arrest for a few minutes or by conducting the search on the spot rather than back at their office. Probable cause for the arrest was present from the time respondents Machado and Leary were seated on the footlocker inside Boston's South Station and the agents' dog signalled the presence of marihuana. Rather than make an arrest at this moment, the agents commendably sought to determine the possible involvement of others in the illegal scheme. They waited a short time until respondent Chadwick arrived and the footlocker had been loaded into the trunk of his car, and then made the arrest. But if the agents had postponed the arrest just a few minutes longer until the respondents started to drive away, then the car could have been *23 seized, taken to the agents' office, and all its contents including the footlocker

Alternatively, the agents could have made a search of the footlocker at the time and place of the arrests. Machado and Leary were standing next to an open automobile trunk containing the footlocker, and thus it was within the area of their “immediate control.” And certainly the footlocker would have been properly subject to search at the time if the arrest had occurred **2490 a few minutes earlier while Machado and Leary were seated on it. 5 *24 In many cases, of course, small variations in the facts are determinative of the legal outcome. Criminal law necessarily involves some line drawing. But I see no way that these alternative courses of conduct, which likely would have been held constitutional under the Fourth Amendment, would have been any more solicitous of the privacy or well-being of the respondents. Indeed, as Judge Thomsen observed in dissenting from this aspect of the Court of Appeals' decision that is today affirmed, the course of conduct followed by the agents in this case was good police procedure. 6 It is decisions of the kind made by the Court today that make criminal law a trap for the unwary policeman and detract from the important activities of detecting criminal activity and protecting the public safety. Parallel Citations 97 S.Ct. 2476, 53 L.Ed.2d 538

searched without a warrant. 4

Footnotes

* 1

2

3 4

The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499. Marihuana was also found in the suitcases. The Court of Appeals found no adequate justification for the warrantless suitcase search, and suppressed this evidence. Incriminating statements made by respondent Chadwick during the arrest procedure were also suppressed, on the theory that there had not been probable cause to arrest him and that his statements were therefore tainted as the product of an illegal arrest. However, the petition for certiorari draws into question only the footlocker search; consequently, we need not pass on the legality of Chadwick's arrest or the search of the suitcases. The Fourth Amendment provides: “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.” In this Court the Government has limited the question presented to “(w) hether a search warrant is required before federal agents may open a locked footlocker that is properly in their possession and that they have probable cause to believe contains contraband.” Accordingly, this case presents no issue of the application of the exclusionary rule. The Government's historical analysis is further undercut by its own arguments. The government acknowledges that the core values the Fourth Amendment protects are privacy interests. In its view, those privacy interests which should receive the “maximum protection


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U.S. v. Chadwick, 433 U.S. 1 (1977) 97 S.Ct. 2476, 53 L.Ed.2d 538 from governmental search or seizure” provided by the Warrant Clause include private oral and electronic communication, “(i)n addition to the home and other structures such as an office or hotel room . . . .” Brief for United States 30. It is not readily apparent how the Government's contention that the Warrant Clause applies to high privacy areas, both within and without the home, can be reconciled with its earlier contention that judicial warrants are appropriate only for searches conducted within private dwellings. In circumstances involving noncriminal inventory searches, where probable cause to search is irrelevant, we have recognized “that 5 search warrants are not required, linked as the warrant requirement textually is to the probable-cause concept.” South Dakota v. Opperman, 428 U.S. 364, 370 n. 5, 96 S.Ct. 3092, 3097, 49 L.Ed.2d 1000 (1976). This is so because the salutary functions of a warrant simply have no application in that context; the constitutional reasonableness of inventory searches must be determined on other bases. This has been settled law in this Court for over 90 years. At least since Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed.2d 6 746 (1886), we have known that “(i)t is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; but it is the invasion of his indefeasible right of personal security, personal liberty and private property . . . .” Id., at 630, 6 S.Ct., at 532. This is not to say that the Fourth Amendment translates precisely into a constitutional privacy right. See Katz v. United States, 389 U.S. 347, 350-351, 88 S.Ct., 507, 510-511, 19 L.Ed.2d 576 (1967). This may often not be the case when automobiles are seized. Absolutely secure storage facilities may not be available, see South 7 Dakota v. Opperman, 428 U.S. 364, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976; Cady v. Dombrowski, 413 U.S. 433, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), and the size and inherent mobility of a vehicle make it susceptible to theft or intrusion by vandals. Respondents' principal privacy interest in the footlocker was, of course, not in the container itself, which was exposed to public view, 8 but in its contents. A search of the interior was therefore a far greater intrusion into Fourth Amendment values than the impoundment of the footlocker. Though surely a substantial infringement of respondents' use and possession, the seizure did not diminish respondents' legitimate expectation that the footlocker's contents would remain private. It was the greatly reduced expectation of privacy in the automobile, coupled with the transportation function of the vehicle, which made the Court in Chambers unwilling to decide whether an immediate search of an automobile, or its seizure and indefinite immobilization, constituted a greater interference with the rights of the owner. This is clearly not the case with locked luggage. Of course, there may be other justifications for a warrantless search of luggage taken from a suspect at the time of his arrest; for 9 example, if officers have reason to believe that luggage contains some immediately dangerous instrumentality, such as explosives, it would be foolhardy to transport it to the station house without opening the luggage and disarming the weapon. See, e. g., United States v. Johnson, 467 F.2d 630, 639 (CA2 1972). Unlike searches of the person, United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); United States v. 10 Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 77 (1974), searches of possessions within an arrestee's immediate control cannot be justified by any reduced expectations of privacy caused by the arrest. Respondents' privacy interest in the contents of the footlocker was not eliminated simply because they were under arrest. While the contents of the car could have been searched pursuant to the automobile exception, it is by no means clear that the contents 1 of locked containers found inside a car are subject to search under this exception, any more than they would be if the police found them in any other place. When Machado and Leary were “standing next to (the) open automobile trunk containing the footlocker,” and even when they “were 2 seated on it,” post, at 2489-2490, it is not obvious to me that the contents of the heavy, securely locked footlocker were within the area of their “immediate control” for purposes of the search-incident-to-arrest doctrine, the justification for which is the possibility that the arrested person might have immediate access to weapons that might endanger the officer's safety or assist in his escape, or to items of evidence that he might conceal or destroy. I would think that the footlocker in this case hardly was “ ‘within (respondents') immediate control’ construing that phrase to mean the area from within which (they) might gain possession of a weapon or destructible evidence.” Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969). A search warrant serves additional functions where an arrest takes place in a home or office. The warrant assures the occupants that 1 the officers have legal authority to conduct the search and defines the area to be searched and the objects to be seized. See Camara v. Municipal Court, 387 U.S. 523, 532, 87 S.Ct. 1727, 1732, 18 L.Ed.2d 930 (1967). But a warrant would serve none of these functions where the arrest takes place in a public area and the authorities are admittedly empowered to seize the objects in question. Cf. United States v. Watson, 423 U.S. 411, 414-424, 96 S.Ct. 820, 823-828, 46 L.Ed.2d 598 (1976) (warrant not required for arrest, based on probable cause, in public place). The Courts of Appeals generally have held that it is proper for the police to seize a briefcase or package in the possession of a person 2 at the time of arrest, and subsequently to search the property without a warrant after the arrested person has been taken into custody.


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U.S. v. Chadwick, 433 U.S. 1 (1977) 97 S.Ct. 2476, 53 L.Ed.2d 538 See, e. g., United States v. Schleis, 543 F.2d 59 (CA8 1976), cert. pending, No. 76-5722; United States v. Battle, 166 U.S.App.D.C. 396, 510 F.2d 776 (1975); United States ex rel. Muhammad v. Mancusi, 432 F.2d 1046 (CA2 1970), cert. denied, 402 U.S. 911, 91 S.Ct. 1391, 28 L.Ed.2d 653 (1971). “ ‘My basic premise is that Fourth Amendment doctrine, given force and effect by the exclusionary rule, is primarily intended to 3 regulate the police in their day-to-day activities and thus ought to be expressed in terms that are readily applicable by the police in the context of the law enforcement activities in which they are necessarily engaged. A highly sophisticated set of rules, qualified by all sorts of ifs, ands, and buts and requiring the drawing of subtle nuances and hairline distinctions, may be the sort of heady stuff upon which the facile minds of lawyers and judges eagerly feed, but they may be ‘literally impossible of application by the officer in the field.’ ” LaFave, “Case-by-Case Adjudication” versus “Standardized Procedures”: The Robinson Dilemma, 1974 Sup.Ct.Rev. 127, 141 (footnotes omitted), quoting United States v. Robinson, 153 U.S.App.D.C. 114, 154, 471 F.2d 1082, 1122 (1972) (dissenting opinion), rev'd, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). The scope of the “automobile search” exception to the warrant requirement extends to the contents of locked compartments, including 4 glove compartments and trunks. See cases cited supra, at 2487. The Courts of Appeals have construed this doctrine to include briefcases, suitcases, and footlockers inside automobiles. United States v. Tramunti, 513 F.2d 1087, 1104-1105 (CA2 1975); United States v. Issod, 508 F.2d 990, 993 (CA7 1974), cert. denied, 421 U.S. 916, 95 S.Ct. 1578, 43 L.Ed.2d 783 (1975); United States v. Soriano, 497 F.2d 147 (CA5 1974) (en banc), convictions summarily aff'd sub. nom. United States v. Aviles, 535 F.2d 658 (1976), cert. pending, Nos. 76-5132 and 76-5143; United States v. Evans, 481 F.2d 990, 993-994 (CA9 1973). Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969), authorizes an on-the-spot search of the area 5 within the “immediate control” of an arrested person. It is well established that an immediate search of packages or luggage carried by an arrested person is proper. See Draper v. United States, 358 U.S. 307, 310-311, 79 S.Ct. 329, 331, 3 L.Ed.2d 327 (1959). Such searches have been sustained by the Courts of Appeals even if they occurred after the arrested person had been handcuffed and thus could no longer gain access to the property in question. United States v. Eatherton, 519 F.2d 603, 609-610 (CA1), cert. denied, 423 U.S. 987, 96 S.Ct. 396, 46 L.Ed.2d 304 (1975); United States v. Kaye, 492 F.2d 744 (CA6 1974); United States v. Mehciz, 437 F.2d 145 (CA9), cert. denied, 402 U.S. 974 (1971). Searches under the Chimel rationale have also been approved when the suitcase or briefcase was close by, but not touching, the arrested person. United States v. French, 545 F.2d 1021 (CA5 1977) (suitcase “within an arm's length” of arrested person); United States v. Frick, 490 F.2d 666 (CA5 1973), cert. denied, sub nom. Peterson v. United States, 419 U.S. 831, 95 S.Ct. 55, 42 L.Ed.2d 57 (1974) (briefcase lying on seat of automobile next to which person was arrested). “A railroad station, after the arrival of a train, is not a good place to conduct such an arrest and search, especially when the agents 6 did not know whether one or more men might respond to the telephone call Machado had made. Nor is a street outside the station a good place to open a footlocker containing marijuana. The agents acted wisely in arresting Machado at the car, and in postponing until they arrived at JFK opening the footlocker, to confirm the fact that it contained contraband.” 532 F.2d 773, 786 (1976). I might add that postponing the arrest until after the car was started would have increased the likelihood that respondents would attempt to evade arrest, possibly endangering innocent bystanders.

End of Document



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