Searches and Seizures

Concluding based on framing-era dictionaries that a search entails closely and consciously examining an object or space, as opposed to abstract things like “truth,” to uncover information that is not otherwise apparent. Contending further that “effects” in the founding era was understood as including all property a person possessed, except real property, that was not captured by “persons,” “houses,” or “papers.”

Concluding, based on English history and case law, ratification-era debates and writings, and other founding-era evidence, that the Fourth Amendment was intended to protect citizens against governmental intrusion pursuant to a general warrant or a warrant lacking sufficient particularity.

Finding that the inclusion of “effects” in the Fourth Amendment evinces the Framers’ intention to protect the privacy of personal property in the same way as “peronse,” “houses,” and “papers.” Arguing that the protection against government intrusion upon “effects” was also motivated by protection against property rights generally, given the property values often at stake. Documenting based on founding-era dictionaries that “effects” was chosen instead of “property” because the former is limited to possessions other than real property, and the Framers did not want the Fourth Amendment to sweep more broadly.

Suggesting that waiting for regulation on surveillance methods’ interaction with the Fourth Amendment is inadvisable. Locating rights to be “protected” and “free from fear” in the “to be secure” part of the Fourth Amendment. Looking to founding-era discourse/writings and the structure of the Amendment.

Arguing that the touchstone of the search-and-seizure analysis should be whether something was prohibited under positive law.

Replying to Recovering the Fourth Amendment by Thomas Davies and arguing that Davies was mistaken in his conclusion that the Founders confined their understanding of unreasonable searches to general warrants.

Contending that the Framers followed state constitutions in prohibiting general warrants in response to decades of increasing hostility to writs of assistance and general warrants. Arguing further that the prohibition on unreasonable searches and seizures contained in the Fourth Amendment was partially intended to curb practices such as nocturnal searches and forcible, no-knock entries.

Purporting to offer a new examination of the historical record regarding the framing of the Fourth Amendment. Paying special attention to the work of John Adams, whose views on search and seizure informed the Amendment’s drafting. Providing a detailed historical account of search and seizure practices during the founding.

Arguing that the Framers intended to ban general warrants primarily out of concern that government officials would force customs and excise tax collections, i.e. revenue searches, in citizens’ homes.

Arguing based on English and colonial history and case law, as well as founding-era legal commentary, that only warrantless searches of homes or physical searches of homes pursuant to general warrants are barred by the Fourth Amendment.

Concluding based on ratification evidence that the Framers understood this Clause as banning general warrants and setting out a standard for search and arrest warrants so as to curb discretionary authority for search and seizure. Arguing further that the Framers did not intend to create a broad reasonableness standard for warrantless searches and arrests.

Arguing that there is a “good” and “bad” Terry stop so that a Terry stop may be preceded by neither a warrant nor probable cause and still be reasonable under the Fourth Amendment.

Discussing the connection between the city of Boston and the Fourth Amendment and whether the Amendment considers the warrant as the standard of reasonableness.

Contending based on Founding-era state constitutions, treatises, statutes, and debates that there is no evidence that the Fourth Amendment was understood to contain a warrant requirement, and that it, instead, only contained a reasonableness requirement. Arguing further that civil trespass actions were the remedy envisioned by the Framers for Fourth Amendment violations rather than the exclusionary rule, which has no textual or historical basis.

Arguing that warrantless searches are not per se illegitimate under the Fourth Amendment, and that, instead, they are subject to jury assessment as opposed to searches with warrants which were subject to assessment by a judge.