§ 10.01 THE CONSTITUTIONAL ROLE OF SEARCH WARRANTS: THE DEBATE

• Jurisdiction: North Carolina

§ 10.01. The Constitutional Role of Search Warrants: The Debate¹

[A] Nature and Significance of the Debate

The first clause of the Fourth Amendment (the Reasonableness Clause) provides that "the right of the people to be secure . . . against unreasonable searches and seizures shall not be violated." The Amendment's second clause (the Warrant Clause) states 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." The relationship, if any, of these two clauses is a "syntactical mystery,"² and is a matter of considerable controversy.

There are two schools of thought regarding the relationship of the two clauses. One view is that they are vitally linked; specifically, "the Warrant Clause defines and interprets the Reasonableness Clause."³ According to this view, "[t]he command of the Fourth Amendment to the American police officer and the American prosecutor is simple: 'You always have to get a warrant—UNLESS YOU CAN'T.' "⁴ Or, as one scholar put it, "a warrant is always required for every search and seizure when it is practicable to obtain one."⁵ The Supreme Court expressed this "warrant requirement" (or, perhaps more accurately, "warrant preference") rule in Katz v. United States,⁶ when it provided 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." Advocates of this rule believe that exceptions to the warrant requirement should be "jealously and carefully drawn,"⁷ and permitted only on "a showing . . . that the exigencies of the situation [make] that course imperative."⁸

The competing position is that the preference for search warrants was "judicially created"⁹ and is not constitutionally required. According to this view, the Warrant Clause does not inform the Reasonableness Clause; the clauses — although it should be noted that they are separated by a comma, and not a semi-colon — are independent of each other. Advocates of this model believe that the first clause of the Fourth Amendment "speaks globally to all searches and seizures,"¹⁰ and provides simply that they must be reasonable, taking into consideration all relevant factors.¹¹ As the Supreme Court put it in United States v. Rabinowitz,¹² the appropriate test of police conduct "is not whether it is reasonable to procure a search warrant, but whether the search is reasonable." According to this view, the purpose of the Warrant Clause is to tell us "when warrants may not issue, not when they may, or must."¹³ It informs us that "any warrant that does issue is per se unreasonable if not supported by probable cause, particular description, and the rest."¹⁴

The practical significance of the debate is enormous. Strict enforcement of a warrant requirement would compel police officers to apply for warrants in the vast majority of cases. In such a system, judges, rather than the police, would make nearly all probable-cause determinations. On the other hand, warrants would be a comparative rarity under the alternative model. The police would determine whether to impose on a citizen's privacy, and the judiciary would have the more limited role of determining, after the incursion, whether the police conduct was reasonable.

[B] The Substance of the Debate

[1] Historical Debate

Years ago, Professor Telford Taylor claimed that those "who have viewed the fourth amendment primarily as a requirement that searches be covered by warrants, have stood the amendment on its head."¹⁵ Opponents of a warrant requirement reason that the framers of the Fourth Amendment were not concerned that the executive branch of government, including the police, would usurp its authority; instead, they feared the judiciary, which in the colonial era authorized abusive general warrants and writs of as-sistance.¹⁶ In short, in the framers' eyes, judges were "the heavies, not the heroes, of our story."¹⁷ It makes no sense, therefore, to think that the Fourth Amendment is intended to compel the police to seek judicial approval before they conduct searches.

In further support of this reading of history, opponents of a warrant requirement point out that, at common law, warrantless arrests were permissible in many circumstances, and warrantless searches incident to arrests were also allowed. Moreover, the First Congress, which proposed the Fourth Amendment, passed legislation authorizing federal naval inspectors to enter and conduct warrantless searches of ships.¹⁸ According to Professor Akhil Amar, "[i]f any members of the early Congresses objected to or even questioned these warrantless searches and seizures on Fourth Amendment grounds, supporters of the so-called warrant requirement have yet to identify them."¹⁹

In response, proponents of the warrant-requirement rule contend that the preceding arguments are wrong or go too far. They agree that the drafters of the Fourth Amendment intended for the Warrant Clause to prevent abusive warrants, but they do not believe that this was the sole purpose of the clause. They make a textual claim: "On any fair reading, this language appears to assume that searches and seizures will be conducted, at least sometimes, pursuant to warrants."²⁰ Were it otherwise, a legislature could evade the probable cause and particularity requirements of the Warrant Clause by the simple expedient of abolishing all warrants. Thus, unless there is at least some warrant requirement, a legislature could render the constitutional text useless.

Moreover, the history of the Fourth Amendment is not as clear as opponents of the warrant requirement suggest. According to Professor Joseph Grano, "[w]hile the colonists did not object to warrantless searches, the reason for the absence of such objection was that such searches, except perhaps in the context of lawful arrests, simply did not exist."²¹ Indeed, Telford Taylor concluded from his historical survey that the correct principle of law in colonial time was that "searches incident to arrests [were] permissible, and in exceptional cases, if authorized by warrant, searches independent of arrest [could] be carried out."²²

According to some advocates of a warrant requirement, the "history of the Fourth Amendment is about controlling executive power."²³ Professor Anthony Amsterdam has suggested that "the fourth amendment is quintessentially a regulation of the police — that, in enforcing the fourth amendment, courts must police the police."²⁴

So, who is right? Professor Thomas Davies's recent research suggests that the "Fram-ers' complaints were not about warrantless intrusions but were almost exclusively about . . . searches of houses under general warrants."²⁵ Nonetheless, Davies contends that the "warrant-preference construction [of the Fourth Amendment] is more faithful to the Framers' concerns than the generalized-reasonableness construction. In fact, the latter is nearly the antithesis of the Framers' understanding."²⁶ Davies believes that the framers' lack of attention to warrantless police action was a function of historical factors irrelevant in modern times:

[I]t made sense for the Framers to focus only on clarifying warrant standards because the ex officio authority of the framing-era 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. 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.²⁷

As Davies reads the historical evidence, the immediate purpose of the Fourth Amendment was to prohibit general warrants and their like, but "the larger purpose for which the Framers adopted the text . . . [was] to curb the exercise of discretionary authority by officers."²⁸

[2] Policy Debate

Proponents of a warrant-requirement rule also argue that even if history conclusively supported the claims of opponents, this would not resolve the debate. Many of them favor "constitutional dynamism—the principle that interpretations of the Constitution will and should change over time to accommodate the needs of different historical ages."²⁹ Current needs, warrant advocates contend, provide compelling reasons for demanding that a police officer ordinarily obtain a warrant before conducting a search.

In Johnson v. United States,³⁰ the Supreme Court explained the policy in favor of warrants this way:

The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies 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

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