"Better the mob and the Ku-Klux": a history of the law of search and seizure in Florida.

• Author: Hirsch, Milton

1. INTRODUCTION

   As late as 1930, and on several occasions prior to that date, Harvard Law Professor Felix Frankfurter could offer, as an example of something that the Supreme Court would almost never be called upon to decide, "whether the [Fourth Amendment] protection against 'unreasonable searches and seizures' is violated." (1) In 1939 Professor Frankfurter was appointed to the High Court, where he would serve for 23 years; and where, as Justice Frankfurter, he would participate in a great many notable opinions having to do with whether the Fourth Amendment protection against unreasonable searches and seizures had been violated. (2)

   That Professor Frankfurter made a bad guess doesn't make him a bad guesser. From the adoption of the Fourth Amendment in 1791 (3) until the decision in Weeks v. United States (4) in 1914, the Supreme Court had almost nothing to say about the meaning of the Fourth Amendment's protection against unreasonable searches and seizures, for the very good reason that nobody asked. (5) A constitutional provision that engendered jurisprudence about once every 123 years was unlikely to engender much jurisprudence.

   Fremont Weeks was the man who got around to asking the Supreme Court what the Fourth Amendment meant. While Weeks was being arrested at the train station in Kansas City, Missouri, police officers entered his home without a warrant; searched; and seized various papers and other evidentiary artifacts. (6) After turning the fruits of this search over to the U.S. marshal, the police and the marshal returned to Weeks's home and searched again, seizing still more documents. (7) None of this searching and seizing was done pursuant to warrant. (8)

   Charged with various federal crimes relating to the conduct of a lottery, Weeks moved for the return of his unlawfully-seized property. (9) The motion was denied upon the representation of the prosecution that the property in question was evidence, and would be employed as such at trial. (10) Weeks renewed his objection at the time the demised papers were offered in evidence against him." His objection was overruled.

   It was undoubtedly the case that, at common law, evidence was not subject to suppression because it had been unlawfully obtained.

   In the ordinary administration of municipal law the right of using evidence does not depend, nor, as far as I have any recollection, has ever been supposed to depend upon the lawfulness or unlawfulness of the mode, by which it is obtained. If it is competent or pertinent evidence, ... the evidence is admissible on charges for the highest crimes, even though it may have been obtained by a trespass upon the person, or by any other forcible and illegal means.... [O]n trials for crimes, evidence is often obtained from the possession of the offender by force or by contrivances, which one could not easily reconcile to a delicate sense of propriety, or support upon the foundations of municipal law. Yet I am not aware, that such evidence has upon that [ground] ever been dismissed for incompetency. (12) But Weeks did not call upon the Court to construe the common law. It called upon the Court to construe the Fourth Amendment. (13)

   By its plain terms, the Fourth Amendment picks up where the common law left off. The Fourth Amendment does not purport to create any rights. It does not provide, for example, that, "There is hereby created a right to be free from unreasonable search and seizure." That right the Fourth Amendment takes as given. The Fourth Amendment exists to protect that right--to protect from violation a right antecedent in time and source to the Amendment itself. The very words with which the Fourth Amendment begins reflect as much. The right of the people to be secure in their persons, houses, papers and effects--that already-existing right--is, by operation of the Fourth Amendment, to be shielded, to be made secure, to be given effect.

   And how could this right, this right to be free from unreasonable governmental invasion of home and self and effects, be violated by government? Certainly it could be violated by the executive branch, whose officers might force their way into the privacy of the home and distrain personal property. Certainly, too, it could be violated by the judicial branch if it received the fruits of such pillage and plunder in evidence, permitting them to be used in courts of law as the basis for judgments in law. In both instances--that involving conduct by executive officers and that involving conduct by judicial officers--the right which the Fourth Amendment existed to preserve from violation would be violated.

   That, in any event, was the understanding of the Weeks court. The effect of the Fourth Amendment is to put the courts of the United States and Federal officials, in the exercise of their power and authority, under limitations and restraints as to the exercise of such power and authority, and to forever secure the people, their persons, houses, papers and effects, against all unreasonable searches and seizures under the guise of law. This protection reaches all alike, whether accused of crime or not, and the duty of giving to it force and effect is obligatory upon all intrusted under our Federal system with the enforcement of the laws. The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures ... should find no sanction in the judgments of the courts, which are charged at all times with the support of the Constitution, and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights. (14) Clearly the limitations imposed by the Fourth Amendment are directed to the judicial as well as to the executive branch. They are directed to "the courts of the United States and Federal officials," and "the duty of giving ... [those limitations] force and effect is obligatory upon all intrusted under our Federal system with the enforcement of the laws." (15) It is, after all, "the courts[] which are charged at all times with the support of the Constitution." (16) Just as clearly, the Fourth Amendment is, by its terms, an exclusionary rule. For

   [i]f letters and private documents can ... be seized and held and used in evidence against a citizen accused of an offense, the protection of the [Fourth] Amendment, declaring his right to be secure against such searches and seizures, is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution. (17) Justice Day's opinion in Weeks is written for a unanimous Court. The tone of that opinion is almost nonplused: Of course courts must refuse to receive evidence obtained in violation of the Fourth Amendment. We're surprised you had to ask. We would have told you so if you had asked sooner.

   In three ensuing cases--Silverthorne Lumber Company v. United States (18) Gouled v. United States, (19) and Amos v. United States (20)--the Supreme Court completed the laying out of the metes and bounds of the Fourth Amendment's exclusionary purpose and function. (21) The historical arc formed by these jurisprudential points intersected with a very different sort of historical arc. In 1920 Prohibition became the law. (22) Prohibition begat bootlegging, and bootlegging begat search and seizure issues. Prior to Prohibition, and certainly prior to Weeks, state statutes regulating search and seizure, and reported opinions construing state-law congeners to the Fourth Amendment, were few and far between. When the change of law brought about by the Weeks line of cases and the changes of the facts of social life brought about by Prohibition were stirred together, a florescence of law-making--both judicial and legislative--resulted. It resulted in Florida, and it resulted elsewhere. (23) Part II of this article considers those changes in Florida law.

   For the better part of the following half-a-dozen decades, Florida courts provided strong protection from unlawful search and seizure, adopting the doctrine from Weeks and progeny that the Fourth Amendment is itself an exclusionary rule. Although Florida cases cited to federal authorities, it is clear that Florida law was the principal source of that protection.

   That changed dramatically in 1982. Article I, section 12 of the Florida constitution had long provided, in language all but identical to that of the Fourth Amendment, that:

   The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, and against the unreasonable interception of private communications by any means, shall not be violated. No warrant shall be issued except upon probable cause, supported by affidavit, particularly describing the place or places to be searched, the person or persons, thing or things to be seized, the communication to be intercepted, and the nature of evidence to be obtained. (24) In 1982, however, this article was amended, effective the following year, to conclude with the following language:

   This right shall be construed in conformity with the [Fourth] Amendment to the United States Constitution, as interpreted by the United States Supreme Court. Articles or information obtained in violation of this right shall not be admissible in evidence if such articles or information would be inadmissible under decisions of the United States Supreme Court construing the [Fourth] Amendment to the United States Constitution. (25) The effect of the amendment is to render article I, section 12 a dependent, rather than an independent, guarantee of Floridians' protection from unreasonable search and seizure. In truth the effect of the amendment is to render article 1, section 12 a nullity. (26) Floridians, like all Americans, have such protection from unreasonable search and seizure as is afforded by the Fourth Amendment; Floridians, unlike most Americans, have no additional protection from unreasonable search and seizure afforded to...