'Dearest property': digital evidence and the history of private 'papers' as special objects of search and seizure.

• Author: Dripps, Donald A.
• Position: I. The Technological Crisis in Modern Doctrine through III. The Seizure of Papers in America from the English Controversy Through the Founding Era A. American Interest in the English Controversy, p. 49-75

TABLE OF CONTENTS I. THE TECHNOLOGICAL CRISIS IN MODERN DOCTRINE A. Searches for Digital Evidence Pursuant to Warrant or the Vehicle Exception to the Warrant Requirement B. Searches of Digital Evidence Incident to Lawful Arrest II. THE CONTROVERSY OVER LIBELS, GENERAL WARRANTS, AND THE SEIZURE OF PAPERS, 1763-1766 A. The North Briton No. 45 B. General Warrants and the Seizure of Papers: The House of Commons Temporizes C. The Tort Suits Against the King's Messengers and the Secretary of State D. The Pamphlet War of '64 E. Endgame in Parliament III. THE SEIZURE OF PAPERS IN AMERICA FROM THE ENGLISH CONTROVERSY THROUGH THE FOUNDING ERA A. American Interest in the English Controversy B. Reception of the Common Law of Search and Seizure C. Statutory Respect for the Rule of Entick D. State Search-and-Seizure Provisions Before the Constitution of 1789 E. Anti-Federalist Concerns and Amendments Proposed During Ratification of the 1789 Constitution F. Congressional Drafting of the Fourth Amendment in 1789 G. Early Practice IV. THE UNTOLD STORY OF BOYD V. UNITED STATES A. The Common Law Background B. The 1863 Statute C. Postwar Legislation and Constitutional Challenges D. The 1874 Act E. Boyd F. Boyd and Lochner G. Boyd as Doctrine: Two Apparent Anomalies 1. The Mere-Evidence Rule 2. Search Incident to Arrest V. SUMMING UP: HISTORY AS OPPORTUNITY A. The Case Against Equating "Papers" and "Effects" B. The Pooling Problem and the All-or-Nothing Dilemma C. Beyond All or Nothing Why does the Fourth Amendment distinctly refer to "papers" prior to "effects"? Why should we care?

The inquiry is interesting for the usual reasons legal history is interesting--those who look may find a compelling story that provides the surest foundation for understanding modern doctrine. In this case, however, there is an additional and urgent reason for caring about history. Modern doctrine is in deep trouble and needs all the help it can get.

For more than a century, the Supreme Court adhered to the doctrine of Boyd v. United States, granting private papers an extraordinary exemption from seizure, even under warrant. (1) Then, during the last quarter of the twentieth century, the Supreme Court began effectively to equate "papers" and "effects." (2) Another line of modern cases established "bright-line rules" (3) that gave the same constitutional treatment to all "effects." (4)

Twenty-first century technology makes these doctrines problematic. Portable devices like cell phones and flash drives are '"effects" subject to search and seizure like briefcases and backpacks. Given the enormous quantity and sensitive content of the information digital devices hold, equating them with other "effects" has troubled courts and commentators. (5)

In computer search cases, the police may have probable cause and be able to describe particularly what they are seeking. But the disturbing feature is the volume of innocent and intimate information that must be exposed before the criminal material is discovered. This pooling of small quantities of criminal evidence with large quantities of innocent and intimate information is not new. It appeared in a great controversy over general warrants, libels, and seizure of papers that erupted in England in the 1760s.

This Article argues that the history of seizing "papers" explains why the Amendment uses the term and offers the opportunity to ground special Fourth Amendment rules for digital evidence. For originalist judges the pertinence of history is obvious. History is important, however, for any theory of constitutional interpretation more formal than brazen realism. (6) In this instance, history might help to reconcile Fourth Amendment doctrine with the widespread sense that some effects are categorically more private than others.

The Fourth Amendment refers to "papers" because the Founders understood the seizure of papers to be an outrageous abuse distinct from general warrants. The English courts and resolutions of the House of Commons condemned both abuses distinctly. The controversy was closely followed in America, where colonial Whigs sympathized with, and even idolized, John Wilkes, who successfully sued for damages for the seizure of his papers. America inherited the common law ban on searches for papers, adopted constitutional provisions that mentioned papers distinctly, and refused to modify the common law ban by statute until the Civil War. The one Founding-era attempt to authorize seizing papers by statute was condemned as contrary to common law and natural right and never passed into law. Although Congress authorized seizing papers to enforce the revenue laws during the Civil War, it took until the 1880s for a challenge to reach the Supreme Court. That challenge was Boyd, which remained the law for another ninety years.

Boyd rightly held that "papers" deserve more constitutional protection than "effects." Special protection does not, however, ineluctably mean absolute immunity. The seizures that aroused outrage in the 1760s were indiscriminate, expropriating, unregulated, and inquisitorial. A regulated, discriminate, and nonrivalrous process for inspecting documents is different.

Indeed, the prohibition on seizing papers was never absolute. Stolen and contraband papers could be seized under warrant, and perhaps papers of only evidentiary value could be seized incident to arrest. Moreover, if the Fourth Amendment, as Story said, is "little more than the affirmance of a great constitutional doctrine of the common law," (7) the Amendment incorporates by reference "a great constitutional doctrine" that was dynamic on its own terms, subject to judicial evolution and statutory modification. (8) The supposed choice between no special protection for private papers and complete immunity for private papers is a false dilemma.

This Article takes no position on the precise special doctrines that should be formulated to prevent promiscuous searches of digitized information. Those depend on costs and benefits, and on institutional competence to assess costs and benefits. (9) The Article claims only that courts interpreting the Fourth Amendment have legitimate textual and historical grounds for treating "papers" and their modern counterparts with more respect than other "effects."

Part I briefly describes the technological crisis in current Fourth Amendment doctrine. Part II reviews the history of the controversy over general warrants, libels, and the seizure of papers that raged in England early in the reign of George III. Part III turns to the American experience, beginning with American awareness of the English controversy before considering the post-Independence reception of the ban on seizing papers, the adoption of constitutional provisions referring specially to "papers," and Founding-era practices. Part IV tells the still largely unsuspected story of Boyd v. United States. Part V weighs the accumulated evidence and suggests that Boyd's inflexible ban on seizing private papers, while more defensible than modern doctrine's excision of a word from the constitutional text, was not the only legitimate doctrinal way to honor the constitutional preference for "papers" over "effects." Once we understand the special evils the Founders saw in seizing papers, we may conclude that searches carefully structured to minimize those evils are not "unreasonable."

1. THE TECHNOLOGICAL CRISIS IN MODERN DOCTRINE

   The Supreme Court's case law permits the search for and seizure of evidence, including documentary evidence, (a) by warrants meeting the criteria of the Warrant Clause; (b) without warrants when the police have probable cause to believe evidence or contraband may be inside a vehicle; (10) and (c) incident to a lawful arrest based on probable cause, even without particularized suspicion to believe the suspect might destroy evidence or reach for a weapon. (11) When an arrest takes place in public, the police may thoroughly search the suspect's person, including personal items such as wallets and notebooks, and may open containers such as briefcases and backpacks. (12) When the arrest takes place indoors, the police, under Chimel v. California, may also search areas within the immediate "grabbing range" of the suspect. (13) When the arrest takes place in a vehicle, the recent decision in Arizona v. Gant directs that 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." (14)

   As Orin Kerr forcefully pointed out, these physical-evidence rules are incongruous when applied to digital evidence. (15) The physical-evidence rules permit the police to carry off the suspect's computer drives and peruse every file if they have probable cause to believe such a search will yield a single incriminating file. And when the...