The Supreme Court giveth and the Supreme Court taketh away: the century of Fourth Amendment "search and seizure" doctrine.

Author:Davies, Thomas Y.
Position:Centennial Symposium: A Century of Criminal Justice

[I]ndependent tribunals of justice ... 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 [Bill of Rights].

--James Madison **


    The century during which the Journal of Criminal Law and Criminology has been published roughly matches the lifespan of Fourth Amendment "search and seizure" doctrine. The Journal appeared in 1910, while it is generally (and correctly) accepted that the 1914 decision Weeks v. United States (1) marks the birth of the modern Fourth Amendment. (2) Unsurprisingly, the Journal has published many articles on search and seizure issues since that time. (3)

    However, the two stories have now diverged. The Journal continues to be a vibrant institution, but over roughly the last four decades the continuing conservative majority of the justices of the Supreme Court have reduced Fourth Amendment doctrine to little more than a rhetorical apparition. Hence, it is appropriate to refer to "the" century of search and seizure doctrine. Although it is unclear whether the justices will refrain from explicitly ending enforcement of constitutional limits on government arrest and search powers, they have already drained those limits of almost all of their practical content. And, notwithstanding the usual cliches regarding historical pendulums (where does such nonsense come from?), it seems quite unlikely that destruction will be reversed.

    My assignment for this Symposium is to tell the story of the invention, development, and dismantling of Fourth Amendment search and seizure doctrine over the last century. Of course, readers will likely already be familiar with at least the landmarks. Hence, my ambition is to broadly sketch out what might be called the trajectory of search and seizure doctrine while at least beginning to link that story to the larger history of the Supreme Court itself--that is, to the shifting concerns that motivated the justices as the Court's membership and the politics of criminal procedure changed.

    The Fourth Amendment 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. (4) It is fashionable to lament the maddeningly cryptic character of the Fourth Amendment's text (5) as well as the confused or unmoored state of search and seizure doctrine. (6) Indeed, those complaints may seem painfully obvious if one attempts to systematically set out the rationales and content of current search and seizure doctrine and to then relate that doctrine to the text. However, such doctrinal incoherence should hardly come as a surprise. If the professional pretense that the law develops through judicial discovery of the true meaning of a text or of the internal logic of principles and precedents was ever tenable, it surely no longer is.

    Instead, the basic contention advanced by the legal realists more than a half century ago--that textual interpretations and doctrinal conceptions are shaped by the outcomes that judges seek to justify far more than the other way around--is patently obvious. Indeed, the realists' insight provides a particularly powerful explanation of Supreme Court decisions regarding ideologically charged topics such as criminal procedure. (7) Although the potential for appellate review means that lower court judges are constrained to hew to the legal doctrine set out by the high court to some significant degree, the justices of the Supreme Court are not similarly confined.

    Perhaps because no other institution has the power to review constitutional rulings by the Supreme Court, (8) the justices' behavior often resembles that of a vote-casting legislature at least as much as a court in the usual sense. (9) Indeed, the case could be made that the history of constitutional law has been largely (one might be tempted to say merely) the story of who held the fifth swing vote when decisions were made.

    However, a realist perspective does not go so far as to claim that legal doctrine does not matter at all. The public expects judicial decisions to be justified in terms of precedent and principle, and also expects that the justices usually should change the law incrementally. Thus, because the justices seek to provide public rationales for their rulings, the course of doctrinal development is shaped to a significant degree by the opportunities or weaknesses that the justices perceive in existing doctrine. Hence, in much the same way that the course of a stream seeks out weaker strata, the rationales in opinions (which, of course, do not necessarily reflect the actual motivations for the justices' votes) often exploit the state of the existing doctrinal terrain.

    The realist perspective suggests that the seeming doctrinal confusion in arrest and search law should be explainable enough as a historical concretion that reflects ongoing ideological adjustments to prior doctrine. I think it is. Indeed, the story of the century of search and seizure doctrine can be told largely in terms of five distinct periods that mark shifts in the ideological composition of the Court and in the issues the justices either preferred or felt obligated to address, (10)


    During the initial period of the century of search and seizure (discussed in Part III), the justices were primarily engaged in an ongoing campaign to restrain government regulation of business--and that included restraining government access to business records. The justices' antiregulation orientation seems to have provided the impetus for the invention of what we now call Fourth Amendment "search and seizure" doctrine in 1914 in Weeks. Although Weeks is generally described as the case that invented the Fourth Amendment exclusionary rule, that was only the final of several doctrinal innovations made in that ruling. In a burst of activist creativity, the Weeks justices extended the Fourth Amendment's protections to regulate the conduct of officers as well as legislation and court orders. They also reinvigorated the traditional understanding that a warrant was required for a lawful search of a house. And to give the new protections operational substance, they created the Fourth Amendment exclusionary rule. In subsequent cases they simply ignored the historical concern with the protection of the house and its contents and applied the Weeks warrant requirement to searches of offices for business papers.

    The second period (discussed in Part IV) arose not from a change in the orientation of the justices but from a change in the issues the justices were pressed to address. Specifically, they were confronted with the question of whether or how the newly reinvented Fourth Amendment applied to the police searches that were an inexorable part of Prohibition enforcement. Prohibition involved an unprecedented extension of federal criminal law to a possessory offense. That, in turn, posed novel search imperatives for law enforcement--especially searches of automobiles used to transport illegal liquor. Because the justices had already adopted a generous conception of the scope of the Fourth Amendment's protections, they could not accommodate the perceived needs of law enforcement by simply declaring that searches of automobiles fell outside of the Amendment's protections. Instead, the justices watered down the new warrant requirement by inventing the novel concept of "Fourth Amendment reasonableness." Specifically, in the 1925 ruling in Carroll v. United States, (11) they adopted the view that the Fourth Amendment did not condemn all warrantless searches, but only those that the justices did not find to be "reasonable" in the circumstances. Because automobiles presented an exigency, the justices concluded that warrantless searches of automobiles would be "reasonable" and therefore constitutional provided they were based on probable cause. However, the flurry of search and seizure cases declined significantly when Prohibition was repealed.

    The third period (discussed in Part V) commenced after the end of World War II. By then, judicial resistance to New Deal economic regulation had collapsed, and President Franklin D. Roosevelt had repopulated the Court's bench with supporters of New Deal regulation. Hence, the earlier "conservative" ideological inclination to protect business records became moot. Roosevelt's appointees often possessed both strong personalities and views, but they were chosen for their endorsement of the federal government's economic powers, not for a shared perspective on the civil liberties issues that began to take center stage. Likewise, President Harry Truman's appointees were chosen largely on the basis of cronyism rather than for their views on civil liberties or criminal justice. Hence, the Roosevelt and Truman appointees divided when they addressed search and seizure issues.

    The central issue for search doctrine during this postwar period was the relative importance to be assigned to the Weeks warrant requirement versus the Carroll reasonableness formulation. Ultimately, the balance in search cases tipped toward a flexible "reasonableness" interpretation, and away from a rigorous search warrant requirement. Likewise, the balance tipped against both the first stirrings of the "incorporation" doctrine and the brief attempt to use the Fourteenth Amendment Due Process Clause as a surrogate for a national search and seizure regime. But dissenting opinions in closely divided cases indicated that the subject was not settled. Notably, the search cases decided by the Court to this point had not yet involved any violent crime...

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