In defense of the 'per se' rule: Justice Stewart's struggle to preserve the Fourth Amendment's warrant clause.

Author:Greenhalgh, William W.
Position:Potter Stewart
  1. THE ORIGINS OF THE "PER SE" RULE 1019 A. The English Roots 1020 B. Search and Seizure in the New World 1028 II. THE FRAMING OF THE FOURTH AMENDMENT 1036 III. INTERPRETING THE TEXT OF THE FOURTH AMENDMENT 1040 A. The Years Before Justice Stewart: 1789-1958 1041 B. Justice Stewart's Pre-Katz Years: 1958-1967 1052 C. The "Per Se" Rule Re-emerges: Katz v. United States 1068 D. Justice Stewart's Post-Katz Years: 1967-1981 1075 E. The Post-Stewart Court: Balancing Replaces the "Per Se" Rule 1083 IV. CONCLUSION 1096 Just over a quarter century ago, the Supreme Court issued the landmark Fourth Amendment decision of Katz v. United States.(1) As in many other Fourth Amendment cases, in Katz there was very little at stake for the principal. Regardless of the decision handed down by the Court, Charles Katz would not spend a day in jail. Caught placing interstate bets over the telephone, he faced only a $300 fine. The constitutional issue, however, was substantial. In Katz, Justice Potter Stewart's opinion for the Court marked the renaissance of the Fourth Amendment's "per se" rule. This rule, from which the Court has too frequently departed, describes the proper relation between the two clauses of the Fourth Amendment.

    A fundamental controversy in Fourth Amendment interpretation is the relation between the reasonableness clause and the warrant clause.(2) Simply stated, the question is whether a search must be supported by a warrant as described in the second clause in order to be considered reasonable under the first clause. While this issue is initially a question of textual interpretation, the text is at best equivocal. The Fourth Amendment provides:

    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.(3)

    Two competing interpretations of this text have emerged.(4) Under one view, the reasonableness approach, the clauses are read separately. The first clause is really all that matters--the government conduct need only be reasonable.(5) This interpretation was first stated by Justice Minton in United States v. Rabinowitz:(6) "The relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable. That criterion in turn depends on the facts and circumstances, the total atmosphere of the case."(7)

    The interpretation proffered by Justice Minton, and embraced by a majority of the Supreme Court today, grants two types of search and seizure authority to the government. A reasonable search can either be based upon a warrant or conducted without a warrant.(8) Under this interpretation of the text, a warrant is not absolutely required but, if a warrant happens to be issued, it must comply with the requirements of the second clause.(9) The practical effect of this interpretation is to rip the second clause from the fabric of the Fourth Amendment. The warrant requirement would never apply unless the government so desired.(10) And, there is little reason why the government would risk seeking a warrant: justified after the fact, the police conduct need only be reasonable.(11) When a criminal is caught, faced with the potential effect of letting "the criminal go free because the constable has blundered," the Court has strained to find the police conduct reasonable.(12) The result of this strain has been to stretch the Fourth Amendment beyond recognition.

    The alternative interpretation, championed by Justice Stewart, would connect the two clauses by using the second clause to define the first. Under this interpretation, a reasonable search is either one that is conducted under a warrant satisfying the requirements of the second clause,(13) or one that arises from exceptional circumstances in which it would be impractical (or unreasonable) for the government to obtain a warrant. Under this view, absent prior approval by a neutral and detached magistrate,(14) a search is per se unreasonable unless it falls within one of the limited exceptions to the warrant requirement.(15)

    Although principles of grammatical interpretation make either interpretation plausible,(16) the latter view is better supported by the history of the Fourth Amendment, common sense, and fundamental logic. Those who would disconnect the clauses argue that what the Framers feared was not warrantless government searches, but rather General Warrants and Writs of Assistance under which officials conducted judicially sanctioned, broad exploratory searches.(17) However, this argument severely understates the Framers' fears.

    The Framers in 1789 feared precisely what the English feared in 1621 and precisely what we expect the Fourth Amendment to protect us from today: an arbitrary, capricious, and overreaching government. Whether the government intrudes through a General Warrant, a Writ of Assistance, or a warrantless search is not the primary issue.(18) Although a warrant provides a greater guarantee that a search will be conducted reasonably, the purpose of the Fourth Amendment is to protect citizens from all unreasonable government intrusions. The Framers sought to achieve this objective by placing a neutral and detached judicial officer between the government and the citizen wherever possible, and by restricting that judicial officer to issuing search warrants only upon oath, based upon probable cause, and only if the applicants describe with particularity the object of the search and where the search would take place.

    Katz, often cited as one of several landmark Fourth Amendment cases authored by Justice Stewart,(19) revived the Court's focus on the role of the neutral and detached magistrate by employing the "per se" rule as the proper analytical framework for Fourth Amendment jurisprudence.(20) In Katz, Justice Stewart looked to the overarching purpose of the Fourth Amendment in light of its historical meaning to determine how to apply its requirements to the twentieth century problem of electronic eavesdropping. Relying upon the premise that the warrant clause defines the necessary limits of the reasonableness clause, Justice Stewart focused on the role of the judge.

    For several reasons, his interpretation of the Fourth Amendment in Katz was neither surprising nor novel.(21) First, it was the only interpretation that made any sense if the warrant clause was to retain any vitality in an evolving society. Second, Justice Stewart agreed with Justice Felix Frankfurter before him that the underlying history of the Fourth Amendment left no room for reading the reasonableness clause independently from the warrant clause. Finally, the Katz decision was pure Stewart: a common sense, bright line rule that police officers and judges could understand and apply.(22)

    In this article, we examine the roots of the "per se" rule and its revival in Katz, the resurgence of the rule under Justice Stewart's influence during the late 1960s and early 1970s, and, finally, its slow demise since he left the Court in 1981. In Part I, we discuss the origins of the "per se" rule, focusing upon the roots of the Fourth Amendment. In Part II, we discuss the framing of the Fourth Amendment. In Part III, we analyze its interpretation. First, we review the Supreme Court's interpretations of the Fourth Amendment between 1789 and 1958 (the year Justice Stewart joined the Court). Then, we examine Justice Stewart's pre-Katz Fourth Amendment decisions on the Court, focusing on the wiretapping and eavesdropping cases. We also briefly examine Justice Stewart's general approach to judging and ask who, if anyone, may have influenced him to conclude that the "per se" rule was the proper interpretation of the Fourth Amendment. After analyzing Katz, we examine Justice Stewart's post-Katz battle to guard the "per se" rule against assault by a Supreme Court bent on expanding the "reasonableness" clause beyond its historical context. Finally, we explore the jurisprudential chaos that has descended upon the Fourth Amendment as the Court has all but rejected the "per se" rule and strengthened its embrace of the "reasonableness" approach since Justice Stewart's departure.


    This section reviews the genesis of legal restrictions on the governmental search power. We focus on actions of the English Crown and the Parliament, and on the reaction in both England and colonial America to limit the government's search authority.(23) Based on this overview, it makes little sense to argue that the Framers sought to forbid General Warrants or Writs of Assistance through the Fourth Amendment, but that they nevertheless intended to allow government intrusions of the same or greater magnitude as long as those intrusions were not based upon writs or warrants.(24) What the colonists feared was not the nature of the paper authorizing a search but rather the intrusions themselves. The words of the Fourth Amendment have meaning only when understood in the context of the Amendment's history. This section will make clear that the Fourth Amendment has its roots in the abyss of unfathomable antiquity, deeply laid in sacred freedom, human rights, and legal liberty.

    1. The English Roots

      A commonly cited source of authority for the Fourth Amendment is Clause 39 of the English Magna Carta of 1215, which provides: "No freeman shall be captured or imprisoned or disseised or outlawed or exiled or in any way destroyed, nor will we go against him or send against him, except by the lawful judgment of his peers or by the law of the land."(25) Although the text of Clause 39 does not directly address search and seizure, its broad statement nevertheless foreshadows the general principle underlying the Fourth Amendment. Clause 39 was designed to curb the abuses of the King, just as the...

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