The Broken Fourth Amendment Oath.

AuthorSacharoff, Laurent

Table of Contents Introduction I. Contemporary Problems A. Current Warrant Case Law B. Current Scholarship C. Confidential Informants and Search Warrants II. The Founding Era A. Why Textualism and Originalism B. Ordinary Criminal Cases 1. Evolution to warrants 2. The warrant process and the search for truth 3. The arrest or search "belongs to" the accuser 4. Suspicion of felony 5. Forms 6. Real warrants and applications C. Evidence Law 1. The chronology of a criminal case 2. Personal knowledge 3. Hearsay 4. Cross-examination D. Accountability E. Newfangled Process 1. Seditious-libel cases in England 2. Writs of assistance in the colonies 3. Subsequent writ history III. The Fourth Amendment A. State Constitutional Provisions B. Text of the Fourth Amendment C. Early Opinions Banning Thirdhand Information IV. Innovation and Response: 1850 to 1960 A. The Majority Rule: Personal Knowledge B. The Federal Search Warrant Statute C. Contrary Case Law and the Indiana Flip-Flop V. The Modern Rule of Convenience A. Brinegar, Draper, and Jones B. Challenging Jones C. Jones's Aftermath VI. The Real-Accuser Rule Today: Scope and Objections A. Ambit of the Rule B. The Exclusionary Rule C. Practical Obj ections Conclusion Introduction

The Fourth Amendment requires that warrants be supported by "Oath or affirmation." (1) Under current doctrine, the person who witnessed the incriminating facts need not swear under oath that those facts are true. Instead, that witness can inform a police officer, who may in turn seek a warrant by simply repeating the information as hearsay under oath. This officer's oath attests not that the underlying facts are true, but rather that "it's true someone told me these incriminating facts." Upon this oath, a magistrate may issue a warrant that authorizes the police, for example, to arrest someone or break into a home and search for drugs. So ruled the Supreme Court with little fanfare in 1960. (2)

We have so internalized this strange interpretation of "oath" that a typical lawyer, judge, or professor who reads the Fourth Amendment finds herself emphasizing words such as "unreasonable" and "probable cause." (3) When she arrives at "Oath or affirmation," by contrast, she swallows these meaningless terms so as to move quickly to the ones that interest her. After all, she knows that the Court long ago rendered the oath an empty formality.

But this Article shows that the Fourth Amendment, as originally understood, required that the oath be sworn by the real accuser, the victim, or another witness with personal knowledge. (4) The oath requirement banned hearsay. This Article reminds us that the words "Oath or affirmation" appear in the Fourth Amendment text, that they hold great meaning, and that their original meaning, once recovered, could revolutionize current police practice. Rarely does originalism open such a wide path toward progressive police reform.

Even before the original state and federal constitutions, criminal law had long required an oath for warrants. Colonial practice uniformly involved the real accuser swearing the oath in person. (5) We can see this from contemporary criminal law treatises and justice-of-the-peace manuals, which described the real accuser, almost always the victim, swearing the oath.

Court cases until the mid-twentieth century confirmed this understanding, regularly holding warrants obtained on thirdhand information unconstitutional. (6) During the first half of the twentieth century, the majority of state supreme courts and federal courts of appeals banned thirdhand accounts. The Supreme Court endorsed this rule in 1932. (7) As Justice Bradley wrote in an 1877 opinion while riding circuit, the Fourth Amendment does not allow an "official accuser" to relay facts. (8) Rather, the "magistrate ought to have before him the oath of the real accuser." (9)

Manuals, treatises, and courts required the real accuser to testify for several reasons. First, the very concept of oath included the requirement of personal knowledge. The oath promoted truth by imposing upon the witness the possible penalty of perjury, as well as the prospect of a false swearing before God. Founding-era sources often saw a witness seeking a warrant under oath as analogous to a witness testifying under oath at trial. (10) Second, the warrant process occurred before a magistrate who was required to carefully examine and assess the witness to ensure the truth of the allegations. (11) Third, if the person seeking the warrant lied or was mistaken, she could be held accountable via perjury charges or via civil liability for trespass, malicious prosecution, or false imprisonment. (12) These purposes of the oath requirement could only be achieved if the real accuser swore the oath. As the Seventh Circuit put it in 1918, personal knowledge ensured that there were "consequences for the accuser to face." (13)

But in the mid-twentieth century, the Supreme Court displaced this understanding in Jones v. United States, holding that police or other officers could swear the oath to obtain a warrant based on hearsay. (14) Today, an officer can obtain a warrant based upon an unnamed informant's statement as long as the officer can allege some facts demonstrating that the informant is reliable. This formalistic expedient allows an officer to truthfully repeat under oath what she was told, even if the original source was lying or mistaken.

Jones was wrong to admit hearsay in warrant applications. It ignored the Fourth Amendment text (never even mentioning the oath requirement); it ignored Founding-era sources entirely; and it largely ignored the dense contrary precedent--state and federal--of the early twentieth century. (15) It relied instead upon an express policy preference: the desire to make it easier for law enforcement to obtain warrants. Jones has led to the widespread use of confidential informants and hearsay within hearsay in the warrant-application process. These practices violate the Fourth Amendment's core original protection.

This Article argues that we should restore the original, textual meaning of the Warrant Clause to bar thirdhand accounts and require a real accuser with personal knowledge to swear the oath. The same reasons that animated the personal-knowledge requirement remain salient today: truth, accountability, avoidance of confidential informants, and abhorrence of incursions on liberty by unfounded searches and arrests.

Under this Article's proposed return to the original understanding of the Fourth Amendment, officers seeking warrants must bring informants to testify before magistrates, who must examine them to ensure truth and accountability. This proposal will reduce the pervasive contemporary injustice of confidential informants--who often act for money or leniency in their own cases--falsely accusing others. (16) It will also limit warrants based on questionable third-party reports.

This is the first study to examine the "Oath or affirmation" requirement by exploring Founding-era sources and tracing the requirement's evolution; the first to consider the dense and pervasive case law from the mid-nineteenth century to 1960 requiring personal knowledge; and the first, indeed, to explore carefully how and why the Supreme Court shifted away from the requirement's original meaning in the mid-twentieth century. Finally, it is the first to argue that we should restore that original meaning today. (17)

This Article also seeks to advance a broader goal: restoring the Warrant Clause to its rightful place as a protector against unlawful arrests and, particularly, searches. As it stands, Fourth Amendment scholarship and case law tilt almost entirely toward other aspects of the Fourth Amendment: What counts as a Fourth Amendment search? When are warrants required? What are the exceptions to the exclusionary rule? (18) Today's court cases comprehensively address when the warrant clause is triggered, but not what it requires once it applies. (19)

Only one scholar has addressed the oath requirement in any depth: Thomas Davies. (20) Davies notes that the oath requires an accuser with personal knowledge, but he renders this judgment primarily in aid of a separate argument concerning when warrants are required. (21) Nevertheless, this Article builds upon Davies's careful and deeply researched originalist work.

Warrants are a blessing and a curse. They impose limits on police, but they also authorize police to carry out violently intrusive activity. Arrest warrants effectively authorize as much force as necessary to effectuate the arrest, up to and including deadly force under certain circumstances. (22) These warrants can become a license to kill. Search warrants, meanwhile, authorize officers to break into homes, often at night, heavily armed--activity that, if done by anyone else, would be a serious felony. (23) Founding-era sources treated search warrants authorizing violent home invasions as either completely unauthorized or, at a minimum, subject to the strictest limits because of the potential for injury or death. (24)

Prominent recent cases illustrate how warrants act to authorize force, sometimes deadly force. In Louisville, Kentucky, officers raided Breonna Taylor's home, heavily armed, and almost immediately began firing dozens of shots, killing her. (25) The search warrant that authorized this intrusion was based on faulty thirdhand information.26 The nighttime raid on Anjanette Young in Chicago also involved a search warrant. Police body-camera video shows several heavily armed and aggressive officers surrounding a naked, handcuffed, terrified woman who had just been undressing for bed. Here too, the search warrant was based on faulty thirdhand information from a confidential informant. (27)

Numerous recent investigations have revealed that police often rely on faulty information from confidential informants to obtain search warrants. (28) "The no-knock process often begins with...

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