The Contingent Fourth Amendment

• Publication year: 2015

The Contingent Fourth Amendment

Michael J. Zydney Mannheimer

THE CONTINGENT FOURTH AMENDMENT

Michael J. Zydney Mannheimer^*

In the past forty years, the U.S. Supreme Court has increasingly advanced the notion that the Fourth Amendment encompasses the common-law restrictions on searches and seizures that existed in 1791 when the Amendment was adopted. Yet, in case after case, the Court has encountered indeterminacy in the common law circa 1791. At times, the Court confronts this indeterminacy by concluding that, in the absence of a clear common-law rule, the Fourth Amendment does not govern the issue. At other times, in the face of indeterminacy, the Court falls back upon general Fourth Amendment principles. And on occasion the Court pretends that the indeterminacy does not exist.

The reason for the absence of clear common-law search-and-seizure rules in 1791 is that the common law differed in important respects among the new American States. More importantly, the Anti-Federalists, those who demanded that the Bill of Rights be added to the Constitution as the price of ratification, recognized that the common law differed by State. This differentiated common law included the common-law rights of Englishmen secured by state constitutions and bills of rights. The Anti-Federalists saw the common law not as a fixed set of rules they were freezing in time, but as fluid, contingent, and evolving around them. Thus, if the Court is going to continue to interpret the Fourth Amendment as incorporating common-law search-and-seizure rules, it must come to terms with the fact that the common law of 1791 was viewed by a significant part of the population as contingent rather than fixed. And given that we owe the Bill of Rights to the Anti-Federalists, it makes some sense to interpret its commands in light of their view of the common law.

This Article introduces a view of the Fourth Amendment—the contingent Fourth Amendment—that courts and commentators have overlooked. It asserts that we ought to conceive of our rights against unreasonable searches and seizures by federal officials as being largely contingent on state law. The only

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common-law rules that the Fourth Amendment freezes into the Constitution are those explicitly set forth in the Warrant Clause: rules against warrants that are general, issued on less than probable cause, or unsupported by oath or affirmation. The residuum of constitutional search-and-seizure rules are to be dictated by state law, even when it is a federal officer doing the searching or seizing. On this approach, as a matter of federal constitutional law, a federal officer is generally constrained by the search-and-seizure law of the State where a federal search or seizure occurs.

Introduction............................................................................................1231

I. Use and Misuse of the Common Law in Fourth Amendment Cases...............................................................................................1234

A. The Court's Reliance on the Common Law in Interpreting the Fourth Amendment .................................................................. 1235
B. The Court's Treatment of Indeterminacy in the Common Law 1237

1. Papering Over the Indeterminacy of the Common Law of 1791: The Illusion of Consensus ....................................... 1238
2. Facing the Indeterminacy of the Common Law of 1791 .... 1240

a. Deference to Legislative Judgments in the Face of Indeterminacy............................................................. 1240
b. Reliance on General Fourth Amendment Values in the Face of Indeterminacy .......................................... 1242

II. The Contingency of the Law of Search and Seizure During the Framing Period.........................................................1245

A. The Justice of the Peace Manuals ........................................... 1246

1. Differences in the Common Law of Search and Seizure Expressed in the Founding-Era Justice of the Peace Manuals ............................................................................. 1248

a. The Felony-in-Fact Requirement for Warrantless Arrests......................................................................... 1248
b. Breaking of Doors to Arrest ....................................... 1249
c. Issuance of Arrest Warrant Prior to Indictment......... 1250
d. Grounds for Warrantless Arrest ................................. 1251
e. Authority to Search Incident to Arrest ........................ 1252
f. Liability for Fruitless Forcible Entries ....................... 1253
g. Nocturnal Arrests and Searches ................................. 1254
h. Guilt of the Arrestee as an Absolute Defense ............. 1255
i. Seizure of Papers via Warrant.................................... 1255

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2. The Significance of Differences Among the Justice of the Peace Manuals .................................................................. 1256

B. Excise and Customs Searches of Non-Dwelling Premises ...... 1261

III. The Anti-Federalists and the Contingency of Constitutional Search-and-Seizure Rules ............................. 1263

A. The Anti-Federalist Notion of State Sovereignty as a Guarantor of Individual Liberty .............................................. 1263
B. The Anti-Federalist Conception of Common Law ................... 1268
C. The Anti-Federalist Push for Constraints on Federal Search-and-Seizure Authority.................................................. 1274
D. The Anti-Federalist Origins of the Bill of Rights..................... 1278
E. Reading Contingency into the Fourth Amendment.................. 1284

IV. Modern Implications of a Contingent Fourth Amendment . 1287

Conclusion................................................................................................1291

Introduction

There have always been two competing views of the common law in this country. One view posits the common law as relatively stable across time and uniform across borders. The second view conceives of the common law as fluid and differentiated, evolving to meet the needs of a growing society and adapting to meet the needs of different polities. since the rise of legal realism in the early twentieth century, the latter view has generally won out. But its victory is incomplete because the view of the common law as a discoverable, unchanging monolith has prevailed in one significant respect: it is the view that typically drives originalist approaches to the Constitution.¹

The prevailing view of the Fourth Amendment² is a prime example. Over the past forty years, the U.S. Supreme Court has increasingly advanced the notion that the Fourth Amendment tracks the common law of search and seizure as it existed in 1791 when the Amendment was adopted. In other areas, the Court has embraced the Realist view that the common law is nothing more

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or less than the positive law of each individual jurisdiction, adapted and refined for reasons of public policy distinctive to that jurisdiction.³ Yet the Court typically acts as if the common law of search and seizure as of 1791 was generally a unified corpus of settled doctrine.

As it turns out, there rarely was consensus in the common law of 1791 on the issues that matter to lawyers. Examination of the law of search and seizure during the founding period, as expressed in the justice of the peace manuals used by magistrates and constables, demonstrates important differences across borders and over time. These differences concerned such significant matters as the appropriate grounds for a warrantless arrest, whether one could search incident to arrest, whether and under what circumstances doors could be broken to make an arrest, and when, if ever, nocturnal searches were justified. Indeed, at the time the Fourth Amendment was adopted, the States differed on such a fundamental matter as whether a warrant was necessary to search non-dwelling premises.

Importantly, a significant portion of framers and ratifiers of the Bill of Rights understood that the common law in general, and the law of search and seizure in particular, was thus differentiated. In particular, the Anti-Federalist opponents of the Constitution embraced this proto-Realist, jurisdiction-specific view of the law. Their speeches and essays in opposition to the Constitution suggest that they sought not constraints on federal search-and-seizure authority that would be uniform across the Nation but rather conformity of federal actors with the laws of the respective States. Ultimately, a sufficient number of moderate Anti-Federalists dropped their opposition to the Constitution in return for the promise of a Bill of Rights that would provide such constraints. Because we owe the Bill of Rights and, indeed, the Nation we know today to these moderate Anti-Federalists, we should give their views primacy when interpreting the Fourth Amendment.

Consistent with this view, this Article argues that, at least from an originalist standpoint, the Fourth Amendment is best viewed as being largely contingent on state law. That is to say, if the Court is to continue to attempt to ascribe to the Fourth Amendment the meaning it was understood to have in 1791, the Amendment is best viewed as having incorporated state law search-and-seizure constraints against federal actors, so that federal agents and

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officers are bound by the search-and-seizure rules in the respective States in which they operate.⁴ The only exceptions are the rules set forth explicitly in the Warrant Clause: bars on general warrants⁵ and those not issued upon probable cause or unsupported by oath or affirmation. By its terms the Amendment fixes these as uniform throughout the Nation. But the rest were likely understood, by a significant number of the framers and ratifiers of the Bill of Rights, as being contingent on state law.

Part I of this Article discusses the Supreme Court's...