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The Original Meaning of the Fourth Amendment: What Does “the Place to Be Searched” Mean?

Lately, I have been exploring the original meaning of the Fourth Amendment, which I am finding to be a fascinating subject.  The text of the Fourth Amendment is filled with significant interpretive questions.

Let me start with an issue that grows out of the language of the second portion of the Amendment:

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.

A careful reading of the italicized language raises a question: why does the clause speak of “the place to be searched” in the singular, but “the persons or things to be seized” in the plural?  After all, it would have been more consistent for the Amendment to have read “the places to be searched, and the persons or things to be seized.”  Was this intentional, so that search warrants can only authorize the search of a single place?

I have certainly seen many people make fun of these types of textual arguments.  The idea that you would confer significance on a slight textual change seems ridiculous to them.  “There are important policy questions here that should not be resolved by small textual differences.”  But treating such small textual differences as consequential can make sense under both a textualist original public meaning approach and under an approach that treats the Constitution as written in the language of the law, which often follows a strong textualism.

Fourth Amendment scholar William Cuddihy believes that the historical sources strongly support the view that this textual difference was intended. In particular, he relies on  legal treatises at the time, state statutes, and federal statutes.

Cuddihy notes that the federal Collection Act “imposed the highest possible standard of particularity by restricting all federal search warrants to single structures, even if those structures were not houses.  Every warrant had to specify a single location: a house, store ‘or other place.’”

He also notes that “most states had standardized the specific warrant by 1789, and nearly all of those states, in turn, limited search warrants to single, not plural, locations.”  He writes:

Under the Massachusetts imposts of 1782-86, the informant designated, typically, the “particular dwelling house or store” that he suspected, and the warrant was confined to “such house or store.”  The corresponding Rhode Island act of 1786 provided a search warrant “particularly discriminating the Dwelling House, Store, Ware-house, or other Building.”  Also in 1786, Delaware enacted a warrant specifying a single “House, Out-house, Barn or other Place.”  A similar requirement existed in Pennsylvania. New Hampshire in 1777 and Virginia in 1787 established official forms for certain warrants that had only a single blank for the name of the lone person whose house was to be searched.

Finally, Cuddihy claims that “the legal treatises that Americans wrote and read during the Fourth Amendment’s formation impliedly repudiated multiple-specific warrants by providing examples of specific warrants that always confined the search to a single location.  By implication, any warrant that allowed several houses to be searched was unreasonable even if it specified those houses.”

This evidence, overall, seems reasonably strong, although one cannot know for sure until one actually looks at the primary sources.  One limitation, though, is that much of the evidence seems to involve a textual inference that reference to “a house” means a single house.  Not a problematic inference, but one would want some additional evidence.

There is some evidence that this issue was in the minds of people and therefore the text was not merely a coincidence, but actually spoke to a contended issue.  For example Cuddihy notes that “Benjamin Gale, who represented Connecticut in the Congress of 1789 [which proposed the Fourth Amendment], had earlier condemned multiple-specific warrants as infringements of ‘natural, civil, and constitutional rights.’”

Reader Discussion

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on September 05, 2017 at 11:20:18 am

If taking small textual features literally can have big impacts, then chances are that those small textual features were put there for that very purpose. The Constitution is a concise document, and they would have most likely refrained from taking up more space than necessary to say something.

That said, if a warrant must describe a "place," can't that be done by describing several separate places? If each place is supported by probable cause, it sounds like useless red tape to issue separate warrants instead of a single warrant. The more likely meaning is that a warrant discussing several places must describe probable cause for each one, rather than for only one of them (or less than all of them).

Anyway, I address some other specific language in the Fourth Amendment, here:

http://originalismblog.typepad.com/the-originalism-blog/2017/08/a-mea-culpa-regarding-fourth-amendment-seizures-without-searchesandrew-hyman.html

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Andrew Hyman
on September 05, 2017 at 14:22:43 pm

It would seem only reasonable, that where private property is legally held and identified by deed, (and ownership recorded or not), that each property should receive separate judicial review, to ensure owner-interest is properly identified and individual property rights protected. More so, where there may be over-lapping ownership interests, i.e.: fee simple/leasehold, etc.

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Paul Binotto
on September 05, 2017 at 14:43:32 pm

Why isn't the hornbook attribution of the origins of the Fourth Amendment to Lord Camden's decision in Entick v. Carrington (1765) sufficient?

http://www.constitution.org/trials/entick/entick_v_carrington.htm

The money paragraph of Lord Camden's decision in Entick is in his answer to the "Fourth and Last Question":

"If it is law, it will be found in our books. If it is not to be found there, it is not law.

The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole. The cases where this right of property is set aside by private law, are various. Distresses, executions, forfeitures, taxes etc are all of this description; wherein every man by common consent gives up that right, for the sake of justice and the general good. By the laws of England, every invasion of private property, be it ever so minute, is a trespass. No man can set his foot upon my ground without my license, but he is liable to an action, though the damage be nothing; which is proved by every declaration in trespass, where the defendant is called upon to answer for bruising the grass and even treading upon the soil. If he admits the fact, he is bound to show by way of justification, that some positive law has empowered or excused him. The justification is submitted to the judges, who are to look into the books; and if such a justification can be maintained by the text of the statute law, or by the principles of common law. If no excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment.

According to this reasoning, it is now incumbent upon the defendants to show the law by which this seizure is warranted. If that cannot be done, it is a trespass."

Paragraphs 1, 5 and 8 of the Massachusetts Body of Liberties of 1641 fully support Lord Camden's analysis and holding in Entick as they assert that any interference with an individual by the magistrates must be based upon a law promulgated by the General Court and are a reliable indicator of what the first settlers understood to be their ancient rights and liberties as Englishmen to be.

Mass. Body of Liberties link: http://history.hanover.edu/texts/masslib.html#ms

Erskine Mays' analysis of the case is also useful although it has been criticized as being excessively Whiggish by Butterfield. "Constitutional History of England" Vol. III, pp. 1-9.

https://books.google.com/books?id=dOdRJuOUf_MC&pg=PA7&lpg=PA7&dq=search+warrant+history&source=bl&ots=LhW0stJJ6F&sig=UQQ_Pyhu6pWrHF7QTaFESIJg9Wk&hl=en&sa=X&ved=0ahUKEwiosOmosY7WAhULfiYKHY0WB6s4ChDoAQg2MAM#v=onepage&q=search%20warrant%20history&f=false

Reading the entire report of the case of Erskine v. Carrington raises further questions about the Supreme Court's qualified immunity doctrine. Namely, that it has no support in Anglo-American law before the middle of the 20th C. It had always been the rule that agents of the state had no immunity for their torts until Parliament had passed an statute, act or ordinance granting them immunity. This was an important issue for the New Model Army in 1647-8 and the failure of Parliament to pass an ordinance of immunity led directly to Pride's Purge and the execution of Charles I and the Commonwealth and Protectorate.

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EK
on September 06, 2017 at 16:39:45 pm

The singular meaning of "place" is logically correct, if we are to prevent searches that don't have persons or articles to seize.

If there is a single article, then there should only be a single place to search, otherwise there would not be reasonable suspicion that the article is present and available to seize.

If the Amendment allowed for multiple "places" to be searched and single articles or persons are being seized, then the police would be able to search multiple places. That would mean that they don't have reasonable suspicion that the person or article is at a specific place.

So the singular "place" is correct. If specific persons or articles are reasonably believed to be distributed around multiple specific places, then a single warrant for multiple places is still OK since it prevents searches that don't involve unreasonable suspicion. The reasonableness of the search is the issue, not the plural vs singular wording.

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Scott Amorian

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