Roger Roots is an important scholar for tracing the ways by which the modern total state has curtailed constitutional liberties. Here we have read his analysis of the apparent loss of the right to use self-propelled carriages on the public highway. In this series we are answering the question, “Are cops constitutional.”
In a new book, The Conviction Factory[;] The Collapse of America’s Criminal Courts, ($16.95), he argues that America’s criminal courts have gradually abandoned adversarial due process and embraced a more inquisitorial model of justice favored by prosecutors. He traces the history of American criminal justice from its roots in English common law and then follows this history into the 21st century. Mr. Roots details how the adversarial model of justice, which pits the prosecution against the defendant on a level playing field, has been quietly and slowly whittled away. As the essay selection below, the book is exhaustively footnoted. It represents a continuation (and partially a compilation) of Mr. Roots’ previously published law review articles on the subject of criminal procedural history.
The section below is the fourth in our series. Please give it your attention. Beyond that, support Nooganomics.com by advertising on Hot News Talk Radio 1240, my media platform for the Chattanooga area. My talk show airs live 9 to 11 a.m. weekdays. — DJT
By Roger Roots
Under Founding-era common law, warrants were often considered as much a constitutional floor as a ceiling. Warrants did provide a defense for constables in most trespass suits, but were not good enough to immunize officials from liability for some unreasonable searches or seizures.308 The most often-cited English case known to the Framers who drafted the Fourth Amendment involved English constabulary who had acted pursuant to a search warrant but were nonetheless found civilly liable for stiff (punitive, actually) damages.309
For more than 150 years, it was considered per se unconstitutional for law enforcers to search and seize certain categories of objects, such as personal diaries or private papers, even with perfectly valid warrants.310 Additionally, Fourth Amendment jurisprudence prohibited the government from seizing as evidence any personal property which was not directly involved in crime, even with a valid warrant.311 The rationale for this “mere evidence” rule was that the interests of property owners were superior to those of the state and could not be overridden by mere indirect evidentiary justifications.312 This rule, like many other obstacles to police search and seizure power, was discarded in the second half of the twentieth century by a Supreme Court much less respectful of property rights than its predecessors.313
Private persons and the fourth amendment
Under the Founders’ Model, a private person like Josiah Butler, who lost twenty pounds of good pork under suspicious circumstances in 1787, could approach a justice of the peace and obtain a warrant to search the property of the suspected thief for the lost meat.314 Private individuals applied for many or most of the warrants in the Founders’ era and even conducted many of the arrests.315 Even where sworn constables executed warrants, private persons often assisted them.316 To avoid liability, however, searchers needed to secure a warrant before acting.317 False arrest was subject to strict liability.318
The Founders contemplated the enforcement of the common law to be a duty of private law enforcement, and assumed that private law enforcers would represent their interests with private means. However, the Founders viewed private individuals executing law enforcement duties as “public authority” and thus intended for the Fourth and Fifth Amendments to apply to such individuals when acting in their law enforcement capacities.319 Consequently, the Supreme Court’s 1921 decision in Burdeau v. McDowell320 — often cited for the proposition that the Fourth Amendment applies only to government agents — was almost certainly either wrongly decided or wrongly interpreted by later courts.321
Some of the earliest English interpretations of the freedom from search and seizure held the protection applicable to private citizens as much as or more so than government agents.322 Massachusetts and Vermont were apparently the first states to require that search and arrest warrants be executed by sworn officers.323 New Hampshire adopted the same rule in 1826, more than a generation after the Bill of Rights was ratified.324 It is likely that some states allowed private persons to execute search warrants well into the nineteenth century.
Because many Founding-era arrests and searches were executed by private persons, and early constables needed the assistance of private persons to do their jobs, the Fourth Amendment was almost certainly intended for application to private individuals. Burdeau cited no previous authority for its proposition in 1921, and early American cases demonstrate an original intent that the Fourth Amendment apply to every searcher acting under color of law.325 On the open seas, most enforcement of prize and piracy laws was done by “privateers” acting for their own gain but who were held accountable in court for their misconduct.326
Later courts have taken this holding to mean that “a wrongful search or seizure conducted by a private party does not violate the Fourth Amendment.” Walter v. U.S. 447 U.S. 649, 656 (1979). See also United States v. Jacobsen, 466 U.S. 109, 113 (1984) (saying “This Court has also consistently construed this protection as proscribing only governmental action; it is wholly inapplicable to a private individual not acting as an agent of the Government or with the participation or knowledge of any government official.”).
As explained in Part I, early constables had powers no greater than those of other individuals, so they needed warrants before engaging in law enforcement activities beyond any citizen’s authority. Like you or I, a constable would be thought outside the bounds of good etiquette (and well outside the law) were he to conduct an unconsented search of another’s person, property or effects, and should — very reasonably — expect to be jailed, physically repulsed, or sued for such conduct.
A private person’s only defense was the absolute correctness of his allegations. A person was liable if, for example, his complaint was too vague as to the address to be searched,327 he misspelled the name of the accused in his complaint,328 or he sought the execution of a warrant naming a “John Doe” as a target.329
This was the constitutional model secured to America by the Framers. The idea of police having special powers was only a seedling, alien to the scheme of ordered liberty and limited government created by the Constitution. Eventually, police interceded between private individuals and magistrates altogether, and today it is virtually unheard of for a private person to seek a search warrant from a magistrate.
Freedom from search and seizure has been retracting in favor of police ever since the ink was dry on the Bill of Rights. The Framers lived under a common law rule that required warrantless arrests be made only for felonies where no warrant could be immediately obtained.330 By the early to mid-1800s, the rule had changed to allow warrantless arrests for all felonies regardless of whether a warrant could be obtained.331 Early American courts also apparently allowed warrantless arrests for misdemeanor breaches of peace committed in the arrestor’s presence. Toward the end of the nineteenth century, most state courts had changed to allow warrantless arrest for all crimes of any kind committed in an officer’s presence, as well as for all felonies committed either within or without an officer’s presence regardless of whether a warrant can be obtained.332
By the mid-1900s, arrest had become the almost-exclusive province of paid police, and their power to arrest opened even wider. A trend toward allowing police to arrest without warrant for all crimes committed even outside their presence has recently developed,333 with little foreseeable court-imposed impediment.334 Almost every American jurisdiction has legislated for the erosion of common law limitations with regard to domestic violence arrests and arrests for other high profile misdemeanors.335
Despite the Fourth Amendment, the Supreme Court has imposed almost no limits on warrantless arrest at all. Only forcibly entering a residence without warrant to arrest someone inside has been found to violate the Fourth Amendment.336 Outside the home, modern police have been essentially licensed by the Court to arrest almost anyone at any time so long as probable cause exists.337 The Supreme Court effectively buried the original purpose of warrantless arrest entirely in 1985, declaring that “[r]estraining police action until after probable cause is obtained… might… enable the suspect to flee in the interim.”338
Long forgotten is the fact that common law allowance for warrantless arrest was precipitated solely on an emergency rationale and allowed only to protect the public from immediate danger.339
The rationale for the felon exception to the warrant requirement in 1791, for example, was that a felony was any crime punishable by death, generally thought to be limited to only a handful of serious crimes.340 Felons were considered “outlaws at war with society,”341 and their apprehension without warrant qualified as one of the “exceptions justified by absolute necessity.”342 By the late twentieth century, however, many crimes the Framers would have considered misdemeanors or no crime at all had been declared felonies and the rationale for immediate community action to apprehend “felons” had changed greatly.343 The courts, however, have been slow to react to this far-reaching change.344 In any case, the vast majority of arrests (seventy to eighty percent) are for misdemeanors,345 which would have been proscribed without warrant under the Framers’ law.
Mistakenly, originalists call for civil damages
The writings of most modern “originalist” scholars promote civil suits against police departments, instead of exclusion of evidence, as a remedy for police misconduct. Professor Amar, for example, champions a return to civil litigation, but with, somehow, a better return than such actions currently bring.346 He invents a fantastically implausible cause of action where “government should generally not prevail.”347 He bases this idea on actual cases from the nineteenth century where people prevailed against constables and sheriffs in relatively routine circumstances, often with heavy damage awards.348
These cases actually occurred — but in an age before police took over American law enforcement. Civil damages really were a better remedy when many or most searches were sought — and sometimes conducted — by private persons who stood strictly liable in court if their allegations proved false or their conduct proved overzealous.349 American law provided recovery for every false arrest. If it was not the constable who executed the warrant, the private person, who lodged the original insufficient complaint, was liable.350
Under Founding-era common law, liability for officers was in many respects higher than for private persons. Sheriffs and deputies could be held liable for failing to arrest debtors for collection of debts351 or to serve other process,352 for allowing an imprisoned debtor to escape,353 for failing to keep entrusted goods secure354 or to deliver goods in custody at a proper time,355 or for failing to keep faithful accounting and custody of property.356 Sheriffs were also obligated to return writs within a specific time period, at pain of civil damages.357 They were liable to debtors whose property was sold at sheriffs sales if proper advertisement procedures were not followed358 and for negligently allowing other creditors to obtain priority interests on attached property.359
Law enforcers were liable for false imprisonment, even where they acted with court permission, if procedures were improper.360 A deputy was liable for damages to an arrestee whom he arrested outside his jurisdiction.361 Sheriffs were even liable if their deputies executed civil process in a rude and insolent manner.362 When executing writs, sheriffs were liable for any unnecessary violence against innocent third persons who obstructed them.363
The Founders’ law knew no “good faith” defense for law enforcers. Sheriffs and justices who executed arrests pursuant to invalid warrants were considered trespassers (as were any judges who granted invalid warrants). Any person was justified in resisting, or even battering, such officers.364 Justices of the peace could be held liable for ordering imprisonment without taking proper steps.365
Any party who sued out or issued process did so at his peril and was civilly responsible for unlawful writs (even if the executing officer acted in good faith).366
Nor did state authority provide the umbrella of indemnification that now protects public officers. Sheriffs of the nineteenth century often sought protection from liability by obtaining bonds from private sureties.367 Their bonds were used to satisfy civil judgments against them while in office.368 If the amount of their bonds was insufficient to satisfy judgments, sheriffs were liable personally.369 It was not uncommon for a sheriff to find himself in jail as a debtor for failing to satisfy judgments against him.370 Even punitive damages against officers — long disfavored by modern courts with regard to municipal liability — were deemed proper and normal under the law of the Framers.371
Unlike the early constables, uniformed police officers were generally introduced upon the American landscape by their oaths alone and without bonds. Their municipal employers (hence, the taxpayers) were on the hook for their civil liabilities. Although courts tended to treat police identically to bonded officials,372 their susceptibility to civil redress was much lower. This change in the law of policing had the effect of depriving Americans of remedies for Fourth Amendment (and other) violations.373 The evil that now pervades criminal justice — swarms of officers unaccountable in court either criminally or civilly — was the very evil that the Founders sought to remedy in the late eighteenth century.374
Development of immunities
But immunities follow duties, and duties placed upon police by lawmakers have exploded since 1791.375 Immunities grew slowly, beginning with a slight deference to officer conduct so long as there was no bad faith, corruption, malice or “misbehavior,”376 and ending with broad qualified immunity.377
When the practice of professional policing arrived from England upon American shores (for the second time, actually, if we consider modern police to be akin to the “standing armies” of the Founders’ generation), cases began to enunciate a general deference to police conduct, permitting that the actions of officers in carrying out their duties “not to be harshly judged.”378 Appellate courts began to reverse jury verdicts against officers upon new rules of law granting privileges unknown to private individuals.379
Loss of probable cause, rise of probably suspicion
Probable cause for the issuance of warrants has also become less strict.380 The Supreme Court regarded hearsay evidence as insufficient to constitute probable cause for seventeen years in the first half of the twentieth century,381 but has since given police free reign to construct probable cause in whatever way they deem proper. Instead of probability that a crime has been committed, the courts now require only some possibility, a relaxed standard that “robs [probable cause] of virtually all operative significance.”382 This watered-down “probable cause” for the issuance of ex parte warrants would have shocked the Founders.383
At common law, one could sue and recover damages from a private person who swore out a false or misleading search warrant affidavit.384 In contrast, few modern officers will ever have to account for lies on warrant applications so long as they couch their “probable cause” in unprovables. “Anonymous citizen informants,”385 material omissions and misrepresentations,386 irrelevant or prejudicial information,387 and even outright falsities are now common fixtures of police-written search warrant applications.388 For years, Boston police simply made up imaginary informants to justify searches and seizures.389 Police themselves refer to the phenomenon as “testilying” — an aspect of normal police work regarded as “an open secret” among principle players of the criminal justice systern.390
Cops and the ‘automobile exception’
The courts have been particularly unkind to Fourth Amendment protections in the context of motor vehicle travel. Since the 1920s, Fourth Amendment jurisprudence has allowed for a gaping and ever-widening exception to the warrant requirement with regard to the nation’s roadways.391 Today, police force untold millions of motorists off the roads each year to be searched or scrutinized without judicial warrant of any kind.392 Any police officer can generally find some pretext to justify a stop of any automobile.393 In effect, road travel itself is subject to a near total level of police control,394 a phenomenon that would have confounded the Framers, who treated seizures of wagons, horses and buggies as subject to the same constraints as seizures of other property.395
The courts have laid down such a malleable latticework of exceptions in favor of modern police that virtually any cop worth his mettle can adjust his explanations for a search to qualify under one exception or another. When no exception applies, police simply lie about the facts.396 “Judges regularly choose to accept even blatantly unbelievable police testimony.”397 The practice on the streets has long been for police to follow their hunches, seek entrance at every door, and then attempt to justify searches after the fact.398 Justice Robert Jackson observed in 1949 that many unlawful searches of homes and automobiles are never revealed to the courts or the public because the searches turn up nothing.399
One exception: The exclusionary rule
Conventional wisdom suggests there is one important exception to the long decline of Fourth Amendment protections: the exclusionary rule. Since 1914, the Supreme Court has required the exclusion of evidence seized in violation of the Fourth Amendment from being used against a defendant in federal court.400 In 1961, this rule was applied to the states in Mapp v. Ohio.401 Shortly thereafter, the Supreme Court expanded the exclusionary rule to other protections such as the Fifth and Sixth Amendments in cases such as Miranda v. Arizona.402
Textualists and originalists have lobbed a steady stream of vitriol against the exclusionary rule for decades. No enunciation of such a rule, say these critics, can be found in the writings or statements of the Framers.403 Moreover, say such critics, the rule places a heavy burden on the efficiency of police (but simultaneously, somehow, fails to deter them in any way), and unfairly frees a small but not insignificant percentage of “guilty” offenders.404 So-called “conservative” legal scholars remember the Warren Court’s imposition of the exclusionary rule upon the states in the 1960s as a bare-knuckled act of judicial activism405 and argue that the Court “[took] it upon itself, without constitutional authorization, to police the police.”406
The Miranda and Mapp decisions provoked an onslaught of hostility by police organizations and their sympathizers that has not subsided decades later. High-ranking authorities (not the least of which were Justices Harlan and White, who dissented in Miranda) wrote that such decisions put society at risk from criminals.407 The Miranda rule, according to Justice White, would force “those who rely on the public authority for protection” to “engage in violent self-help with guns, knives and the help of their neighbors similarly inclined.”408 Even more outraged was the chief of police of Garland, Texas, who responded, “We might as well close up shop.”409
Yet the dire predictions that followed the Miranda and Mapp decisions were ultimately proved false.410 Rather than returning to what Justice White decried as “violent self-help” (as the Constitution’s framers truly intended), America continued its slide into increased dependence upon police for the most mundane aspects of law enforcement. If anything, reliance upon police for personal protection has increased since the 1960s.
I propose an altogether different interpretation of Mapp, Miranda, and some of the Warren Court’s other criminal procedure decisions. While I concede that this jurisprudence grossly violated certain constitutional principles (most importantly, principles of federalism), I submit that such rulings were attempts to bring constitutional law into accord with the alien threat posed by modern policing. Professional policing’s arrival upon the American scene required that the Court’s Bill of Rights jurisprudence splinter a dozen ways to accommodate it. Thus, Mapp and Miranda were an application of brakes to a foreign element (modern policing) that is itself without constitutional authorization.
In many ways, the Warren Court was the first U.S. Supreme Court to face criminal procedural questions squarely in light of the advent of professional policing. The Miranda and Mapp decisions, according to noted criminal law expert David Rudovsky, “at least implicitly acknowledged widespread police and prosecutorial abuse,”411 a phenomenon that would have bedeviled the Framers. Mapp’s holding was brought on more by the need to make the criminal justice system work fairly than by any other consideration.412 The same realities gave way to the rule of Bivens v. Six Narcotics Agents, in 1971, in which the Court conceded that an agent acting illegally in the name of the government possesses a far greater capacity for harm than any individual trespasser exercising his own authority (as prevailed as the common form of law enforcement in 1791).413
Furthermore, the notion that exclusion cannot be justified under an originalist approach is not nearly as well-founded as its harshest critics suggest.414 Critics of the rule point to the 1914 case of Weeks v. United States415 as the rule’s debut in Supreme Court jurisprudence.416 However, the rule actually debuted in dicta in the 1886 case of Boyd v. United States.417 Even this seemingly late date of the rule’s debut can be attributed to the Court’s lack of criminal appellate jurisdiction until the end of the nineteenth century.418 The reality is that Boyd, the Court’s first suggestion of the rule, represents, for practical purposes, the very first Fourth Amendment case decided by the Supreme Court. The exclusionary rule thus has a better pedigree than it is credited with.419
—Used by permission. Roger Isaac Roots, J.D., M.C.J., graduated from Roger Williams University School of Law in 1999, Roger Williams University School of Justice Studies in 2001, and Montana State University-Billings (B.S., Sociology) in 1995. He is a former federal prisoner and founder of the Prison Crisis Project, a not-for-profit law and policy think tank based in Providence, Rhode Island.
Here’s sturdy police work that leads an elderly man to be tazed while his hands are in the air.
Other parts in this series
308 See Eric Schnapper, Unreasonable Searches and Seizures of Papers, 71 VA. L. REV. 869, 874 (1985) (saying the search and seizure clause of the Fourth Amendment “embodies requirements independent of the warrant clause” but which were more strict at Founding than warrant requirement).
309 See Wilkes v. Wood, 19 Howell’s State Trials 1153, 1167 (c.p. 1763) (stating “a jury have it in their power to give damages for more than the injury received”).
310 See Schnapper, supra note 308, at 917 (referring to Boyd v. United States, 116 U.S. 616 (1886)). Boyd’s proposition was slowly watered down and distinguished until the case of Andresen v. Maryland finished it off. Andresen v. Maryland, 427 U.S. 463 (1976) (holding that business documents evidencing fraudulent real estate dealings could be constitutionally seized by warrant).
311 See Gouled v. United States, 255 U.S. 298 (1921) (pronouncing “mere evidence” rule, which stood for more than 45 years).
312 See Schnapper, supra note 308, at 923-29.
313 See Warden v. Hayden, 387 U.S. 294 (1967) (holding that police can obtain even indirect evidence by use of search warrants). Hayden overturned at least five previous Supreme Court decisions by declaring that “privacy” rather than property was the “principle object of the Fourth Amendment.” Id. at 296 n.l, 304.
314 See Frisbie v. Butler, 1 Kirby 213 (Conn. 1787).
315 See, e.g., Stevens v. Fassett, 27 Me. 266 (1847) (involving defendant who had obtained two arrest warrants against plaintiff without officer assistance); State v. McAllister, 25 Me. 490 (1845) (involving crime victim who swore out warrant affidavit against alleged assailant); State v. J.H., 1 Tyl. 444 (Vt. 1802) (quashing criminal charge gained by unsworn complaint of private individual).
316 See Humes v. Taber, 1 RI. 464 (1850) (involving search by sheriff accompanied by private persons).
317 See Kimball v. Munson, 2 Kirby (Conn.) 3 (1786) (upholding civil damages against two men who arrested suspect without warrant to obtain reward).
318 See Wasserstrom, supra note 70, at 289.
319 The Framers regarded private persons acting under color of “public authority” to be subject to constitutional constraints like the proscription against double jeopardy..See Stevens v. Fassett, 27 Me. 266 (1847) (holding private prosecutors were prohibited from twice putting a defendant in jeopardy for the same offense).
320 256 U.S. 465 (1921).
321 Burdeau v. McDowell involved a corporate official (McDowell) who was fired by his employer for financial malfeasance at work. After McDowell’s termination, company representatives raided his office, opened his safe, and rifled through his papers. See id. at 473. Upon finding incriminating evidence against McDowell, company representatives alerted the United States Justice Department and turned over certain papers to the government. A district judge ordered the stolen papers returned to McDowell before they could be seen by a grand jury. The Supreme Court reversed, stating the Fourth Amendment “was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies.” Id. at 475.
322 See Cloud, supra note 297, at 1716 (discussing transition during early 1700s from concept that ‘a man’s house is his castle (except against the government)’ to the legal adage that ‘a man’s house is his castle (especially against the government)’).
323 Massachusetts and Vermont apparently required that only public officers execute search warrants in the early nineteenth century. See Commonwealth v. Foster, 1 Mass. 488 (1805) (holding justice of peace had no authority to issue a warrant to a private person to arrest a criminal suspect); State v. J.H., 1 Tyl. 444 (Vt. 1802).
324 See Bissell v. Bissell, 3 N.H. 520 (1826).
325 See Kimball v. Munson, which upheld civil damages against two men who arrested an alleged horse thief without warrant in response to a constable’s reward offer. 2 Kirby 3 (Conn. 1786). Kimball suggested the two private persons would have been protected from liability had they secured a warrant soon after their arrest of the suspect. See also Frisbie v. Butler, 1 Kirby 213 (Conn. 1787) (applying specificity requirement to search warrant issued to private person).
326 See Del Col v. Arnold, 3 U.S. (3 Dall.) 333 (1796) (holding that “privateers” on the open seas who capture illegal vessels under the auspices of government authority act at their own peril and may be held liable for all damages to the captured vessels — even where the captured vessels are engaged in crimes on the high seas).
327 See Humes v. Taber, 1 R.I. 464 (1850)
328 See Melvin v. Fisher, 8 N.H. 406, 407 (1836) (saying “he who causes another to be arrested by a wrong name is a trespasser, even if the process was intended to be against the person actually arrested).
329 See Holley v. Mix, 3 Wend. 350 (N.Y. 1829).
330 See Kimball v. Munson, 2 Kirby 3 (Conn. 1786) (faulting two arrestors for failing to obtain a proper warrant immediately after their warrantless arrest of a suspected felon); Knot v. Gay, 1 Root 66, 67 (Conn. 1774) (stating warrantless arrest is permitted “where an highhanded offense had been committed, and an immediate arrest became necessary, to prevent an escape”).
331 See Wade v. Chaffee, 8 R.I. 224 (R.I. 1865) (holding a constable is not bound to procure a warrant before arresting a felon even though there may be no reason to fear the escape of the felon).
332 See, e.g., Oleson v. Pincock, 251 P. 23, 25 (Utah 1926); Burroughs v. Eastman, 59 N.W. 817 (Mich. 1894); Minnesota v. Cantieny, 24 N.W. 458 (Minn. 1885); William A. Schroeder, Warrantless Misdemeanor Arrests and the Fourth Amendment, 58 Mo. L. REV. 790-91 (1993).
333 See Schroeder, supra note 101, at 784 n.14-16 (listing eight jurisdictions allowing such arrests).
334 But see id. at 791 n.39 (listing four cases that have held warrantless arrests for crimes committed outside an officer’s presence unconstitutional).
335 See id. at 779-81 n.13 (providing two pages of statutory provisions allowing warrantless arrest for domestic violence and other specific misdemeanors).
336See Welsh v. Wisconsin, 466 U.S. 740 (1984) (requiring warrant to forcibly enter a home to arrest someone inside for a misdemeanor traffic offense); Payton v. New York, 445 U.S. 573, 589 (1980) (requiring warrant to forcibly enter a home to arrest a suspected felon unless exigent circumstances prevail).
337 See United States v. Watson, 423 U.S. 411, 412 (1976). Watson represents one of the starkest redrawings of search and seizure law ever pronounced by the Supreme Court. Essentially, the Court declared that officers may arrest without warrant wherever they have probable cause. Justice Thurgood Marshall released a blistering dissent accusing the majority of betraying the “the only clear lesson of history” that the common law “considered the arrest warrant far more important than today’s decision leaves it.” Id. at 442 (Marshall, J., dissenting).
338 United States v. Hensley, 469 U.S. 221, 229 (1985).
339 See Conner v. Commonwealth, 3 Bin. 38, 42-43 (Pa. 1810) (insisting that public safety alone justifies exceptions to the warrant requirement).
340 See Tennessee v. Garner, 471 U.S. 1, 14 (1985). The number of crimes considered felonies varied greatly according to location and period. Plymouth Colony knew only seven in 1636: treason, willful murder, willful arson, conversing with the devil, rape, adultery, and sodomy. See Julius Goebel, Jr., King’s Law and Local Custom in Seventeenth Century New England, 31 COLUM. L. REV. 416, n.43 (1931). In general, the American colonists considered far fewer crimes to be felonies than did the people of England. C.f. Thorp L. Wolford, The Laws and Liberties of 1648, reprinted in ESSAYS IN THE HISTORY OF EARLY AMERICAN LAW 147, 182 (David H. Flaherty, ed. 1969) (saying there were far more felonies in English than in Massachusetts law).
341 JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW 253 (2d ed. 1995).
342 United States v. Rabinowitz, 339 U.S. 56, 70 (1950) (Frankfurter, J. dissenting).
343 See United States v. Watson, 423 U.S. 411, 439-440 (1976).
344 But see id. at 438 (Marshall, J., dissenting) (“[T]he fact is that a felony at common law and a felony today bear only slight resemblance, with the result that the relevance of the common-law rule of arrest to the modern interpretation of our Constitution is minimal”).
345 See WAYNE R. LAFAVE & JEROLD H. ISRAEL, CRIMINAL PROCEDURE 20 (2d ed. 1992).
346 See AMAR, supra note 287, at 44. The remedial suggestions proposed by Amar (strict liability tort remedies, class actions, attorneys’ fees, statutorily-generated punitive damages, and injunctive relief) are, if anything, less loyal to originalist ideals than the warrant requirement he criticizes. See Carol S. Steiker, Second Thoughts About First Principles, 107 HARV. L. REV. 820, 828 (1994) (suggesting Amar’s departures from the Framer’s intent regarding remedies belie his proclaimed adherence to the Framers’ “vision” regarding warrants, probable cause and the exclusionary rule).
347 See AMAR, supra note 287, at 44 n. 226 (saying the “government should generally not prevail” in Amar’s type of ideal tort actions).
348 See AMAR supra note 287, at 12.
349 See Wasserstrom, supra note 70, at 289 (saying false arrest was subject to strict liability in colonial times).
350 See Holley v. Mix, 3 Wend. 350, 354 (N.Y. 1829) (stating if any person charge another with felony, the charge will justify an officer taking the suspect in custody, but the person making the charge will be liable for false arrest if no felony was committed).
351 See Clarke v. Little, 1 Smith 100, 101 (N.H. 1805) (addressing liabilities of deputy to debtor’s creditors).
352 Hall v. Brooks 8 Vt. 485 (1836) (holding constable liable for refusing to serve court process).
353 See Shewel v. Fell, 3 Yeates 17, 22 (Pa. 1800) (holding sheriff liable to prisoner’s creditor for entire debt of prison escapee).
354 See Chapman v. Bellows, 1 Smith 127 (N.H. 1805).
355 See Morse v. Betton, 2 N.H. 184, 185 (1820).
356 See Lamb v. Day, 8 Vt. 407 (1836) (holding constable liable for allowing mare in his custody to be used); Bissell v. Huntington, 2 N.H. 142. 146-47 (1819).
357 See Webster v. Quimby, 8 N.H. 382, 386 (1836).
358 See Administrator of Janes v. Martin, 7 Vt. 92 (Vt. 1835).
359 See Kittredge v. Bellows, 7 N.H. 399 (1835).
360 See Herrick v. Manly, 1 Cai. R. 253 (N.Y. Sup. Ct. 1803).
361 See Bromley v. Hutchins, 8 Vt. 194, 196 (Vt. 1836).
362 See Hazard v. Israel, 1 Binn. 240 (Pa. 1808).
363 See Fullerton v. Mack, 2 Aik. 415 (1828).
364 See Rex v. Gay, Quincy, Mass. Rep. 1761-1772 (1763) (acquitting defendant who battered sheriff when sheriff attempted arrest with warrant irregular on its face).
365 See Percival v. Jones, 2 Johns. Cas. 49, 51 (N.Y. 1800) (holding justice of peace liable for issuing arrest execution against person privileged from imprisonment).
366 See id.
367 See Preston v. Yates, 24 N.Y. 534 (1881) (involving sheriff who obtained indemnity bond from private party).
368 See Grinnell v. Phillips, 1 Mass. 530, 537 (1805) (involving Massachusetts statute requiring officers to be bonded).
369 See Tilley v. Cottrell, 43 A. 369 (R.I. 1899) (holding constable liable for damages against him for which his indemnity bond did not cover).
370 C.f. White v. French, 81 Mass. 339 (1860) (involving officer arrested when his obligor failed to pay for officer’s liability); Treasurer of the State v. Holmes, 2 Aik. 48 (Vt. 1826) (involving sheriff jailed for debt in Franklin County, Vermont).
371 At the time of Founding, juries remedied improper searches and seizures by levying heavy damages from officers who conducted them. See AMAR, supra note 287, at 12. The ratification debates made it clear that no method of curbing “the insolence of office” worked as well as juries giving “ruinous damages whenever an officer has deviated from the rigid letter of the law, or been guilty of any unnecessary act of insolence or oppression.” Maryland Farmer, Essays by a Farmer (1),reprinted in THE COMPLETE ANTI-FEDERALIST 5, 14 (Herbert J. Storing ed., 1981). Punitive damages were apparently common in search and seizure trespass cases, and provided “an invaluable maxim” for securing proper and reasonable conduct by public officers. Today, however, municipalities never have to pay out punitive damages. See Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981).
372 See Johnson v. Georgia, 30 Ga. 426 (1860) (holding that a policeman is as much under protection of the law as any public officer).
373 Many Founding-Era constitutions contained statements declaring a right of remedy for every person. See, e.g., DEL. CONST. of 1776, § 12 (providing that “every freeman for every injury done him in his goods, lands or person, by any other person, ought to have remedy by the course of the law of the land”); MASS. CONST. of 1780, art. I, § XI (providing “Every subject of the commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs”); N.H. CONST. of 1784, part I, § XIV (stating “Every subject of this state is entitled to a certain remedy”). Some early proposals for the national Bill of Rights also included such remedy provisions. See, e.g., Proposed Amended Federal Constitution, April 30, 1788, reprinted in THE ORIGIN OF THE SECOND AMENDMENT: A DOCUMENTARY HISTORY OF THE BILL OF RIGHTS 1787-1792 790, 791 (David E. Young, ed.) (2d ed. 1995) (providing that “every individual… ought to find a certain remedy against all injuries, or wrongs”).
374 C.f. THE DECLARATION OF INDEPENDENCE para. 11 (U.S. 1776) (“He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance”).
375 A small history lesson regarding the early development of officer immunity is provided in Seaman v. Patten, 2 Cai. R. 312 (N.Y. Sup. Ct. 1805). Early tax and custom enforcement agents were unsworn volunteers, having “generally received a portion of the spoil.” Id. at 315. Corresponding to this system, such agents acted at their own peril and were civilly liable for their every impropriety. This “hard rule” of high officer liability was still in force a generation after the Constitution was ratified, although courts began to hold officers less accountable for their mistakes when officers became sworn to perform certain ever-more-difficult duties. See id.
376 See Seaman, 2 Cai. R. at 317; Bissell v. Huntington, 2 N.H. 142, 147 (1819) (declaring that sheriffs good faith acts should receive “most favourable construction.”). “[N]either the court, the bar, nor the public should favor prosecutions against them for petty mistakes.” Id. at 147.
377See Diana Hassel, Living a Lie; The Cost of Qualified Immunity, 64 Mo. L. REV. 123, 151 n. 122.
378 State v. Dunning, 98 S.E. 530, 531 (N.C. 1919).
379 See, e.g., Stinnett v. Commonwealth, 55 F.2d 644, 647 (4th Cir. 1932) (reversing jury verdict against officer on grounds that “courts should not lay down rules which will make it so dangerous for officers to perform their duties that they will shrink and hesitate from action”); State v. Dunning, 98 S.E. 530 (N.C. 1919) (reversing criminal verdict against officer who shot approaching man on grounds that the officer enjoyed a privilege to use deadly force instead of retreating).
380 The Supreme Court’s recent jurisprudence has offered a more relaxed definition of “probable cause” as a “fluid concept” of “suspicion” rather than a fixed standard of probability. See Wasserstrom, supra note 70, at 337 (analyzing Justice Rehnquist’s opinion in Illinois v. Gates).
381See Grau v. United States, 287 U.S. 124, 128 (1932), overturned by Brinegar v. United States, 338 U.S. 160 (1949).
382 Wasserstrom, supra note 70, at 274.
383 See AMAR, supra note 287, at 20. Judges of the Founding era appear to have been somewhat more reluctant than modern judges to issue search and seizure warrants. For an early example of judicial scrutiny of warrant applications, seeUnited States v. Lawrence, 3 U.S. 42 (1795) (upholding refusal of district judge to issue warrant for arrest of French deserter in the face of what government claimed was probable cause). Today, search warrant applications are rarely denied. The “secret wiretap court” established by Congress to process wiretap applications in 1978, has rejected only one wiretap request in its 22-year life. See Richard Willing, Wiretaps sought in record numbers, USA TODAY, June 5, 2000, at A1 (saying the court approved 13,600 wiretap requests in the same period).
384 Private persons were liable if, for example, their complaint was too vague as to the address to be searched, see Humes v. Taber, 1 R.I. 464 (1850); misspelled the name of the accused, see Melvin v. Fisher, 8 N.H. 406, 407 (1836) (saying “he who causes another to be arrested by a wrong name is a trespasser, even if the process was intended to be against the person actually arrested); or called for the execution of a warrant naming a “John Doe” as a target, see Holley v. Mix, 3 Wend. 350 (N.Y. 1829).
385 See Hervey v. Estes, 65 F.3d 784 (9th Cir. 1995) (involving challenge to search warrant wrongfully obtained through false references to anonymous sources).
386 See Hummel-Jones v. Strope, 25 F.3d 647 (8th Cir. 1994) (involving police officer’s failure to disclose to judge that an undercover deputy sheriff was the “confidential informant” referred to in a search warrant application).
387See David B. Kopel & Paul H. Blackman, The Unwarranted Warrant: The Waco Search Warrant and the Decline of the Fourth Amendment, 18 HAMLINE J. PUB. L & POL’Y 1, 13 (saying Waco warrant was filled with statements irrelevant to Koresh’s alleged firearm violations).
388 See id. at 21 (noting ATF agent’s false claims that various spare parts were machine gun conversion kits).
389 See ALAN M. DERSHOWITZ, THE ABUSE EXCUSE AND OTHER COP-OUTS, SOB STORIES, AND EVASIONS OF RESPONSIBILITY 235 (1994).
390 Id. at 233.
391 The 1920’s saw an explosion of police privilege to oversee two separate — but often interrelated — elements of American life: Prohibition and the automobile. See FRIEDMAN, supra note58, at 300 (saying search and seizure became a particularly salient issue during Prohibition). In 1925, the Supreme Court, by split decision, released an opinion that would grow within the next 75 years into an immense expansion of police prerogatives while at the same time representing an enormous loss of personal security for American automobile travelers. Carroll v. United States upheld a warrantless search of an automobile for liquor as valid under the infamous Volstad Act, enacted to breathe life into the Eighteenth Amendment. 267 U.S. 137 (1925). The Carroll opinion led lower courts to more than one interpretation, see Francis H. Bohlen & Harry Shulman, Arrest With and Without a Warrant, 75 U. Pa. L. Rev. 485, 488-89 (1927) , but slowly became recognized as a pronouncement of an “automobile exception” to the warrant requirement. See United States v. Ross, 456 U.S. 798, 822 (1982).
Two decades after Carroll, Justice Robert H. Jackson tried in earnest to force the genie back into the bottle by narrowing the automobile exception to cases of serious crimes, but a 7-2 majority outnumbered him. See Brinegar v. United States, 338 U.S. 160, 180-81 (1949) (Jackson, J., dissenting). Since Brinegar, the “automobile exception” has been a fixture of Fourth Amendment jurisprudence, and has greatly expanded. The automobile exception now accounts for the broadest umbrella of warrant exceptions. See, e.g., California v. Acevedo, 500 U.S. 565 (1991) (allowing warrantless search of containers in automobiles even without probable cause to search the vehicle as a whole). Indeed, the automobile exception has expanded so far that it has made a mockery of Fourth Amendment doctrine. As Justice Scalia pointed out in his Acevedo concurrence, an anomaly now exists protecting a briefcase carried on the sidewalk from warrantless search but allowing the same briefcase to be searched without warrant if taken into a car. Acevedo at 581 (Scalia, J., concurring).
392 Police surveillance of American roadways has brought the bar of justice far closer to most Americans than ever before. Few accounts of the sheer scale of traffic stops are available, but anecdotal evidence suggests traffic encounters with police number in the hundreds of millions annually. In North Carolina alone, more than 1.2 million traffic infractions were recorded in a single year. See FRIEDMAN, supra note 58, at 279. Of actual traffic stops, no reliable estimate can be made.
393 See SKOLNICK & FYFE, supra note 63, at 99.
394 In Delaware v. Prouse, 440 U.S. 648 (1979), the Supreme Court actually considered, but stopped short of, allowing cops to randomly stop any traveler without any particularized reason — with one justice (Rehnquist) arguing that cops may do so.Prouse, 440 U.S. at 664 (Rehnquist, J., dissenting).
395See Flanders v. Herbert, 1 Smith (N.H.) 205 (1808) (finding constable who stopped a driver and horse team pursuant to an invalid writ of attachment liable for trespass). Private tort principles rather than state licensing programs governed highway travel at the time of the Framers. See Kennard v. Burton, 25 Me. 39 (1845).
396See David Rudovsky, The Criminal Justice System and the Role of the Police, in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE, 242, 247 (David Kairys, ed. 1982).
398 Prior to the imposition of the exclusionary rule in Mapp v. Ohio, 367 U.S. 643 (1961), the Cincinnati police force rarely applied for search warrants. In 1958, the police obtained three warrants. In 1959 the police obtained none. See Bradley C. Canon, Is the Exclusionary Rule in Failing Health?: Some New Data and a Plea Against a Precipitous Conclusion, 62KENTUCKY L. J. 681, 709 (1974). Similarly, the use of search warrants by the New York City Police Department prior toMapp was negligible, but afterward, over 5000 warrants were issued. See Wasserstrom, supra note 70, at 297 n. 203.
399 Brinegar v. United States, 338 U.S. 160, 181 (1949) (Jackson, J., dissenting) (expressing belief that many unlawful searches are never revealed because no evidence is recovered).
400 See Weeks v. United States, 232 U.S. 383 (1914).
401 367 U.S. 643 (1961).
402 384 U.S. 436 (1966).
403 See AMAR, supra note 287, at 21 (claiming “[s]upporters of the exclusionary rule cannot point to a single major statement from the Founding — or even the antebellum or Reconstruction eras — supporting Fourth Amendment exclusion of evidence in a criminal trial”).
404 See BURTON S. KATZ, JUSTICE OVERRULED: UNMASKING THE CRIMINAL JUSTICE SYSTEM 43 (1997) (saying in two consecutive sentences that “[t]he exclusionary rule has failed in its only goal” but that “[t]he cost… is almost unbelievably high”).
405See, e.g., id. at 43 (saying Mapp was the “culmination of an activist judicial trend”).
406 Fred E. Inbau, Public Safety v. Individual Civil Liberties: The Prosecutor’s Stand, 53 J. CRIM. L., CRIMINOLOGY & P. S. 85 (1962), reprinted in 89 J. CRIM. L. & CRIMINOLOGY 1413, 1413 (1999) (emphasis added).
407 Miranda v. State of Arizona, 384 U.S. 436, 516 (1966) (Harlan, J., dissenting) (saying “the Court is taking a real risk with society’s welfare in imposing its new regime on the country. The social costs of crime are too great to call the new rules anything but a hazardous experimentation.”).
408 Id. at 542 (White, J., dissenting).
409 See J. Richard Johnston, Plea Bargaining in Exchange for Testimony: Has Singleton Really Resolved the Issues?, CRIMINAL JUSTICE, Fall 1999, at 32 (quoting from Ed Cray’s biography of Earl Warren, Chief Justice).
410 See id.
411 David Rudovsky, The Criminal Justice System and the Role of the Police, in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE 246 (David Kairys, ed. 1982).
412 Six years prior to the Mapp decision, the influential California Supreme Court justice Roger Traynor concluded that exclusion was necessary to level the playing field between state and citizen. “It is morally incongruous,” wrote Traynor, “for the state to flout constitutional rights and at the same time demand that its citizens observe the law.” People v. Cahan, 282 P.2d 905, 911 (Cal. 1955).
413 See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 392 (1971).
414 See Illinois v. Krull, 480 U.S. 340, 362 (1987) (O’Connor, J., dissenting) (saying the exclusionary rule is much more soundly based in history than is popularly thought).
415 232 U.S. 383 (1914).
416 See, e.g., Katz, supra note 214, at 43 (saying there was no exclusionary rule for 123 years and “[t]here is a good reason for that.”).
417 116 U.S. 616 (1886).
418 See AMAR, supra note 287, at 146 (explaining that the Supreme Court reported very few criminal cases of any kind until the end of the 1800’s).
419 In the course of researching other matters for this article, I stumbled across a small number of pre-Boyd cases appearing to stand for variations of the exclusionary rule. See In re May, 1 N.W. 1021 (Mich. 1879) (ordering release of prostitute arrested without warrant); People v. Crocker, 1 Mich. 31 (1869) (ordering discharge of defendant arrested by unsigned warrant); Commonwealth v. Foster, 1 Mass. 488 (1805) (overturning jury’s guilty verdict where defendants were arrested pursuant to faulty arrest warrant); State v. J.H., 1 Tyl. 444 (Vt. 1802) (ordering discharge of person arrested upon warrant where no clear evidence of complainant’s oath appeared).
The earliest case I discovered to mention the question of exclusion was Frisbie v. Butler, 1 Kirby 213 (Conn. 1787), a case that preceded the Bill of Rights by four years. Frisbie found a warrant plainly illegal, but stated “yet, how far this vitiates the proceedings upon the arraignment, may be a question, which is not necessary now to determine.” Id. at 215. While this case by no means applied the rule of exclusion, it quite clearly establishes that exclusion was a consideration in the minds of Founding-era judges.
And while the rules of the above cases are subject to interpretation, they at least stand for the proposition that an unlawful seizure, by itself, has an impact on a subsequent criminal prosecution. This rule is actually far more favorable to criminal defendants than modern Supreme Court allows. See New York v. Harris, 495 U.S. 14 (1990) (holding that police may detain a suspect even though they improperly arrested him); Frisbie v. Collins, 342 U.S. 519 (1952) (holding an invalid arrest is not a defense to the offense charged).
I cannot believe that my list of cases is in any way exhaustive. While I have not undertaken any systematic study of this matter, the cases I cite suggest to me that the exclusionary rule (or some remedial rule quite similar to the exclusionary rule) may have far stronger historical roots than it is credited with.