Writs of assistance were a tool—not unlike general warrants—used to enforce hated British customs duties. They allowed British customs collectors to search and seize where and when they wished, and to demand help in doing so. This was precisely the sort of thing the Boston meeting complained of so vociferously, in the long quote we read earlier.46

  The fight over the writs of assistance got under way in about 1755 when Charles Paxton, Boston’s much-loathed customs collector, showed up at a warehouse to enforce a writ of assistance. Paxton was searching for Spanish iron on which supposedly duty had not been paid. Thomas Hutchinson, the brother of the warehouse owner, was present at the time. Hutchinson unlocked the door to the storehouse to show that there was no iron, but then told Paxton he could have sued him because his writ was illegal. Hutchinson’s argument was that the governor lacked authority to issue writs of assistance, something the governor quickly remedied by arranging for the Superior Court to issue them instead. Soon thereafter, a group of more than sixty Boston merchants petitioned the Superior Court to disallow the writs entirely.47

  The lawyer for the merchants challenging the writs of assistance, James Otis, famously argued in Paxton’s Case that the writs were flat out invalid. The judge in the case—none other than Thomas Hutchinson, who since his interaction with Paxton had been appointed to the Massachusetts Superior Court—explained that Otis “objected to the writs, that they were in the nature of general warrants.” Or, as Otis himself put it, memorably:

  A man’s house is his castle; and while he is quiet, he is as well guarded as a prince in his castle.—This writ, if it should be declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses when they please—we are commanded to permit their entry—their menial servants may enter—may break locks, bars and everything in their way—and whether they break through malice or revenge, no man, no court may inquire.48

  Under British law the answer to Otis, of course, was that Parliament had provided for issuance of the writs and so they were perfectly fine. But Otis’s understanding of legislative supremacy was quite different from Blackstone’s: he informed the Superior Court in the writs of assistance case that “[n]o Acts of Parliament can establish such a writ … AN ACT AGAINST THE CONSTITUTION IS VOID.” If general warrants and writs of assistance were invalid under Britain’s unwritten constitution—as the colonists felt they were—then the fact that Parliament issued them hardly fixed things. This argument formed the very essence of the American Revolution, the notion on the American side of the Atlantic that legislative authority was subject both to the higher will of the people and the higher law of a constitution.49

  John Adams, who was present in the courtroom that day and heard Otis’s argument, said years later (engaging in a bit of hyperbole), “Then and there the child Independence was born.” He deemed James Otis’s argument “the first scene of the first Act of Opposition to the arbitrary Claims of Great Britain.” And one could indeed trace a line from Otis’s argument to the decision to rebel and seek independence. Thomas Hutchinson, who as the judge in Paxton’s Case eventually granted the writs of assistance, had his house burned during the Stamp Act riots of 1765. British authorities soon learned that though they could obtain writs of assistance, enforcing them was another matter entirely. When the customs collectors came to call, Massachusetts residents staged “liberations” of the goods, making the work of those collectors impossible. When Connecticut courts then refused to grant the writs, it led in 1767 to British passage of the Townshend Revenue Acts, which in turn triggered opposition to writs of assistance throughout the colonies. In 1774, in addresses to the American people and to the British Crown, the Continental Congress protested the power “to break open and enter houses without the authority of any civil magistrate founded on legal information.” 50

  Edward Thurlow, Attorney General of Great Britain and an opponent of American independence, found it strange that colonial judges who refused to enforce writs of assistance “should think the laws of the mother country too harsh for American Liberty.” But so they were.51

  THE AMERICANS CHOOSE SPECIFIC WARRANTS

  Even as he condemned general warrants, Otis told the court that what was needed were “special warrants … issued by justices of the peace, to search in places set forth in the warrants” based on “information given upon oath.” In other words, Otis was saying that if the government wanted to search it had to get a warrant to search a particular place, based on specific information indicating that what the government sought was in that place. Just like the Fourth Amendment says.52

  Otis was ahead of his time, but by 1791 when the Fourth Amendment was ratified, such specific warrants were strongly preferred in the new United States. This was the emerging common law in the United States at the time of ratification, and to the extent Justice Scalia and his colleagues believed otherwise, they simply were wrong.53

  Prior to 1760, general warrants were, if anything, more omnipresent in the colonies than in the mother country. But opposition in Massachusetts to general searches flared in response to British naval impressment gangs, the collection of excise taxes, and door-to-door smallpox searches. As a result, Massachusetts’s law increasingly came to rely on the specific warrant. The same would occur in the other colonies, then states, in the thirty-year period that saw the Revolution, the Constitution, and then the Bill of Rights.54

  Sentiment and action against the Townshend Acts confirmed that the distaste for general warrants was being replaced by a preference for specific ones. British officials applying for their writs found themselves frequently stymied by colonial courts that sometimes denied them explicitly, more often simply dragged heels or feigned illness—but would issue them in specific form. When in 1771 Pennsylvania Collector John Sift sought his writ, the court demurred: “Yes, if you will make oath that you have had an information that … [smuggled goods] are in any particular place, I will grant you a writ to search that particular place but no general writ to search every house—I would not do that for any consideration.”55

  In the period following the American Revolution, the now-united states gradually abolished all general warrants and displayed their signal preference for specific warrants whenever possible—with some exception for warrantless searches of particular businesses, such as distilleries. The Fourth Amendment was ratified in 1791, and—as documented meticulously by the historian William Cuddihy—between the Revolution and 1791 the states definitively turned against general warrants and in favor of specific ones.56 Indeed, to the extent there was resistance to the transformation, it was in the Southern states, which adhered, for example, to copious and unregulated search-and-seizure discretion in slave patrols. Hardly a model for our modern Fourth Amendment.57

  The movement in the United States to adopt a national constitution fostered the insistence on specific warrants, given fears about the power the new central government would possess. Throughout the process of ratification, leading Anti-Federalists demanded a protection against indiscriminate searches and seizures. Patrick Henry—of “Give me liberty or give me death!” fame—may have been the most florid, but the sentiments he expressed were common:

  The officers of Congress may come upon you now, fortified with all the terrors of paramount federal authority. Excisemen may come in multitudes; for the limitation of their numbers no man knows. They may, unless the general government be restrained by a bill of rights, or some other restriction, go into cellars and rooms, and search, ransack, and measure, everything you eat, drink and wear.58

  Leading treatise writers of the early nineteenth century recognized that following adoption of the Bill of Rights, specific warrants were required. Here is what the Virginian St. George Tucker, a deeply admired law professor and judge, said about the Fourth Amendment, updating Blackstone’s Commentaries on the British common law to make them applicable to the United States: “In the administration of preventative justice, the following principles have been held sacred: that some probable ground of suspicion be exhibited before some judicial authority; that it be supported by oath or affirmation.” That sure sounds like a warrant requirement, a point Tucker made even clearer in his lecture notes:

  What shall be deemed unreasonable searches and seizures. The same article informs us, by declaring, “that no warrant shall issue, but first, upon probable cause—which cause secondly, must be supplied by oath or affirmation; thirdly the warrant must particularly describe the place to be searched; and fourthly—the persons, or things to be seized. All other searches or seizures, except such as are thus authorized, are therefore unreasonable and unconstitutional. And herewith agrees our State bill of rights—Art. 10.59

  William Rawle, who was appointed the United States Attorney for Pennsylvania in 1791, the year the Bill of Rights was ratified, agreed. In 1825 he published his treatise, A View of the Constitution of the United States of America. In it, Rawle is foursquare with Tucker: “The term unreasonable is used to indicate that the sanction of a legal warrant is to be obtained, before such searches or seizures are made.”60

  For these Americans, the meaning of the Fourth Amendment, in light of history, was quite apparent: warrants were required. Although the Amendment was only explicit in what a valid warrant looked like, it was implicit that—absent an established exception rooted in history and based in necessity—a warrant was requisite. After all, how could it be that the favored alternative to a search based on a valid warrant was a search based on no warrant at all?61 As the law professor Thomas Davies has responded to Amar, after exhaustive historical research, “the Framers expected that warrants would be used … [T]hey believed that the only threat to the right to be secure came from the possibility that too-loose warrants might be used.” 62

  In 1921, the Supreme Court made clear that it understood history just this way. In Gouled v. United States, the justices explained:

  “The wording of the Fourth Amendment implies that search warrants were in familiar use when the Constitution was adopted … Searches and seizures are as constitutional under the Amendment when made under valid search warrants as they are unconstitutional, because unreasonable, when made without them—the permission of the amendment has the same constitutional warrant as the prohibition has, and the definition of the former restrains the scope of the latter.” 63

  The Supreme Court’s movement away from warrants is simply bad history. While general warrants were indeed hated, and the Fourth Amendment was adopted to control them, those who drafted and ratified the Amendment believed the answer to the problem of general warrants was not no warrant at all—it was specific warrants.

  MORE WARRANTS, NOT FEWER

  Rejecting a warrant requirement is bad policy as well. If anything, insistence on a warrant is more important and more appropriate today than it was at the time of the Fourth Amendment’s adoption. There are two reasons for this.

  First, today warrants may be the only effective weapon we now have against unlawful searches. Recall that Taylor and Amar’s entire argument that warrants were not required by the Fourth Amendment rested on the assumption that if officers search unlawfully without warrants, they will be held liable for money damages. At common law, such liability was a real deterrent to feckless searches. As we saw in Chapter 3, though, the Supreme Court has now made it almost impossible to get money damages for unlawful searches—and has cut way back on the other remedy, the exclusionary rule, as well. Indeed, although Justice Scalia was wont to claim the exclusionary rule was not needed in light of the possibility of obtaining money damages, he voted consistently in favor of limiting money damages also. If Justice Scalia had had his way, we would be left with virtually no remedy for Fourth Amendment violations: no money damages, no exclusion, no warrants.

  In law we typically prefer remedies for unlawful conduct to come after the law is violated, not before. We don’t lock people up because they might rob a house; we wait until they’ve robbed it to impose punishment. Similarly, we don’t by statute require people to mop the floor of their store, but if someone slips and falls we make them pay for failing to alert the public till it was dry. In this way—the way of deterrence—people learn to avoid imposing harm.

  Sometimes, though, after-the-fact remedies are so ineffective, and the potential harms are so great, that we require permission up front. We don’t allow people to build buildings and then if things are not in order have them torn down. We require them to get building permits first. We don’t let anyone operate surgically on you and then simply impose money damages if they mess up. We do impose damages for medical malpractice, but we also license surgeons on the front end.

  Warrants are, in this critical way, a before-the-fact means to prevent Fourth Amendment violations. They are a license to search. Because we are so bad after the fact at saying the police went astray and imposing money damages, or excluding unconstitutionally seized evidence, the right answer is for police to get permission up front. That is what warrants are: before-the-fact permission. In this way, many unlawful searches—like the one Susan Frunz experienced—will be avoided in the first place.64

  Besides, it seems flat-out strange to limit the requirement to obtain warrants at the very time in history that technology has made getting them quickly so much easier. As we have seen, many of the exceptions to the warrant requirement rest in exigency, the idea that there is simply no time to get a warrant, so we won’t require one. That is true of arrests, of searches incident to lawful arrests, and for many automobile searches.

  In the old days, it could take a lot of time to prepare a warrant application, get it to a judge, and get it approved. Even as late as 1970, one pictures a cop sitting at a Remington typewriter laboriously hunting and pecking out a warrant application in triplicate.65

  These are not the old days. As the Frunz judges pointed out, the officers could have obtained “a telephone warrant if they believed it was urgent.” Telephonic warrants, which actually have been with us since the 1970s, are increasingly the norm. The rules that govern cases in federal court were recently amended to encourage reliance on just this sort of rapid, electronic communication.66

  Nowadays, jurisdictions are experimenting even more with rapid warrant technology. Some Florida officers use Skype to obtain judicial permission to test drivers for alcohol. Similarly, Louisiana officers at drunk-driving roadblocks request prompt search warrants from judges when authority is needed to take blood samples. In Butte County, California, the judges have iPads so they can issue warrants at all hours, using DocuSign for electronic signatures. The justices themselves have recognized that “[w]ell over a majority of the States allow police officers or prosecutors to apply for search warrants remotely through various means, including telephonic or radio communications, electronic communications such as e-mail, and video-conferencing.” 67

  Indeed, given the available technology, it seems apparent we should be requiring warrants in more circumstances rather than fewer, including those in which we do not currently—like for many administrative searches—or even for arrests. Depriving someone of their liberty is a grave, grave thing. Historically we did not demand warrants for arrests, because it was impossible to get them fast enough. Today, police could get electronic permission while the suspect waits in the police cruiser.

  There are some hopeful signs on the horizon. In a 2013 drunk-driving case, in which the question was whether officers could take blood without consent or a warrant, the justices said no. Changes in technology making it faster to get warrants demanded the government prove in each case that getting a warrant was impossible. Similarly, in the 2014 case holding that cell phones could not be searched without a warrant, the Chief Justice said, “Our cases have determined that ‘[w]here a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing … reasonableness generally requires the obtaining of a judicial warrant.’” That’s a kindness by the Chief Justice to a body of decisions that have in fact dismantled the warrant requirement. But it is the direction in which we should be moving. Whenever police can get permission—a warrant—before searching or seizing, they should have to do so.68

  Of course, warrants aren’t everything. They are only as good as the “probable cause” that supports them, a topic we turn to next. But getting warrants—authorization before cops act—would go a long way toward protecting our liberties, and avoiding the sort of thing that happened to Susan Frunz, and happens all too often today. Mistakes are part of life, but we should do what we can to avoid them, particularly if it is relatively easy to do.

  6

  SEARCHES WITHOUT PROBABLE CAUSE

  Whether they have a warrant or not, government officials need a good reason before they intrude into people’s lives. That’s what the Fourth Amendment means when it talks about “probable cause” and prohibits “unreasonable” searches and seizures. Searches with warrants must be based on probable cause, but so, too, the searches that are excused from the warrant requirement. “Cause” is what spells the line between lawful and lawless policing: without just cause—a good reason—the government’s use of coercive force runs the risk of being arbitrary, discriminatory, or just plain senseless. Unfortunately, the Supreme Court has watered down this vital protection, to the point that it has made suspects of us all.

  “SHAKE EVERYONE UP”

  Consider the case of Nicholas Peart. Nicholas is the sort of young man you’d be proud to call your own. He’s soft-spoken, gentle, handsome, and fit, and carries the weight of the world on his shoulders. Nicholas’s mother died when he was twenty-one, of lung cancer. He had to take a year off from school to care for her, and for his three younger siblings, whom he is now raising (with some help from an older sister who lives nearby). His younger sister is disabled. Nicholas is working toward his college degree, and holding down a job, all the while making sure he is around for the kids.1