42. Story, “Codification of the Common Law,” supra note 41, at 702; Frederick Pollock, “The Genius of the Common Law,” Colum. L. Rev. 12 (1912): 291 (ability to evolve).

  43. Riley v. California, 134 S. Ct. 2473, 2484 (2014); Amar, “Fourth Amendment First Principles,” supra note 25, at 818.

  44. Leach, 3 Burr. 1743, 1766, 97 Eng. Rep. 1075, 1088 (1765) (narrowing Pratt’s decisions on appeal); Cuddihy, The Fourth Amendment: Origins and Original Meaning 602–1791, supra note 27, at 475 (“except in cases provided for by act of Parliament” (quoting Procs., 25 Apr. 1766, C. J., vol. 30 (1765–66))). See generally Cuddihy, The Fourth Amendment: Origins and Original Meaning 602–1791, supra note 27, at 469–76 (describing the fighting in Parliament over general warrants).

  45. William Blackstone, Commentaries, 1:*91, *161.

  46. See Nelson Lasson, The History and Development of the Fourth Amendment of the United States Constitution (1937), 51 (describing the use of writs of assistance).

  47. Thomas Hutchinson, The History of the Colony of Massachusetts-Bay, 92–93 (1764); Smith, The Writs of Assistance Case, supra note 39, at 97; Cuddihy, The Fourth Amendment: Origins and Original Meaning 602–1791, supra note 27, at 381. In the intervening few years, the authority of the Superior Court to issue the writs lapsed when the sitting King passed away. Before that authority could be restored by the new monarch, the merchants sued. See Cuddihy, The Fourth Amendment: Origins and Original Meaning 602–1791, supra note 27, at 380–81; Smith, The Writs of Assistance Case, supra note 39, at 130.

  48. Hutchinson, The History of the Colony of Massachusetts-Bay, supra note 47, at 93–94; Smith, The Writs of Assistance Case, supra note 39, at 332, 551–55 (Otis).

  49. Smith, The Writs of Assistance Case, supra note 39, at 555 (internal quotation marks omitted) (reprinting Adams’s later account of Otis’s speech). On the revolutionary conception of constitutional supremacy in the American colonies, see, for example, Barry Friedman, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (2009), 391n17; Gordon S. Wood, The Creation of the American Republic 1776–1787 (1969), 266 (“Americans were determined to provide for the protection of … fundamental rights and moves … toward a definition of a constitution as something distinct from and superior to the entire government.”); Larry D. Kramer, “The Supreme Court 2000 Term, Foreword: We the Court,” Harv. L. Rev. 115 (2001): 73 (“The colonial experience of resisting King and Parliament served as the model from which the Founders constructed their theories, and the Revolution itself … provided their blueprint for opposing a government that exceeded its constitutional authority.”); Samuel Adams, Massachusetts Circular Letter of 1768, quoted in Wood, The Creation of the American Republic 1776–1787, supra, at 266 (“[I]n all free States the Constitution is fixed; and as the supreme Legislative derives its Power and Authority from the Constitution, it cannot overleap the Bounds of it without destroying its own foundation.”) (internal quotation marks omitted)).

  50. Smith, The Writs of Assistance Case, supra note 39, at 253 (quoting letter from John Adams to William Tudor, Mar. 29, 1817); Cuddihy, The Fourth Amendment: Origins and Original Meaning 602–1791, supra note 27, at 490–501 (discussing “liberations” and other incidents of resistance); id. at 438–64, 503–7 (Townshend Revenue Act); Lasson, The History and Development of the Fourth Amendment of the United States Constitution, supra note 46, at 75 (emphasis added) (Continental Congress). For an argument that, fifty-six years after the case, “Adams’s memory may have been faulty and that he was indulging in a forgiveable [sic] bit of late-life romanticizing,” see Kramer, “The Supreme Court 2000 Term, Foreword: We the Court,” supra note 49, at 30n105.

  51. Cuddihy, The Fourth Amendment: Origins and Original Meaning 602–1791, supra note 27, at 522.

  52. Hutchinson, The History of the Colony of Massachusetts-Bay, supra note 47, at 93 (summarizing Otis’s speech about “special warrants”); Smith, The Writs of Assistance Case, supra note 39, at 336 (quoting Otis, based on Adam’s later account, as stating “that special warrants only are legal”).

  53. See generally Cuddihy, The Fourth Amendment: Origins and Original Meaning 602–1791, supra note 27, at 634–58 (noting the statutory shift to specific warrants in the majority of states post-Revolution).

  54. Cuddihy, The Fourth Amendment: Origins and Original Meaning 602–1791, supra note 27, at 176–90, 192, 356–63.

  55. Cuddihy, The Fourth Amendment: Origins and Original Meaning 602–1791, supra note 27, at 520 (Sift case). On colonial courts’ resistance to the writs and willingness to issue them in specific form, see id. at 513–26; Lasson, The History and Development of the Fourth Amendment of the United States Constitution, supra note 46, at 73–76; Levy, “Origins of the Fourth Amendment,” supra note 27, at 90–91.

  56. Cuddihy, The Fourth Amendment: Origins and Original Meaning 602–1791, supra note 27, at 633–68 (specific warrants in the states following the American Revolution); see also Davies, “Recovering the Original Fourth Amendment,” supra note 19, at 577–79 (arguing that ratifiers of the Fourth Amendment strongly condemned warrantless searches due in large part to their distaste for “the character and judgment of ordinary [police] officers”). Massachusetts presents an example of this switch from general to specific warrants. “General warrants were an everyday fact of life for over three years in revolutionary Massachusetts.” Though as a colony Massachusetts abolished general warrants, as a state it reinstated their use. In 1777, in order to confiscate Loyalists’ weapons, the state allowed its council “to declare any person dangerous to the state, and authorized warrants by which the sheriffs could break open any dwelling house or other building in which they suspected that such a person was concealed.” In 1778, general warrants were mentioned twelve times in the state council’s notes. Such warrants were used to search and apprehend political dissidents, but even before the state ratified its constitution, general warrants for on land searches “were far less common than specific search warrants and warrants to apprehend particular persons.” John Adams then drafted the 1780 Massachusetts constitution to protect people from unreasonable searches and seizures and in 1781 “state law reverted to multiple-specific search warrants for deserters.” Cuddihy, The Fourth Amendment: Origins and Original Meaning 602–1791, supra note 27, at 613–16. Similarly, in New Hampshire, general warrants enacted in 1777 lasted only eleven weeks before the General Court’s next session replaced them with specific warrants. In 1778, the legislature permitted warrantless searches, but towns “almost never appointed the officials who were responsible for performing these searches.” In the five years after establishing a right to be free from unreasonable searches and seizures, in 1784, New Hampshire’s legislature passed no laws permitting an official to search a house. The next warrants created by state law, in 1791, were specific. Id. at 638–39.

  57. See Cuddihy, The Fourth Amendment: Origins and Original Meaning 602–1791, supra note 27, at 602–68 (discussing in detail the general preference for specific warrants, as well as notable exceptions, in the period between the Revolution and 1791).

  58. Id. at 670–72 (describing how the move toward a federal constitution led to an even greater preference for specific warrants); Levy, “Origins of the Fourth Amendment,” supra note 27, at 96–97 (same); George C. Thomas III, “Time Travel, Hovercrafts, and the Framers: James Madison Sees the Future and Rewrites the Fourth Amendment,” Notre Dame L. Rev. 80 (2005): 1767n126 (quoting Patrick Henry’s remarks from Virginia ratifying convention on June 14, 1788, as reported in The Debates in the Several State Conventions on the Adoption of the Federal Constitution as Recommended by the General Convention at Philadelphia in 1787, ed. Jonathan Elliot, J. B. Lippincott Co., 2nd ed. (1836), 265). To be fair, opponents of the federal government were not crazy about excise searches altogether. Cuddihy, The Fourth Amendment: Origins and Original Meaning 602–1791, supra note 27, at 742 (“While the Constitution was being ratified, moreover, nearly as many authors had execrated general excise searches without warrant as had similar searches by warrant…”).

  59. St. George Tucker, Blackstone’s Commentaries with Notes of Reference, to the Constitution and Laws of the Federal Government of United States and of the Commonwealth of Virginia (1803), 302 (emphasis added); David T. Hardy, “The Lecture Notes of St. George Tucker: A Framing Era View of the Bill of Rights,” Nw. U. L. Rev. 103 (2008): 1535 (emphasis added) (transcribing from Tucker’s original lecture notes, dating from around 1791–92, which preserved and archived in the Tucker-Coleman Collection of the Earl Gregg Swem Library at the College of William and Mary, where Tucker was professor of law from 1790 until 1804). Some of Tucker’s lecture notes and other legal papers have since been edited and published in St. George Tucker’s Law Reports and Selected Papers, 1782–1825, ed. Charles F. Hobson (2013).

  60. William Rawle, A View of the Constitution, 2nd ed. (1829), 127 (emphasis added).

  61. One of the two historians who developed the argument relied upon by Justice Scalia—Akhil Amar—has an answer: Warrants were unnecessary, but those who searched unlawfully were subject to liability without immunity. Amar argues there is “no evidence” that early Americans “preached a ‘warrant preference’ or a ‘warrant requirement.” Amar, “The Fourth Amendment, Boston, and the Writs of Assistance,” supra note 31, at 73. But he fails to account for all the evidence above, such as St. George Tucker’s treatise. The compiler of Tucker’s notes observes quite aptly that “Professor Akhil Reed Amar has argued that … warrantless searches need only be ‘reasonable’ … [but] Tucker’s discussion appears to be to the contrary, treating probable cause and warrants as components of reasonableness.” Hardy, “The Lecture Notes of St. George Tucker: A Framing Era View of the Bill of Rights,” supra note 59, at 1535. Worse yet, in a sense Amar has been had. Justice Scalia adopted only half of his view of the Fourth Amendment, the part that lets officers run free without warrants. But Scalia and his colleagues never adopted Amar’s view that strict money damages should follow for unwarranted unlawful searches. To the contrary, as Chapter 3 explains, the justices have avoided imposing this liability. Absent warrants and damages, there is no restraint on unlawful searches.

  62. Davies, “Recovering the Original Fourth Amendment,” supra note 19, at 552.

  63. Gouled v. United States, 255 U.S. 298, 308 (1921) (emphasis added).

  64. See generally Bar-Gill and Friedman, “Taking Warrants Seriously,” supra note 10, at 1638–46 (discussing the benefits of warrants).

  65. See, e.g., Note, “Police Practices and the Threatened Destruction of Tangible Evidence,” Harv. L. Rev. 84 (1971): 1478–79 and 1478–79nn61–63 (noting the time necessary to get a warrant can range from one and a half hours in Denver, to six hours in Los Angeles, to over a day in a rural community in some circumstances).

  66. Frunz, 468 F.3d at 1146; Cal. Penal Code §1526(b) (West 1970) (“In lieu of the written affidavit … the magistrate may take an oral statement under oath which shall be recorded and transcribed.”); People v. Peck, 113 Cal. Rptr. 806, 810 (Ct. App. 1974) (“In our view the telephonic search warrant statute provides for adequate judicial supervision and control and sufficient protective measures to withstand constitutional challenge.”). The Federal Rules of Criminal Procedure were amended in 1977 to allow warrants “based upon sworn oral testimony communicated by telephone or other appropriate means.” Fed. R. Crim. P. 41(c)(2)(A) (1977). In 2011, the advisory committee moved the procedures governing search warrants by electronic means to a new rule, “support[ing] the extension of these procedures to arrest warrants, complaints, and summonses.” Fed. R. Crim. P. 4.1 committee’s notes to 2011 amendment.

  67. Sarah Lundy, “Palm Bay Police Use Skype to Obtain Warrants,” Orlando Sentinel, Mar. 28, 2011, http://articles.orlandosentinel.com/2011-03-28/business/os-police-skype-20110328_1_skype-arrest-warrants-judge-signs; Ken Thomas, “Agency Urges ‘No-Refusal’ DWI Policies, AP, Dec. 13, 2010, www.msnbc.msn.com/id/40646098/ns/us_news-crime_and_courts/t/govt-urges-no-refusal-policy-drunken-driving/ (Louisiana); Press Release, Michael Ramsey, Butte County District Attorney, “Butte County Law Enforcement First in State to Use Digital Signature on Search Warrant,” Apr. 2, 2012, www.buttecounty.net/da/Press%20Releases/Search%20Warrant%20-%20Electronic%20-%20Press%20Release.pdf; Missouri v. McNeely, 133 S. Ct. 1552, 1562 (2013).

  68. See McNeely, 133 S. Ct. at 1556, 1562–63 (discussing changes in technology in the context of a drunk driving case); Riley, 134 S.Ct. at 2482 (Roberts, C. J.) (alterations in original) (quoting Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 653 (1995)).

  6. SEARCHES WITHOUT PROBABLE CAUSE

    1. Interview by Barry Friedman with Nicholas Peart, Apr. 5, 2012 (hereinafter Peart Interview).

    2. Nicholas K. Peart, “Why Is the N.Y.P.D. After Me?,” N.Y. Times, Dec. 18, 2011, at SR6.

    3. Id.; see also Floyd v. City of New York, 959 F. Supp. 2d 540, 633–37 (S.D.N.Y. 2013) (making mixed findings of fact and law regarding unconstitutional stops and frisks of Nicholas Peart).

    4. Floyd, 959 F. Supp. 2d at 573 (noting 4.4 million stops followed by more than 2.2 million frisks, 1.5 percent of which led to finding guns); Rachel A. Harmon, “The Problem of Policing,” Mich. L. Rev. 110 (2012): 779 (reporting 4 million stops); Al Baker and J. David Goodman, “Police Are Undercounting Street Stops, U.S. Monitor Finds,” N.Y. Times, July 10, 2015, at A22 (undocumented stops); Floyd v. City of New York, 283 F.R.D. 153, 166n68 (S.D.N.Y. 2012) (quoting recorded statements by NYPD supervisors).

    5. Compare Floyd, 283 F.R.D. at 164 (acknowledging NYPD rejection of the characterization of its stop-and-frisk program as a quota), with id. at 163n40 (quoting Ray Kelly).

    6. Though no single nationwide database tracks the stop-and-frisk statistics of the nation’s thousands of police agencies, other major cities documenting their policies exhibit trends paralleling New York, where 4.4 million stops were documented from January 2004 to June 2012. Floyd, 959 F. Supp. 2d at 573. In 2012, Philadelphia police stopped over 215,000 pedestrians in six months, finding only three guns. Id. Boston police the same year stopped 123,000 people, turning up nine guns and a knife. NAACP, Born Suspect: Stop-and-Frisk Abuses & the Continued Fight to End Racial Profiling in America (2014), 24, http://naacp.3cdn.net/443b9cbc69a3ef1aab_ygfm66yd7.pdf.

    7. Peart Interview, supra note 1; see also City of Indianapolis v. Edmond, 531 U.S. 32, 56 (2000) (Thomas, J., dissenting) (“I rather doubt that the Framers of the Fourth Amendment would have considered ‘reasonable’ a program of indiscriminate stops of individuals not suspected of wrongdoing.”).

    8. Sir Anthony Ashley’s Case (1611) 77 Eng. Rep. 1366, 1367–68 (KB).

    9. Henry v. United States, 361 U.S. 98, 104 (1959) (“Under our system suspicion is not enough for an officer to lay hands on a citizen. It is better, so the Fourth Amendment teaches, that the guilty sometimes go free than that citizens be subject to easy arrest.”); William Blackstone, Commentaries, 4:*290 (probable suspicion); id. at 4:*287 (“cause and probability of suspecting the party”); Nathan Dane, A General Abridgment and Digest of Law (1824), 5:588 (“reasonable cause”).

  10. Brinegar v. United States, 338 U.S. 160, 162–64, 169, 175–76 (1949) (quoting Carroll v. United States, 267 U.S. 132, 162 (1925)). On the continued vitality of Brinegar’s definition of probable cause, see, for example, Green v. Missouri, 734 F. Supp. 2d 814, 832 (2010).

  11. Terry v. Ohio, 392 U.S. 1, 5 (1968) (noting McFadden was patrolling his usual beat in plainclothes); “State of Ohio v. Richard D. Chilton and State of Ohio v. John W. Terry: Suppression Hearing and Trial Transcripts,” ed. John Q. Barrett, St. John’s L. Rev. 72 (1998): app. B at 1420 (reprinted the suppression hearing testimony of Detective McFadden) (hereinafter “Terry Transcripts”).