Advanced Senior Member
Join Date: Oct 2007
Location: Wheatland, Iowa
Re: Boston police to search homes for guns
--I'm Sorry, Detective, I can read. can you? Read through this and get back to me.
SEARCH AND SEIZURE
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.
SEARCH AND SEIZURE
History and Scope of the Amendment
History.--Few provisions of the Bill of Rights grew so directly
out of the experience of the colonials as the Fourth Amendment,
embodying as it did the protection against the utilization of the
``writs of assistance.'' But while the insistence on freedom from
unreasonable searches and seizures as a fundamental right gained
expression in the Colonies late and as a result of experience,\1\ there
was also a rich English experience to draw on. ``Every man's house is
his castle'' was a maxim much celebrated in England, as was demonstrated
in Semayne's Case, decided in 1603.\2\ A civil case of execution of
process, Semayne's Case nonetheless recognized the right of the
homeowner to defend his house against unlawful entry even by the King's
agents, but at the same time recognized the authority of the appropriate
officers to break and enter upon notice in order to arrest or to execute
the King's process. Most famous of the English cases was Entick v.
Carrington,\3\ one of a series of civil actions against state officers
who, pursuant to general warrants, had raided many homes and other
places in search of materials
connected with John Wilkes' polemical pamphlets attacking not only
governmental policies but the King himself.\4\
\1\Apparently the first statement of freedom from unreasonable
searches and seizures appeared in The Rights of the Colonists and a List
of Infringements and Violations of Rights, 1772, in the drafting of
which Samuel Adams took the lead. 1 B. Schwartz, The Bill of Rights: A
Documentary History 199, 205-06 (1971).
\2\5 Coke's Rep. 91a, 77 Eng. Rep. 194 (K.B. 1604). One of the
most forceful expressions of the maxim was that of William Pitt in
Parliament in 1763: ``The poorest man may in his cottage bid defiance to
all the force of the crown. It may be frail--its roof may shake--the
wind may blow through it--the storm may enter, the rain may enter--but
the King of England cannot enter--all his force dares not cross the
threshold of the ruined tenement.''
\3\19 Howell's State Trials 1029, 95 Eng. 807 (1705).
\4\See also Wilkes v. Wood, 98 Eng. 489 (C.P. 1763); Huckle v.
Money, 95 Eng. Rep. 768 (K.B. 1763), aff'd 19 Howell's State Trials
1002, 1028; 97 Eng. Rep. 1075 (K.B. 1765).
Entick, an associate of Wilkes, sued because agents had forcibly
broken into his house, broken into locked desks and boxes, and seized
many printed charts, pamphlets and the like. In an opinion sweeping in
terms, the court declared the warrant and the behavior it authorized
subversive ``of all the comforts of society,'' and the issuance of a
warrant for the seizure of all of a person's papers rather than only
those alleged to be criminal in nature ``contrary to the genius of the
law of England.''\5\ Besides its general character, said the court, the
warrant was bad because it was not issued on a showing of probable cause
and no record was required to be made of what had been seized. Entick v.
Carrington, the Supreme Court has said, is a ``great judgment,'' ``one
of the landmarks of English liberty,'' ``one of the permanent monuments
of the British Constitution,'' and a guide to an understanding of what
the Framers meant in writing the Fourth Amendment.\6\
\5\5 Eng. Rep. 817, 818.
\6\Boyd v. United States, 116 U.S. 616, 626 (1886).
In the colonies, smuggling rather than seditious libel afforded
the leading examples of the necessity for protection against
unreasonable searches and seizures. In order to enforce the revenue
laws, English authorities made use of writs of assistance, which were
general warrants authorizing the bearer to enter any house or other
place to search for and seize ``prohibited and uncustomed'' goods, and
commanding all subjects to assist in these endeavors. The writs once
issued remained in force throughout the lifetime of the sovereign and
six months thereafter. When, upon the death of George II in 1760, the
authorities were required to obtain the issuance of new writs,
opposition was led by James Otis, who attacked such writs on libertarian
grounds and who asserted the invalidity of the authorizing statutes
because they conflicted with English constitutionalism.\7\ Otis lost and
the writs were issued and utilized, but his arguments were much cited in
the colonies not only on the immediate subject but also with regard to
\7\The arguments of Otis and others as well as much background
material are contained in Quincy's Massachusetts Reports, 1761-1772,
App. I, pp. 395-540, and in 2 Legal Papers of John Adams 106-47 (Wroth &
Zobel eds., 1965). See also Dickerson, Writs of Assistance as a Cause of
the American Revolution, in The Era of the American Revolution: Studies
Inscribed to Evarts Boutell Greene 40 (R. Morris, ed., 1939).
Scope of the Amendment.--The language of the provision which
became the Fourth Amendment underwent some modest
changes on its passage through the Congress, and it is possible that the
changes reflected more than a modest significance in the interpretation
of the relationship of the two clauses. Madison's introduced version
provided ``The rights to be secured in their persons, their houses,
their papers, and their other property, from all unreasonable searches
and seizures, shall not be violated by warrants issued without probable
cause, supported by oath or affirmation, or not particularly describing
the places to be searched, or the persons or things to be seized.''\8\
As reported from committee, with an inadvertent omission corrected on
the floor,\9\ the section was almost identical to the introduced
version, and the House defeated a motion to substitute ``and no warrant
shall issue'' for ``by warrants issuing'' in the committee draft. In
some fashion, the rejected amendment was inserted in the language before
passage by the House and is the language of the ratified constitutional
\8\1 Annals of Congress 434-35 (June 8, 1789).
\9\The word ``secured'' was changed to ``secure'' and the phrase
``against unreasonable searches and seizures'' was reinstated. Id. at
754 (August 17, 1789).
\10\Id. It has been theorized that the author of the defeated
revision, who was chairman of the committee appointed to arrange the
amendments prior to House passage, simply inserted his provision and
that it passed unnoticed. N. Lasson, The History and Development of the
Fourth Amendment to the United States Constitution 101-03 (1937).
As noted above, the noteworthy disputes over search and seizure
in England and the colonies revolved about the character of warrants.
There were, however, lawful warrantless searches, primarily searches
incident to arrest, and these apparently gave rise to no disputes. Thus,
the question arises whether the Fourth Amendment's two clauses must be
read together to mean that the only searches and seizures which are
``reasonable'' are those which meet the requirements of the second
clause, that is, are pursuant to warrants issued under the prescribed
safeguards, or whether the two clauses are independent, so that searches
under warrant must comply with the second clause but that there are
``reasonable'' searches under the first clause which need not comply
with the second clause.\11\ This issue has divided the Court for some
seen several reversals of precedents, and is important for the
resolution of many cases. It is a dispute which has run most
consistently throughout the cases involving the scope of the right to
search incident to arrest.\12\ While the right to search the person of
the arrestee without a warrant is unquestioned, how far afield into
areas within and without the control of the arrestee a search may range
is an interesting and crucial matter.
\11\The amendment was originally in one clause as quoted above;
it was the insertion of the defeated amendment to the language which
changed the text into two clauses and arguably had the effect of
extending the protection against unreasonable searches and seizures
beyond the requirements imposed on the issuance of warrants. It is also
possible to read the two clauses together to mean that some seizures
even under warrants would be unreasonable, and this reading has indeed
been effectuated in certain cases, although for independent reasons.
Boyd v. United States, 116 U.S. 616 (1886); Gouled v. United States, 255
U.S. 298 (1921), overruled by Warden v. Hayden, 387 U.S. 294 (1967); but
see id. at 303 (reserving the question whether ``there are items of
evidential value whose very nature precludes them from being the object
of a reasonable search and seizure.'')
\12\Approval of warrantless searches pursuant to arrest first
appeared in dicta in several cases. Weeks v. United States, 232 U.S.
383, 392 (1914); Carroll v. United States, 267 U.S. 132, 158 (1925);
Agnello v. United States, 269 U.S. 20, 30 (1925). Whether or not there
is to be a rule or a principle generally preferring or requiring
searches pursuant to warrant to warrantless searches, however, has
ramifications far beyond the issue of searches pursuant to arrest.
United States v. United States District Court, 407 U.S. 297, 320 (1972)
A veteran - whether active duty, retired, National Guard or Reserve - is someone who, at one point in his or her life, wrote a blank check made payable to "The United States of America" for an amount of "up to and including my life." That is honor, and there are way too many people in this country who no longer understand that - Author unknown