The Fourth Amendment: from property to people

Please note that this post is from 2011. Evaluate with care and in light of later events.

American common law is founded on English legal precedents. These pre-18th century cases were, in fact, binding on American courts (pending their modification as American common law developed). Additionally, these cases provided context and justification for many of the original amendments found in the Bill of Rights.

For the Fourth Amendment–the prohibition against unreasonable search and seizure–one of these foundational cases was Entick v. Carrington (1765). In Entick, agents of the King and acting under the orders of Lord Halifax, broke into the private residence of John Entick and seized his private papers.

In broadest terms, Lord Camden, author of the final opinion, ruled “that the state may do nothing but that which is expressly authorised by law, while the individual may do anything but that which is forbidden by law.” In these broad terms, then, the case established a core principle in English and then American law that limited the breadth of executive power.

In terms specific to what would become the Fourth Amendment, the case emphasized the importance of a specific legal authorization (today we know this as a warrant, but that term has not always meant what it does today) to excuse the invasion of private property by government agents. Striking, and of key importance to Fourth Amendment jurisprudence all the way up to Katz v. United States at least, is the focus on trespass and private property. Warrants were considered required to search a person’s home (or other physical space, like an office), but there was really not much thought given to papers or materials searched outside “the sanctity of a man’s home.”

In 1877, ex parte Jackson extended the requirement of a “warrant, issued upon oath or affirmation” to the postal mail. Justice Field wrote:

Letters and sealed packages of this kind in the mail are as fully guarded from examination and inspection, except as to their outward form and weight, as if they were retained by the parties forwarding them in their own domiciles. The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be.

In other words, the court built upon protections against unreasonable searches and seizures “in their own domiciles” to papers in transit through the postal system.

The 1886 case of Boyd v. United States continued to extend Fourth Amendment protections beyond searching someone’s home (or similar private property). Looking to both the Fourth and Fifth Amendments, the Supreme Court in Boyd struck down an attempt for force a defendant to produce private papers for inspection. In his opinion, Justice Bradley wrote:

It is not the breaking of his doors and the rummaging of his drawers that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty, and private property … which underlies and constitutes the essence of Lord Camden’s judgment.

Clearly, the focus on property is still present in both, but in Boyd, the Court did recognize the importance of “personal security” and “personal liberty,” instead of focusing on trespass onto real property. Similarly, in ex parte Jackson, the Court protected private papers in transit outside the home, with no almost no regard to trespass at all. Both cases did not involve physical trespass by government agents into a person’s home, but rather focused protection on “papers” as an extension of personal liberty, and not on the “sanctity of the home.”

Olmstead v. United States (1928) refused to continue this extension to wiretaps that occurred “without trespass upon any property of the defendants.” The Court goes on to argue that the Fourth Amendment only protects physical things:

The Amendment itself shows that the search is to be of material things–the person, the house, his papers or his effects. The description of the warrant necessary to make the proceeding lawful, is that it must specify the place to be searched and the person or things to be seized.

In short, Justice Taft says,

The Amendment does not forbid what was done here [a wiretap]. There was no searching. There was no seizure. The evidence was secured by the use of the sense of hearing and that only. There was no entry of the houses or offices of the defendants.

It was not until Katz in 1965 that the Supreme Court returned to the tradition of ex Parte Jackson and held that “the Fourth Amendment protects people, not places,” and laid the groundwork for warrant requirements to tap telephone lines and, later, to seize emails or monitor Internet traffic.

Related articles

• Constitutionalizing the sanctity of the mails (inpropriapersona.com)
• Extending the Fourth Amendment beyond the home: Ex parte Jackson (1878) (inpropriapersona.com)