April 17, 2008
New Article Spotlight: Correcting Search and Seizure History
Tennessee CrimProf Thomas Davies has posted Correcting
Search-and-Seizure History: Now-Forgotten Common-Law Warrantless Arrest
Standards and the Original Meaning of Due Process of Law on SSRN. The abstract: "The conventional view that
search-and-seizure history is simply Fourth Amendment history is
incorrect. Sir Edward Coke explicated common-law standards for
warrantless arrest in detail in his discussion of the due process of
law required by Magna Carta's the law of the land chapter, and the
Framers were undoubtedly conversant with that treatment. Moreover,
framing-era warrantless arrest standards were virtually unchanged from
The framing-era warrantless arrest standards were more demanding than the modern bare probable cause standard. Warrantless felony arrests required (1) a felony having actually been committed in fact and (2) the arresting person personally having probable grounds to suspect the arrestee. Warrantless nonfelony arrests were limited to on-going breach-of-peace offenses.
Because arrest standards appeared noncontroversial, the initial State Framers were content to preserve arrest standards in provisions that prohibited a person being taken or arrested except according to the law of the land. Alexander Hamilton then altered that terminology to due process of law in the 1787 New York arrest provision. The Federal Framers then included due process of law among the pretrial requisites for initiating criminal prosecutions in the Fifth Amendment (rather than among the trial rights in the Sixth). In contrast, the Fourth Amendment simply banned issuance of too-loose warrants, but did not address warrantless intrusions.
Framing-era arrest standards and the Cokean understanding of due process were lost when nineteenth-century state courts relaxed arrest standards to bare probable cause, thereby drastically expanding governmental investigatory powers. The Supreme Court then reinvented search-and-seizure under the Fourth Amendment, and created the modern reasonableness standard, during the early twentieth century. Thus, the authentic history involves lost understandings and drastic doctrinal discontinuities." Full text Here. [Jack Chin]
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