Monday, December 23, 2013
In the past forty years, the U.S. Supreme Court has increasingly advanced the notion that the Fourth Amendment encompasses the common-law restrictions on searches and seizures that existed in 1791 when the Amendment was adopted. Yet, in case after case, the Court has encountered indeterminacy in the common law circa 1791. At times, the Court confronts this indeterminacy by concluding that, in the absence of a clear common-law rule, the Fourth Amendment does not govern the issue. At other times, in the face of indeterminacy, the Court falls back upon general Fourth Amendment principles. And on occasion the Court pretends that the indeterminacy does not exist.
The reason for the absence of clear common-law search-and-seizure rules in 1791 is that the common law differed in important respects among the thirteen new American States. More importantly, the Anti-Federalists, those who demanded that the Bill of Rights be added to the Constitution as the price of ratification, recognized that the common law was different in every State. This included the common-law rights of Englishmen secured by state bills of rights. The Anti-Federalists saw the common-law, not as a fixed set of rules they were freezing in time, but as fluid, contingent, and evolving around them. Even the Federalists, who initially opposed a Bill of Rights, did so in part because, they asserted, even without a federal Bill, state bills of rights would remain in force against the federal government. It therefore makes some sense to conceive of our rights against unreasonable searches and seizures by federal officials as being contingent on state law.
This Article argues for a model of the Fourth Amendment – the contingent Fourth Amendment – that courts and commentators have overlooked. It asserts that the only common-law rules that the Fourth Amendment freezes into the Constitution are those explicitly set forth in the Warrant Clause: rules against warrants that are general, issued on less than probable cause, or unsupported by oath or affirmation. The residuum of constitutional search-and-seizure rules were to be dictated by state law, even when it was a federal officer doing the searching or seizing. On this approach, as a matter of federal constitutional law, a federal officer is generally constrained by the search-and-seizure law of the State where a federal search or seizure occurs.