Colonists Had More Protections From Unreasonable Government Searches Than We Do Now

Blame the modern drug war and its erosion of Fourth Amendment guarantees.

During the reign of Charles II, the British government began issuing general search warrants called “writs of assistance” which granted broad powers to search homes. In America, the writs angered many colonists including James Otis, who some might recognize for having once famously declared: “Taxation without representation is tyranny.” Even before issuing that infamous phrase however, Otis was known in the colonies for his staunch opposition to the renewal of the writs of assistance in 1761.

In a speech before the Superior Court of Massachusetts, Otis argued the writs violated English Common law, calling them “the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law-book.” When the Townshend Acts reauthorized the writs in 1767, colonial opposition intensified through outraged challenges in every superior court in the 13 colonies, ultimately being defeated in eight.

Colonial hatred of the writs would sow the seed for adoption of the Fourth Amendment, which, in theory, was supposed to protect Americans from government power to conduct similar broad and unreasonable searches. Superficially, our current Fourth Amendment doctrine does provide Americans with more protection. Unlike the British writs, search warrants today require specificity and a reasonable basis to believe that a crime has been committed.

However, as journalist Radley Balko has repeatedly illustrated, Fourth Amendment warrant requirements are routinely satisfied based on “evidence” derived from incredibly flawed police techniques that carry error rates as high as 70 percent. Moreover, when signing off on warrant applications, no meaningful scrutiny of the evidence is typically applied by the judge, even when the warrant calls for violent “no-knock” and “dynamic” raids of homes. The result is that far too many American homes are wrongfully subjected to violent raids by military style S.W.A.T. teams.

To make matters worse, numerous exceptions to Fourth Amendment warrant requirements have also been recognized by the courts, including so-called “special needs” exceptions utilized in cases such as Skinner v. Railway Labor Executives’ Association. Taken together, an overabundance of exceptions and a tawdry warrant standard transform Fourth Amendment protections into little more than toothless formalities in most cases. This reality would have assuredly enraged colonists, who, unlike us today, at least had protections from the British that searches would not be conducted at night, that soldiers were required to announce themselves, and that residents were to be afforded time and opportunity to let soldiers in peacefully.

We got to this point because courts have steadily chipped away at this fundamental protection of civil liberty, often under the guise of vague appeals to protect society from the perceived looming threat of drug-crazed fellow citizens apparently bent on our collective destruction. In Skinner, the Supreme Court permitted mass government seizures of blood and urine from railroad workers as a matter of public safety no matter whether the worker gave any indication of being impaired or was involved in an accident. As Justice Thurgood Marshall stated in his dissent, the case was not an outlier rather the continuance of a trend of stripping Fourth Amendment protections in the name of some alleged greater good that the text of the constitution neither expressly permitted nor recognized:

The Court today takes its longest step yet toward reading the probable cause requirement out of the Fourth Amendment. For the fourth time in as many years, a majority holds that a “special need, beyond the normal need for law enforcement,” makes the “requirement” of probable cause “impracticable.” With the recognition of “the Government’s interest in regulating the conduct of railroad employees to ensure safety” as such a need, the Court has now permitted “special needs” to displace constitutional text in each of the four categories of searched enumerated in the Fourth Amendment: searches of “persons,” “houses,” “papers,” and “effects.”

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The concept of personally invasive, dragnet-type government searches predictably expanded to the public generally through programs such as “Stop-And-Frisk.” But, did we get the Public-Safety-That-Was-Promised from such policies? The United States is indeed a safer place than it once was; the problem is there is no relationship between implementing such dragnet searches and a safer society. In cities that either refused to employ stop and frisk, or ended the practice, the same long-term trend of decreasing violence occurred. Such facts thankfully forced some to admit they were wrong about the efficacy of stop and frisk. However, despite the evisceration of the Fourth Amendment, the dredging of taxpayer wallets, and the destructive incarceration of millions, the drug war has been a colossal failure as drug use in society has remained steady.

Not all is bleak, however. With increased awareness and scrutiny, there exists some hope for a reversal in the trend of curbing Fourth Amendment protections. Recent Supreme Court cases such as Carpenter, Jardines, and Jones have given many Fourth Amendment champions real optimism that a tide is turning. However, those cases all revolved around warrantless searches, they did not address the absurdly lax standard by which warrants are issued today based on junk science and pure conjecture. What is sorely needed, in addition to more victories in the courts, is a change in the hearts and minds of Americans. As I wrote last week, Americans too often seek to rely on systems of control as a way to combat societal issues instead of embracing personal liberties. Only by constantly reminding our fellow citizens that not only do these dragnet searches not work in keeping us safer, they are incredibly destructive, will we see any real movement on restoring Fourth Amendment protections.


Tyler Broker is the Free Expression and Privacy Fellow at the University of Arizona James E. Rogers College of Law. His work has been published in the Gonzaga Law Review and the Albany Law Review. Feel free to email him to discuss his column.

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