Search, Seizure, and Privacy

By Darien A. McWhirter | Go to book overview

CHAPTER one
Introduction

Search and seizure law is drawn primarily from the Fourth Amendment, which has been called the most ambiguous of the 10 amendments that make up the Bill of Rights. Over time, the Supreme Court has come to see the protection of property and privacy as the main purpose of the Fourth Amendment. However, the Court has concluded that the amendment does not protect all property interests or apply to all situations where people might wish to protect their privacy. To understand how the Court reached its interpretation of the Fourth Amendment requires a trip into history.

In England and its American colonies in the late 1700s, popular feeling ran high against the use of what were called "general warrants" and "writs of assistance." These were government documents police and customs officers used as licenses to search any building or home. The warrants and writs were seldom used to search for evidence of what today we would call common crime. Instead, searches were usually conducted to find traitorous writings against the king of England or smuggled goods that legally belonged to the king because customs duties had not been paid. After the American Revolution, the English Parliament passed statutes to limit the use of these kinds of warrants and writs in England.

It is important to understand the legal context of the time. Under English common law, the warrant served one main function. If government officials invaded private property without a good reason, they could be sued personally for trespassing. If they had a warrant, they were immune from such lawsuits. General warrants authorizing government officials to go anywhere gave them complete immunity from such suits and the power to enter any piece of private property to carry out a search.

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