The Police, the Fourth Amendment, and the New Writs of Assistance

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The wording of the Fourth Amendment is unambiguous in not contemplating warrantless searches. There is no mention of warrantless searches. The first clause sets forth the idea that the natural right to privacy will be defended by the Constitution. The second clause states how this defense is to be realized by stating the warrant requirement for searches and specifying the necessity of probable cause. If the authors of the document had intended to allow for warrantless searches, then certainly they would have mentioned it.

The Founders had a strong motivation to protect Americans against unreasonable governmental searches and seizures. One of the “sparks” that ignited the American Revolution was the widespread use of Writs of Assistance by the British Crown in the Colonies. Writs of Assistance permitted British custom agents to search any place in which smuggled goods might be concealed without any particular suspicion that the goods were there. Writs of Assistance were self-written by British soldiers and officials and allowed them to capriciously demand entry into any Colonial business or home. The original purpose of the Writs of Assistance was to allow enforcement of the Stamp Act, which mandated that every official piece of paper held by Colonists bear the King’s stamp. While the purpose of the Writs of Assistance was limited in scope, once inside a business or home, the King’s officials would often intrude into further matters. In effect, any British soldier or official could, on any whim, completely search a Colonial business or residence for anything without the slightest probable cause. The Fourth Amendment provided important safeguards by requiring particularity in the place to be searched and the items to be searched for and requiring that a judge issue the search warrant.

The Supreme Court has gradually allowed a number of exceptions to arise in which no warrant is necessary provided that the search is deemed “reasonable,” reducing the importance of warrants and slowly but surely bringing the nation dangerously close to a return of Writs of Assistance. The Court has held that “searches conducted outside the judicial process, without prior approval by judge or magistrate,are per se unreasonable.” Unfortunately, the Court has come to recognize so many exceptions to this rule that search warrants have become almost a non-issue. Once inside a building, police may legally seize any incriminating evidence that is in “plain view” provided that its incriminating character is “immediately apparent” and that the officer has “a lawful right of access to the object itself.” While seemingly reasonable, the plain view doctrine makes fishing expeditions extremely likely. How can it be proven that a drawer containing something incriminating was actually open when the authorities arrived on the scene? How can it be proven that the authorities did not plant key evidence whose incriminating character is “immediately apparent?” In plain view cases, a search warrant has already been legally issued. However, there are “exigent circumstances” in which police may enter and search without any search warrant. These “exigent circumstances” include pursuing a fleeing felon, the imminent destruction of evidence, the need to prevent the escape of a suspect, or the risk of danger to the police or any persons inside or outside the building. Again, these exceptions seem prima facie reasonable, but what is to prevent overzealous officers from falsely claiming that they heard something indicating danger or the destruction of evidence? Kentucky v.King (2011) in effect gave the government all the powers that the British Crown had with Writs of Assistance. In this case, the Court ruled that officers may enter a residence without a warrant or probable cause if they smell marijuana and hear “scurrying” indicative of the destruction of drugs. All that is necessary is that the police knock first and announce their presence. Therefore, if marijuana is illegal in a given jurisdiction, then any officer may enter any building at any time without a warrant or probable cause and then use – or abuse – the plain view doctrine to go on a fishing expedition for any and all potentially incriminating evidence. Perhaps the American Revolution was not ultimately as successful as had been thought.