Tests in early 2015 in Chattanooga of body cameras for police officers and sheriff’s deputies is widely considered a way to reduce the number of police officer attacks upon members of the public and the severity of other abuses.
But it appears rather that body cameras will only increase surveillance of members of the public, with only the voice of the officer captured and perhaps motions of his hands in view of the lens. Yes, cop body cams reduced police brutality in Rialto, Calif., and the number of public complaints of officers. But they open a new venue for abuse, with room for video “gotchas” or “Pearl Harboring” of people caught in awkward though innocent circumstances. As digital systems are increasingly leaky, cop cams open the way of putting to disadvantage those who come into police notice or whom are approached for police scrutiny. Getting special notice will be elected officials and the glamorous.
Most importantly, body cams increase the sense in which the people are under an occupation. All are converted into subjects. During raids of houses, officials will examine and media will demand copies of public records A growing database will require more “human resources” to manage as the surveillance — the interaction with cops and public — of the modern state deepens and the enmity between the people and the state gains energy.
This is Part 3 of an extended analysis, “Are Cops Constitutional?” I serialize this important work as Part 1, “The rise of policing despite constitution; or how cops became legally superior, apart” and Part 2, “Resisting arrest a constitutional right lost in rise of Progressivism.” — DJT
By Roger Roots
It is largely forgotten that the war for American independence was initiated in large part by the British Crown’s practice of using troops to police civilians in Boston and other cities.244 Professional soldiers used in the same ways as modern police were among the primary grievances enunciated by Jefferson in the Declaration of Independence. (“George III] has kept among us standing armies”; “He has affected to render the military independent of and superior to the civil power”; “protecting them, by a mock trial….”).245 The duties of such troops were in no way military but involved the keeping of order and the suppression of crime (especially customs and tax violations).
Constitutional arguments quite similar to the thesis of this article were made by America’s Founders while fomenting the overthrow of their government. Thomas Jefferson proclaimed that although Parliament was supreme in its jurisdiction to make laws, “his majesty has no right to land a single armed man on our shores” to enforce unpopular laws.246 James Warren said that the troops in Boston were there on an unconstitutional mission because their role was not military but rather to enforce “obedience to Acts which, upon fair examination, appeared to be unjust and unconstitutional.”247 Colonial pamphleteer Nicholas Ray charged that Americans did not have “an Enemy worth Notice within 3000 Miles of them.”248 “[T]he troops of George the III have cross’d the wide atlantick, not to engage an enemy,” charged John Hancock, but to assist constitutional traitors “in trampling on the rights and liberties of [the King’s] most loyal subjects …”249
The use of soldiers to enforce law had a long and sullied history in England and by the mid-1700s were considered a violation of the fundamental rights of Englishmen.250 The Crown’s response to London’s Gordon Riots of 1780 — roughly contemporary to the cultural backdrop of America’s Revolution — brought on an immense popular backlash at the use of guards to maintain public order.251 “[D]eep, uncompromising opposition to the maintenance of a semimilitary professional force in civilian life” remained integral to Anglo-Saxon legal culture for another half century.252
Englishmen of the Founding era, both in England and its colonies, regarded professional police as an “alien, continental device for maintaining a tyrannical form of Government.”253 Professor John Phillip Reid has pointed out that few of the rights of Englishmen “were better known to the general public than the right to be free of standing armies.”254 “Standing armies,” according to one New Hampshire correspondent, “have ever proved destructive to the Liberties of a People, and where they are suffered, neither Life nor Property are secure.”255
If pressed, modern police defenders would have difficulty demonstrating a single material difference between the standing armies the Founders saw as so abhorrent and America’s modern police forces. Indeed, even the distinctions between modern police and actual military troops have blurred in the wake of America’s modern crime war.256 Ninety percent of American cities now have active special weapons and tactics (SWAT) teams, using such commando-style forces to do “high risk warrant work” and even routine police duties.257 Such units are often instructed by active and retired United States military personnel.258
In Fresno, California, a SWAT unit equipped with battering rams, chemical agents, fully automatic submachine guns, and “flashbang” grenades roams full-time on routine patrol.259 According to criminologist Peter Kraska, such military policing has never been seen on such a scale in American history, “where SWAT teams routinely break through a door, subdue all the occupants, and search the premises for drugs, cash and weapons.”260 In high-crime or problem areas, police paramilitary units may militarily engage an entire neighborhood, stopping “anything that moves” or surrounding suspicious homes with machine guns openly displayed.261
Much of the importance of the standing-army debates at the ratification conventions has been overlooked or misinterpreted by modern scholars. Opponents of the right to bear arms, for example, have occasionally cited the standing-army debates to support the proposition that the Framers intended the Second Amendment to protect the power of states to form militias.262 Although this argument has been greatly discredited,263 it has helped illuminate the intense distrust that the Framers manifested toward occupational standing armies. The standing army the Framers most feared was a soldiery conducting law enforcement operations in the manner of King George’s occupation troops — like the armies of police officers that now patrol the American landscape.
The second amendment
The actual intent of the Second Amendment — that it protect a right of people to maintain the means of violently checking the power of government — has been all but lost in modern American society.264 Modern policing’s increasing monopoly on firepower tends to undermine the Framers’ intent that the whole people be armed, equipped, and empowered to resist the state. Many police organizations lobby incessantly for gun control, even though the criminological literature yields scant empirical support for general gun control as a crime-prevention measure.265
Nor is there much legitimacy to the claim that professional police are more accurate or responsible with firearms than the armed citizenry intended by the Framers. To this day, civilians shoot and kill at least twice as many criminals as police do every year,266 and their ‘error rate’ is several times lower.267 In a government study of handgun battles that lead to officer injuries, it was found that police who fired upon their killers were less than half as accurate as their civilian, nonprofessional, assailants.268
Moreover, police seem hardly less likely to misuse firearms than the general public.269 In New York City, where private possession of handguns has been virtually eliminated for most civilians, problems with off-duty police misusing firearms have repeatedly surfaced.270 Los Angeles police have been found to fire their weapons inappropriately in seventy-five percent of cases.271 Between early 1989 and late 1992, more than one out of every seven shots fired by Washington, D.C. police officers was fired accidentally.272
The third amendment
Although standing armies were not specifically barred by the final version of the Constitution’s text, some authorities have pointed to the Third Amendment273 as a likely fount for such a conceptual proposition.274 Additionally, the Amendment’s proscription of quartering troops in homes might well have been interpreted as a general anti-search and seizure principle if the Fourth Amendment had never been enacted.275 The Third Amendment was inspired by sentiments quite similar to those that led to passage of the Second and Fourth Amendments, rather than fear of military operations. Writing in the 1830s, Justice Story regarded the Third Amendment as a security that “a man’s house shall be his own castle, privileged against all civil and military intrusion.”276
The criminal procedure concerns that dominated the minds of the Framers of the Bill of Rights were created not only before the Revolution but also after it. In the five years following British surrender, the independent states vied against each other for commercial advantage, debt relief, and land claims. Conflict was especially fierce between the rival settlers of Pennsylvania and Connecticut on lands in the west claimed simultaneously by both states.277 Both states sent partisan magistrates and troops into the region, and each faction claimed authority to remove claimants of the rival state.278 Magistrates occasionally ordered arrest without warrant, turned people out of their homes, and even ordered submission to the quartering of troops in homes.279 In 1784, a Pennsylvania grand jury indicted one such magistrate and forty others for abuse of their authority.280 Many agents had to be arrested before the troubles finally ended in 1788 — the very moment when the Constitution was undergoing its ratification debates.281 These troubles, and not memories of life under the Crown, were fresh in the minds of the Framers who proposed and ratified the Bill of Rights.
The Third Amendment’s proscription of soldiers quartered in private homes addressed a very real domestic concern about the abuse of state authority in 1791. This same fear of an omnipresent and all-controlling government is hardly unfounded in modern America. Indeed, the very evils the Framers sought to remedy with the entire Bill of Rights — the lack of security from governmental growth, control and power — have come back to haunt modem Americans like never before.282
Right to be left alone
The “police state” known by modern Americans would be seen as quite tyrannical to the Framers who ratified the Constitution. If, as Justice Brandeis suggested, the right to be left alone is the most important underlying principle of the Constitution,283 the cop-driven model of criminal justice is anathemic to American constitutional principles. Today a vast and omnipotent army of insurgents patrols the American landscape in place of grand juries, private prosecutors, and the occasional constable. This immense soldiery is forever at the beck and call of whatever social forces rule the day, or even the afternoon.284
The fourth amendment
Now to the Fourth Amendment. The Amendment reads: “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.”285 This protection was clearly regarded as one of the more important provisions of the Bill of Rights during debates in and out of Congress prior to ratification.286 To this day, the Amendment is probably the most cited constitutional provision in challenges to police action.
The cold, hard reality, however, is that the interest protected by the amendment — security from certain types of searches and seizures — has been drastically scaled back since 1791. In saying this, I am mindful that there are those among the highest echelons of the bench and academy who claim that current Fourth Amendment law is more protective than the Framers intended.287 Indeed, there are those claiming the mantles of textualism and originalism who would decrease Fourth Amendment rights even further.288 The ever-influential Akhil Amar, for example, has argued that the Fourth Amendment’s text does not really require warrants but merely lays out the evidentiary foundation required to obtain warrants.289 Amar joins other “originalist” scholars who emphasize that the only requirement of the Fourth Amendment’s first clause (“The right of the people to be secure in their persons, papers, and effects from unreasonable searches and seizures shall not be violated”) is that all searches and seizures be “reasonable.”290 The warrant requirement pronounced in many Supreme Court opinions, according to Amar, places an unnecessary burden upon law enforcement and should be abandoned for a rule Amar considers more workable — namely civil damages for unreasonable searches after the fact as determined by juries.
This type of “originalism” has appealed to more than one U.S. Supreme Court justice,291 at least one state high court,292 and various legal commentators.293 Indeed, it has brought a perceivable shift to the Supreme Court’s Fourth Amendment jurisprudence.294 Even the U.S. Justice Department has adopted this argument as its own in briefs filed in the U.S. Supreme Court arguing for elimination of the warrant requirement.295
The problem with this line of interpretation is that it does not square with the original view of the Framers. Even the most cursory examination of history reveals that law enforcers of the Founding Era, whether private persons, sheriffs or constables, were obligated to procure warrants in many circumstances that modern courts do not require warrants.296 The general rule that warrants were required for all searches and seizures except those involving circumstances of the utmost urgency seems so well settled at the time of ratification that it is difficult to imagine a scholar arguing otherwise.297 But Professor Amar does. “Supporters of the warrant requirement,” the professor writes, “have yet to find any cases” enunciating the warrant requirement before the Civil War.298
Perhaps Amar has overlooked the 1814 case of Grumon v. Raymond, in which the Connecticut Supreme Court held both a constable, who executed an improper search warrant, and a justice of the peace who issued the warrant, civilly liable for trespass.299 The court in Grumon clearly stated that the invalidity of the search warrant left the search’s legality “on no better ground than it would be if [the search had been pursuant to] no process.”300 Or maybe Amar is unfamiliar with the 1807 case of Stoyel v. Lawrence, holding a sheriff liable for executing a civil arrest warrant after the warrant’s due date and declaring that the warrant “gave the officer no authority whatever, and, consequently, formed no defence”;301 or the 1763 Massachusetts case of Rex v. Gay, acquitting an arrestee for assaulting and beating a sheriff who arrested him pursuant to a facially invalid warrant;302 or Batchelder v. Whitcher, holding an officer liable for ordering the seizure of hay by an unsealed warrant in 1838;303 or Conner v. Commonwealth, in which the Pennsylvania Supreme Court concluded in 1810 that if the requirement of warrants based on probable cause could be waived merely to allow constables to more easily arrest criminals, “the constitution is a dead letter.”304
Even the cases Amar cites for the proposition that search warrants were not required under antebellum Fourth Amendment jurisprudence do not squarely support such a proposition.305 Most of them merely repeat the “warrant requirement” of the common law and find that their given facts fit within a common law exception.306 Similarly, the cases Amar cites that interpret various Fourth-Amendment equivalents of state constitutions by no means indicate that Founding-era law enforcers could freely search and seize without warrant wherever it was “reasonable” to do so. 307
Used by permission. Roger Isaac Roots, J.D., M.C.J., graduated from Roger Williams University School of Law in 1999, Roger Williams University School of Justice Studies in 2001, and Montana State University-Billings (B.S., Sociology) in 1995. He is a former federal prisoner and founder of the Prison Crisis Project, a not-for-profit law and policy think tank based in Providence, Rhode Island. He is grateful to Duane Horton of Portsmouth, Rhode Island for his scrupulous proof-reading efforts and thoughtful insights.
224 See Lawrence W. Sherman, Becoming Bent: Moral Careers of Corrupt Policemen, IN “ORDER UNDER LAW”: READINGS IN CRIMINAL JUSTICE 96, 104-06 (1981) (discussing police burglary scandals of the 1960s).
225 See Wood, supra note 218, at 5 (citing critics).
226 See FRIEDMAN, supra note 58, at 154. The Lexow Committee of 1894 was perhaps the first to probe police misconduct in New York City. The Committee found that the police had formed a “separate and highly privileged class, armed with the authority and the machinery of oppression.” See id.. Witnesses before the Committee testified to brutal beatings, extortion and perjury by New York police. See id. at 154-55.
227 In April 1994, for example, thirty-three New York officers were indicted and ultimately convicted of perjury, drug dealing and robbery. See James Lardner, Better Cops. Fewer Robbers, N.Y. TIMES MAG., Feb. 9, 1997, pp. 44-52. The following year, sixteen Bronx police officers were indicted for robbing drug dealers, beating people, and abusing the public.See id.
228 See Jerome H. Skolnick, A Sketch of the Policeman’s “Working Personality,” in THE CRIMINAL JUSTICE SYSTEM: POLITICS AND POLICIES 116, 123 (George F. Cole & Marc G. Gertz 7th ed. 1998).
229 See Wood, supra note 218, at 5 (quoting critics).
230 C.f. TITUS REID, supra note 57, at 117-119 (describing police subculture).
231 See FRIEDMAN, supra note 58, at 154 (saying New York police of the 1890s engaged in routine extortion of businesses, collecting kickbacks from push-cart vendors, corner groceries, and businessmen whose flag poles extended too far into the street). In Chicago, police historically sought “contributions” from saloonkeepers. See id. at 155.
232 See, e.g., PATRICK J. BUCHANAN, RIGHT FROM THE BEGINNING 283-84 (1990) (detailing police favoritism toward one St. Louis newspaper and antagonism toward its competitor); Jonathan D. Rockoff, Comment Costs Kennedy Police Backing, PROVIDENCE J., April 21, 2000, at 1B (describing police unions’ threats to drop their support for Rep. Kennedy due to Kennedy’s public remarks).
233 See Davis, supra note 152, at 355.
234 See Wasserstrom, supra note 70, at 293-94 n.188 (1984) (stating no one has ever been convicted under the statute, 18 U.S.C. § 2236).
235 See U.S. Dep’t of Justice, Office of Inspector General, The FBI Laboratory: An Investigation into Laboratory Practices and Alleged Misconduct in Explosives-Related and Other Cases (April 1997) (detailing Justice Department’s findings of impropriety at the FBI Crime Lab).
236 Cf. SlLBERMAN, supra note 6, at 211-14 (observing the behavior of cops on patrol).
237See id. at 215-16 (citing study conducted in Kansas City in the 1970s).
238C.f. id. at 215 (pointing to mounting criticism of traditional approach). Studies of police pull-overs and sidewalk stops invariably demonstrate patterns of economic, racial, and social discrimination as well. See, e.g., Bruce Landis, State Police Records Support Charges of Bias in Traffic Stops, PROVIDENCE J., Sept. 5, 1999 at 1A (reporting Rhode Island traffic stop statistics demonstrate racial bias by state police).
239 The United States’ ‘war on drugs’ is a perfect illustration of the difficulties of implementing broad-ranging social policy through police enforcement mechanisms. “Not since Vietnam ha[s] a national mission failed so miserably.” JIM MCGEE & BRIAN DUFFY, MAIN JUSTICE: THE MEN AND WOMEN WHO ENFORCE THE NATION’S CRIMINAL LAWS AND GUARD ITS LIBERTIES 43 (1996). The federal drug control budget increased from $4.3 billion in 1988 to $11.9 billion in 1992, yet national drug supply increased greatly and prices dropped during the same period. See id. at 42. The costs of enforcement in 1994 ranged from $79,376 per arrestee by the DEA to $260,000 per arrestee by the FBI, with no progress made at all toward decreasing the drug trade. See id.
240 See JOHN R. LOTT, JR., MORE GUNS, LESS CRIME: UNDERSTANDING CRIME AND GUN CONTROL LAWS 213 n.3 (1998) (citing forthcoming paper).
241 Some two-thirds of the public say they have a great deal of respect for the police. See SHMUEL LOCK, CRIME, PUBLIC OPINION, AND CIVIL LIBERTIES: THE TOLERANT PUBLIC 69 (1999). Interestingly, however, lawyers are more than 20 percentage points lower in their general assessment of police. See id.
242 Public opinion polls repeatedly show that a majority of the public favor decreasing constitutional protections. See, e.g., id. at 6. It must be noted, however, that the general public is more inclined than lawyers and the Supreme Court to favor protecting some civil liberties. For example, 49 percent of the public disapproves of police searching private property by air without warrant, while only 37 percent of lawyers disapprove and the Supreme Court upheld the practice in United States v. Dunn, 480 U.S. 294 (1987). See id. at 39. A majority of the public (51%) would prohibit police from searching one’s garbage without a warrant, while only 36 percent of lawyers disapprove and the Supreme Court upheld the practice in California v. Greenwood, 486 U.S. 35 (1988). See id. The public is also less inclined than lawyers to approve of using illegally obtained evidence to impeach a witness. See id. at 45.
243 C.f. Illinois v. Krull, 480 U.S. 340, 365 (1987) (O’Connor, J., dissenting) (stating Fourth Amendment rights have at times proved unpopular and the Framers drafted the Fourth Amendment in fear that future majorities might compromise Fourth Amendment values).
244 See JOHN PHILLIP REID, IN DEFIANCE OF THE LAW: THE STANDING-ARMY CONTROVERSY, THE Two CONSTITUTIONS, AND THE COMING OF THE AMERICAN REVOLUTION (1981) (recounting the history and constitutional background of the standing-army controversy that preceded the Revolution).
245 THE DECLARATION OF INDEPENDENCE paras. 12, 13, 14 (U.S. 1776).
246 See JOHN P. REID, supra note 244, at 79.
247 See id. at 79.
248 See id. at 50 (citation omitted).
249See id. at 29 (quoting the orations of Hancock).
250 In Edinburgh in 1736, a unit of town guards maintaining order during the execution of a convicted smuggler was pelted with stones and mud until some soldiers began firing weapons at the populace. See JOHN P. REID, supra note 244, at 114-15 (recounting the history and constitutional background of the standing-army controversy which preceded the Revolution). After nine citizens were found dead, the captain of the guard was tried for murder, convicted, and himself condemned to be hanged. See id.
When officers of the crown indicated a willingness to pardon the captain, a mob of civilians “rescued” the captain from prison and hanged him. See id.
251 See Hall, supra note 71, at 587-88.
252 Id. at 587.
253 Ben C. Roberts, On the Origins and Resolution of English Working-Class Protest, in NATIONAL COMMISSION ON THE CAUSES AND PREVENTION OF VIOLENCE, VIOLENCE IN AMERICA: HISTORICAL AND COMPARATIVE PERSPECTIVES 238, 252 (Graham & Gurr, dir. 1969).
254 JOHN P. REID, supra note 244, at 80.
255 See id. at 95 (quoting from a 1770 issue of the New Hampshire Gazette).
256 See Kraska & Kappeler, supra note 167, at 2-3 (citing National Institute of Justice report detailing “partnership” between Defense and Justice Departments in equipping personnel to “engage the crime war”).
257 See William Booth, The Militarization of ‘Mayberry,’ WASH. POST, June 17, 1997, at A1.
258 See id.
260 See id. (quoting Kraska).
261 See Kraska & Kappeler, supra note 167, at 10.
262See Roger Roots, The Approaching Death of the Collective Right Theory of the Second Amendment, 39 DUQUESNE L. REV. 71 (2000).
265See JOHN R. LOTT, JR., MORE GUNS, LESS CRIME: UNDERSTANDING CRIME AND GUN CONTROL LAWS (1998) (supporting a proposition consistent with the title); GARY KLECK, POINT BLANK: GUNS AND VIOLENCE IN AMERICA (1991).
266 KLECK, supra note 265, at 111-116, 148.
267See George F. Will, Are We a Nation of Cowards?, NEWSWEEK, Nov. 15, 1993, at 93. The error rate is defined as the rate of shootings involving an innocent person mistakenly identified as a criminal. See id.
268 See ANTHONY J. PINIZZOTTO, ET AL., U.S. DEP’T OF JUSTICE, NAT’L INST. OF JUSTICE, IN THE LINE OF FIRE: A STUDY OF SELECTED FELONIOUS ASSAULTS ON LAW ENFORCEMENT OFFICERS 8 (1997) (table showing 41 percent accuracy by police as opposed to 91 percent accuracy by their assailants with handguns).
269 See, e.g., Morgan v. California, 743 F.2d 728 (9th Cir. 1984) (involving drunk officers who backed their car into innocent civilian couple and then brandished guns to threaten them).
270 See Shapiro v. New York City Police Dept., 595 N.Y.S.2d 864 (N.Y. Sup. Ct. 1993) (upholding revocation of pistol license of cop who threatened drivers with gun during two traffic disputes); Matter of Beninson v. Police Dept., 574 N.Y.S.2d 307 (N.Y. Sup. Ct. 1991) (involving revocation of pistol permit of cop based on two displays of firearms in traffic situations).
271 See JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW 255 n. 34 (2d ed. 1995) (citing review of nearly 700 shootings).
272 See Tucker Carlson, Washington’s Inept Police Force, WALL ST. J., Nov. 3, 1993, at A19.
273 U.S. CONST. amend. III (“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law”).
274 See Morton J. Horwitz, Is the Third Amendment Obsolete?, 26 VALPARAISO U. L. REV. 209, 214 (1991) (stating the Third Amendment might have produced a constitutional bar to standing armies in peacetime if public antipathy toward standing armies had remained intense over time).
276 3 JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 747-48 (1833) (emphasis added).
277 For a well-written local history of this conflict, see HENRY BLACKMAN PLUMB, HISTORY OF HANOVER TOWNSHIP 121-140 (1885).
278 See id.
279See id. at 125-26.
280 See id. at 130.
281 See id. at 138 (adding that those convicted “were allowed easily to escape, and no fines were ever attempted to be collected”).
282 See, e.g., JAMES BOVARD, FREEDOM IN CHAINS: THE RISE OF THE STATE AND THE DEMISE OF THE CITIZEN (1999) (presenting a thesis in line with the title); JAMES BOVARD, LOST RIGHTS: THE DESTRUCTION OF AMERICAN LIBERTY (1994) (detailing America’s loss of freedom).
283 See Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting) (saying the right to be let alone is “the most comprehensive of rights and the right most valued by civilized man.”).
284 C.f. Stephen D. Mastrofski, et al., The Helping Hand of the Law: Police Control of Citizens on Request, 38 CRIMINOLOGY 307 (2000) (detailing study finding officers are likely to use their power to control citizens at mere request of other citizens).
285 U.S. CONST. amend. IV.
286 See, e.g., Maryland Minority, Address to the People of Maryland, Maryland Gazette, May 6, 1788, reprinted in THE ORIGIN OF THE SECOND AMENDMENT, supra note 89, at 356, 358 (stating that an amendment protecting people from unreasonable search and seizure was considered indispensable by many who opposed the Constitution).
287 See, e.g., AKHIL R. AMAR, THE CONSTITUTION AND CRIMINAL PROCEDURE: FIRST PRINCIPLES 1-45 (1997). Amar argues that the Amendment lays down only a few “first principles” — namely “that all searches and seizures must be reasonable, that warrants (and only warrants) always require probable cause, and that the officialdom should be held liable for unreasonable searches and seizures.” Id. at 1.
288 See, e.g., Richard A. Posner, Rethinking the Fourth Amendment, 1981 SUP. CT. REV. 49 (arguing that the Fourth Amendment should not provide a guilty criminal with any right to avoid punishment).
289 See AMAR, supra note 287, at 3-17 (arguing the Framers intended no warrant requirement).
290 See id.
291 See California v. Acevedo, 500 U.S. 565, 581 (1991) (Scalia, J., concurring) (referencing Amar’s claims for support). Ten years earlier, in Robbins v. California, 453 U.S. 420 (1981), Justice Rehnquist cited a 1969 book by Professor Telfred Taylor — Amar’s predecessor in the argument that the Fourth Amendment’s text requires only an ad hoc test of reasonableness — for the same proposition. Id. at 437 (Rehnquist, J., dissenting).
292 See, e.g., Hulit v. State, 982 S.W.2d 431, 436 (Tex. Crim. App. 1998) (citing Amar for proposition that Fourth Amendment requires no warrants).
293 See, e.g., Max Boot, Out of Order: Arrogance, Corruption, and Incompetence on the Bench 66 (1998) (reciting the Amar/Taylor thesis without reservation).
294 Since the addition of Justice Rehnquist to the Supreme Court, the Court has traveled far down the road toward ejecting the warrant requirement. See generally Wasserstrom, supra note 70. The Court has increasingly tended to adopt a mere balancing test, pitting the citizen’s “Fourth Amendment interests” (rather than his “rights”) against “legitimate governmental interests.” See, e.g., Delaware v. Prouse, 440 U.S. 648, 654 (1979).
295 In United States v. Chadwick, 433 U.S. 1, 6 (1977), the United States Justice Department mounted a “frontal attack” on the warrant requirement and argued that the warrant clause of the Fourth Amendment protected only “interests traditionally identified with the home.” Accordingly, the Justice Department would have eliminated warrants in every other setting.
296 Compare Howard v. Lyon, 1 Root 107 (Conn. 1787) (involving constable who obtained “escape warrant” to recapture an escaped prisoner and even had the warrant “renewed” in Rhode Island where prisoner fled), and Bromley v. Hutchins, 8 Vt. 68 (1836) (upholding damages against a deputy sheriff who arrested an escapee without warrant outside the deputy’s jurisdiction), with United States v. Watson, 423 U.S. 411 (1976) (allowing warrantless arrest of most suspects in public so long as probable cause exists).
297 See Morgan Cloud, Searching through History; Searching for History, 63 U. CHI. L. REV. 1707, 1713 (1996) (citing the exhaustive research of William Cuddihy for the proposition that specific warrants were required at Founding).
298 AMAR, supra note 287, at 5.
299 1 Conn. 40 (1814).
300See id. at 44.
301 3 Day 1, 3 (Conn. 1807).
302 1761-1772 Quincy Mass. Reports (1763). Perhaps Amar’s statement can be read as a commentary on the dearth of originalist scholarship among those who support strong protections for criminal suspects and defendants. “Originalism” as a means of constitutional interpretation is not always definable in a single way, and “originalists” may often contradict each other as to their interpretation of given cases. See Richard S. Kay, “Originalist” Values and Constitutional Interpretation, 19 HARV. J.L. & PUB. POL’Y 335 (1995). Professor Kay has identified four distinct interpretive methods as being “originalist” — any two of which might produce differing conclusions: 1) original text, 2) original intentions, 3) original understanding, and 4) original values. See id. at 336. This being conceded, originalism has generally been the domain of “conservative” jurists for the past generation, fueled by reactions to the methods of adjudication employed by the Warren Court. See id. at 335.
303 9 N.H. 239 (1838).
304 3 Bin. 38, 43 (Pa. 1810).
305 Admittedly, two of Amar’s cited cases present troubling statements of the law. The rule of Amar’s first case, Jones v. Root, 72 Mass. 435 (1856), is somewhat difficult to discern. Although the case may be read as a total rejection of required warrants (as Amar contends, supra note 287, at 4-5 n.10), it may also be read as an adoption of the “in the presence” exception to the warrant requirement known to the common law. The court’s opinion is no more than a paragraph long and merely upholds the instruction of a lower court that a statute allowing warrantless seizure of liquors was constitutional. Jones, 72 Mass. at 439. The opinion also upheld the use of an illustration by the trial judge that suggested the seizure was similar to a seizure of stolen goods observed in the presence of an officer. See id. at 437.
A second case may also be read to mean that the government may search and seize without warrant, but might also be read as enunciating the “breach of peace” exception to the warrant requirement. Mayo v. Wilson, 1 N.H. 53 (1817) involved a town tythingman who seized a wagon and horses of an apparent teamster engaged in commercial delivery on the Sabbath, in violation of a New Hampshire statute. Amar quotes Mayo’s pronouncement that the New Hampshire Fourth-Amendment equivalent “does not seem intended to restrain the legislature …” But elsewhere in the opinion, the New Hampshire Supreme Court stated that an arrest required a “warrant in law” — either a magistrate’s warrant, or excusal by the commission of a felony or breach of peace. Mayo, 1 N.H. at 56. “[B]ut if the affray be over, there must be an express warrant.” Id. (emphasis added). Not much support for Amar’s thesis there.
Mayo was decided only fourteen years after the dawn of judicial review in Marbury v. Madison, 5 U.S. 137 (1803), during an era when the constitutional interpretations of legislatures were thought to have equal weight to the interpretations of the judiciary. Cf. HENRY J. ABRAHAM, THE JUDICIAL PROCESS 335-40 (7th ed. 1998) (describing the slow advent of the concept of judicial review). Indeed, the first act of a state legislature to be declared unconstitutional came only seven years earlier, see Fletcher v. Peck, 10 U.S. 87 (1810), and the first state court decision invalidated by the Supreme Court had come only one year earlier. See Martin v. Hunter’s Lessee, 14 U.S. 304 (1816). The very heart of the Mayo decision that Amar relies on (the proposition that state legislatures have concurrent power of constitutional review with the judiciary) was so thoroughly discredited soon afterward that Amar’s extrapolation that Founding era courts did not require warrants seems exceedingly far-fetched.
As judicial review gathered sanction, the doctrine apparently enunciated in Mayo became increasingly discredited. See Ex Parte Rhodes, 79 So. 462 (Ala. 1918) (saying “[t]here is not to be found a single authority, decision, or textbook, in the library of this court, that sanctions the doctrine that the legislature, a municipality, or Congress can determine what is a ‘reasonable’ arrest”).
306 Amar cites six cases (all referred to in United States v. Watson, 423 U.S. 411 (1976)), as standing for the proposition that state Fourth Amendment equivalents did not presume a warrant requirement. AMAR, supra note 287, at 5 n. l1. The first case, State v. Brown, 5 Del. (5 Harr.) 505 (Ct. Gen. Sess. 1853), is difficult to reconcile with Amar’s thesis that antebellum courts recognized no warrant requirement. Brown upheld a criminal verdict against a night watchman who entered a residence in pursuit of a fleeing chicken thief and instead falsely arrested — without warrant — the proprietor. The second case cited by Amar, Johnson v. State, 30 Ga. 426 (1860), simply upheld a guilty verdict against a man who shot a policeman during a warrantless arrest for being an accomplice to a felony. The Georgia Supreme Court repeated the common law exception allowing that an officer may arrest felons without warrant. The third case, Baltimore & O. R.R. Co. v. Cain, 81 Md. 87, 31 A. 801 (1895), merely reversed a civil jury verdict for an arrestee on grounds that the appellant railroad company was entitled to a jury instruction allowing for a breach-of-peace exception to the warrant requirement. The fourth case, Reuck v. McGregor, 32 N.J.L. 70 (Sup. Ct. 1866), reversed a civil verdict on grounds of excessive damages — while upholding civil liability for causing warrantless arrest of an apparently wrongly-accused thief. Holley v. Mix, 3 Wend. 350 (N.Y. Sup. Ct. 1829), Amar’s fifth case, offers little support for Amar’s thesis. Holley upheld a civil judgment against a private person and an officer who arrested a suspect pursuant to an invalid warrant. Finally, Wade v. Chaffee, 8 R.I. 224 (1865), simply held that a constable was not bound to procure a warrant where he had probable cause to believe an arrestee was guilty of a felony, even though no fear of escape was present.
307 Amar cites four cases as standing for the proposition that state courts interpreted their state constitutional predecessors of the Fourth Amendment’s text as requiring no warrants for searches or seizures. AMAR, supra note 287, at 5 n.10. Jones v. Root, 72 Mass. (6 Gray) 435 (1856), upheld a Massachusetts “no-warrant” statute in a one-paragraph opinion explainedsupra note 306. In Rohan v. Sawin, 59 Mass. (5 Cush.) 281 (1850), Massachusetts’ highest court found that a warrantless arrest qualified under the “felon” exception to the warrant requirement. Mayo v. Wilson, 1 N.H. 53 (1817), is described supranote 306.
Finally, the 1814 Pennsylvania case of Wakely v. Hart, 6 Binn. 316 (Pa. 1814), resolved a civil suit brought by an accused thief (Wakely) against his arresters upon grounds that the arrest had been warrantless and Wakely had been guilty only of a misdemeanor. The Pennsylvania Supreme Court upheld a jury’s verdict for the arresters, upon the rather-fudged finding that Wakely had fled from the charges against him and had been guilty of at least “an offence which approaches very near to a felony,” if not an actual felony. Wakely, 6 Binn. at 319-20.