David E. Steinberg, The Original Understanding of Unreasonable Searches and Seizures

56 Fla. L. Rev. 1051 (2004) | | | |

INTRODUCTION :: Today, the Fourth Amendment to the United States Constitution covers most government evidence-gathering activities. In search and seizure cases, after determining that the Fourth Amendment applies to an investigation, the Supreme Court then specifies the Fourth Amendment standard that governs the law enforcement activity. In some cases, law enforcement officers must obtain a warrant. In other cases, officers must possess “probable cause,” or a “reasonable suspicion.”

The Supreme Court’s current presumption that the Fourth Amendment typically covers law enforcement investigations is ahistorical. A review of history demonstrates that the Fourth Amendment was intended to proscribe only a single, discrete activity-physical searches of houses pursuant to a general warrant, or no warrant at all. The framers never intended that the Fourth Amendment would apply to other government evidence-gathering activities. Accordingly, the Fourth Amendment simply provides no guidelines for random drug tests, sense-enhanced searches, automobile checkpoints, and the many other situations where the Supreme Court has attempted to apply the Amendment.

Part I of this Article examines current doctrine on what constitutes a “search or seizure” for Fourth Amendment purposes. According to current doctrine, the Fourth Amendment applies when government evidence-gathering activities affect a person’s reasonable expectation of privacy. Applying this standard, the Supreme Court has determined that the Fourth Amendment covers most government evidence-gathering activities. But the Court has held that the Fourth Amendment does not apply to some types of law enforcement investigations. For example, in Oliver v. United States, the Court relied on historical analysis to conclude that the Fourth Amendment does not apply to police searches in the open fields.

Part II of this Article reviews historical evidence on the original understanding of the Fourth Amendment. The historical record defines precisely what the framers meant when they proscribed “unreasonable searches and seizures.” Specifically, the framers intended that the phrase “unreasonable searches and seizures” would proscribe only physical searches of residences pursuant to a general warrant or no warrant at all.

Part III examines a few of the Supreme Court’s attempts to apply the Fourth Amendment in situations other than residential searches. Part III concludes that if courts continue to apply the Fourth Amendment in cases that do not involve physical intrusions into the home, such attempts will be doomed to incoherence. The Fourth Amendment never was intended to apply beyond house searches. The Amendment simply offers no guidance with respect to other types of government evidence-gathering activities.

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