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(The online version of this article appears in two parts. Click here to go to part one.)

MUCH in the legal code, of course, turns on semantic fine points and the splitting of hairs. But in the case of Fourth Amendment jurisprudence, Amar says, the emphasis on semantics and exceptions is an act more of desperation than of measured legal balancing. The Court, he argues, has painted itself into such an impossible constitutional corner over the past century that its only escape is to assert that sometimes paint is not paint or corners are not corners. Having declared that almost all searches require warrants, and that exclusion of evidence is the only remedy for a violation of this rule, the Court can avoid a total collision with reality only by adding "except when they don't require warrants" or "except when they are not searches."

The historical reasons for this situation are complex, but Amar points to three fundamental missteps that have led to the legal confusion. First was the Court's discovery of a "warrant requirement." In a 1948 narcotics case, Johnson v. United States, the Court held that under the Fourth Amendment the determination of "when the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman." Except in certain circumstances, the Court decreed, such as when time does not permit, the police have a "constitutional duty" to present their evidence to a "neutral and detached magistrate." Since then the Court has erected a vast legal edifice on the foundation of this warrant requirement. Yet that is simply not what the amendment itself says, Amar insists -- a claim that is hard to deny if one reads the text:

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.

Amar's fundamental point is that the text sets forth two different standards, which recent jurisprudence has jumbled together: the first clause of the amendment states simply that all searches and seizures must be reasonable, and the second clause enumerates more-specific requirements for when courts may issue a warrant in support of a search or seizure. There is ample historical evidence that both before and after the adoption of the Constitution officials were routinely empowered to conduct searches and seizures without warrants. Amar notes that there is indeed not a single precedent during the first hundred years of the United States, or a single word in any of the public debates over the Bill of Rights and similar guarantees in state constitutions or in contemporary legal treatises, to support the idea that warrants were required for all searches and seizures. On the contrary, state courts in the early nineteenth century explicitly rejected claims that warrantless searches and seizures were intended to be forbidden under the Fourth Amendment or equivalent provisions in state constitutions.

Courts did, however, repeatedly question whether specific warrantless searches and seizures were justifiable in their specific circumstances. And, as Amar points out, the history of the Fourth Amendment makes clear that its authors expected that "unreasonable" searches would be swiftly punished by the robust use of a legal mechanism that was universally known and applauded in eighteenth-century America but that is virtually unknown and, indeed, inaccessible today: trespass lawsuits against police officers and other officials who stepped over the line in conducting searches on private property.

The early American enthusiasm for trespass lawsuits against officials arose directly from a famous English legal case of the late eighteenth century, which Amar refers to, only slightly tongue-in-cheek, as the "Rodney King case of the Framing Era." John Wilkes was a member of the British Parliament who in 1763 published an anonymous attack on the government. Lord Halifax, the Secretary of State, issued a sweeping warrant authorizing officers to arrest whomever they thought responsible. Officers entered Wilkes's house, rifled through his papers, arrested him, and hauled him off to the Tower of London. Wilkes was able to obtain his release under habeas corpus, and struck back with a vengeance, filing suit against Halifax and other officials. The judge in the case ruled that the sweeping warrant was no warrant at all, and that Halifax was thus liable not only for the direct damages that Wilkes and others suffered from trespass but also for punitive damages, to deter such acts in the future. (This was the case that established the precedent for punitive damages in Anglo-American law.) All told, the British government paid out probably 100,000 in damages and costs -- a huge sum, on the order of $20 million today.

The case thrilled American patriots, who named cities and children after Wilkes and after Lord Camden, the judge who had ruled in Wilkes's favor. It was not unusual around 1800, Amar says, to find families in which the three eldest sons were named Franklin, Jefferson, and Wilkes. (Perhaps the most famous American to be named after this champion of liberty was Abraham Lincoln's assassin, John Wilkes Booth.) The case also galvanized American lawyers, who both before and after the Revolution brought frequent, and frequently successful, trespass actions against government officials for overstepping the bounds of reasonableness in conducting searches and seizures.

Amar believes that a crucial point has been all but forgotten in the past hundred years: although today we tend to think that requiring a warrant for a search is good, the Framers saw it as fundamentally bad, because the point of a warrant was that it indemnified the officers who executed it against civil lawsuits. And that, he argues, is why the second half of the Fourth Amendment narrowly prescribes the conditions under which warrants can be obtained -- and also why the Framers intended probable cause to be the standard not for all searches but merely for those granted this extraordinary immunity from after-the-fact scrutiny and thus from the most powerful deterrent to government abuse of power -- namely, the threat of crippling damages awarded by a civil jury.

This latter point affords the originalist approach especially strong backing: in recent cases the Supreme Court held that it is "fundamental and obvious" that if probable cause is required for a warrant, it is absurd to set a lower standard for those special cases when the police are permitted to act without a warrant. The Court in effect has made probable cause, not reasonableness, the standard for all searches and seizures. Yet a look at the historical context makes it clear that the Framers fully intended that searches involving warrants should meet a higher standard, given their special status and the immunity they conferred.

Amar says that in many ways warrants are just as bad today, if not worse: although they carry a sort of halo of judicial sanction and due process, in fact they are an affront to the normal rules of fair play in our legal system -- they are a friend to the searcher, not the searched. Warrants are usually issued by a low-level court official, such as a magistrate who is not even a judge; they are issued ex parte, meaning that the target of the warrant is not informed or given a chance to be present and argue his side of the case; and they are almost never subject to after-the-fact review or challenge.

The second misstep that Amar sees took place when the Supreme Court ruled, in the late nineteenth century, that federal courts must exclude improperly seized evidence. Originally this ruling was applied in a rather muddled way that turned on the issue of self-incrimination. The landmark case was Boyd v. United States, in 1886, and the question was the constitutionality of legislation requiring companies suspected of evading customs laws to turn over documents such as shipping invoices to a court. In Boyd the Supreme Court held that the Fourth Amendment's reasonableness clause and the Fifth Amendment's protection against self-incrimination "run almost into each other," joining to forbid such a use of a company's papers against itself.

Having set that precedent in a case of white-collar crime (which was the main area dealt with by federal law at the time), the Court began to extend the exclusionary rule beyond personal papers to contraband -- notably in a 1925 case, Agnello v. United States, in which illegally seized cocaine was excluded on the same theory of a fusion of the Fourth and Fifth Amendments. The Supreme Court applied exclusion to all state criminal cases in 1961.

Finally, and this is the third misstep, courts in the twentieth century have erected a series of impediments to tort lawsuits by citizens against government officials, for trespass or anything else. One of the greatest of these impediments is the "good faith" defense, because under today's laws civil damages cannot be assessed against an official who believed that he or she was acting properly.

The plainest problem with the current state of law, Amar says, is that innocent people who are harassed by the police, or whose property is damaged during searches and seizures, or who are subjected to brutality in being arrested, have little or no recourse under the Fourth Amendment as it is now interpreted. Because of the warrant requirement the courts focus on probable cause and the reliability of evidence that supported a search or a seizure or an arrest, but almost never on reasonableness, which is, after all, supposed to be the touchstone of the Fourth Amendment. "You can't squeeze brutality into the language of probable cause," Amar says, "but it is a matter of reasonableness." Another aspect the Court neglects by not focusing on reasonableness, he says, is whether the police action is commensurate with the seriousness of the crime being investigated and the means required to obtain the evidence. If, for example, a subpoena could have been issued to obtain some sought-after evidence, it is probably not reasonable for the police to come in the middle of the night and break down the door, warrant or no warrant. "We should be more attentive to the manner in which arrests and searches are done," Amar says. "The Supreme Court should have fifty cases like that. But instead they're just springing guilty people."

Applying the plain words of the amendment and requiring a reasonableness standard would also free the courts from the logical box they've put themselves in. And it could actually give the police more power to do their job under circumstances that few people would find, well, unreasonable. "Part of what's reasonable is the reason," Amar told me. "For example, if you're trying to find a kidnap victim, stopping every car leaving a neighborhood might be reasonable, where it would not be if you were looking for a shoplifted pack of chewing gum."

Eliminating the exclusionary rule, Amar says, would be another step toward returning the Fourth Amendment to its rightful status. Amar argues that it is an inescapable fact that the exclusionary rule rewards people who are not merely possibly guilty but unquestionably guilty (and the more heinous their crime, the greater the reward), and furthermore, the rule has also exacerbated the tendency of the courts to interpret the Fourth Amendment in a cramped and meager way: "In a close case the judge rules against the Fourth Amendment. He says that if saying the Fourth Amendment was violated means letting off a guilty defendant, then the solution is to say it hasn't been violated."

Amar says, "I believe in deterrence, but there is an area of law that's about deterrence, and that's tort law." He believes that Congress could enact legislation to do away with the exclusionary rule and institute a strong system of civil recovery in its place, and that this could pass constitutional muster -- or, more precisely, that it might squeak by with five votes on the Supreme Court. Under such a regime, he argues, "We'd see innocent people in the courtroom [bringing lawsuits against police officers in search-and-seizure cases] that we're not now seeing, and that would be good for civil liberty. We'd have a lot more attentiveness to brutality and property destruction [by the police]. And we'd have a more open conversation about race" -- and about the selective targeting of minorities by the police.

"The world would be better if you're innocent and worse if you're guilty," he concludes. "And that's okay with me."

(The online version of this article appears in two parts. Click here to go to part one.)

Stephen Budiansky is a correspondent for The Atlantic. His book Battle of Wits, about code-breaking in World War II, will be published this month.

Illustration by David McLimans.

Copyright © 2000 by The Atlantic Monthly Company. All rights reserved.
The Atlantic Monthly; October 2000; Rescuing Search and Seizure - 00.10 (Part Two); Volume 286, No. 4; page 34-45.