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Class and the Fourth Amendment

September 10th, 2012 · 13 Comments

Most students learn in history class that our Fourth Amendment emerged from the hostility of the American colonists to “general warrants” and “writs of assistance” authorizing intrusive, discretionary searches of private homes.  What they’re seldom taught is how strongly that hostility was bound up with undisguised class-based contempt for the officers who conducted those searches—so much so that the scathing rhetoric deployed in the speeches and documents recognized as the Fourth Amendment’s inspiration can be a bit of a shock to modern ears.

A list of complaints against British abuses, adopted by Bostonians at a town meeting and then  widely-circulated as an influential pamphlet, lamented that under writs of assistance “our houses and even our bedchambers are exposed to be ransacked, our boxes, chests, and trunks broke open, ravaged, and plundered by wretches, whom no prudent man would venture to employ even as menial servants.” A legendary speech against the writs by the attorney James Otis—recorded and summarized by a young John Adams, who declared himself profoundly influenced by it—similarly complained that search authority was conferred upon “not only deputies, &c. but even THEIR MENIAL SERVANTS ARE ALLOWED TO LORD IT OVER US — What is this but to have the curse of Canaan with a witness on us, to be the servant of servants, the most despicable of God’s creation.”

Even before the Internet, some of the choicest bits of vitriol came from anonymous and pseudonymous essayists. An editorial in The Monitor alleged that general warrants “empower mean, Low-lif’d ignorant men to enter, and to act at discretion.” Maryland’s “Farmer and Planter” was outraged that discretionary search powers would be granted excise officers, who were drawn from the “scruf and refuse of mankind.” The “Father of Candor” sniffed at the notion that “any common fellow” might presume to search a home on the basis of gossip from his (presumably similarly “common”) acquaintances. A writer styling himself “Freeman” asked rhetorically: “What are the pleasures of the social table, the enlivening countenances of our family and neighbors in the fire circle or any domestic enjoyment if not only Custom House Officers but their very servants may break in upon and disturb them?” These “servants,” Freeman assured he reader, were “a gang of villains, who for meaness [sic] rapacity and corruption may be stiled the very dreggs and sediment of human nature in the last and highest stage of its possible depravity.” In comparison, “Regulus” seems positively restrained in characterizing these officers as “the most despicable wretches.”

There’s loads of commentary in the same vein. While it was scarcely the primary consideration, one reason specific judicial warrants seemed less offensive than the general warrant was that when magistrates rather than deputies had discretion over which homes could be searched, the indignity of the search was not compounded by the insult of being subject to the will of a social inferior.

You can, of course, find plenty of remarks casting the right of privacy as a great equalizer as well, such as William Pitt’s famous defense of the sanctity of the home:

The poorest man may in his cottage bid defiance to all the forces of the Crown. It may be frail — its roof may shake — the wind may blow through it — the storm may enter — the rain may enter — but the King of England cannot enter — all his force dares not cross the threshold of the ruined tenement!

In a way, these apparently quite different sentiments were probably mutually reinforcing: At a visceral and emotional level, elite opposition to general warrants was strengthened by the ghastly prospect of  these crude peasants breaking a gentleman’s doors, but when that sentiment is translated into a universal principle, it also entails the right of the “poorest man” to defy the King.

The extraordinary dilution of Fourth Amendment in recent decades—powerfully chronicled in Stephen Schulhofer’s new book More Essential than Ever—is routinely ascribed to a wide variety of causes, all with some justice: The rise of regular, professionalized police forces; changing technologies; evolving social norms and a culture of exposure; our ongoing Wars on Drugs and Terror (and probably Digital Piracy too—give it a few years). But I’d wager that a significant and subtle role has been played by subliminal class considerations—often in tandem with these other factors.

In Colonial America, recall, policing was largely carried out by amateurs and part-timers, along with such volunteers as they might deputize to help carry out a search. These days they’re professionals, often college graduates, who wear suits to court and often appear before the same judge regularly.

The general searches that so incensed Bostonians were meant to aid in the collection of excise taxes, which meant their targets were often respectable merchants and businessmen. Drug dealers are a primary targets of searches today—fully 85 percent of wiretaps are sought for narcotics investigations—which means, innocent or guilty, they’re seldom folks from a social class that naturally inspires judges to identify with them.

Finally, the central mechanism for enforcing the ban on unreasonable searches and seizures was a common-law trespass suit. An “officer” who searched without warrant was treated like any other private citizen and personally liable for damages. A warrant would typically immunize the agent who carried out the search—since he was only obeying the court’s instructions—but the officer or citizen whose affidavit gave rise to the warrant could still be liable if no contraband was found. For a variety of reasons, that’s no longer how it works. Now courts primarily enforce Fourth Amendment restrictions—unevenly, and with a growing list of exceptions—via the exclusionary rule, which bars the use of evidence derived (directly or indirectly) from illegal searches in criminal prosecutions. The predictable consequence is that virtually the only time an appellate judge sees a Fourth Amendment case is when a guilty criminal is trying to get a conviction overturned.

Perhaps it’s no surprise, then, that courts often seem to bend over backwards looking for ways to accommodate police and other government officials, explicitly assuming—utterly contrary to the spirit of the Fourth Amendment—that these upstanding professionals can and must be routinely trusted with  substantial individual discretion over who, how, and when to search. We certainly don’t need a return to the hostile view that government investigators are “despicable wretches”—but it would be nice to see more recognition that they are, after all, “common fellows” whose intrusions on the privacy and dignity of their fellow citizens require judicial supervision, whether that citizen is  an affluent merchant or “the poorest man… in his cottage,” and regardless of whether the investigator is a “menial servant” or a clean-cut middle-class professional.

Tags: Privacy and Surveillance


       

 

13 responses so far ↓

  • 1 Freddie // Sep 10, 2012 at 1:59 pm

    I just want to say that the story of James Otis’s brain injury, subsequent behavior, and death is one of my favorites in American history.

    (And great post.)

  • 2 Jonathan Goff // Sep 10, 2012 at 4:10 pm

    Julian,

    Having had my family at the receiving end of some illegal searches and seizures back when I was a teenager (which were then use to lie to a jury and railroad my dad, who was trying to defend himself in court), I’m grateful for your article and your continuing work in this area. I just wonder how we can roll-back the clock on these abuses. I can’t say I’m optimistic unfortunately.

    ~Jon

  • 3 Scott Saliency // Sep 11, 2012 at 12:37 pm

    Great post Julian!

    Keep up the awesomeness. Post more!

    P.S.
    I still think you should post twitter recaps to you blog.

  • 4 “even their menial servants are allowed to lord it over us” | The Handsome Camel // Sep 11, 2012 at 2:00 pm

    […] Sanchez has a great post up about class and the Fourth Amendment. He starts by tracing the somewhat aristocratic sentiments lurking behind the right to be free of […]

  • 5 B. Fife // Sep 12, 2012 at 11:43 am

    I am a cop (but an American first), and I do these searches. Thanks for the link to the book, I will read it.

    Cops can search most anything (with the exception of homes) with probable cause. So said the courts in their interpretation of the 4th Amendment. Cars, bags outside of a home, and the “persons” of people are thus easily, and without a warrant, searched, with the existence of wha the court has called – probable cause. A simple definition of probable cause would be when a reasonable person would believe illegal contraband exists. SCOTUS, within the last few years, restricted slightly the cops power to search vehicles, with Scalia being in the majority. I agree with that decision, though I don’t recall the case name. Concerning a search of a home, you still can do that only with a warrant. That’s pretty solid. How can police search a home w/o a warrant? Yes, there are a couple of ways (well-intentioned exceptions the search warrant requirement IMO), Well, if the police are inside that home legitimately, then they can “search” what they can see (can’t open drawers or open closet doors). The question is, how can police get into that home legitiamately? The can chase a guy who flees into the home, that’s one way. You can’t run into your house and think you are on “glue,” like the game of catch-one-catch-all. So said the courts. Cops can also bust into a home in an emergency (say a domestic call where no one answers the door but someone inside is calling for help). All in all the search of a home requires a warrant. Even if you know the occupant of a home has an active ARREST warrant, you need a SEACRH warrant, signed by a judge, to enter that home to execute the arrest warrant.

    The author states the appellate courts look at the legitimacy of a fourth amendment search only when an offender is trying to get his conviction overturned. Whether this is true or not I will leave for another time. But, the legitimacy of a search is indeed looked at quite often by the trial court when the defense brings a motion to exclude the evidence based on a fourth amendment violation. One problem here occurs when the police conduct an illegal (note I said illegal- which does not equate with ‘criminal’ -when the court, with hindsight 20/20 vision determines probable cause did not exist) search, yet the police discover nothing illegal. In this instance the court will pretty much never decide the legitimacy of the search, because the defense never makes a motion to exclude the evidence (because none was recovered by the police).

    Point: cops still need a warrant to enter a home.

    I thought this article was going to be about race. It wasn’t. To put it in politically incorrect terms – sorry – minorities commit more crime. Sorry once again, but it is true. However, minorities deserve as much right to be king of their castle as anyone else (I know, that goes without saying).

    But when one says that minorities’ cars, or persons, are searched more often than whites (BTW whites are searched far more often than Asians), I say, of course they are. They commit more crime, and probable cause to search is present far more often. Sorry, it is what it is. It is that simple.

  • 6 DavidS // Sep 12, 2012 at 8:26 pm

    I think the obvious modern comparison here is the TSA pat downs — people feel violated by a working class schlub touching their bodies in ways that they don’t feel threatened by doctor or by a technological scan. Not that there aren’t plenty of other good reasons to feel violated, but I think there is a big class aspect to people’s gut reaction.

  • 7 Barry // Sep 14, 2012 at 3:26 pm

    Julian,

    One thing to keep in mind is that this might have generally been the case, and we’re seeing it from the viewpoint of an unusual era – the immediate post-Civil Rights struggle time.

    In (say) the 1920’s, what were the judicial limits on police search? My guess is limits only applied to people in the top 10% or so of money and social influence/status.

  • 8 Writs of Assistance: The Odor of Marijuana | The Chetson Firm, PLLC – Aggressive, Professional Raleigh Criminal Lawyer // Sep 23, 2012 at 1:14 pm

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  • 9 Nightcap | Thought at the Meridian // Sep 24, 2012 at 11:47 pm

    […] aspects of our vast domestic spying network.  Read them all (most recent first) here, here, here, here, here, here, and […]

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