Term Paper on "Search and Seizure Law"

Term Paper 10 pages (3475 words) Sources: 1+

[EXCERPT] . . . .

Search and Seizure Law, known currently in the United States as law under the Fourth Amendment to the Constitution, has been in existence in one form or another since biblical times. Those wishing to protect their property and privacy against unreasonable search and seizure have often battled governments, courts, employers, secular groups, and even one another in a struggle between the rights of the individual and the rights of the general public and legal systems. Yet while individuals struggle to retain their right to privacy and rights against unreasonable search and seizure, the United States Court system has consistently narrowed these rights. It is this history of conflict that has led to the current interpretations of the search and seizure law, and has made these issues some of the most important in the United States culture today.

To understand the current interpretation of the law of search and seizure, one must first examine the history of such concepts. As mentioned, the protection of property is not a new idea, but one that has prevailed since ancient times, where the home was considered a place of privacy, shelter, and protection (Lasson, 13). In one comment from ancient legal texts, there is mention of a common law that states no one can enter the house of another without express permission (Lasson, 14).

Further proof that search and seizure issues existed in ancient times can be found in the Talmud, a sacred text that discusses rabbinic discussions of Jewish law. According to Hebrew law, no writ of the return of personal property can be granted, unless the bailee, or holder of the property, admits to possessing it. If the bailee does admit possession, but denies ownership by the plaintiff, a writ can be issued (Lasson, 14).

Even the Bible records instances of a strong desire for privacy in relation to property. In the story of the theft by Achan, Joshua did not send messengers into Achan's tent to search for and seize the articles stolen until after Achan confessed (Joshua: 7). The Bible also states that a creditor is forbidden to enter a home, but must wait outside to obtain security for the debt (Deuteronomy 24:10). In Genesis, the crowd in the front of the home of Lot does not first force entry, but instead demands that Lot deliver the strangers (Genesis 19: 4-11). In Exodus, the law states that housebreaking at night is punishable by death (Exodus, 22:2-3). While these examples do not directly address search and seizure law, they do show the high regard for the protection of the home, and the high regard for personal privacy.

Similar ideas are presented in Roman history. According to Roman culture, the house was under special protection of the household gods. Anyone who reached the fireplace of a house was offered the protection of the gods. Even Cicero discussed the concept of the home as a protected asylum, when he stated that the house of a citizen was to be defended since in was "a place of refuge so sacred to all men that to be dragged from thence is unlawful" (Lasson, 15).

However, it is in these Roman times that one can begin to see the shift to allow for certain types of search and seizure within a court of law. While individual persons were responsible for their own prosecution against others, they were still given a warrant, which allowed them full rights to gather evidence. This "evidence" included all papers and documents relating to the case, and was obtained through a search of the home of the accused, or through a search of any other home (Lasson, 16). As one can see, the ambiguousness of the warrant for search and seizure allowed the prosecution to search anyone, and seize any documents they felt "necessary."

Yet Roman law also held some protections for the accused in terms of search and seizure. In cases such as those above, the documents gathered were sealed in front of the accused, and taken immediately to the court, where the seal was first inspected. This, the Romans believed, would help eliminate any planting of evidence (Lasson, 17). In cases of stolen goods, the accuser had to describe any property in detail before that property was sought. Following description, the accuser was allowed to search the property of the accused, but could only wear an apron, and carry only a platter. There had to be a bailiff, public crier, and slave present (Lasson, 18). It is clear that even the ancient Romans believed there was a fine line between protection against search and seizure, and upholding the rights of others. Further, by providing protection to those searched, the Romans led the way for the rest of civilization to enact laws and regulations to do the same.

Angelo-Saxon English laws show clearly this continuation of a balance between protection for the accused and the right to evidence by the prosecution, as well as of the protection of privacy. Alfred the Great (871-891), known for his protection of his subjects, was reported to have hung a judge responsible for punishing an accused person through evidence obtained through a "false warrant," which accused the wrong individual. Further, the laws of the time protected the home by putting to death anyone that obtained forced entry into another's home (Lasson, 19).

Perhaps the most influential document in the history of search and seizure law is Magna Carta. Drafted in 1215 in response to abuses of power by King John, the original Magna Carta was known first as the 'Article of the Barons'. Following years of abuses of power by King John, the barons overtook London in June of 1215, forcing King John to sign the article, which consisted of 63 articles designed to limit the powers of the King (Holt, 25). The formal document was titled "Magna Carta."

When the barons left England, King John denounced Magna Carta, much to the disdain of his subjects, and England plunged into civil war (Holt, 32). King John perished in 1216 during the war, and his 9-year-old son, Henry, was crowned King (Holt, 45). By November of that year, Magna Carta had been reestablished by Henry and his regents, with some articles removed (Holt, 48). Henry rewrote the Magna Carta at age 18, and reissued it again with only 37 clauses (Holt, 54). By the time King Henry died in 1272, Magna Carta was a settled portion of English legal precedent.

Magna Carta protected, among other things, the subjects of the kingdom from abuses of royal officials. Article 39 of the original Magna Carta was the ancestor of search and seizure law in centuries to come. According to Article 39:

No free man shall be arrested, or imprisoned, or deprived of his property, or outlawed, or exiled, or in any way destroyed, nor shall we go against him or send against him, unless by legal judgement of his peers, or by the law of the land." (Article 39 of Magna Carta, in Holt, 34).

This Article, now Article 29 in the recongized 1297 version of Magna Carta, is one of the few Articles still in use in English law. Clearly, the importance of protection against search and seizure has been an issue for centuries.

During the centuries that followed, England passed a number of laws and statutes, both allowing for more frequent and easier searches and seizures, and in some cases, for protection against abuses of those laws. By the first half of the fourteenth century, and through the end of the 17th century, England passed legislation relating to search and seizure, and did so by granting extremely general and unrestricted powers to government authorities and other parties. For example, in 1335, legislation was passed which reuired innkeepers to search their customers for smuggled monies. In turn, officials of the kingdom were to search the inns. However, due to abuses, a law resticting these searches was passed in 1405 (Lasson, 23).

By the late 17th century, England had begun to issue "writs of assistance" and "general warrants." These documents were designed to assist customs agents and police in searching for writings against the king, and smuggled goods. The writs, however, served one function only, and that was to give government authorities unlimited right to search and seize. Under English common law, if a government official were to invade private property without good cause, they could be tried for tresspassing. However, these writs and warrants gave these officials immunity and allowed them to search any private property without fear of retribution. These writs and warrants did not specify places, persons, or things to be searched, but were general warrants to allow for any search or seizure (McWhirter, 1).

By 1761, the American colonies were using such writs, as well. Following the French and Indian War, England began intently pursuing illegal smuggling within the colonies, and the merchants began to rebel against the use of writs. These writs, like those in England, were broad in nature, allowing for searches… READ MORE

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