Rethinking the Fourth Amendment: Ethics, History, Theory, and Empirics

0:00We arrest 1.3 million of them. Now that seems pretty crappy until you look down at the other things like prostitution, where it's estimated that about 61 million offenses occur and only 75,000 arrests, which is a ratio of hundreds, 800. So you've got two orders of magnitude and difference, and this is even with the search power. If the police did not have the search power, You can imagine that this prostitution, the drug abuse violations, the DUIs, they would be off the charts. You wouldn't be able to arrest almost anyone. There's only been one really in-depth piece of research on search warrants that I was able to find.

0:50This was done in the early 80s and they went to seven different cities and these researchers observed every aspect of the search warrant process from the application, the judicial review, the returns, they followed up with the court cases where they could and there's a whole book on this and it's over 900 cases. It's a great little study. And what they found was, they found a lot of stuff and I have a much longer PowerPoint presentation I could They found that about 74% of the search warrants were successful. That is, they find something. And if it says listed items, that means they find what they were looking for, or pretty much.

1:40And for contraband, of course, this leads to a high conviction rate. What's interesting is, of the 900 and something search warrants, 642 had returns, and the way they present the data in the tables, you can't quite figure out all of these things, so there are some assumptions in the way I've constructed these numbers, but the violent, the victim crime warrants total about There are about 300 of these, and the vice warrants are the other 300. There's about a 50-50 split between the warrants that they get returns on.

2:26And they filed about 347 cases, convicted about 266. And what we estimate from their data is about 223 of those 266 were easy vice case convictions. Because those are the ones where you're able to make the prosecution because you've got the guy dead to rights because you found contraband in his car or in his dwelling or what have So again, this kind of brief survey kind of shows this typology that the search power and I'm not going to claim at all that the search power doesn't help in victim-crime and Victim Crime Interactions and Victim Crime Investigations. It most certainly does help, but by the same token, if we had promiscuous search, the clearance rates for all victim crimes would maybe go up.

3:27If I could search anywhere, anyone, at any time, for any reason, then of course I might be able to increase clearance rates. but the claim that I'm making here is that the the amount that the search power increases or makes the clearance rates of victim crimes higher is small and it's much smaller in comparison to what the search power gives for vice crimes. Another thing we did just for kicks was we compared the Van Deus and The data I just showed you, that big study, we compared it to a randomly selected set of law and order episodes, which are almost all murder cases. So these were all murder cases.

4:13So this is real data here on the left, the real world, and this is law and order. Now in the real world, 65% of murders are known to police. That is, this is the clearance rate. This is where they actually arrest somebody, and I'll make the assumption that everybody they arrest, they execute some sort of search warrant on. That may not be the case. Some of those are not approved. Most of them are. In law and order, 100% of the search warrants are approved. By the way, you get 89% of the time in law and order, they submit search warrants. In the real world, 18% now of murders known to police, a case is filed.

5:02In law and order, 100% of the cases are filed. In the real world, 40% of the cases that are filed have a motion to suppress, which is 77% total of murders known to police. In law and order, half of the cases have motions to suppress. By the way, I thought it was an interesting fact in one of the studies I read, that in many jurisdictions, a motion to suppress consists of checking a box on the motion, on the pleading form. So that makes this difference even more amazing to me. The motion to sustain is almost never given, and the conviction rate, of course, is 12% The number of Ron cases filed, which is about 6%, you have convictions with searches, and this is murders, and on law and order, it's 89%, so what you see on TV is not, I know this might be a big shock to you, but what you see on TV is not how the search power actually works, and how important it is to murder cases, and by implication to other victim crimes, either with or without interaction.

6:22I'm going to say, okay, so we've learned this difference in search power, that it's really, really necessary if you're going to do vice crimes, and it's only very useful a little bit in victim crimes. So there's this great book called, oh, I forgot to mention this book. Let's mention this book just for a moment. You know, you run into books every once in a while and you say, everybody's got to read this book. Okay, so everybody has to read this book. This is The Origins of Reasonable Doubt by James Q. Quitman. It's a long and complicated book and I'm going to do an injustice to summarizing it in a couple of sentences.

7:12But we think in the modern legal context that reasonable doubt is this high legal standard that's used to protect the innocent, that, man, we've got this really high hurdle so that, you know, you've got to be so certain the only thing left is reasonable doubt. And surely some farsighted jurist long ago came up with this idea to protect the innocent. And what he shows, more or less, is that that's not the case at all, that in reality the punishments in the English court systems were, at one time, favored mutilations and hangings and so forth, but that declined and was favored by transportation, which is sending them off to the boonies, to the colonies, right?

8:03And at first this was to the American colonies and later to Australia. In the run-up to the American Revolution, transportation ceased and so if you were sitting as a juror and you had a man in front of you to be adjudicated and you're a juror and you're on this jury and you have to decide whether or not the guy is guilty then you have to you have to weigh in your mind the theological notion because religion is is very important, that if this guy gets hanged or mutilated, this is a blood punishment.

8:49And if he is innocent, then this is on your conscience and affects your salvation. And there are hand bills and things that he talks about. This was a very big pamphleting issue in this time frame. And it was then that the standard of reasonable doubt emerged to try to get conviction rates back up, because the Christians were saying, no way am I going to have blood on my hands, and they were quitting people at record pace. And so they came out with this, they said, no, you can have doubts, you just have to have reasonable doubts. So it's the exact opposite of maybe what our modern contention is of what reasonable doubt does. This is a great book, and I've probably butchered the thesis a bit, but it's worth knowing.

9:41It's also worth knowing about this, which I also have up on my PowerPoint slide, I'll show you. This is an excellent overview of English and American history from 602 to 1789 on the rise of the search power and how the Fourth Amendment came to be. He looks at practice, he looks at court cases, legislation, law, legal theory, popular literature, debates. It's amazing, and that's the source for a lot of what the rest of this presentation is, which I have, how many, how much time? Ten minutes, excellent.

10:27So, before the Norman invasion of England, the only type of search that was conducted was that search that took place during the hue and cry. If you've read Bruce Benson, The Enterprise of Law, he has a long section on what this customary law was like, but basically it was mutual defense. If you see somebody stealing your cattle, you raise the hue and cry, hey, this guy's going off with my cattle. All of your neighbors, everyone in your kinship group is obliged to try to chase the guy down and catch him. and as you go from house to house and the guy's trying to get it you know he hides in this barn or whatever and they go into the barn and they try to find him and he goes out the back and so this is the search that was attendant this was the only search that existed in England over time after the Norman invasion and I can't really get too much into the details of this but the Norman

11:32The Biford Kings started to use the legal system as a revenue generating device by ratcheting up the doctrine of the king's peace and to make every crime eventually a crime also against the king and then eventually making the king's peace claim have a superior place to what we now would call a civil claim. and this eventually resulted in the bifurcation of the legal system into the criminal and the civil trials and I don't have time to get into all of this but what happened as this was happening was it broke down the incentive for you to join a hue and cry because if you're not going to get restitution for getting this guy then why Why am I chasing him?

12:32And as a result, so for about two centuries after the Norman Conquest, Hugh and Cry remained a little more than an immediate hot pursuit, okay, I've said that, and I've said some of this, okay, and by 1275, they passed legislation to compel the Hugh and Cry. They said these guys aren't doing it now, I have no idea why, you know. But now, you guys, you have to do the human cry. You have to run after all of these guys. But it wasn't working. And also during this period, of course, the kings were attempting to assert their power and consolidate their power, as they always do. And during this In this time period, 1275 to 1360, you had a proliferation of state officers that went into the communities and started to pick up some of the elements of investigations and going after criminals, and they were imbued with search powers.

13:45And because there were already searches going on, they say, hey, you know, you're not searching, So now this Shire Reeve is going to search and he'll search and they did searches and it was not too, too bad. At the same time we had forcible entry during hue and cry come into accepted practice and then something very interesting happened. And that thing that was interesting was a whole bunch of things were happening. You had economic progress, which, okay, so all over Europe, this was a time from 1485 to 1642, this is the Tudor-Stewart dynasty in England.

14:34And right on the heels of the Black Death, we had economies that were finally rebuilding, we had an increase in trade, we had an increase in production and prosperity. And I'm just going to take one minute to go through, just remind us of some of the key events, okay? You have the invention imprinting here, Henry Tudor, of course, is the victor of the War of the Roses, and this inter-Circus Magnus, there were these trade wars that were going on with the Dutch, and everybody knows this, of course, right? And it ended up having a fixed set of duties. This is important revenue the king wants, but overall the duties were lower, so trade rose, but now the king also wants to get his stuff, and so smuggling started to rise.

15:27You had the enclosures movement, there were enclosures riots, and I think there's some element there, and of course the Reformation started. and England is very well known for having gone Catholic, now we're Protestant, now we're Catholic, now we're Protestant, right? And so you had Edward VI with the Protestant establishment, Mary I reconciled with Rome and you had Catholicism reestablished and then Elizabeth I brought back Protestantism and established the Anglican Church. This is the time of the East India Company Royal Charter in 1600. You have Shakespeare, you have Bacon.

16:14This guy, James I, absolute worst guy. He wrote this thing, True Law of Free Monarchies. This is the best defense of the divine right of kings you could ever read. Okay, well and of course you know that eventually you've got the Charles I, he also was a big advocate of the divine right of kings, he had power struggles with parliament, a lot of these also resulted in searches as we'll see, raise taxes without the consent of parliament. Okay so all this is going on, so what's going on with searches during this time?

16:59There were class regulations. If you were of a lower class, you could not hunt pheasants. And this was called poaching, which is why I have it in scare quotes. It's not that it was somebody else's pheasant, so that you were not in the right class to hunt pheasants. So they would go looking for pheasant hunting dogs, and, oh, you have a pheasant hunting dog, so we'll take him and kill him. Also ostentatious hats. I'm not making this stuff up, bowling, dice, counterfeiters, religious dissenters, plotters against the throne, hoarders of grain, adulterated spices, drugs, butter, beer, ale. There was a restricted consumption of meat during a certain period of time that was legislated and there were frequent searches of butcher shops and taverns and so forth.

17:47Of course, there was the mercantilist prevention of the export of bullion, there was wool smuggling

18:53And then, of course, custom searches. Custom searches are what the state needs to collect its duties. So this was huge. And so, also during this time, you had the well-known institutions of search that were created, the High Commission. Now, this was for religious nonconformity. You know, he's got to put some officers on this. And then in 1611, he expanded it to Seditious Materials, the Company of Stationers, this is another monopoly that was created, and of course they rooted out the counterfeits, the seditious tracks that were being made, the heretical writings, and then the Privy Council was established, and this was mainly a war on dissent.

19:391592, every Justice of the Peace was instructed to secretly and suddenly visit the houses and to seize their arms and armor. And then of course the famous star chamber. This was to hear political libel and treason cases. This is an example of the search warrant that would be issued. This is because somebody put up some graffiti. The officer is to make search and apprehend every person, so to be suspected, and for that purpose to enter into all houses and places where any such may be remaining and and upon their apprehension to make like searches in any of the chambers, studies, chests and other like places for all manner of writings or papers that may give you light for the discovery of the libelers.

20:31This is what we call promiscuous search or a general warrant and there was a big move later to curtail this into what we have today, the specific warrant. So there was a meteoric rise in the scope and frequency of searches, and unfortunately it led to this kind of diffuse opposition like we have to taxation today. It was ineffective, but everybody hated it, but they didn't really have any good arguments against it. Sir Edward Cook, he actually formulated a theory of unreasonable searches. He said, look, we can't do these general warrants, we need to have written warrants, they need to be specific. Unfortunately, even though everyone agreed that this was a good idea, it didn't affect legal practice.

21:17I'm going to just whiz through some of this stuff, because I'm so out of time. There's a whole history of the colonies in search, and there's this whole Massachusetts thing, of how Massachusetts came to be the place that the search power was restricted. and it's tied up in an accident of history where they copied the English Fraud Act of 1660 which was this really nice fraud act. Okay, you're going to issue a warrant, okay, but you have to search in daytime and the duration of the warrant is only one month from the infraction and the informant has to swear the oath and if you don't find anything, not only is that trespass, but the informant is liable for the trespass.

22:03and so Massachusetts copied this and used this later and and then I'm just going to forward through you guys know about the seven years war the sugar at the stamp act and declaratory act revenue act right okay all this stuff happened and and and basically and you had you had this great outrage it's searches and you had this wonderful struggle against searches in the US Specialty with regard to smuggled goods and duties collection. Anyway, you came down to, let's just pass through here. So eventually you got the Fourth Amendment. I'm not going to focus too much on that. But what do we learn from history? We learn that searches are not these carefully crafted crime-fighting techniques.

22:51Techniques. This is not how searches came about historically in the Anglo-American tradition. Searches were asserted but not justified prerogatives of the state, and there's been a long and slow intellectual and political battle that has given us specific and warranted searches supported by author affirmation, but that doesn't mean that's where we have to stop. There's more work to be done. 1550. Among the first institutions to undergo a general search for religious reasons were the several libraries of Oxford University in 1550 under the Privy Council's directive of that year for the confiscation of Catholic publications, starting with the Merton College Library. The Oxford searchers, who included zealous students, the illiterate and the poor, 1590s. The Crown's officers developed numerous What are the most common strategies of search in the 1590s to catch Catholics off guard?

24:07Just think of this. Break-ins of houses occurred at all times of the day and year, but were most common at dawn, during dinner, late at night, and on holidays when priests were celebrating mass before assembled congregations. The method was to encircle a house clandestinely with armed men, wait until unsuspecting servants opened a door at daybreak and rush in suddenly and en masse, catching everyone by surprise. Violent entrance was more usual, however, and a sledgehammer was frequently used to obtain it, causing sudden, traumatic death to many an aged householder. Once inside, the invaders locked family members in a room to prevent interference and then and went about their business meticulously and ruthlessly.

24:53So you thought the no-knock raid was invented in the U.S. It was not. It was invented in England in the 1590s. And you guys may have read these awesome... There's a great book by Radley Balco, Overkill the Rise of the Paramilitary Police Raids in America, which documents a number of abuses by the search power. There are all these botched raids. Okay, so if you'll indulge me for a moment. Costs and benefits of the search power. In order to say whether or not we should have a search power, you have to take an ethical stance because you have to ask what counts as a benefit or a cost. If there's a gambling arrest or a seizure or a conviction or prostitution or drug or an asset forfeiture, do we count that as a benefit or a cost? We can all agree that a botched raid that results in the death Math in an Aged Householder is a cost.

25:52This is my cost-benefit analysis. I will concede that victim crime clearance rates will go down if we get rid of the search power entirely. This is an actuarial calculation, which I'll give you lots of info on if you'd like, that estimates, it says that if clearance rates halved for every single crime category, which Which I think is a very conservative assumption. This makes a difference to households, I know, don't, I know, we're all Austrians here, right? Okay. Thirty dollars a year per household. But if we got rid of the search power, the detection and intervention crime clearance rate would plummet, which I count as a benefit.

26:39There would be no botched trades, which I count as a benefit. There would be security of property rights, which is a benefit. There would be no asset forfeitures, which I count as a benefit. So I think that it's pretty clear that searches are unjust, they're less productive than you think you might from TVC, they're marginally useful for real crime, but they're essential for mal and prohibitum crime. Search is the health of the state, history shows it. Search was never a crime-fighting tool introduced by a benevolent king, it has always been a and a tool of taxation, suppression of dissent and projection of control. So it should be, the right of the people to be secure in their persons, houses, papers and effects against all searches and seizures shall not be violated and no warrants shall issue for any reason whatsoever.