FBI v Apple
A research resource developed by Professor Clark D. Cunningham, W. Lee Burge Chair in Law & Ethics, Georgia State University College of Law
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History

Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757 (1994)

“The Fourth Amendment today is an embarrassment.” 757

“The result is a vast jumble of judicial pronouncements that is not merely complex and contradictory, but often perverse.” 758

“Fourth Amendment case law is a sinking ocean liner – rudderless and badly off course – yet most scholarship contents itself with rearranging the deck chairs.  There is a better way to think about the Fourth Amendment – by returning to its first principles.” 759 (emphasis in original)

• The search warrant is “an enemy not a friend” and has the potential to be “an engine of great oppression

“In every state constitution prior to the federal Bill [of Rights], ‘the warrant is treated as an enemy, not a friend’.”  774 (citing Taylor at 41)

“[A]t the time of the Bill of Rights, the warrant functioned as a powerful tool of law enforcement rather than as a protection for the rights of criminal suspects.” 779 (quoting Justice White dissent in Payton v New York, 445 U.S. 573, 607-08 (1980).

“The Amendment’s Warrant Clause does not require, presuppose, or even encourage warrants – it limits them. … The Framers did not exalt warrants, for a warrant was issued ex parte by a government official … [W]arrants … often lack judicial attributes.” 771-72 (emphasis in original)

“[T]he Framers … wanted to limit this imperial and ex parte device, so they insisted on a substantial standard of proof – and even that standard, understood in context, justified searches only for items akin to contraband or stolen goods, not ‘mere evidence’.” 782 (emphasis in original)

“The common law search warrants referred to in the Warrant Clause were solely for stolen goods; various early American statutes extended warrants to searches for smuggled or dangerous goods (gunpowder, diseased and infected items, and the like), contraband, and criminal instrumentalities.” 765

“The typical search warrant for stolen goods or contraband was issued at the request of an accuser or the government, ex parte, with no notice or opportunity to be heard afforded the target.  Lacking the adverse presentation characteristic of Anglo-American judicial proceedings, the summary warrant procedure was justified only because of a unique combination of highly suspicious or dangerous circumstances; there was very good reason – probable cause – to think that an owner, however ultimately innocent of personal wrongdoing, was harboring something he had not right to have in the first place.  Outside this narrow situation – particular description, probable cause, and items akin to contraband or stolen goods – the ex parte search warrant had the potential to become an engine of great oppression.” 773-74

“History has been turned on its head, and loose, ex parte warrants – general warrants, really – now issue from central officialdom.” 185

“[O]nce searches for mere evidence are allowed, wholly innocent and nonthreatening citizens are much more likely to be implicated. … Under these circumstances, the summary and ex parte procedures underlying warrants become quite problematic on due process grounds.”  765

“The usual remedy for an incorrect judicial act is an appeal to a higher court, but this remedy rings hollow … [for] search warrants ... much of the damage is done before the target had had any real day in court.” 781

“[B]oth the nineteenth- and twentieth-century editions of Judge Thomas Cooley’s monumental treatise on constitutional law describe warrants as “a species of process exceedingly arbitrary in character, and which ought not to be resorted to except for very urgent and satisfactory reasons …” 778

“By analogy to the eighteenth-century search warrant, and in order to avoid serious due process concerns, an ex parte search warrant arguably should be allowed only for items akin to contraband and stolen goods, for the probable cause test and ex parte process both presuppose this limited context; if extended to warrants for ‘mere evidence,’ the Warrant Clause at a minimum should require ‘probable cause’ to believe that the custodian would defy a subpoena …”779-80.

• The Amendment is not uniquely bound up in criminal law yet the almost exclusive focus on whether incriminating evidence should be excluded in criminal trials diminishes and distorts its core values and has made it “contemptible in the eyes of citizens”

“Its history is not uniquely bound up with criminal law. … Placing the Fourth Amendment in Criminal Procedure thus distorts …” 758

“The unsupported idea that the ‘core’ of the Amendment is somehow uniquely or specially concerned with criminal law is simply an unfortunate artifact of the equally unsupported exclusionary rule.” 770

“The exclusionary rule renders the Fourth Amendment contemptible in the eyes of judges and citizens.  … In the popular mind, the Amendment has lost its luster and become associated with grinning criminals getting off on crummy technicalities  … driving a wedge between We the People and Our Constitution.” 799-800

• The Amendment singles out “papers” for explicit protection

“Note that the Reasonable Clause singles out ‘papers’ for explicit protection above and beyond all other ‘effects’” 807

• Legislatures are obliged to fashion rules delineating the search powers of government officials

“Legislatures are, and should be, obliged to fashion rules delineating the search and seizure authority of government officials.  General rule of law, structural due process, and separation of powers principles frown on broad legislative abdications.”  816