Amicus Curiae Brief — Landberg v. Duffy

Suoreme Court, U. S.

| Ce ee

| san or

No. 97-1927 |

a CLERK

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In The

Supreme Court of the United States

October Term, 1998 ~

r

RODNEY C. HANLON, JOEL SCRAFFORD, KRIS A.

McLEAN, RICHARD C. BRANZELL and

ROBERT PRIEKSAT,

Petitioners,

Vs.

PAUL W. BERGER and EMMA R. BERGER,

Respondents.

e

On Writ For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

¢

BRIEF OF AMICUS CURIAE NATIONAL

ASSOCIATION OF SECURITIES AND

COMMERCIAL LAW ATTORNEYS (NASCAT)

IN SUPPORT OF RESPONDENTS

¢

Kevin P. Roppy

Counsel of Record

Mi.serGc Weiss BersHapD

Hynes & Leracuw LLP

355 South Grand Avenue

Suite 4170

Los Angeles, CA 90071

Telephone: 213/617-9007

Counsel for Amicus Curiae, NASCAT

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

a“

-

QUESTION PRESENTED

Pursuant to this Court’s Order dated November 9,

1998, the following questions are presented in this case:

1. Whether law enforcement officers violate the

Fourth Amendment by allowing members of the news

media to accompany them and to observe and record

their execution of a warrant?

2. Whether, if this action violates the Fourth

Amendment, the officers are nonetheless entitled to

defense of qualified immunity?

**

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE ...............+..- 1

ARGUMENT . 24. ccccssccsssuedsspeeutonemn meanness 2

Il.

III.

THE COURT BELOW CORRECTLY HELD

THAT LAW ENFORCEMENT OFFICERS VIO-

LATED THE FOURTH AMENDMENT BY

ALLOWING MEMBERS OF THE NEWS MEDIA

TO ACCOMPANY THEM WHEN THEY EXE-

CUTED THE WARRANT UPON RESPON-

DENTS’ PROPERTY ..4 ccncostcavuceewesauenes

A. The Ninth Circuit’s Analysis And Conclu-

B. In Determining Whether The Fourth Amend-

ment Has Been Violated, This Court Tradi-

tionally Examines What Protections Against

Unreasonable Searches And Seizures Were

Afforded By The Common Law At The Time

Of Framing The Constitution...............

C. The Fourth Amendment Was Adopted By

The Framers To Prohibit Abuses Of Official

Power Epitomized By General Warrants

And Writs Of Assistance ...........+..++.

D. Given The Historical Foundations Of The

Fourth Amendment, The Court Below Cor-

rectly Found That Petitioners’ Conduct

Constituted An Unreasonable Search And

SolsWOR. ... 0 cv cdeedesscee enn i pid we aed

THE COURT BELOW PROPERLY FOUND

THAT PETITIONERS WERE NOT ENTITLED

TO QUALIFIED IMMUNITY FOR THEIR

ACTIONS «...c2ccccccesncdecebiune egeeaetae

CONCLUSION. . ...s. + ccecnccoedsducdieeneneee

10

26

TABLE OF AUTHORITIES

Page

Cases

Anderson v. Creighton, 483 U.S. 635 (1987) ........... 28

Anderson v. WROC-TV, 441 N.Y.S.2d 220 (Sup. Ct.

ee tees od ss ewedevcedecs 4, 5, 26

Ayeni v. Mottola, 35 F.3d 680 (2d Cir. 1994)... 4, 27, 29, 30

Bell v. Clapp, 10 Johns. 263, 6 Am. Dec. 339 (Sup.

SEE GES ET Oe ne eo ar 25

Berger v. Hanlon, 129 F.3d 505 (9th Cir. 1997), cert.

granted, ___ U.S. __, 119 S. Ct. 443 (1998)......... 2

Boyd v. United States, 116 U.S. 616 (1886).... 18, 19, 23, 24

Buonocore v. Harris, 65 F.3d 347 (4th Cir. 1995) .. passim

California v. Acevedo, 500 U.S. 565 (1991)............. 25

California v. Hodari D., 499 U.S. 621 (1991) ........... 8

Carroll ». United States, 267 U.S. 132 (1925)........... 8

Entick v. Carrin a 19 How. St. Tr. 1029, 95 Eng.

ER eee 23

Frank v. Maryland, 359 U.S. 360 (1959)............... 11

Hagler v. ey ge Newspapers, C.A. No.

96-2154, 1996 U.S. Dist. LEXIS 9931 (E.D. Pa.

EEE EE ere 29

Harlow v. Fitzgerald, 457 U.S. 800 (1982)............. 28

Hulit v. State, No. 877-97, 1998 Tex. Crim. App.

LEXIS 174 (Tex. Crim. App. Dec. 16, 1998)........ 13

Jenkins v. Chief Justice, 619 N.E.2d 324 (Mass. 1993)

UP MPEEERUGRWAGHEUGn Sb aSEsarocccccceccreces 11, 17, 20

Lo-Ji Sales v. New York, 442 U.S. 319 (1979).......... 11

iv

TABLE OF AUTHORITIES — Continued

Page

Marshall v. Barlow's Inc., 436 U.S. 307 (1978)......... 11

Moran v. State, 644 N.E.2d 536 (Ind. 1994)........... 25

New Jersey v. T.L.O., 469 U.S. 325 (1985). ............- 8

Payton v. New York, 445 U.S. 573 (1°80) ............4.. 9

People v. Milone, 195 N.Y.S. 488 (Sup. Ct. 1922)...... 25

Semayne's Case, 5 Co. Rep. 91a, 77 Eng. Rep. 194

GED GEGRD wncnccdves cavepege cadecenns vesae 15, 16, 26

Spangler v. Booze, 49 S.E. 42 (Va. 1904) .............. 25

Stanford v. Texas, 379 U.S. 476 (1965) ............ passim

State v. Attaway, 870 P.2d 103 (N.MM. 1994)........... 25

State v. Kinney, 698 N.E.2d 49 (Ohio 1998)....... passim

Steagald v. United States, 451 U.S. 204 (1981)..11, 12, 18

United States v. Beckford, 962 F. Supp. 767 (E.D. Va.

BOT). ccvcccvevcseccdcecccsessetctscebscenssdeceees 25

United States v. Chadwick, 433 U.S. 1 (1977).......... 12

United States v. Maresca, 266 F. 713 (S.D.N.Y. 1920) .... 25

United States v. Sanusi, 813 F. Supp. 149 (E.D.N-Y.

BDTE).. nc vccvcccveccvovcdivet euguemesbguscovebessss 24

United States v. Watson, 423 U.S. 411 (1976)........... 8

Vernonia Sch. Dist. 47] v. Acton, 515 U.S. 646 (1995) .... 10

Wilkes v. Wood, 19 How. St. Tr. 1153, 98 Eng. Rep.

GO GF, THD ccccccvatcvcccvcctscnvnnsesn 14, 22, 23

Wilson v. Arkansas, 514 U.S. 927 (1995) ............. 8, 9

v

TABLE OF AUTHORITIES - Continued

Page

Statutes, Rutes AND REGULATIONS

United States Constitution Amendment IV ...... passim

18 U.S.C.

ERS ES esa bcktindeciscs<acané Katha tieacas 24, 25

New York Code Criminal Procedure

Puhenes abe dicdaahsaradinnnedssmeuennis<civas 25

Supreme Court Rutes

aE an i lh ah ee a 1

PD 2i cca dun bbs cmddit ede dca ddeckiwadce can 1

8 REAR ARE Sir PRE TRS gn gare ae 1

SECONDARY AUTHORITIES

Akhil Reed Amar, The Constitution and Criminal

PODS Sc nd 5 wg dd Sdlwéuh Gd ¢UdameOneSd ccek 13

Akhil Reed Amar, The Fourth Amendment, Boston,

and the Writs of Assistance, 20 Suffolk U.L. Rev.

PEs nda h 40500 ben bbae ted Ran nkE be ce cid eed oot 18

Cloud, Searching Through History; Searching

For History, 63 U. Chi. L. Rev. 1707 (1996) ....... passim

Morgan Cloud, The Fourth Amendment During the

Lochner Era: Privacy, and Liberty in Con-

stitutional Theory, 48 Stan. L. Rev. 555 (1996)....... 9

William John Cuddihy, The Fourth Amendment:

Origins and Original Meaning (1990)........... passim

vi

TABLE OF AUTHORITIES — Continued

Page

William Cuddihy & B. Carmon Hardy, A Man’s

House Was Not His Castle: Origins of the Fourth

Amendment in the United States Constitution, 37

Wen. & Dime CG. TR Cia ie 60 vitedvcecscccevess 16

O.M. Dickerson, “Writs of Assistance as a Cause

of the Revolution,” in The Era of the American

Revolution 40 (Richard B. Morris, ed. 1939)........ 18

Il Sir Matthew Hale, The History of the Pleas of the

Crown 150 (First American Edition, 1847, of

original English publication in 1736).............. 25

Richard E. Hillary, Arizona v. Evans and the Good

Faith Exception to the Exclusionary Rule: The

Exception is Swallowing the Rule, 27 U. Tol. L.

UU, GED GI on oF cin Gan viceniddsasea@ensvsccevesss 21

Jacob W. Landynski, Search and Seizure and the

Gapens Gaand CHG os ncvcctetdesnncnsdddnasesssai 9

Nelson B. Lasson, The History and Development of

the Fourth Amendment to the United States Consti-

ED Gere ived vn ccccsckéthukeeraesentes 13, 14, 17

2 Legal Papers of John Adams (L. Wroth & H. Zobel

GE, FRE ov eChadweincad viactkedeaeteedealdatie 17, 20

Tracey Maclin, The Central Meaning of the Fourth

Amendment, 35 Wm. & Mary L. Rev. 197 (1993) .... 11

Tracey Maclin, The Complexity of the Fourth Amend-

ment: A Historical Review, 77 B.U.L. Rev. 925

GUDEGD vcccvcccvincseuseuecneneceseyneb iat shunt passim

vii

TABLE OF AUTHORITIES — Continued

Page

Tracey Maclin, When the Cure for the Fourth Amend-

ment is Worse than the Disease, 68 S. Cal. L. Rev. 1

SE ied sed ndbaeededb band tdeecnsrsececccsedaseece

Bruce H. Mann, The Writs of Assistance Case, 11

Re Mee SE SP EME s owns ncabcosesaccocccess

Josiah Quincy, Jr., Reports of Cases Argued and

Adjudged in the Superior Court of Judicature of the

Province of Massachusetts Bay, Between 1761 and

SUL o ccc badedbicece cess

Darren K. Sharp, Drug Testing and the Fourth

Amendment: t Happened to Individualized Sus-

picion?, 46 Drake L. Rev. 149 (1997)...............

M.H. Smith, The Writs of Assistance Cas@{1978)...18,

Potter Stewart, The Road to Mapp v. Ohio and

Beyond: The Origins, Development and Future of

the Exclusionary Rule in Search-and-Seizure Cases,

83 Colum. L. ¢ Ff een 11, 12, 21

Telford Taylor, Two Studies in Constitutional Inter-

EERE RTE ALP 13, 18, 20

Charles H. Whitebread & Christopher Sloboggin,

Criminal Procedure 130 (3d ed. 1993)...............

1

BRIEF OF AMICUS CURIAE NATIONAL

ASSOCIATION OF SECURITIES AND

COMMERCIAL LAW ATTORNEYS (NASCAT)

IN SUPPORT OF RESPONDENTS

INTEREST OF AMICUS CURIAE!

The National Association of Securities and Commer-

cial Law Attorneys (NASCAT) is an association of law

firms and attorneys who primarily represent plaintiffs in

civil actions brought in federal and state courts.

NASCAT’s members litigate cases seeking to recover

damages on behalf of victims of violations of antitrust,

civil rights, commercial, consumer, employee and retiree

benefit, environmental, insurance and securities laws, as

well as violations of federal and state constitutions. Thus,

NASCAT’s members represent victims of corporate and

government abuse, schemes to defraud, defective prod-

ucts and anti-competitive conduct. In civil actions chal-

lenging such wrongdoing, NASCAT’s members not only

seek compensation for victims, but also attempt to deter

wrongdoers, modify corporate behavior and improve vic-

tims’ access to justice. f

NASCAT files this amicus curiae brief in support of

Respondents and argues herein that the decision of the

court below should be affirmed. Pursuant to Supreme

Court Rule 37.1, NASCAT respectfully submits that this

amicus curiae brief will bring to this Court’s attention

relevant matter and arguments concerning the purpose

! Pursuant to Supreme Court Rule 37.3(a), letters of consent

to the filing of this amicus curiae brief received from Petitioners’

and Respondents’ counsel have been filed with this Court. In

accordance with Supreme Court Rule 37.6, NASCAT certifies

that no counsel for any party authored this brief in whole or in

part and no person or entity other than amicus curiae made any

monetary contribution to its preparation or submission.

2

and meaning of the Fourth Amendment by explicating

the historical context of unreasonable searches and sei-

zures known to the Framers of the Constitution. Our

review of the briefs filed in this Court by Petitioners and

their amici indicates that they have not addressed this

critical issue, which this Court has repeatedly recognized

must be carefully analyzed in Fourth Amendment cases.?

ARGUMENT

I. THE COURT BELOW CORRECTLY HELD THAT

LAW ENFORCEMENT OFFICERS VIOLATED THE

FOURTH AMENDMENT BY ALLOWING MEM-

BERS OF THE NEWS MEDIA TO ACCOMPANY

THEM WHEN THEY EXECUTED THE WARRANT

UPON RESPONDENTS’ PROPERTY.

A. The Ninth Circuit’s Analysis And Conclusions®

In the court below, Respondents claimed that Peti-

tioners Kris A. McLean (an Assistant U.S. Attorney) and

Rodney C. Hanlon, Joel Scrafford, Richard C. Branzwell

and Robert Prieksat (special agents of the U.S. Fish and

Wildlife Service) are individually liable for damages

caused by their active participation in what the Ninth

2 Page references to the briefs filed in this Court by

Petitioners and their amici are stated herein as “Pet. Brief. at

___” (Brief for Petitioners), “Cable News Brief at __” (Brief of

Respondents Cable News Network, Inc., Turner Broadcasting

System, Inc., Robert Rainey, Donald Hooper, and Jack Hamann

in Support of Petitioners), and “ABC Brief at __” (Brief of

Amicus Curiae ABC, Inc. et al. in Support of Petitioners).

% The opinion of the Ninth Circuit Court of Appeals in this

case is reported as Berger v. Hanlon, 129 F.3d 505 (9th Cir.

1997), cert. granted, __ U.S. __, 119 S. Ct. 443 (1998), and is

reproduced in the Petition for Writ of Certiorari (“Pet. App.”) at

pages la-26a.

3

Circuit termed the “commercial television/law enforce-

ment enterprise” conducted at Respondents’ ranch. Pet.

App. 9a [129 F.3d at 510]. Respondents contended that the

resulting search violated their Fourth Amendment rights

against unreasonable searches and seizures. The court

below held that Respondents are correct and that the

federal officers are not entitled to qualified immunity.

Pet. App. 9a-13a [129 F.3d at 510-12].

In reaching those conclusions, the court below noted

that “[t]his was no ordinary search.” Pet. App. 9a [129

F.3d at 510]. Rather,

[i]t was jointly planned by law enforcement officials

and the media, as memorialized by a written con-

tract, so that the officials could assist in the media

obtaining material for their commercial program-

ming. The television cameras invaded the resi-

dential property of the plaintiffs and the

microphone invaded their home. This search

stands out as one that at all times was intended to

serve a major purpose other than law enforcement.

Yet, the federal agents obtained the warrant

without disclosing the contract, the planned

press presence, or the media’s purpose.

Pet. App. 9a-10a [129 F.3d at 510-11] (emphasis added).

After quoting the Fourth Amendment and explaining that

it “protects against unreasonable searches and warrants

that are obtained under false pretenses,” Pet. App. 10a

[129 F.3d at 511], the Ninth Circuit emphasized that “[wJe

must heed its strictures on the potential abuse of law

enforcement powers.” Id.

The court below found support for its conclusions by

surveying reported cases from the Second Circuit (Ayeni)

and the Fourth Circuit (Buonocore) reaching the same

4

conclusion,* and distinguishing cases from the Fourth,

Sixth and Eighth Circuits cited by Petitioners. Pet. App.

10a-13a [129 F.3d at 511-12]. What the Ninth Circuit cor-

rectly found most significant, however, was the Fourth

Circuit's statement in Buonocore that while it agreed with

the Second Circuit’s decision in Ayeni, “[w]le would so

hold even if there were no reported authority directly on

point,” Buonocore, 65 F.3d at 356, because

the historical foundations of the Fourth Amend-

ment .. . so plainly show[ ] that “[t]he right to be

free from government officials facilitating a private

person's general search” was “ ‘manifestly included’

within the ‘core’ Fourth Amendment protection.”

Pet. App. 1la [129 F.3d at 511] (emphasis added) (quoting

Buonocore, 65 F.3d at 357).

The court below also cited and quoted from the deci-

sion of the Supreme Court of New York in Anderson v.

WROC-TV, 441 N.Y.S.2d 220 (Sup. Ct. 1981), which stated

in a case in which the media was sued for trespass:

If the news media were to succeed in compelling an

uninvited and nonpermitted entry into one’s private

home whenever it chose to do so, this would be

nothing less than a general warrant, equivalent to

the writs of assistance which were so odious to the

American colonists. William Pitt, later Lord

Chatham, found this unchecked intrusion so

offensive to a free people that he denounced it

+ See, e.g., Ayeni v. Mottola, 35 F.3d 680, 686 (2d Cir. 1994)

(holding that qualified immunity does not protect federal

officers where a Secret Dd«-vice agent invited a TV news

magazine into a private home to videotape a search); Buonocore

v. Harris, 65 F.3d 347, 356 (4th ¢ ir. 1995) (where a federal officer

brings along an employee of a private corporation acting for the

corporation’s purposes, not in aid of the officer, the federal

officer's conduct violates the Fourth Amendment and he is not

entitled to qualified immunity).

5

in words which again bear repetition: “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 tene-

ment!”

There is no consent that | am aware of, whether

created by law or by custom, which permits

television cameras to enter where the sovereign

may not.

441 N.Y.S. 2d at 226 (emphasis added). See Pet. App. lla

[129 F.3d at 511).

As set forth below, in assessing whether Petitioners’

conduct violated Respondents’ Fourth Amendment

rights, and in determining whether Petitioners are enti-

tled to qualified immunity in this case, this Court should

— as it has traditionally done in search-and-seizure cases —

examine the historical foundations of the Fourth Amend-

ment, including the American colonists’ struggle against

the abuses occasioned by British Crown officers’ use of

general warrants and writs of assistance, and conclude

that Respondents’ right to be free from Petitioners’ facili-

tating the news media’s general search of their home was

manifestly included within the “core” protections

afforded by the Fourth Amendment. Accordingly, the

decision of the court below should be affirmed.

6

B. In Determining Whether The Fourth Amend-

ment Has Been Violated, This Court Tradi-

tionally Examines What Protections Against

Unreasonable Searches And Seizures Were

Afforded By The Common Law At The Time Of

Framing The Constitution

Notwithstanding the undeniable emphasis correctly

placed by the court below on the “historical foundations

of the Fourth Amendment,” Pet. App. lla [129 F.3d at

511], one searches Petitioners’ Brief in vain for any anal-

ysis of the Fourth Amendment's meaning or its historical

foundations and context. See Pet. Brief at 10-48. (The same

is true of the briefs submitted to this Court by Petitioners’

amici. See Cable News Brief at 10-47; ABC Brief at 3-10.)

NASCAT suggests that Petitioners’ oversight of this semi-

nal point is significant because in Fourth Amendment

cases, this Court has traditionally analyzed what protec-

tions against unreasonable searches and seizures were

afforded at the common law at the time of the framing of

the Constitution.

As in the court below, see Pet. App. 10a, this Court's

analysis begins with the Fourth Amendment, which pro-

vides:

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 affirma-

tion, and particularly describing the place to be

searched, and the persons or things to be seized.

7

U.S. Const. amend. IV. Although the text of the amend-

ment contains simple language,5 courts and commenta-

tors agree that diverse events in the history of Great

Britain and the United States produced that language and

that what the court below termed the “historical founda-

tions of the Fourth Amendment,” Pet. App. 11a, must be

analyzed and carefully heeded in evaluating the meaning

and scope of the personal rights sought to be protected

by the Fourth Amendment.®

As a result, in Fourth Amendment cases, this Court

most often “look[s] to the traditional protections against

5 After quoting the Fourth Amendment in Buonocore, 65

F.3d at 353, the Fourth Circuit explained its provisions in the

following passage:

These few words contain two related concepts of

particular importance here. First, by mandating that

“no warrants shall issue” unless they “particularly”

describe “the place to be searched” and “things to be

seized,” the Framers prohibited the use of general

warrants issuable to anyone. Second, by expressly

acknowledging the substantive “right of the people to

be secure in their .. . houses,” the Framers recognized a

person's special right to privacy, to be left undisturbed -

except for reasonable searches — within his own home.

Id. (emphasis added).

© Professor Maclin states that the text of the Fourth

Amendment “did not emerge in a vacuum”; rather, “[s]everal

centuries of British and American legal theory and practice gave

shape and meaning to the Fourth Amendment.” Tracey Maclin,

The Complexity of the Fourth Amendment: A Historical Review, 77

B.U.L. Rev. 925, 938 (1997) (“Maclin, Historical Review”) (citing

Morgan Cloud, Searching Through History; Searching For History,

63 U. Chi. L. Rev. 1707, 1724 (1996) (“Cloud, Searching Through

History”) (“The text [of the Fourth Amendment] articulated

ideas that had percolated through Anglo-American law for

centuries.”)).

8

unreasonable searches and seizures afforded by the com-

mon law at the time of the framing” of the Constitution.

Wilson v. Arkansas, 514 U.S. 927, 931 (1995) (citing Califor-

nia v. Hodari D., 499 U.S. 621, 624 (1991); United States v.

Watson, 423 U.S. 411, 418-20 (1976); and Carroll v. United

States, 267 U.S. 132, 149 (1925)).7

Thus, Carroll explained that “[t]he Fourth Amend-

ment does not denounce all searches or seizures, but only

such as are unreasonable,” 267 U.S. at 147, and, in hold-

ing that a warrantless car search was unreasonable unless

supported by some level of individualized suspicion, this

Court based its conclusion on “what was deemed an

unreasonable search and seizure when [the Fourth

Amendment] was adopted.” Id. at 149.

Similarly, in Wilson, a recent unanimous opinion

ignored by Petitioners (see note 7, supra), this Court con-

ducted a lengthy examination of the common law of

search and seizure to determine whether the reasonable-

ness of a search of a dwelling depended on whether law

enforcement officers announced their presence prior to

entering. 514 U.S. at 931-34. After discussing English

common law, learned commentary thereon, and the cod-

ification of English common law into the fabric of early

? As Justice Thomas explained in Wilson:

“Although the underlying command of the Fourth

Amendment is always that searches and seizures be

reasonable,” our effort to give content to this term

may be guided by the meaning ascribed to it by the

Framers of the [Fourth] Amendment.

514 U.S. at 931 (quoting New Jersey v. T.L.O., 469 U.S. 325, 337

(1985)). Petitioners ignore Wilson entirely; their amici cite it but

ignore this Court’s analysis of the Framers’ intent and meaning

underlying the Fourth Amendment. See Cable News Brief at 22;

ABC Brief at 7.

9

American statutory and case law, id., Justice Thomas con-

' cluded for this Court that “[g]iven the longstanding com-

mon-law endorsement of the practice of announcement,

we have little doubt that the Framers of the Fourth

Amendment thought that the method of an officer's entry

into a dwelling was among the factors to be considered in

assessing the reasonableness of a search or seizure.” Id. at

934. See also Payton v. New York, 445 U.S. 573, 591-98 (1980)

(finding no direct common law authority permitting forc-

ible entry of the home to effectuate a warrantless arrest).

Thus, in the words of Professor Maclin, “to under-

stand what the Fourth Amendment means today, one has

to understand the meaning history impressed upon the

Amendment in 1791.” Maclin, Historical Review, 77 B.U.L.

Rev. at 926.* As detailed below, the liberty secured by the

Fourth Amendment - the right to be free from unreason-

able search and seizure - “is a ‘made in America’ free-

dom, having its origins in the American colonists’ battle

against heavy-handed British law enforcement methods.”

Id. (citing Jacob W. Landynski, Search and Seizure and the

Supreme Court 19 (1966) (” ‘[T]he Fourth Amendment pro-

vides us with a rich historical background rooted in

American, as well as English, experience; it is the one

procedural safeguard in the Constitution that grew

8 See also Morgan Cloud, The Fourth Amendment During the

Lochner Era: Privacy, Property and Liberty in Constitutional Theory,

48 Stan. L. Rev. 555, 625 (1996) (“When the background

purposes and underlying values for a portion of the

Constitution can be discerned, these purposes and values

should drive the interpretation of the text.”); Buonocore, 65 F.3d

at 353 (“Examination of the common law leading up to

ratification of the Fourth Amendment reveals what is

implicated in these concepts, as well as the deliberateness and

significance of the choice to adopt them.”).

10

directly out of the events which immediately preceded

the revolutionary struggle with England.’ ”)).

C. The Fourth Amendment Was Adopted By The

Framers To Prohibit Abuses Of Official Power

Epitomized By General Warrants And Writs Of

Assistance

Justices O’Connor, Stevens and Souter recently stated

that what the Framers of the Fourth Amendment “most

strongly opposed” were “general searches - that is,

searches by general warrant, by writ of assistance, by

broad statute, or by any other similar authority.” Vernonia

Sch. Dist. 47] v. Acton, 515 U.S. 646, 669 (1995) (O’Connor,

Stevens & Souter, JJ., dissenting) (citing, inter alia, Wil-

liam John Cuddihy, The Fourth Amendment: Origins and

Original Meaning 1402, 1499, 1555 (1990) (Ph.D. Disserta-

tion at Claremont Graduate School) (“Cuddihy, Original

Meaning”)).?

The account of how the protections of the home from

intrusion, first established in English law, were expanded

* In Vernonia Sch. Dist., Justices O'Connor, Stevens and

Souter cited Cuddihy’s two-volume dissertation 13 times in four

pages, 515 U.S. at 669-72, referring to it as “one of the most

exhaustive analyses of the original meaning of the Fourth

Amendment ever undertaken.” Id. at 669. Numerous academic

commentators have agreed with that description. See Maclin,

Historical Review, 77 B.U.L. Rev. at 928 (“Cuddihy’s work is the

most comprehensive and insightful study of the Fourth

Amendment's history every written.”); Cloud, Searching

Through History, 63 U. Chi. L. Rev. at 1712-13 (same; “The work

is exhaustive; it is monumental. It is likely to become essential

reading for students of the Fourth Amendment.”); Tracey

Maclin, When the Cure for the Fourth Amendment is Worse than the

Disease, 68 S. Cal. L. Rev. 1, 5 m.21 (1994) (“Maclin, Fourth

Amendment”) (same).

11

and given new force in America because of abuses of

Crown officers in the colonies has previously been told

by this Court, as well as by other courts. See Steagald v.

United States, 451 U.S. 204, 220 (1981); Lo-Ji Sales v. New

York, 442 U.S. 319, 325 (1979); Marshall v. Barlow's, Inc., 436

U.S. 307, 311-12 (1978); Stanford v. Texas, 379 U.S. 476,

482-86 (1965); Frank v. Maryland, 359 U.S. 360, 362-65

(1959); see also Buonocore, 65 F.3d at 353-56; State v. Kinney,

698 N.E.2d 49, 51-52 (Ohio 1998).'° These cases recognize

that the Fourth Amendment was adopted to “prohibit the

abuse of official power brought about by two devices

which the British Crown used in the colonies: the general

warrants and the writs of assistance.” Jenkins v. Chief

Justice, 619 N.E.2d 324, 330 (Mass. 1993) (citing Potter

Stewart, The Road to Mapp v. Ohio and Beyond: The Origins,

Development and Future of the Exclusionary Rule in Search-

and-Seizure Cases, 83 Colum. L. Rev. 1365, 1368-71 (1983)

(“Stewart, Origins”) (reviewing the historical roots of the

Fourth Amendment and of cognate provisions of certain

state constitutions)). In Steagald, 451 U.S. at 220, this

Court emphasized that “(t]he Fourth Amendment was

intended partly to protect against the abuses of the

10 See also Tracey Maclin, The Central Meaning of the Fourth

Amendment, 35 Wm. & Mary L. Rev. 197, 218 (1993) (“The Court

often explains that our constitutional attitudes toward

governmental search and seizure power derive from the abuses

generated by writs of assistance and general warrants used by

British customs officials against colonial merchants and

businessmen.”) (citing, inter alia, Marshall, 436 U.S. at 311-12).

12

general warrants that had occurred in England and of the

writs of assistance used in the Colonies.”"™

General warrants, which empowered their holder to

seize and burn books or other printed matter deemed

“offensive to the state,” Stewart, Origins, 83 Colum. L.

Rev. at 1369, “ ‘were the standard colonial method of

search, seizure, and arrest’” by 1760. Maclin, Historical

Review, 77 B.U.L. Rev. at 940 (quoting 1 Cuddihy, Original

Meaning, at 460). Historically, a general warrant was pri-

marily used to search and seize any printing press or

papers critical of the King or the Parliament. T’:ese war-

rants failed to specify who or what was to be searched or

seized, allowing government officials to arrest any per-

sons or search anything desired if it possibly related to

criticism of the King. See Steagald, 451 U.S. at 220.'? His-

torical research indicates that the Framers’ primary, if not

1! See also United States v. Chadwick, 433 U.S. 1, 7-8 (1977)

(“It cannot be doubted that the Fourth Amendment's commands

grew in large measure out of the colonists’ experience with the

writs of assistance and their memories of the general warrants

formerly used in England.”); Stanford, 379 U.S. at 481-85 (same).

In the recent words of the Supreme Court of Ohio:

Constitutional jurisprudence has long recognized

that the Fourth Amendment was drafted, in part, to

bar the use of general warrants under federal power.

The Constitution’s framers, from experience with the

use of general warrants by colonial authorities and

from the long history of their use in England, viewed

the devices as inimical to the principles of liberty.

Kinney, 698 N.E.2d at 51 (citing Cloud, Searching Through

History, 63 U. Chi. L. Rev. at 1724-28).

'2 See also Darren K. Sharp, Drug Testing and the Fourth

Amendment: What Happened to Individualized Suspicion?, 46 Drake

L. Rev. 149, 152-53 (1997). The Fourth Circuit has stated that

general warrants “directed at anyone were common in Great

Britain up until the 1700s.” Buonocore, 65 F.3d at 353-54 (citing

.

13

sole, concern in drafting the Fourth Amendment was

avoiding a repetition of the British colonial practice of

issuing general warrants or warrants based upon bare

suspicion. Such warrants were doubly pernicious

because they not only authorized intrusions on the pri-

vacy of the colonists, they effectively prevented civil

redress by shielding the executing officers from civil lia-

bility. See Maclin, Historical Review, 77 B.U.L. Rev. at

932-36 (enumerating statutory and other impediments to

suing a British searcher for damages).'*

Nelson B. Lasson, The History and Development of the Fourth

Amendment to the United States Constitution 24-42 (1937)

(“Lasson, History and Development”)).

13 See Charles H. Whitebread & Christopher Sloboggin,

Criminal Procedure 130 (3d ed. 1993); Telford Taylor, Two Studies

in Constitutional Interpretation 41 (1969) (“Taylor, Constitutional

Interpretation”).

14 See also Akhil Reed Amar, The Constitution and Criminal

Procedure 13-16 (1997); Hulit v. State, No. 877-97, 1998 Tex. Crim.

App. LEXIS 174, at *15 (Tex. Crim. App. Dec. 16, 1998).

At common law, tort suits framed as trespass or false

imprisonment cases formed the primary means of penalizing

and deterring unreasonable searches and seizures; however,

plaintiffs bringing such actions “encountered numerous

procedural obstacles that prevented these suits from becoming

an effective deterrent to unreasonable intrusions.” Maclin,

Historical Review, 77 B.U.L. Rev. at 932. Cuddihy writes:

Trespass was quite effective when a forcible search

and seizure had occurred without affecting the public

interest, but nearly all kinds of general warrants and

searches did affect that interest. False imprisonment

was actionable towards those who had instigated it

but not towards the officials who enforced it, and the

plaintiff had to prove that malice had motivated his

arrest or imprisonment. The promiscuity of a search,

arrest, or seizure constituted neither false imprison-

14

The Fourth Amendment not only reflected the Amer-

ican colonists’ struggle against these oppressive devices,

but also was the product of a centuries-long legal strug-

gle in England against the use of general warrants.'5 One

ment nor trespass, nor was it even an aggravation of

either.

2 Cuddihy, Original Meaning, at 1219-20 (footnotes omitted).

Under British law, legislation penalized an unsuccessful suit

against an officer or informer by fining his antagonist double or

even treble the damages sought. Id. at 873. Another means of

shielding officers from liability was to permit them to request a

retroactive finding of probable cause for a seizure. Id. at 876.

Many -of these obstacles to successful tort suits were

imported from England to the American colonies. Thus,

legislation enacted in Virginia, Georgia and the Carolinas

discouraged lawsuits against customs collectors, regardless of

whether they had acted pursuant to a warrant, by requiring

unsuccessful plaintiffs to forfeit twice the amount for which

they sued. 1 Cuddihy, Original Meaning, at 425-29; Maclin,

Historical Review, 77 B.U.L. Rev. at 935. Indeed, the same

Congress that proposed the Fourth Amendment passed the

Collection Act of 1789, which granted American officers many

of the same immunities enjoyed by their British counterparts. 2

Cuddihy, Original Meaning, at 1542.

'S The English Common Pleas Court's judgment in Wilkes v.

Wood, 19 How. St. Tr. 1153, 98 Eng. Rep. 489 (C.P. 1763), provides

one often-cited precedent for the Fourth Amendment's bar

against general warrants. See Stanford, 379 U.S. at 483. The

warrant at issue in that case authorized the King’s officers to

search for unknown individuals responsible for publishing a

“ ‘seditious and treasonable paper, entitled, The North Briton,

No. 45,’ ” to apprehend them and seize them and their papers.

Id. (quoting Lasson, History and Development, at 43). Because the

warrant named neither the individuals suspected nor a

particular location where they could be found, the warrant, in

effect, subjected the entire nation to possible search. The Wilkes

court held that the warrant was illegal and awarded damages to

Wilkes against Lord Hallifax, the Secretary of State who had

15

of the most cited reasons for opposition to general war-

rants was the recognition of a person's right to privacy

within his own home. In Semayne’s Case, 5 Co. Rep. 91a,

77 Eng. Rep. 194 (K.B. 1603), the court held that not even

authorized specific warrants could be executed without

giving the homeowner notice (i.e., without knocking

before entering). Lord Coke explained that the sheriff,

who was properly acting on behalf of the King, could not

execute a specific warrant without notice to the home-

owner because “the house of every one is to him as

his . . . castle.” 5 Co. Rep. at 91b, 77 Eng. Rep. at 198.

Thus, even when executing a specific warrant for the

King, the sheriff was required to first “signify the cause

of his coming, and . . . make request to open doors.” Id.

Moreover, in Semayne’s Case the English court also

held that it was unlawful for a sheriff to execute a

warrant against the homeowner's wishes - even after

issued the warrant. See Kinney, 698 N.E.2d at 52; see also 2

Cuddihy, Original Meaning, at 1221 (noting that Wilkes made it

possible to sue not only the instigator of an unreasonable search

and seizure, but also the person sent to carry it out).

Although Wilkes and its progeny provided significant

reform, their impact should not be overstated. Professor Maclin

writes:

The rulings in those cases were directed specifically

toward general warrants issued by the Secretary of

State for seditious libel - “[t]he judicial assault on

general warrants was selective, not categorical, for it

reached only an atypical genre of those warrants.”

Despite these changes, other legal obstacles helped

shield officers from liability: penalizing unsuccessful

plaintiffs; petitioning judges to find retrospective

probable cause; and pleading the general issue.

Maclin, Historical Review, 77 B.U.L. Rev. at 933-34 (footnotes

omitted) (quoting 2 Cuddihy, Original Meaning, at 923-24).

16

knocking and announcing his presence — when the sheriff

was acting “at the suit” of a private citizen, rather on

behalf of the King. 5 Co. Rep. at 92b, 77 Eng. Rep. at 198

(“it is not lawful for the Sher[iff] (on request made and

denial) at the suit of a . . . common person, to break the

defendant's house . . . to execute any process at the suit of

any subject”). Thus, in the recent words of the Fourth

Circuit:

[A]s early as 1603, it was established in the

common law that intrinsic to the validity of the

specific warrant was that it had to be executed

by a properly commissioned officer to further

the government's purposes. Even a duly autho-

rized officer could not execute a warrant to fur-

ther the purposes of a private individual. See

also Burdett v. Abbott, 14 East 2, 156-57 (K.B.

1811).

Buonocore, 65 F.3d at 354.'© The British court’s analysis

and holding in Semayne’s Case are significant because in

this case the Ninth Circuit specifically found that Peti-

tioners’ search of Respondents’ home was planned to

serve the purposes of the news media. Pet. App. 9a-10a

[129 F.3d at 510-11].

More than a century after the common law was estab-

lished in Semayne’s Case, in exerting control over the

colonies Great Britain enacted various general writs of

assistance. “One of the chief grievances of the American

colonists against England was the use of ‘writs of assis-

tance’ by the King’s customs officers.” Kinney, 698 N.E.2d

16 See also William Cuddihy & B. Carmon Hardy, A Man's

House Was Not His Castle: Origins of the Fourth Amendment in the

United States Constitution, 37 Wm. & Mary Q. 371, 371-72 (1980)

(explaining the Fourth Amendment, adopted in response to

English and colonial violations of the privacy of the home, as an

expression of the idea that “a man’s house is his castle”).

17

at 51. The writ, “although not a search warrant in the

traditional sense because it did not authorize a search,

was a court order to constables, peace officers, and sub-

jects of the Crown to assist customs officers in the execu-

tion of their duties.” Maclin, Fourth Amendment, 68 S. Cal.

L. Rev. at 8.17 Writs of assistance were a special kind of

general warrant which permitted their bearer, usually a

customs official, “to search with unlimited discretion for

smuggled goods without special application to a court.”

Jenkins, 619 N.E.2d at 330 (citing 2 Legal Papers of John

Adams 108 (L. Wroth & H. Zobel eds. 1965), and Stewart,

Origins, 83 Colum. L. Rev. at 1370).* “The crux of the

colonists’ objection to these legal devices was the

unchecked control over the liberty of the people which

they vested in law enforcement officers.” Jenkins, 619

17 Writs of assistance were used by British customs officials

to facilitate enforcement of the trade laws in the American

colonies. See Kinney, 698 N.E.2d at 51 (“Writs of assistance gave

customs officials unbounded authority to seek out violations of

the despised colonial tax laws.”). “The writ empowered the

officer and his deputies and servants to search, at their will,

wherever they suspected uncustomed goods to be, and to break

open any receptacle or package falling under their suspecting

eye.” Lasson, History and Development, at 54 (footnote omitted).

% According to the Supreme Judicial Court of

Massachusetts:

In England, the term “writ of assistance”

originally referred to the process whereby a litigant in

the Court of Exchequer or in Chancery would obtain

the assistance of the sheriff in collecting a debt or

gaining possession of property. See 2 Legal Papers of

John Adams 107 (L. Wroth & H. Zobel eds. 1965).

Jenkins, 619 N.E.2d at 330 n.17. “[O]nce issued, writs of

assistance were valid until six months after the death of the

current monarch.” Buonocore, 65 F.3d at 354 n.5 (citing Jenkins,

619 N.E.2d at 330 n.18).

18

N.E.2d at 330; see also Steagald, 451 U.S. at 220; Stanford,

379 U.S. at 481-85; Akhil Reed Amar, The Fourth Amend-

ment, Boston, and the Writs of Assistance, 20 Suffolk U. L.

Rev. 53, 77-78 (1996). In the words of the Fourth Circuit,

abuses associated with the use of writs of assistance were

greatest among “the colonists’ particular grievances

against the mother country.” Buonocore, 65 F.3d at 354; see

also Stanford, 379 U.S. at 481 (“Vivid in the memory of the

newly independent Americans were those general war-

rants known as writs of assistance under which officers of

the Crown had so bedeviled the colonists.”).

In Boyd v. United States, 116 U.S. 616 (1886), this Court

described at length the colonists’ outrage at the writs of

assistance.'? In the famed Paxton’s Case, argued in the

Massachusetts Superior Court in February 1761,7° James

Otis presented a theory of American jurisprudence which

embodied the colonists’ position and formed the basis of

1% As noted above, courts and historians have described

resistance to the writs of assistance as a major cause of the

American Revolution. See Stanford, 379 U.S. at 481-82; Kinney,

698 N.E.2d at 51-52; Maclin, Historical Review, 77 B.U.L. Rev. at

945; Taylor, Constitutional Interpretation, at 38; O.M. Dickerson,

“Writs of Assistance as a Cause of the Revolution,” in The Era of

the American Revolution 40 (Richard B. Morris, ed. 1939).

20 The complete citation is Paxton’s Case on the Writ of

Assistance, as reported in Josiah Quincy, Jr., Reports of Cases

Argued and Adjudged in the Superior Court of Judicature of the

Province of Massachusetts Bay, Between 1761 and 1772 51-57 (Little,

Brown 1865). See Cloud, Searching Through History, 63 U. Chi. L.

Rev. at 1715 n.29. The background and aftermath of the case is

reviewed in M.H. Smith, The Writs of Assistance Case (1978)

(“Smith, Writs of Assistance”), which has been described as “a

truly exhaustive study” of the English and colonial American

history dealing with writs of assistance. Bruce H. Mann, The

Writs of Assistance Case, 11 Conn. L. Rev. 353, 355 (1979); see also

Maclin, Fourth Amendment, 68 S. Cal. L. Rev. at 14 n.53.

a NN

19

the Fourth Amendment.?! As this Court described the

significant historical context and quoted from Otis’s

famous attack on these writs:

The practice had obtained in the colonies of

issuing writs of assistance to the revenue offi-

cers, empowering them, in their discretion, to

search suspected places for smuggled goods,

which James Otis pronounced “the worst instru-

ment of arbitrary power, the most destructive of

English liberty and the fundamental principles

of law, that ever was found in an English law

book;” since they placed “the liberty of every

man in the hands of every petty officer.”

Boyd, 116 U.S. at 625. Observing that “the famous debate”

in which Otis’s argument had been advanced “was per-

haps the most prominent event which inaugurated the

resistance of the colonies to the oppressions of the mother

country,” id., this Court quoted John Adams as stating:

“’Then and there . . . was the first scene of the first act of

opposition to the arbitrary claims of Great Britain. Then

and there the child of Independence was born.’ ” Id.; see

21 In Paxton’s Case, Otis was counsel for a group of Boston

merchants who were oppused to the writs of assistance. Because

writs of assistance remained in force only until the death of the

reigning monarch, when George II died on October 25, 1760,

customs agents were obliged to apply to the Superior Court for

new writs. Paxton’s Case began when the merchants petitioned

the Superior Court to deny the writs. See Maclin, Historical

Review, 77 B.U.L. Rev. at 946; 1 Cuddihy, Original Meaning, «t

757-64; Smith, Writs of Assistance, at 312-86.

20

also Stanford, 379 U.S. at 481-82; Kinney, 698 N.E.2d at

51-52.22

James Otis, like Lord Coke before him, remonstrated

against general warrants, inter alia, because they were not

directed solely at authorized officers acting on behalf of

the government but could be executed at the request of

anyone. Moreover, Otis argued that such warrants consti-

tuted an improper invasion of a person's cherished right

to privacy, particularly in his own home. See Buonocore, 65

F.3d at 355; Jenkins, 619 N.E.2d at 330-31. Although Otis’s

position was rejected by the Superior Court, which unani-

mously decided to issue new writs, see Maclin, Historical

22 Professor Maclin provides additional historical context

for this significant event in American jurisprudence and the full

text of John Adams’ report:

John Adams was a young lawyer when Otis delivered

his argument in the writs of assistance case. Adams

later wrote that:

“Otis was a flame of fire! . . . Every man of a

crowded audience appeared to me to go away, as

I did, ready to take arms against writs of

assistance. Then and there was the first scene of

the first act of opposition to the arbitrary claims

of Great Britain. Then and there the child

Independence was born. In fifteen years, namely,

in 1776, he grew up to manhood, and declared

himself free.”

Maclin, Historical Review, 77 B.U.L. Rev. at 970 (quoting Letter

from John Adams to William Tudor (Mar. 29, 1817)). Otis’s

famous attack on writs of assistance in Paxton’s Case, derived

from 2 Legal Papers of John Adams 134-44, is quoted at length by

the Fourth Circuit in Buonocore, 65 F.3d at 355; see also Jenkins,

619 N.E.2d at 330-31. Telford Taylor writes that “[t]he writs of

assistance were anathema in the colonies, and [James] Otis’

argument against them was well known among the founding

fathers.” Taylor, Constitutional Interpretation, at 38.

21

Review, 77 B.U.L. Rev. at 947, in the ensuing years his

argument was accepted by the Supreme Courts of Penn-

sylvania and Virginia, and by the First Congress when in

1789 it adopted the Fourth Amendment.?* In Buonocore,

the Fourth Circuit emphasized the significance of Otis”

argument against general warrants:

Thus, when the Framers recognized the “right of

the people to be secure in their .. . houses” from

“unreasonable searches” and mandated that “no

Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and partic-

ularly describing the place to be searched, and

the things to be seized,” they rejected general

warrants with all the pitfalls outlined by Otis — and

23 See Richard E. Hillary, Arizona v. Evans and the Good Faith

Exception to the Exclusionary Rule: The Exception is Swallowing the

Rule, 27 U. Tol. L. Rev. 473, 475-76 (1996); Maclin, Fourth

Amendment, 35 Wm. & Mary L. Rev. at 225-26. Justice Stewart

has written:

Otis lost his case, but his side was to win the war.

Throughout the colonies, opposition to the writs

mounted in the wake of Otis’s words, and courts

proved increasingly reluctant to issue them.

Stewart, Origins, 83 Colum. L. Rev. at 1370-71 (footnote

omitted). At the Virginia ratifying convention in 1788, Patrick

Henry complained that general warrants “ ‘exposed any person

or property to seizure “ ‘in the most arbitrary manner, without

any evidence or reason. Everything the most sacred may

be searched and ransacked by the strong arm of arbitrary

power.’ ” ’” Cloud, Searching Through History, 63 U. Chi. L. Rev.

at 1727 n.63 (quoting 2 Cuddihy, Original Meaning, at 1387).

—s

22

Lord Coke ~ including issuance of a warrant at the

suit of a private citizen.

65 F.3d at 355 (emphasis added).?4

The historical record of the years immediately pre-

ceding drafting and ratification of the Fourth Amend-

ment supports the unassailable conclusion that a

consensus among colonists began to emerge rejecting

broad categories of searches and seizures as unreason-

able, including general searches that were conducted

with or without warrants. See Cloud, Searching Through

History, 63 U. Chi. L. Rev. at 1724. The American colonists

were not alone in their hatred of such abuses; indeed, a

decade before the first shots were fired at Lexington and

Concord, Massachusetts, the English courts already

deemed general warrants unlawful. As noted above, in

Wilkes v. Wood, an action for false imprisonment, Chief

24 Professor Maclin concurs:

By the time Congress proposed the Fourth

Amendment for ratification, Americans had

experienced unreasonable search and seizure from

many quarters. Their desire to protect the privacy and

security of their homes from promiscuous intrusion led the

Framers to create a right to be free from unreasonable

search and seizure. Viewing the general warrant and its

close cousin, the writ of assistance, as law enforcement

instruments that substantially undermined their privacy

and security, Americans strongly resented them. The

origins and history of the Fourth Amendment reveal

that in devising alternative methods of enforcement,

legislatures and judges alike considered the specific

warrant to be the best available tool to protect privacy

and check the discretionary powers of officers.

Maclin, Historical Review, 77 B.U.L. Rev. at 954-55 (emphasis

added; footnote omitted); see also Cloud, Searching Through

History, 63 U. Chi. L. Rev. at 1724, 1730.

23

Justice Pratt declared general warrants as “a power capa-

ble of affecting every person in the kingdom, and is

totally subversive to the liberty of the subject.” 98 Eng.

Rep. at 498. Subsequently, in Entick v. Carrington, 19 How.

St. Tr. 1029, 95 Eng. Rep. 807 (C.P. 1765), an action for

trespass for entering the plaintiff's house and breaking

open his desks and boxes and searching through his

papers in pursuit of a case for seditious libel, Lord Cam-

den condemned the issuance of general warrants as dan-

gerous and unconstitutional and likened them to the

Spanish Inquisition. 95 Eng. Rep. at 812. In addition, Lord

Camden asserted that the protection of privacy and prop-

erty was the chief purpose of the law and declared that a

general warrant to search a person’s home and seize his

papers was illegal and void. Id. at 818. One hundred

years later, this Court characterized Entick as “one of the

permanent monuments of the British constitution,”

emphasizing that the case’s preeminence at the time of

the Constitution’s adoption rendered it persuasive on the

question of the intent of the Framers of the Fourth

Amendment. Boyd, 116 U.S. at 626-27; see also Stanford,

379 U.S. at 483 (discussing English court decisions in

Wilkes and Entick).

Based upon the development of the law of search and

_ seizure in England and the experience in the American

colonies, the Framers gave new protection against intru-

sions into the home by adopting the Bill of Rights. A

century later, in Boyd, this Court explained the signifi-

cance of the Fourth Amendment in addressing whether a

district court order requiring claimants to produce

invoices in a forfeiture action connected to the fraudulent

avoidance of importation duties comported with the

Fourth and Fifth Amendments. Moving away from the

English courts’ conception of prohibitions against search

24

and seizure as based strictly upon property rights, this

Court stated:

[The Fourth Amendment applies] to all inva-

sions on the part of the government and its

employees of the sanctity of a man’s home and

the privacies of life. It is not the breaking of his

doors, and the rummaging of his drawers, that

constitutes the essence of the offense; but it is

the invasion of his indefeasible right of personal

security, personal liberty, and private property,

where that right has never been forfeited by his

conviction of some public offense, — it is the

invasion of this sacred right which underlies

and constitutes the essence of Lord Camden's

judgment [in Entick].

Boyd, 116 US. at 630.

In United States v. Sanusi, 813 F. Supp. 149 (E.D.N.Y.

1992), a criminal defendant sought production of video-

tapes prepared by CBS News employees during a lawful

search of his apartment by Secret Service agents. After

reviewing the above-referenced history of the Fourth

Amendment, id. at 156-58, Judge Weinstein emphasized

that “an authorized search, while necessary, can often

result in a severe and offensive violation of a person’s

privacy.” As a result, “[p]articipation by the media in this

invasion of privacy must be scrutinized carefully.” Id. at

158. In support of this proposition, Judge Weinstein cited

18 U.S.C. § 3105, which provides that a search warrant ”

‘may in all cases be served by any of the officers men-

tioned in its direction or by an officer authorized by law

to serve such warrant, but by no other person, except in aid

of the officer on his requiring it, he being present and acting in

its execution.” Id. (emphasis added).

25

The origins of § 3105 may be traced to English com-

mon law,?5 and its requirements were first noted in Bell v.

Clapp, 10 Johns. 263, 6 Am. Dec. 339 (Sup. Ct. 1813), an

influential decision of the New York Supreme Court.Ӣ It

was codified in 1881 in the New York Code of Criminal

Procedure.”” As part of the Espionage Act of 1917, Con-

gress adopted New York’s statute verbatim. NASCAT

respectfully submits that § 3105 should be understood as

a modern-day codification of one of the “core” protec-

tions against general warrants and writs of assistance

embedded in the Fourth Amendment. The facts of this

case, as explicated by the court below, Pet. App. at 4a-6a

[129 F.3d at 508-09], can only be understood and applied

by this Court through reference to the lengthy historical

record of general warrants and writs of assistance under

25 See Il Sir Matthew Hale, The History of the Pleas of the

Crown 150 (First American Ed., 1847, of original English

publication in 1736) (stating that warrants “ought to be directed

to constables and other public officers, whereof the law takes

notice, and not to private persons, tho it is fit the party

complaining should be present and assistant, because he knows

his goods”).

26 This Court and other courts have often cited Bell v. Clapp

as accurately reflecting the common law of search and seizure

derived from English practice. See, e.g., California v. Acevedo, 500

U.S. 565, 582 (1991) (Scalia, J., concurring); United States v.

Beckford, 962 F. Supp. 767, 773 (E.D. Va. 1997); United States v.

Maresca, 266 F. 713, 722 (S.D.N.Y. 1920); State v. Attaway, 870 P.2d

103, 108-09 (N.M. 1994); Moran v. State, 644 N.E.2d 536, 539 (Ind.

1994); Spangler v. Booze, 49 S.E. 42, 45 (Va. 1904).

27 See N.Y. Code Crim. Proc. § 798 (1882) (“A search warrant

may, in all cases, be served by any of the officers mentioned in

its direction, but by no other person, except in aid of the officer,

on his requiring it, he being present and acting in its

execution.”); People v. Milone, 195 N.Y.S. 488, 490-91 (Sup. Ct.

1922).

26

which Crown officers “bedeviled the colonists.” Stanford,

379 U.S. at 481. As early as 1603 — nearly four centuries

ago — Lord Coke established in Semayne’s Case that intrin-

sic to the validity of the specific warrant was that it had to

be executed by a properly commissioned officer to further the

government's purposes, not to further the purposes of a private

party, like the news media in this case. 5 Co. Rep. at 92b, 77

Eng. Rep. at 198; see also Buonocore, 65 F.3d at 354. Yet,

that is precisely what Petitioners did in this case; the facts

in the record demonstrate that Petitioners cooperated

with and facilitated the news media’s general search of

Respondents’ home and property. Pet. App. 4a-6a [129

F.3d at 508-09]. The search “was jointly planned by [Peti-

tioners] and the media . . . so that [Petitioners] could

assist in the media obtaining material for their commer-

cial programming. . . . This search stands out as one that at

all times was intended to serve a major purpose other than law

enforcement.” Pet. App. 9a-10a [129 F.3d at 510] (emphasis

added).

D. Given The Historical Foundations Of The

Fourth Amendment, The Court Below Correctly

Found That Petitioners’ Conduct Constituted

An Unreasonable Search And Seizure

In this case, faithfully adhering to this Court's prece-

dents in search-and-seizure cases, the Ninth Circuit prop-

erly ascertained “the historical foundations of the Fourth

Amendment.” Pet. App. lla [129 F.3d at 511]. The court

below concluded that Petitioners’ conduct violated

Respondents’ Fourth Amendment protections against

unreasonable searches because their actions were “ ‘noth-

ing less than a general warrant equivalent to the writs of

assistance which were so odious to the American colonists.’ ”

Id. (emphasis added) (quoting Anderson, 441 N.Y.S.2d at

27

226). Like the Fourth Circuit in Buonocore, the Ninth

Circuit correctly held that “ ‘[t}he right to be free from

government officials facilitating a private person's gen-

eral search’ ” was “ ‘ “manifestly included” ’” within the

‘core’ Fourth Amendment protection” and that Peti-

tioners could be held liable for violating the Fourth

Amendment by allowing agents of the news media to

accompany them when they executed the warrant upon

Respondents’ property. Id. (quoting Buonocore, 65 F.3d at

357). And like the Second Circuit in Ayeni, the court

below emphasized that Petitioners’ conduct “was calcu-

lated to inflict injury on the very value that the Fourth

Amendment seeks to protect — the right of privacy.” 35

F.3d at 686; see Pet. App. 9a-13a [129 F.3d at 510-12]. As

Chief Judge Newman of the Second Circuit stated in

Ayent:

It has long been established that the objectives

of the Fourth Amendment are to preserve the

right of privacy to the maximum extent consis-

tent with reasonable exercise of law enforcement

duties and that, in the normal situations where

warrants are required, law enforcement officers’

invasion of the privacy of a home must be

grounded on either the express terms of a war-

rant or the implied authority to take reasonable

law enforcement actions related to the execution

of the warrant. [Secret Service agent] Mottola

exceeded well-established principles when he brought

into the Ayeni home persons who were neither autho-

rized by the warrant to be there nor serving any

legitimate law enforcement purpose by being there. A

private home is not a soundstage for law enforcement

theatricals.

35 F.3d at 686 (emphasis added). The principles eluci-

dated by the Second Circuit in Ayeni, as echoed by the

Fourth Circuit in Buonocore and by the Ninth Circuit in

28

the present case, are consistent with the well-settled his-

torical foundations of the Fourth Amendment repeatedly

recognized in this Court’s decisions and should be

resoundingly ratified by this Court.

Il. THE COURT BELOW PROPERLY FOUND THAT

PETITIONERS WERE NOT ENTITLED TO QUALI-

FIED IMMUNITY FOR THEIR ACTIONS

In Harlow v. Fitzgerald, 457 U.S. 800 (1982), this Court

articulated the current standard for “good faith” or

“qualified” immunity:

[Glovernment officials performing discretionary

functions, generally are shielded from liability

for civil damages insofar as their conduct does

not violate clearly established statutory or con-

stitutional rights of which a reasonable person

would have known.

Id. at 818. As the court below elucidated this standard,

“(rjegardless of whether a constitutional violation has

occurred,” Petitioners are “entitled to qualified immunity

if they could reasonably have believed that their conduct

violated no clearly established federal statutory or consti-

tutional rights.” Pet. App. 10a [129 F.3d at 511]. As the

Fourth Circuit noted in Buonocore, however, “there is no

requirement that the ‘exact right allegedly violated’ be

previously ‘specifically recognized by a court’ in order

for it to be held ‘” ‘clearly established’ ” for qualified

immunity purposes.’” 65 F.3d at 356-57 (citation omit-

ted). “Rather, ‘” ‘[c]learly established’ ” in this context

includes not only specifically adjudicated rights but those

manifestly included within more general applications of the

core constitutional principle invoked.’ ” Id. at 357 (emphasis

added) (citing, inter alia, Anderson v. Creighton, 483 U.S.

635, 640 (1987)).

29

In Buonocore, 65 F.3d at 357, the Fourth Circuit found

that “[t]he right to be free from government officials

facilitating a private person’s general search . . . is ‘mani-

festly included’ within ‘core’ Fourth Amendment protec-

tion,” holding that the allegation that a federal agent and

deputy sheriff invited a private citizen into the plaintiff's

home so that a private citizen, acting independently of

government agents, «ould conduct a search for items that

were not mentioned in the search warrant, stated a viola-

tion of a clearly established constitutional right. In Ayeni,

35 F.3d at 684-88, the Second Circuit had earlier reaciied

the same result, holding that an objective, reasonable

Secret Service agent could not have concluded that invit-

ing a television crew (or any third party not providing

assistance to law enforcement) to participate in the search

of a private home was within Fourth Amendment

requirements.?8 And in this case, after citing and discuss-

ing Buonocore and Ayeni, the court below emphasized that

“no circuit decision has ever upheld the constitutionality

of a warranted search where broadcast media were pres-

ent to document the incident for non-law enforcement

28 In Hagler v. Philadelphia Newspapers, C.A. No. 96-2154,

1996 U.S. Dist. LEXIS 9931 (E.D. Pa. July 10, 1996), Senior Judge

VanArtsdalen “adoptied] the reasoning of the Second Circuit”

in Ayeni, id. at *7, stating in relevant part:

It should have been obvious to the [police]

officers .. . that a warrant issued only in the name of

the officers, for the limited purpose of searching for

narcotics, did not authorize them to allow members of

the media to enter a private home. A reasonable

person would know that the purpose of a warrant is

to facilitate proper law enforcement, not to provide a

“photo opportunity.” A search warrant is simply not a

press pass.

Id. (emphasis added)

30

purposes, and where the videotaping and sound record-

ing were outside the sound of the warrant.” Pet. App.

lla-12a [129 F.3d at 511]. Clearly, Respondents’ right to

be free from Petitioners’ facilitating the news media’s

general search of their home is “manifestly included”

within “core” Fourth Amendment protection, and the

court below (like the Fourth Circuit in Buonocore and the

Second Circuit in Ayeni) correctly held that Petitioners

were not entitled to qualified immunity in this case.

Ill. CONCLUSION

For the reasons stated, NASCAT respectfully submits

that the decision of the Ninth Circuit should be affirmed.

DATED: January 27, 1999

Kevin P. Roppy

Counsel of Record

Mitserc Weiss BersHAD

& LeracH LLP

355 South Grand Avenue

Suite 4170

Los Angeles, CA 90071

Telephone: 213/617-9007

Counsel for Amicus Curiae, NASCAT