# Amicus Curiae Brief — Landberg v. Duffy

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0182%3A13

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1998
- **Citation:** 525 U.S. 821

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0182%3A13. Public record. Not legal advice.